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SJC-13345

CHAYANNE VELAZQUEZ vs. COMMONWEALTH.

Suffolk. January 6, 2023. - February 9, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Pretrial Detention. Time. Statute, Construction.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on April 19, 2022.

Following transfer to the Appeals Court, the case was heard 

by Eric Neyman, J., and the case was reported by him to a panel 

of that court.

The Supreme Judicial Court granted an application for 

direct appellate review.

Catherine Langevin Semel, Assistant District Attorney, for 

the Commonwealth.

Patrick Levin, Committee for Public Counsel Services, for 

the petitioner.

LOWY, J. "General Laws c. 276, § 58B, provides that where 

a person on pretrial release has violated a condition of that 

release, . . . the release may be revoked and the person may be 
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subject to pretrial detention." Commonwealth v. Lougee, 485 

Mass. 70, 79-80 (2020). This case requires us to determine 

whether the presumptive time limit on pretrial detention

outlined in § 58B is calculated from when an individual is first 

detained or from when an order of detention formally issues. We 

conclude that the presumptive time limit must be calculated from 

the date a person is detained regardless of when a formal order 

of detention issues.

Background and prior proceedings. While facing various 

charges in the Boston Municipal Court (BMC) and the Superior 

Court in Middlesex County (Middlesex Superior Court), the 

petitioner, Chayanne Velazquez (defendant), was released on 

bail. On December 26, 2021, while on release, the defendant 

allegedly committed an assault and battery on a family or 

household member, and he was arraigned on February 2, 2022, in 

the Lynn Division of the District Court Department (Lynn 

District Court). The Commonwealth filed two motions in the Lynn 

District Court. The first sought pretrial detention pursuant to 

G. L. c. 276, § 58A, in the Lynn District Court case, and the 

second, pursuant to § 58B, sought to revoke the defendant's bail 

in the cases pending in the BMC and the Middlesex Superior 

Court. The arraignment judge made a determination of probable 

cause under G. L. c. 276, § 58A, and ordered that the defendant 

be held without bail pending resolution of the Commonwealth's 
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motions. The motions were scheduled to be heard on February 4, 

2022.

On the scheduled hearing date, the court house was closed 

due to inclement weather, and the hearing was ultimately held on

February 8, 2022. At that time, the judge ordered the defendant 

held for 120 days pursuant to § 58A, until June 8, 2022, and for 

ninety days pursuant to § 58B, until May 9, 2022. The May 9, 

2022, date was communicated to both the BMC and the Middlesex 

Superior Court; the Middlesex Superior Court entered the 

detention under § 58B on its docket for "a period of [ninety]

days as of 2022 FEB 2."1

On April 7, 2022, the Lynn District Court charge was 

dismissed. The defendant then filed a motion to reconsider the 

bail revocation order, which was denied. Defense counsel asked 

that the docket be corrected to reflect that the defendant's 

ninety days of detention, pursuant to § 58B, began to run on the 

date of arraignment rather than the date that the formal order 

issued. The judge denied this request.

1 "The ninety-day revocation period under § 58B . . . 

includes excusable delay under Mass. R. Crim. P. 36 (b) (2)[, 

378 Mass. 909 (1979)], which means that the period of pretrial 

detention can extend well beyond ninety days." Josh J. v. 

Commonwealth, 478 Mass. 716, 723 n.8 (2018). Neither the judge 

below nor the parties raised the issue of excusable delay under 

Mass. R. Crim. P. 36 (b) (2).
4

The defendant filed a petition in the county court for 

extraordinary relief pursuant to G. L. c. 211, § 3. A single 

justice of this court transferred the matter to a single justice 

of the Appeals Court.2 The single justice of the Appeals Court 

granted the defendant's request for relief and also reported the 

case to a panel of that court. We allowed the defendant's 

application for direct appellate review.

Discussion. "To determine the proper application of . . . 

[§] 58B, we apply the well-established principles of statutory 

construction." Josh J. v. Commonwealth, 478 Mass. 716, 719

(2018). "Our fundamental aim is to 'discern and effectuate the 

intent of the Legislature.'" Id., quoting Commonwealth v. 

Morgan, 476 Mass. 768, 777 (2017). "To that end, '[t]he 

language of the statute is the primary source of insight into 

the intent of the Legislature.'" Josh. J., supra, quoting 

Commonwealth v. Millican, 449 Mass. 298, 300 (2007). 

"Therefore, where the statute is clear and unambiguous, our 

inquiry into the Legislature's intent need go no further than 

the statute's plain and ordinary meaning." Josh J., supra. But 

"[w]here the draftsmanship of a statute is faulty or lacks 

precision, it is our duty to give the statute a reasonable 

construction." Commonwealth v. Pagan, 445 Mass. 315, 319 

2 See Order Regarding Transfer of Certain Single Justice 

Matters During the COVID-19 Pandemic, No. OE-144 (June 8, 2020).
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(2005), quoting Capone v. Zoning Bd. of Appeals of Fitchburg, 

389 Mass. 617, 622 (1983).

Pursuant to G. L. c. 276, § 58B, "a defendant's release may 

be revoked where, after hearing, a judge makes two findings: 

(1) that there is probable cause to believe that a person on 

pretrial release has committed a new crime while on release, or 

clear and convincing evidence that the person has violated any 

other condition of release; and (2) that 'there are no 

conditions of release that will reasonably assure the person 

will not pose a danger to the safety of any other person or the 

community' or 'the person is unlikely to abide by any condition 

or combination of conditions of release'" (citation omitted). 

Lougee, 485 Mass. at 80.

Section 58B sets forth two different time limitations 

related to the bail revocation. The first concerns 

continuances. The statute provides that "[u]pon the person's 

first appearance . . . for revocation of an order of release 

under this section," the revocation hearing must be held 

immediately unless the person or the Commonwealth seeks a

continuance. G. L. c. 276, § 58B. If the person is detained 

without bail during the continuance period, the continuance 

period cannot exceed three business days on the Commonwealth's 

motion and cannot exceed seven days on the person's motion. Id.
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The second time limitation, which is at issue in this case,

is the final sentence of the statute. The sentence states, "A

person detained under this subsection, shall be brought to trial 

as soon as reasonably possible, but in the absence of good 

cause, a person so held shall not be detained for a period 

exceeding ninety days excluding any period of delay as defined 

in [Mass. R. Crim. P. 36 (b) (2), 378 Mass. 909 (1979)]." Id.

The Commonwealth claims that the statute's ninety-day time

limit begins to run when a formal order issues.3 The defendant 

asserts that the time period must begin to run when a person is 

initially detained. We conclude that the ninety-day limit must 

be calculated from the date a person is detained regardless of 

when the formal order of detention is issued.

"The right of an individual to be free from physical 

restraint is a paradigmatic fundamental right" (citation 

omitted). Mushwaalakbar v. Commonwealth, 487 Mass. 627, 633 

3 To support its position, the Commonwealth argues that 

there are two separate and distinct periods of detention 

contemplated by § 58B -- (1) detention during a period of 

continuance and (2) detention after a formal order has entered -

- and that the different detention periods arise only in a 

situation where a continuance is requested. Relying primarily 

on Millican, 449 Mass. at 301, where we explained that the words 

"section" and "subsection" cannot be used interchangeably, the 

Commonwealth contends that because the statute refers to "[a] 

person detained under this subsection" in reference to the 

ninety-day detention period, the Legislature did not intend for 

the ninety-day detention period to apply to the entirety of ways

or time periods that a person can be detained under the statute. 

We do not agree, for the reasons discussed infra.
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(2021). It is a right that "is firmly embedded in the history 

of Anglo-American law." Aime v. Commonwealth, 414 Mass. 667, 

676 (1993). "Pretrial detention schemes[, such as the one 

outlined in § 58B,] necessarily balance the liberty interest of 

individuals presumed innocent against public safety concerns 

posed by high-risk defendants." Mushwaalakbar, supra, quoting 

Matter of the Request to Release Certain Pretrial Detainees, 245 

N.J. 218, 231 (2021). Our conclusion that the clock starts 

running as soon as a person is detained maintains the required 

balance and is in keeping with the well-established principles 

that pretrial detention "is constitutional precisely because it 

is 'temporary and provisional' and 'the trial itself provides an 

inevitable end point to the State's preventive authority.'" 

Mushwaalakbar, supra at 632, quoting Mendonza v. Commonwealth, 

423 Mass. 771, 781, 790 (1996).

Moreover, our holding is equally consistent with our 

previous analysis of this very sentence in Lougee, 485 Mass. at 

76-77, 79-80.4 In that case, we clearly explained that "by 

stating . . . that persons held in pretrial detention 'shall be 

brought to trial as soon as reasonably possible,' the 

4 We recognize that in Lougee, 485 Mass. at 76-77, our 

analysis focused on a sentence in G. L. c. 276, § 58A (3). 

However, we stated that "[e]xcept for the shorter, ninety-day 

time limit" the sentence at issue in this case is "virtually 

identical" and, as a result, that analysis "is therefore equally 

applicable to § 58B." Id. at 80.
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Legislature declared its intent that pretrial detainees be given 

priority when there is a queue of criminal cases awaiting trial" 

and that "this sentence sets a presumptive time limit for such 

cases to be brought to trial -- [ninety days]" (emphasis added; 

citation omitted). Id. at 76. Thus, where § 58B is applicable, 

the ninety-day clock begins to run at the time that a person is 

detained and his or her liberty is curtailed irrespective of 

when the formal order is issued. Any other interpretation would 

be antithetical to the statute's presumptive time limit on when 

the case will be "brought to trial" and the Legislature's intent 

that priority be given to cases where § 58B has been invoked.5 

Id. Cf. Abbott A. v. Commonwealth, 458 Mass. 24, 40 (2010) 

("Pretrial detention under § 58A was intended to be short lived, 

ending on the conclusion of a speedy trial").

Conclusion. For the reasons discussed supra, we hold that 

the presumptive ninety-day time limit on pretrial detention

outlined in G. L. c. 276, § 58B, begins to run at the time an 

5 Moreover, "where the language of a criminal statute 

plausibly can be found ambiguous, the rule of lenity requires 

that the defendant receive the benefit of the ambiguity." 

Commonwealth v. Dayton, 477 Mass. 224, 226 (2017). "We 

recognize that [§ 58B] is not a 'criminal' statute in the sense 

of enumerating the elements of a particular crime. However, it 

applies only where someone has been charged with a crime, and it 

opens the door to a potentially severe curtailment of a 

defendant's liberty . . . . Therefore, the rule of lenity

applies" and further supports our conclusion. Id. at 226 n.2. 

See Lougee, 485 Mass. at 79-80.
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individual is detained, regardless of whether a formal order of 

detention has entered. We therefore affirm the order of the 

Appeals Court single justice allowing the defendant's petition 

for extraordinary relief pursuant to G. L. c. 211, § 3.

So ordered.