The defendant is a sex offender who, after pleading guilty to one indictment charging possession of child pornography, was placed on probation by a judge in the Superior Court and relieved of his obligation to register as a sex offender with the Sex Offender Registry Board (SORB), pursuant to G. L. c. 6, § 178E (/). The question in this case is whether a second
1. Background. The facts are not in dispute. On April 10, 2008, the defendant pleaded guilty to possession of child pornography in violation of G. L. c. 272, § 29C, a “sex offense” under G. L. c. 6, § 178C, requiring him to register as a sex offender. See G. L. c. 6, § 178E (a)-(c), (l). He was sentenced to three years’ probation. Pursuant to G. L. c. 6, § 178E (/), the defendant sought relief from the requirement that he register as a sex offender. In support of his motion, the defendant submitted a psychological evaluation, grand jury testimony, a report of a forensic review of his computer,*
Approximately two and one-half years later, in September, 2010, a complaint issued in the District Court charging the defendant with accosting and annoying a person of the opposite sex, in violation of G. L. c. 272, § 53,
Concluding by a preponderance of the evidence that the defendant had violated his probation on the basis of the new criminal charge, the second judge revoked his probation and imposed a sentence of two and one-half years’ incarceration, of which he would serve one year, with the balance suspended for a three-year period of probation.
Immediately following imposition of this sentence, the defendant filed an opposition to imposition of any obligation to register as a sex offender. In a written memorandum and order, the judge stated that the act “does not address whether those exempted from registration with [SORB] under G. L. c. 6, § 178E (f), can later be made to register upon a probation violation,” but concluded that “[g]eneral sentencing principles . . . suggest that a probationer’s risk of reoffense and dangerousness can be revisited . . . .”
In view of her “finding on the factual basis for violation of the defendant’s probation,” the judge thought it “appropriate to impose a requirement that he register as a sex offender.” Recognizing, however, that there was no express statutory authority permitting her to vacate the sentencing judge’s prior order under G. L. c. 6, § 178E (/), relieving the defendant from any such registration requirement, the judge instead ordered the defendant to register as a sex offender “as an additional condition of the terms and conditions of probation” that she had imposed.
The defendant appealed and we transferred the case to this
2. Discussion, a. Motion to dismiss appeal. As a preliminary matter, we address the Commonwealth’s motion to dismiss the appeal on the ground that there is no right of appeal from the denial of relief from the registration requirement. See Commonwealth v. Ronald R., supra (“a sex offender may not appeal from a judge’s decision not to waive the registration requirement . . . [except] pursuant to G. L. c. 211, § 3”). The defendant, however, did not appeal from a decision denying him relief from the registration requirement. Indeed, he had been granted such relief in 2008, from which the Commonwealth did not appeal. Rather, he timely appealed from the 2010 revocation of his probation, as he is permitted to do. See Commonwealth v. Negron,
The defendant included in his appeal the 2010 order sentencing him to registration as a condition of probation. The proper method by which the defendant should have challenged the legality of the postrevocation sentence, however, was by a motion pursuant to Mass. R. Crim. R 30 (a), as appearing in
b. Registration requirement. As defined in the act, a “[s]ex offender” is “a person who resides, has secondary addresses,
The act provides “an extensive registration scheme for sex offenders, in order to protect the public from ‘the danger of recidivism posed by sex offenders’ and to aid law enforcement officials in protecting their communities by providing them with information” (footnote omitted). Commonwealth v. Rosado,
“The obligation to register is triggered by the conviction of a sex offense . . . .” Doe, Sex Offender Registry Bd. No. 16748 v. Sex Offender Registry Bd.,
Although there is a presumption under the act that convicted sex offenders must register with SORB and “proceed to the two-step process of registration and classification through
Following an evidentiary hearing, the sentencing judge in this case entered an order pursuant to G. L. c. 6, § 178E (/), relieving the defendant of the obligation to register.
c. Registration as a condition of probation. We consider first whether the second judge had the statutory authority to require the defendant to register as a sex offender as a condition of probation. We review questions of statutory interpretation de novo. Commonwealth v. Perella,
Nothing in the act confers authority on a judge to impose an obligation to register as a condition of probation. Although he was later relieved of the obligation by the sentencing judge pursuant to G. L. c. 6, § 178E (/), the obligation to complete an initial registration with SORB flowed inexorably from the defendant’s 2008 conviction of possession of child pornography, one of the act’s enumerated sex offenses. The registration requirement, rather than being part of the judge’s 2008 sentencing decision, was instead a collateral consequence of the conviction itself. See Commonwealth v. Ronald R.,
“The possibility of registration as a sex offender would be a contingent or collateral consequence of [a guilty] plea: minimum due process requires that a defendant be granted a hearing before being required to register as a sex offender, see Doe v. Attorney Gen.,426 Mass. 136 , 137 (1997); thus, not only is the possibility that the defendant could be required to register as a sex offender an uncertainty, it is also a decision made not by the trial court, but by the sex offender registry board. See Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd.,428 Mass. 90 , 91 (1998). The fact that an entity outside the court decides whether the defendant ultimately must register is the very definition of a collateral consequence. Cf. Commonwealth v. Fraire,55 Mass. App. Ct. 916 , 918 (2002) (‘it is not the indeterminate nature of immigration consequences that makes them collateral in nature; it is the fact that such consequences are handed down by a body entirely separate from the court that accepts the guilty plea’).”
Commonwealth v. Shindell,
d. Revocation of a prior order of relief The Commonwealth contends that, notwithstanding the plain language of the second judge’s registration order, the obligation to register that she imposed should be viewed not as a condition of probation but, rather, as a revocation of the prior order granting relief from registration.
Nothing in G. L. c. 6, § 178E (/), or in any other section of the act, expressly permits revocation of a previously granted order of relief under G. L. c. 6, § 178E (/). Nor does anything in the plain language of the act provide that, upon a finding that probation has been violated, a prior order of relief is thereby automatically vacated. The Commonwealth nonetheless discerns — from the language of G. L. c. 6, § 178E (/), itself — authorization for a subsequent judge to revoke a prior G. L. c. 6, § 178E (/), order granting relief. General Laws c. 6, § 178E (f), provides, in relevant part:
“In the case of a sex offender who has been convicted of a sex offense. . . on or after December 12, 1999, and who has not been sentenced to immediate confinement, the court shall, within [fourteen] days of sentencing, determine whether the circumstances of the offense in conjunction with the offender’s criminal history indicate that the sex offender does not pose a risk of reoffense or a danger to the public. If the court so determines, the court shall relieve such sex offender of the obligation to register under [§§] 178C to 178P, inclusive.” (Emphasis supplied.)
The Commonwealth’s reading is entirely dependent on the attribution of different meanings to the words “sentenced” and
The Commonwealth’s strained parsing of the statutory text is untenable for a number of reasons. Although the registration requirement is remedial and not punitive, see Opinion of the Justices,
Finally, and as noted earlier, nothing in the statutory language provides expressly either that a prior order of relief under G. L. c. 6, § 178E (f), shall be automatically vacated upon a finding that probation has been violated or that a subsequent judge may revoke such a previously granted order of relief. “[W]hen the statute appears not to provide for an eventuality, there is no justification for judicial legislation.” Commonwealth v. Vickey,
Where, as here, the statutory text is clear, “[w]e are not free simply to add language to a statute for the purpose of ‘interpreting] [the statute] according to [the Legislature’s] perceived objectives.’ ” Commonwealth v. Gillis,
So ordered.
Notes
The defendant maintained that the images were downloaded inadvertently by a software program that he used that searched the Internet and automatically downloaded images of adult pornography. A forensic computer expert who examined the defendant’s computer opined that the images underlying the offense were found only in a particular location associated with that software program, were downloaded within time frames too brief to have been done manually, and largely did not appear to have been opened for viewing; there was no evidence of any deliberate Internet searches for child pornography.
Accosting and annoying a person of the opposite sex, in violation of G. L. c. 272, § 53, is not an enumerated “sex offense” under G. L. c. 6, § 178C, and thus does not trigger the registration requirements of G. L. c. 6, § 178E (a)-(c), (l).
The judge also imposed a number of other conditions of probation, including restrictions on travel, confinement to home except for limited hours, use of an electronic monitoring bracelet to track when the defendant was in his home, and a requirement that, other than his younger daughter (the older daughter at that point was no longer a minor) the defendant have no contact with children under sixteen years of age unless accompanied by an adult.
The requirement to register with the Sex Offender Registry Board (SORB), triggered by a conviction of an enumerated sex offense, is only the first step in the statutory registration process. See Roe v. Attorney Gen.,
The judge, however, may not relieve an otherwise eligible sex offender from the obligation to register if that offender “has been determined to be a sexually violent predator;. . . has been convicted of a sex offense involving a child or a sexually violent offense; or if the sex offender is otherwise subject to minimum or lifetime registration requirements as determined by the board pursuant to [§] 178D.” G. L. c. 6, § 178E (/). The crime of possession of child pornography, of which the defendant was convicted in 2008, is not among those that would disqualify an otherwise qualified sex offender from G. L. c. 6, § 178E (/), consideration.
In addition to this limited exception, the Commonwealth may request, “at the time of sentencing,” that the judge grant relief from the registration requirement, subject to certain conditions and disqualifications, if it determines “that the circumstances of the offense in conjunction with the offender’s criminal history does not indicate a risk of reoffense or a danger to the public.” G. L. c. 6, § 178E (e).
Also, following initial registration, after a hearing and upon specific written findings, and subject to certain conditions and disqualifications, SORB may relieve a sex offender of “any further obligation to register” if it determines that the sex offender does not “indicate a risk of reoffense or a danger to the public.” G. L. c. 6, § 178K (2) (d).
Based on similar considerations, as well as requirements of the defendant’s employment for a defense contractor, the sentencing judge also relieved the defendant of the obligation to wear a global positioning system (GPS) monitoring bracelet. The judge noted that imposition of the GPS monitoring requirement would effectively require termination of the defendant’s employment.
The circumstances of this case, where the particular acts giving rise to the probation violation appear to be sex related, yet a conviction of the new offense would not require registration as a sex offender, are anomalous. Given the extensive set of offenses covered by the act, see G. L. c. 6, § 178C (setting forth wide-ranging list of more than twenty-five sex offenses that trigger registration requirement), in the vast majority of cases where a sex offender is found in violation of probation due to a new sex-related offense, the new charge will qualify as a “sex offense,” thus requiring the offender to register with SORB upon conviction of the subsequent offense.
As discussed, the obligation of a sex offender to register with SORB, which initially flows from the conviction itself, is thereafter determined not by the judge but by SORB. See note 4, supra. Unlike true conditions of probation, which are imposed by the judge and terminate when probation itself ends, the registration obligation ordinarily remains ongoing following the end of the probationary period.
The Commonwealth previously advanced several different theories in support of its contention that the second judge had the authority to vacate the sentencing judge’s order. In the Superior Court, the Commonwealth argued, inter alia, that, because a term of straight probation has been considered to be a deferral of sentencing rather than an actual sentence, see Commonwealth v. Bruzzese,
In its brief before this court, however, the Commonwealth focuses on the absence of any language in the act that would prohibit a subsequent judge from vacating a previous order of relief from registration. Given the protective purpose of the act, coupled with its silence on the point, the Commonwealth urges that the act be broadly construed to authorize the second judge’s order. The Commonwealth did not pursue this theory at oral argument, however, instead urging that the plain language of the act authorizes the second judge’s order. The theory briefed is, in any event, unpersuasive.
The Commonwealth takes the position that such reconsideration is to be undertaken regardless of the basis for the probation violation, i.e., that it makes no difference whether the violation is based upon the commission of a subsequent sex offense, the commission of any other type of criminal offense, or noncompliance with a condition of probation, such as nonattendance at Alcoholics Anonymous meetings or the failure to pay a fee.
The Commonwealth maintains that the class of offenders eligible for relief from registration under G. L. c. 6, § 178E (f), defined as those not “sentenced to immediate confinement,” is established at the time of conviction. Because “sentenced” in that phrase refers to the time of conviction and not to the time of any probation violation, the Commonwealth maintains that any subsequent period of incarceration imposed upon a finding of a probation violation does not remove a sex offender from the limited group of those eligible for relief from registration under G. L. c. 6, § 178E (f).