Commonwealth v. Cory

(dissenting, with whom Spina and Cowin, JJ., join). I agree with the court that the defendant was sentenced to probation after the effective date of the statute, G. L. c. 265, § 47, inserted by St. 2006, c. 308, § 8 (Act).1 Ante at 562-563. I write separately because I disagree with the court’s conclusion that the statute should be deemed penal and, therefore, that it would be a violation of the ex post facto clause to apply it to this defendant, who was convicted of committing a sex offense before the statute’s enactment. Ante at 560, 572.

As the court notes, in determining whether a statute…