The defendant pleaded guilty before a Superior Court judge to the charge of failing to register as a sex offender, first offense, pursuant to G. L. c. 6, § 178H (a) (3). In open court, the defendant was sentenced to incarceration for one year in a house of correction. Thereafter, a sentence to community parole supervision for life (CPSL)
The defendant claims, among other issues, that the imposition of CPSL is discretionary, not mandatory, under the terms of G. L. c. 6, § 178H (a) (3). We agree and conclude that, because it is evident from the record that the sentencing judge mistakenly believed that imposition of CPSL was mandatory, we must vacate the sentence and remand for resentencing to ensure proper exercise of the judge’s discretion.
1. Background, a. Statutory framework. General Laws c. 6, §§ 178C-178G, provides “an extensive statutory 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.” Commonwealth v. Rosado,
There are three classification levels. At all three levels, offenders “must register with the board, provide home and work addresses, notify the board of any changes, and verify their information at regular intervals.” Commonwealth v. Maker,
Any sex offender required to register who “knowingly: (i) fails to register; (ii) fails to verify registration information; (iii) fails to provide notice of a change of address; or (iv) who knowingly provides false information” is guilty of the offense of failure to register. G. L. c. 6, § 178H (a). A level 2 or level 3 sex offender convicted of failing to register “shall, in addition to the term of imprisonment authorized by this subsection, be subject to community parole supervision for life.” G. L. c. 6, § 178H (a) (3). See Commonwealth v. Kately, 461 Mass 575, 581 (2012) (assuming without deciding that CPSL is mandatory under this subsection).
b. Facts and prior proceedings. In 1985, the defendant was convicted of rape and abuse of a child. As a consequence, the board classified the defendant as a level 3 sex offender, subject to the statutory registration requirements. A police investigation revealed that the defendant had provided false registration information from at least April to June, 2008.
The defendant was indicted for failure to register as a sex offender, second offense, G. L. c. 6, § 178H (a) (2),
On March 11, 2010, almost eight months later, the defendant filed a motion to correct the sentence, pursuant to Mass. R. Crim. P. 30 (a), as appearing in
2. Discussion. The defendant renews his arguments on appeal, claiming that imposition of CPSL under G. L. c. 6, § 178H (a) (3), is discretionary, and that he did not have sufficient notice of the CPSL because it was not announced in open court as part of his sentence. We address each point in turn.
a. Whether imposition of CPSL under G. L. c. 6, § 178H (a) (3), is discretionary. In determining whether G. L. c. 6, § 178H (a) (3), permits judicial discretion, we start “with the language of the statute itself and ‘presume, as we must, that the Legislature intended what the words of the statute say.’ ” Commonwealth v. Young,
The three subsections of G. L. c. 6, § 178H (a), set forth the penalties for failure to register for three differently situated groups of defendants. Subsection 178H (a) (1), which applies to those convicted of certain enumerated sex offenses,
“Where the Legislature used different language in different paragraphs of the same statute, it intended different meanings.” Ginther v. Commissioner of Ins.,
The legislative history of § 178H (a) (3) reinforces this reading. See Commonwealth v. Raposo,
This construction is also consistent with the statute’s scheme and purpose. See Boston Police Patrolmen’s Ass’n v. Police Dep’t of Boston,
A contrary reading of the statute is unpersuasive also because, if read to require, rather than permit, CPSL, § 178H (a) (3) would render § 178H (a) (2) a nullity. It is a basic principle of statutory construction that a statute should “be construed ‘so that effect is given to all its provisions, so that no part will be inoperative or superfluous.’ ” Bankers Life & Cas. Co. v. Commissioner of Ins.,
Accordingly, we conclude that G. L. c. 6, § 178H (a) (3), allows for discretionary imposition of CPSL.
b. Whether the defendant had sufficient notice of the CPSL. The defendant next argues that the CPSL portion of his sentence should be vacated, without remand for resentencing, because the imposition of CPSL was not announced in open court. As a result, the defendant contends, CPSL was not properly imposed in the first instance, was not included as part of his sentence, and therefore could not be imposed on resentencing. We conclude that CPSL was properly imposed in the first instance despite the variance between the oral pronouncement in open court and the
“A criminal defendant has the right to be present at his own sentencing.”
Here the defendant had ample notice of the CPSL portion of the joint recommendation and reason to understand that he was subject to CPSL as part of his sentence. A fair reading of the plea colloquy and hearing makes this clear. The judge accepted the joint recommendation of the parties that included CPSL. The prosecutor informed the judge, with both the defendant and his attorney present, that “lifetime parole” was part of the recommended sentence. When asked by the judge if he had heard the joint recommendation, the defendant said that he had.
Accordingly, given the circumstances, although CPSL was not imposed in open court, there exists no conflict that is material between the sentence orally imposed and that memorialized on the docket. Because CPSL was properly imposed in the first instance, it remains available to the judge at his discretion on resentencing.
3. Conclusion. The defendant’s sentence is vacated, and the matter is remanded to the Superior Court for resentencing consistent with this opinion.
So ordered.
Notes
The Legislature has provided “for lifetime parole (‘community parole supervision for life’ [CPSL]) for certain sex offenders,” Commonwealth v.
The basis for the “second offense” nature of the indictment is unclear from the record. The indictment states that the defendant “ha[d] been previously convicted of a like offense,” but the Commonwealth has submitted no evidence of a previous conviction of failing to register.
The Commonwealth makes much of the fact that the word “shall” precedes the phrase “subject to.” This, it argues, clarifies that the Legislature intended the imposition of CPSL to be mandatory. We disagree. Even assuming “shall” as used in this statute is intended to be mandatory, this sheds no additional light on the meaning of “subject to” because a mandatory “shall” is consistent with either reading of the statute. Either the judge must consider imposing CPSL in his discretion, or must impose CPSL. To the extent “subject to” is conditional, the word “shall” does nothing to dispel its meaning; the question whether the judge has discretion can only be discerned by examination of the operative phrase “subject to.” See State v. Rama,
See Webster’s New Universal Dictionary 1893 (2003) (defining “subject [to]” as “being dependent or conditional upon something” and “being under the necessity of undergoing something”); The American Heritage Dictionary of the English Language 1788 (3d ed. 1992) (defining “subject [to]” as both “[b]eing in a position or in circumstances that place one under the power or authority of another or others” and “[contingent or dependent”); Webster’s Ninth New Collegiate Dictionary 1174 (1991) (defining “subject [to]” as “contingent on or under the influence of some later action”).
Compare Flower v. Billerica,
Compare Campbell v. Federal Energy Regulatory Comm’n,
In particular, this subsection applies to those convicted of failing to register and who have been adjudicated or convicted of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B; aggravated indecent assault and battery on a child under fourteen, G. L. c. 265, § ISBVa; indecent assault and battery on a child under fourteen, subsequent offense, G. L. c. 265, § 13B
Even assuming, as the Commonwealth argues, that this change appeared on the bill’s “third reading,” such amendments remain indicative of the Legislature’s intent. See Wheatley v. Massachusetts Insurers Insolvency Fund,
This does not render § 178H (a) (3) unconstitutionally vague. In general, a
The Commonwealth’s argument that we cannot remand for resentencing because to do so would upset the “contract” between the Commonwealth and the defendant is without merit. The sentencing judge has the authority to reduce an agreed-on sentence without providing the Commonwealth with the opportunity to revoke the plea. See Commonwealth v. Dean-Ganek,
This right derives from both the confrontation clause of the Sixth Amendment to the United States Constitution and the due process clause of the Fifth Amendment to the United States Constitution. See United States v. Melendez-Santana,
During the colloquy, defense counsel confirmed that he had reviewed the penalty with the defendant, and the defendant has not included in the record any affidavit from defense counsel to the contrary. See Commonwealth v. Thurston,
Rule 12 (c) (3) (B) of the Massachusetts Rules of Criminal Procedure, as appearing in