Commonwealth v. Wimer
Commonwealth v. Wimer
Opinion
**2 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. 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 *780 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
.,
The board classifies sex offenders within a system of three different levels based on risk of reoffense and degree of
**3
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.
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, 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
*781 See Mass. R. Crim. P. 30 (a) ("Any person ... whose liberty is restrained pursuant to a **4 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 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
,
Discussion
. We look to the plain language of a statute to ascertain the intent of the Legislature. See, e.g.,
Commonwealth
v.
Deberry
,
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.
**5
It is instructive to compare the language at issue to similar language found elsewhere in § 178C. See
Casseus
v.
Eastern Bus Co
.,
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).
We defer to an agency's statutory interpretation where the statute is ambiguous and the interpretation is reasonable. See
Alves's Case
,
The Legislature's choice of words in a different but related statute confirms our conclusion. See
Commonwealth
v.
Escobar
,
*783 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 .
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 ...."
"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
.,
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
,
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
,
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 subsequent conviction" results in a minimum sentence of five years in a State prison. G. L. c. 6, § 178H ( a ) (2).
Reference
- Full Case Name
- COMMONWEALTH v. Jeffrey WIMER.
- Cited By
- 6 cases
- Status
- Published