Commonwealth v. Ventura

465 Mass. 202

987 N.E.2d 1266

COMMONWEALTH

v.Douglas VENTURA.

SJC–11184.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 10, 2013.

Decided May 17, 2013.

Geoffrey E. Spofford for the defendant.

Bethany Stevens, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

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 ( f ). The question in this case is whether a second judge, after finding the defendant in violation of his probation, may on that basis and consistent with the Sex Offender Registry Act, G.L. c. 6, §§ 178C–178Q (act), order him to register with SORB. We hold that she may not.

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 ( f ), 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,¹ and letters of support from family friends who stated that they had no reservations about allowing their daughters, who were friends of the defendant's adolescent daughters, to spend time in his home. The sentencing judge concluded that the defendant had demonstrated that he did not pose a risk of reoffense or a danger to the public, and relieved him of the registration requirement. The Commonwealth did not appeal. See Commonwealth v. Ronald R., 450 Mass. 262, 266–267, 877 N.E.2d 918 (2007) (either party may petition for relief pursuant to G.L. c. 211, § 3, from judge's decision under G.L. c. 6, § 178E [ f ], on waiver of obligation to register as sex offender).

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, § 53,² and the defendant was sent notice of a probation surrender hearing. A second Superior Court judge conducted an extensive probation revocation hearing in November, 2010. At that hearing, evidence was introduced through two friends of the defendant's daughters that, when they took showers during overnight visits with the daughters, the defendant watched them through a hole in the shower wall in the guest bathroom they routinely used when staying at the defendant's house.

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 ( f ), 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.³

The defendant appealed and we transferred the case to this court on our own motion. We conclude that, under the terms of the act, the second judge was without authority to require registration as a sex offender as a condition of probation, or to revoke a prior grant of relief from registration.

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, 441 Mass. 685, 688, 808 N.E.2d 294 (2004) (“A defendant may take a direct appeal from an order revoking his probation”).

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. P. 30(a), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Bruzzese, 437 Mass. 606, 614 n. 4, 773 N.E.2d 921 (2002) (“A motion under Mass. R.Crim. P. 30[a] ... challenging the legality of the sentence imposed in consequence of a probation revocation order is the appropriate avenue for relief from such an order”); Commonwealth v. Christian, 429 Mass. 1022, 1023, 712 N.E.2d 573 (1999) ( “Rule 30[a] is the appropriate avenue for relief only where the defendant is not challenging the probation revocation order itself, but rather the sentence imposed in consequence of the order”). Because the defendant properly challenged the revocation order through his direct appeal, and in the interest of judicial economy, we consider the merits of his claim as to the improper sentencing. See Cepulonis v. Commonwealth, 426 Mass. 1010, 1010, 689 N.E.2d 798 (1998).

b. Registration requirement. As defined in the act, a “[s]ex offender” is “a person who resides, has secondary addresses, works or attends an institution of higher learning in the [C]ommonwealth and who has been convicted of a sex offense.” G.L. c. 6, § 178C. “Sex offense” is in turn also a defined term under the act, and includes the crime of possession of child pornography to which the defendant pleaded guilty in 2008, but not the crime of annoying and accosting a person of the opposite sex with which he was charged in 2010. See id.

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, 450 Mass. 657, 659–660, 881 N.E.2d 112 (2008), quoting Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 769, 857 N.E.2d 485 (2006). “A sex offender who lives or works in the Commonwealth must register with the board by mail, listing his name, home address, and (if applicable) work address, or his intended home and work address.” Roe v. Attorney Gen., 434 Mass. 418, 424, 750 N.E.2d 897 (2001), citing G.L. c. 6, § 178E ( a )-( c ), ( g )-( h ), ( l ).

“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., 82 Mass.App.Ct. 152, 158, 971 N.E.2d 800 (2012). In this regard, when accepting a plea of guilty to a sex offense, a judge “shall inform the sex offender prior to acceptance and require the sex offender to acknowledge, in writing, that such plea may result in such sex offender being subject to the [registration] provisions of” the act. G.L. c. 6, § 178E ( d ). The requirement that a sex offender register with SORB is thus an immediate and automatic consequence of conviction of any sex offense enumerated in the act. See G.L. c. 6, § 178E ( a )-( c ), ( l ); Commonwealth v. Ronald R., supra at 265–267, 877 N.E.2d 918;Commonwealth v. Shindell, 63 Mass.App.Ct. 503, 504, 827 N.E.2d 236 (2005); Commonwealth v. Albert A., 49 Mass.App.Ct. 269, 271, 729 N.E.2d 312 (2000). A “sex offender required to register” who does not do so is subject to separate criminal penalties. See G.L. c. 6, § 178H.

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 [SORB],” ⁴Commonwealth v. Ronald R., supra at 265, 877 N.E.2d 918,G.L. c. 6, § 178E ( f ), creates a limited exception “that allows a trial judge to relieve certain sex offenders, who have not been sentenced to immediate confinement, from the obligation to register with [SORB].” ⁵Commonwealth v. Ronald R., supra at 264, 877 N.E.2d 918.

Following an evidentiary hearing, the sentencing judge in this case entered an order pursuant to G.L. c. 6, § 178E ( f ), relieving the defendant of the obligation to register.⁶ Approximately two and one-half years later, after finding the defendant in violation of his probation based on the newly charged offense, the second judge concluded, apparently based on the nature of the acts involved,⁷ that it was “appropriateto impose...