Commonwealth v. Johnson

482 Mass. 830

129 N.E.3d 841

COMMONWEALTH

v.Don Earl JOHNSON.

SJC-12673

Supreme Judicial Court of Massachusetts, Worcester..

Argued May 9, 2019

Decided August 21, 2019

Edward Gauthier, Greenfield, for the defendant.

Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

Meredith Shih, for Boston Bar Association, amicus curiae, submitted a brief.

Ira L. Gant, Committee for Public Counsel Services, & Beth L. Eisenberg, Boston, for innocence program of Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LOWY, J.

We are called upon to interpret the standing requirement of G. L. c. 278A (chapter 278A). That statute "allows those who have been convicted but assert factual innocence to have access to forensic and scientific testing of evidence and biological material that has the potential to prove their innocence." Commonwealth v. Williams, 481 Mass. 799, 799, 119 N.E.3d 1171 (2019). "A person may file a motion for forensic or scientific analysis under" chapter 278A if that person is, among other requirements, "incarcerated in a state prison [or] house of correction, is on parole or probation[,] or [is one] whose liberty has been otherwise restrained as the result of a conviction." G. L. c. 278A, § 2 (2).

Don Earl Johnson is currently incarcerated in Federal prison for failing to register as a sex offender. He seeks deoxyribonucleic acid (DNA) testing of biological material pertaining to his only sex offense, of which he claims innocence. The Commonwealth argues that Johnson does not satisfy the requirements of G. L. c. 278A, § 2 (2), because he is not incarcerated for the crime that is the subject of his chapter 278A motion. Johnson argues that his current incarceration for failure to register is "as the result of" his sex offense, even though he is not incarcerated for that crime. We agree with Johnson, and therefore conclude that he has satisfied the requirements of G. L. c. 278A, § 2 (2).¹

Background.² Johnson was arrested in 1994 after a woman reported that she was beaten by two men and vaginally raped by one of them. The woman thought her assailant had ejaculated, and a hospital nurse provided police with an evidence collection kit. At the crime scene, police found spots on the ground that may have been semen.

Johnson was indicted on two counts of aggravated rape and one count of assault and battery. The aggravated rape charges carried maximum sentences of life in prison. See G. L. c. 265, § 22 (a ). Johnson pleaded guilty to two counts of indecent assault and battery and one count of assault and battery, and was sentenced to one year in a house of correction with a credit of 229 days.

Two decades later, in 2014, Johnson filed pro se a chapter 278A motion for DNA testing of semen and an evidence collection kit in the police's possession.³ The motion was denied without a hearing. Johnson, now represented by counsel, filed in 2018 a second motion for DNA testing of the evidence collection kit.

Johnson stated in an affidavit accompanying his second chapter 278A motion that he was "currently serving a federal prison sentence ... for federal failure to register as a sex offender." See 18 U.S.C. § 2250(a) (2012) (criminal penalty for knowing failure to "register or update a registration as required by the Sex Offender Registration and Notification Act"). Johnson asserted also that he was "required to register as a sex offender" "[a]s a result of" his 1994 convictions of indecent assault and battery, and that he had "no other sex offense convictions."⁴ See Commonwealth v. Sylvester, 476 Mass. 1, 2, 10, 62 N.E.3d 502 (2016) ("indecent assault and battery" is "a sex offense under G. L. c. 6, § 178C," and "the duty to register as a sex offender is a ‘practically certain’ effect of a conviction for a sex offense as defined in" that section).⁵ Finally, Johnson explained, "I pleaded guilty even though I was innocent because my attorney advised me that I already had [eight] months credit, that the plea would allow me to be out of jail ‘right away,’ that the risk of going to trial was a ‘life sentence,’ and that this was the case of a white woman versus a black man and a jury would not believe a black man. My attorney never shared the police report with me and I was unaware at the time of the plea that there might be material available for DNA testing."

In opposition to Johnson's second chapter 278A motion, the Commonwealth argued that (1) the denial of Johnson's first chapter 278A motion estopped Johnson from filing a new motion; and (2) Johnson does not have standing pursuant to G. L. c. 278A, § 2 (2), because he "is not currently facing incarceration, or any other restraint on his liberty, as a result of his 1994 convictions for indecent assault and battery." Johnson's motion was again denied without a hearing. The judge wrote in the order denying the motion that "[a]fter review of the pleadings, exhibits and relevant law [Johnson]'s motion is denied for the reasons stated" in the Commonwealth's memorandum.

Johnson appealed from the denial of his second chapter 278A motion, and we allowed his motion for direct appellate review.

Because Johnson is in Federal prison "as the result of" his convictions of the crimes of which he asserts factual innocence, we vacate the judge's decision and remand for consideration of the question whether Johnson is otherwise entitled to a hearing pursuant to G. L. c. 278A, § 7.

Discussion. 1. Estoppel. The Commonwealth argues, and the judge agreed, that Johnson is estopped from seeking forensic testing because his first chapter 278A motion to test the evidence collection kit was denied. However, when a moving party fails to satisfy the threshold requirements of chapter 278A, the moving party's motion is to be dismissed "without prejudice." G. L. c. 278A, § 3 (e ).⁶ This rule allows a moving party to raise in a chapter 278A motion the same issues he or she had raised in an earlier motion that was denied without a hearing. See Commonwealth v. Wade, 467 Mass. 496, 500 n.7, 5 N.E.3d 816 (2014), S.C., 475 Mass. 54, 55 N.E.3d 409 (2016) (chapter 278A "appears to contemplate any number of ... filings"). Cf. Morgan v. Evans, 39 Mass. App. Ct. 465, 470, 657 N.E.2d 764 (1995) (in context of dismissals pursuant to Mass. R. Civ. P. 41, 365 Mass. 803 [1974], "dismissal without prejudice does not preclude a second action on the same claim and issues").⁷ Thus, although Johnson's first chapter 278A motion was "denied," it was effectively dismissed without prejudice.

2. Standing. A moving party is "eligible to request" postconviction forensic or scientific analysis pursuant to chapter 278A only if he or she satisfies the standing requirements of G. L. c. 278A, § 2. Williams, 481 Mass. at 800, 119 N.E.3d 1171.⁸ Pursuant to that section, "A person may file a motion for forensic or scientific analysis under this chapter if that person: (1) has been convicted of a criminal offense in a court of the commonwealth; (2) is incarcerated in a state prison, house of correction, is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction; and (3) asserts factual innocence of the crime for which the person has been convicted." The Commonwealth argues, and the judge agreed, that Johnson does not satisfy the second factor.⁹

With respect to G. L. c. 278A, § 2 (2), Johnson is not "incarcerated in a state prison" or "house of correction," nor is he "on parole or probation." However, as the Commonwealth acknowledges, his "liberty has been otherwise restrained" because he is in Federal prison. The issue is whether he is in prison "as the result of" his convictions of the crimes of which he asserts factual innocence.

The Commonwealth argues that the phrase "as the result of" requires a moving party to show that his or her liberty has been restrained as a "direct" consequence of his or her conviction. Johnson's current prison sentence, the argument goes, is an "indirect" consequence because it was imposed for his failure to register as a sex offender, not for his commission of the crimes of which he now asserts factual innocence. In contrast, Johnson contends that the second factor is satisfied where a moving party "is incarcerated and would not be incarcerated but for his [or her] conviction."¹⁰ We review de novo this issue of statutory interpretation, see Commonwealth v. Moffat, 478 Mass. 292, 298-299, 85 N.E.3d 38 (2017), and conclude that Johnson is imprisoned "as the result of" his convictions of indecent assault and battery.

"We begin with the plain language of the statute." Commonwealth v. LeBlanc, 475 Mass. 820, 821, 62 N.E.3d 34 (2016). On its face, G. L. c. 278A, § 2 (2), does not require that a moving party's liberty be restrained as the "direct" result of a conviction of the crime of which he or she asserts factual innocence. The restraint on liberty must be merely "the result of" that conviction. G. L. c. 278A, § 2 (2). See Webster's Third New International Dictionary 1937 (2002) (defining "result" as, in pertinent part, "something that results as a consequence, effect, ... or conclusion"). "We do not read into [a] statute a provision which the Legislature did not see fit to put there ...." Williams, 481 Mass. at 807-808, 119 N.E.3d 1171, quoting Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126, 842 N.E.2d 926 (2006). Cf. Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 6, 8, 691 N.E.2d 526 (1998), quoting G. L. c. 151B, § 4 (16) (statute prohibiting discrimination "because of" handicap "does not use the term ‘solely.’ We discern no other similarly restrictive language in the statutory scheme, and we hesitate to rewrite the statute judicially to import such a restriction").

Additionally, "[t]he omission of particular language from a statute is deemed deliberate where the Legislature includ...