Commonwealth v. Wimer , 480 Mass. 1 ( 2018 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12412
COMMONWEALTH vs. JEFFREY WIMER.
Franklin. February 8, 2018. - June 21, 2018.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.
Sex Offender Registration and Community Notification Act. Open
and Gross Lewdness and Lascivious Behavior. Practice,
Criminal, Sentence. Statute, Construction. Words, "Second
and subsequent adjudication or conviction."
Complaint received and sworn to in the Greenfield Division
of the District Court Department on July 11, 2012.
A motion to correct an illegal sentence, filed on December
19, 2016, was heard by William F. Mazanec, III, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Timothy St. Lawrence for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
BUDD, J. The sex offender registration statute requires
those convicted of committing certain acts to register with the
Sex Offender Registry Board (board) as sex offenders. G. L.
2
c. 6, §§ 178C-178Q. A "second and subsequent adjudication or
conviction of open and gross lewdness" in violation of G. L.
c. 272, § 16, 1 requires such registration. G. L. c. 6, § 178C.
The defendant pleaded guilty to two counts of this crime and was
ordered to register as a sex offender. He appeals from the
denial of his motion to correct an illegal sentence, arguing
that, as the two convictions were adjudicated during the same
proceeding, he did not have a "second and subsequent" conviction
as required by § 178C and, thus, he was not required to register
as a sex offender. We agree and, accordingly, we reverse.
Background. 1. Statutory framework. The sex offender
registration statute, originally passed in 1996, see St. 1996,
c. 239, and substantially modified in 1999, see St. 1999, c. 74,
was enacted to address "the danger of recidivism posed by sex
offenders, especially sexually violent offenders who commit
predatory acts characterized by repetitive and compulsive
behavior." Doe, Sex Offender Registry Bd. No. 205614 v. Sex
Offender Registry Bd., 466 Mass. 594, 595 (2013), quoting
St. 1999, c. 74, § 1. The statute requires a sex offender to
provide certain personal information, including name and current
address, to the board. G. L. c. 6, § 178E.
1 General Laws c. 272, § 16, provides: "A man or woman,
married or unmarried, who is guilty of open and gross lewdness
and lascivious behavior, shall be punished . . . ."
3
The board classifies sex offenders within a system of three
different levels based on risk of reoffense and degree of
dangerousness, with level one representing the designation for
offenders presenting the least serious risk of reoffense and
level of dangerousness and level three for those presenting the
most serious. 2 See G. L. c. 6, § 178K (2). A sex offender's
registration level has consequences for public access to that
offender's information. Level one offenders are entitled to
greater information privacy. See G. L. c. 6, § 178D. Level two
and three sex offenders, by contrast, have their information
published in an online database available to the public. Id.
The sex offender registration statute designates a number
of offenses as sex offenses, including, but not limited to,
violent and nonviolent unwanted sexual touching, sexual offenses
against vulnerable victims, and possession or distribution of
child pornography. Unlike the offense at issue in this case,
2 "The board begins with a preliminary recommended
classification. See G. L. c. 6, § 178L (1); 803 Code Mass Regs.
§ 1.06(3) (2016). Any offender who disagrees with the
recommended classification may request a de novo evidentiary
hearing conducted by a board member, a panel of three board
members, or a hearing examiner. See G. L. c. 6, § 178L (2); 803
Code Mass. Regs. §§ 1.06(4), 1.08, 1.14 (2016). If no such
request is made, the board's recommended classification decision
becomes its final classification determination. See G. L. c. 6,
§ 178L (1). . . . A sex offender has a right to seek judicial
review of the final classification decision in accordance with
G. L. c. 30A, § 14. See G. L. c. 6, § 178M." Doe, Sex Offender
Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass.
454, 455 n.4 (2017).
4
most, but not all, of the offenses require registration after
one conviction. See G. L. c. 6, § 178C.
2. Factual and procedural history. In 2013, the defendant
pleaded guilty to two counts of open and gross lewdness, in
violation of G. L. c. 272, § 16. The charges arose from two
incidents in which the defendant masturbated in front of his
girl friend's nine year old daughter. The defendant's sentence
on the second conviction included an order to register as a sex
offender pursuant to G. L. c. 6, § 178C, which requires such
registration upon a "second and subsequent adjudication or
conviction of open and gross lewdness."
Subsequently the defendant filed a motion to withdraw his
guilty plea and a motion for a new trial; both were denied. See
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).
The defendant appealed, and then filed a motion to correct an
illegal sentence in the trial court. 3 See Mass. R. Crim. P.
30 (a) ("Any person . . . whose liberty is restrained pursuant
to a criminal conviction may . . . file a written motion . .
."). After a nonevidentiary hearing, the trial judge denied the
defendant's rule 30 (a) motion. The Appeals Court consolidated
3
The defendant accepted the condition of registering as a
sex offender at the time of his change of plea. However,
although "the defendant could plead guilty, he could not accept
a statutorily created sentencing condition that simply did not
exist under the facts of his case." Commonwealth v. Hernandez,
60 Mass. App. Ct. 416, 418 (2004).
5
the defendant's appeals, and we transferred the case here on our
own motion. Before us, the defendant challenges only the denial
of his rule 30 (a) motion.
Generally we review denials of rule 30 (a) motions for
abuse of discretion. Commonwealth v. Perez, 477 Mass. 677, 681-
682 (2017). However, as the question is one of statutory
interpretation, we review the lower court's ruling de
novo. Commonwealth v. Ventura, 465 Mass. 202, 208 (2013).
Discussion. We look to the plain language of a statute to
ascertain the intent of the Legislature. See,
e.g., Commonwealth v. Deberry, 441 Mass. 211, 215 (2004). Open
and gross lewdness is a sex offense requiring registration with
the board only upon a "second and subsequent adjudication or
conviction." G. L. c. 6, § 178C. As the statute calls for a
"second and subsequent" event, two conditions must be met before
a defendant must register: (1) there must be two such
events, and (2) the second must be subsequent to the first.
See United Church of Religious Science v. Assessors of
Attleboro, 372 Mass. 280, 284-285 (1977) (use of word "and"
between two factors required both factors be present for
provision to apply). Although the term "subsequent" is not
defined in the act, the ordinary meaning of the term is
"following in time: coming or being later than something else."
Webster's Third New International Dictionary 2278 (2002).
6
See Modica v. Sheriff of Suffolk County, 477 Mass. 102, 104
(2017), quoting Commonwealth v. Bell, 442 Mass. 118, 124 (2004)
("When a statute does not define its words we give them their
usual and accepted meanings [derived] . . . from sources
presumably known to the statute's enactors, such as their use in
other legal contexts and dictionary definitions").
Moreover, "second and subsequent" modifies "adjudication or
conviction." G. L. c. 6, § 178C. Both "adjudication" and
"conviction" involve a legal proceeding. Although the defendant
committed two separate incidents on two different occasions (one
subsequent to the other), the resulting two convictions occurred
in the same judicial proceeding. Thus, the second conviction
was not a subsequent conviction.
It is instructive to compare the language at issue to
similar language found elsewhere in § 178C. See Casseus
v. Eastern Bus Co., 478 Mass. 786, 795 (2018) ("When the meaning
of any particular section or clause of a statute is questioned,
it is proper, no doubt, to look into the other parts of the
statute; otherwise the different sections of the same statute
might be so construed as to be repugnant . . ." [citation
omitted]). For example, human trafficking is also a sex offense
requiring registration but only upon a "second or
subsequent violation" (emphasis added). G. L. c. 6, § 178C.
Notably, there the term "violation" is used rather than the
7
phrase "adjudication or conviction." Thus, unlike the two
incidents of open and gross lewdness at issue here, two or more
incidents of human trafficking would be considered a sex offense
under the act regardless of whether they were adjudicated
together. 4 Had the Legislature intended the interpretation the
Commonwealth would have us adopt, it would have used the term
"violation" rather than the phrase "adjudication or conviction."
See Commonwealth v. Gagnon, 439 Mass. 826, 833 (2003) ("Where
the [L]egislature has carefully employed a term in one place and
excluded it in another, it should not be implied where excluded"
[citation omitted]).
The Commonwealth disagrees, arguing that we should defer to
the board, which interprets "second and subsequent adjudication
or conviction" differently. A regulation promulgated by the
board defines this phrase as it appears in § 178C as
"[t]he later of two or more separate convictions pursuant
to [G. L.] c. 272, § 16. Multiple convictions resulting
from a single act shall be treated as a single conviction,
but arraignments occurring on the same date and resulting
in multiple convictions shall be presumed to be the result
of separate acts and treated as separate convictions."
803 Code Mass. Regs. § 1.03 (2016).
4 We also note that in the case of human trafficking, the
statute refers to a "second or subsequent violation" (emphasis
added). G. L. c. 6, § 178C. See Moronta v. Nationstar Mtge.,
LLC, 476 Mass. 1013, 1014 (2016) ("The use of the word 'or' to
separate the prongs of a statute indicates that the prongs are
alternatives, that is, that either one would be sufficient on
its own and that it is not necessary to establish both").
8
We defer to an agency's statutory interpretation where the
statute is ambiguous and the interpretation is reasonable.
See Alves's Case, 451 Mass. 171, 175 (2008). Here, however, as
discussed above, the statutory language is unambiguous -- a
defendant commits a sex offense under § 178C where his or her
second adjudication or conviction of open and gross lewdness
occurs after a first adjudication or conviction. Two violations
will suffice only if the adjudications or convictions for them
are not simultaneous. As the board's interpretation renders the
word "subsequent" superfluous, we decline to defer to it.
See Chin v. Merriot, 470 Mass. 527, 537 (2015) ("we 'give effect
to all words of a statute, assuming none to be superfluous'"
[citation omitted]). See also Taylor v. Housing Appeals Comm.,
451 Mass. 149, 154 (2008).
The Legislature's choice of words in a different but
related statute confirms our conclusion. See Commonwealth
v. Escobar, 479 Mass. 225, 231-232 (2018). The phrase "second
and subsequent" is also used in a related section that provides
for additional punishment upon a "second and subsequent
conviction" for failure to register with the board. G. L. c. 6,
§ 178H (a) (2). 5 In a case dealing with § 178H (a) (2), the
5 A first conviction of failure to register with the board
results in a minimum sentence of six months in a house of
correction. G. L. c. 6, § 178H (a) (1). However, a "second and
9
Appeals Court noted that, with regard to statutes that call for
increased punishment with a subsequent conviction, the defendant
must "[have] previously been convicted of at least one similar
. . . offense" (emphasis added). Commonwealth v. Berardi, 88
Mass. App. Ct. 466, 470 (2015), quoting Commonwealth v. Miranda,
441 Mass. 783, 788 (2004). This view of § 178H (a) (2) accords
with our interpretation of § 178C.
Thus, we conclude that the phrase "second and subsequent
adjudication or conviction" requires that a defendant be
convicted of open and gross lewdness once before a second
conviction triggers § 178C.
Conclusion. The decision of the District Court judge
denying the motion to correct an illegal sentence is reversed,
and the matter is remanded for entry of an order consistent with
this opinion.
So ordered.
subsequent conviction" results in a minimum sentence of five
years in a State prison. G. L. c. 6, § 178H (a) (2).