Commonwealth v. Johnson
Commonwealth v. Johnson
Opinion of the Court
**830We 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 **831material that has the potential to prove their innocence." Commonwealth v. Williams,
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).
*843Background.
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.
**832Johnson 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
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 *844facing 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.
**833Because 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 ).
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,
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."
**835"We begin with the plain language of the statute." Commonwealth v. LeBlanc,
*846Additionally, "[t]he omission of particular language from a statute is deemed deliberate where the Legislature included [the] omitted language in related or similar statutes." Fernandes v. Attleboro Hous. Auth.,
Moreover, declining to read the word "direct" into G. L. c. 278A, § 2 (2), is consistent with the purpose of chapter 278A. "Given [the Legislature's] compelling interest in remedying wrongful convictions of factually innocent persons," "it is entirely appropriate that we construe the language of G. L. c. 278A, § [2 (2) ], in a manner that is generous to the moving party." Commonwealth v. Clark,
**836For these reasons, we decline to adopt the Commonwealth's interpretation of G. L. c. 278A, § 2 (2).
*847Conclusion. For the foregoing reasons, the order denying Johnson's second chapter 278A motion is vacated and the case is remanded to the Superior Court for consideration of the question **837whether Johnson is otherwise entitled to a hearing pursuant to G. L. c. 278A, § 7.
So ordered.
We acknowledge the amicus briefs submitted by the Boston Bar Association and by the innocence program of the Committee for Public Counsel Services and the New England Innocence Project.
We take the following facts from the affidavits and exhibits included with Don Earl Johnson's motion pursuant to G. L. c. 278A (chapter 278A).
Johnson had earlier moved for deoxyribonucleic acid (DNA) testing pursuant to the Federal habeas corpus statute,
Johnson's criminal record, which was filed with his chapter 278A motion, confirms that he has no other convictions that would have required him to register as a sex offender.
The sex offender registration statute was not enacted until after Johnson's convictions. See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd.,
This requirement technically applies only to motions that do not satisfy G. L. c. 278A, § 3, which lists the information that must be provided in a chapter 278A motion. See G. L. c. 278A, § 3 (e ) ("The court shall ... review all motions filed and shall dismiss, without prejudice, any such motion without a hearing if the court determines ... that the motion does not meet the requirements set forth in this section" [emphasis added] ). However, we see no reason why motions that do not satisfy G. L. c. 278A, § 2, such as Johnson's first chapter 278A motion here, should not also be dismissed without prejudice. As discussed infra, it is consistent with the purpose behind chapter 278A to interpret the statute in a manner favorable to moving parties. See Commonwealth v. Clark,
We previously have decided appeals from orders denying chapter 278A motions where earlier such motions had been denied. See Commonwealth v. Williams,
If a moving party satisfies the requirements of G. L. c. 278A, §§ 2 and 3, then he or she is entitled to a hearing. See G. L. c. 278A, § 6 (a ). Pursuant to G. L. c. 278A, § 7 (b ), a moving party is entitled to the requested forensic or scientific analysis if, after a hearing, a judge decides that the factors listed in that subsection have been proved by a preponderance of the evidence.
We have yet to articulate a moving party's burden of proof with respect to the first two factors of G. L. c. 278A, § 2. Cf. Williams,
Johnson argues in the alternative that a moving party's "liberty has been otherwise restrained as the result of a conviction," G. L. c. 278A, § 2 (2), where he or she is required to register as a sex offender. We leave for another day the question whether the liberty interests implicated by sex offender registration fall within the scope of chapter 278A.
Other sources of legislative intent provide little insight. The Commonwealth points to statutes in other jurisdictions that provide for postconviction DNA testing and that purportedly would encompass Johnson's situation more clearly than does chapter 278A. According to the Commonwealth, we should deem persuasive the Legislature's decision not to adopt these other provisions. See Wade,
Likewise, the floor debates and committee hearings about legislative proposals containing the phrase "as the result of" do not provide a definitive interpretation of that phrase. During the floor debate on 2011 Senate Doc. No. 1987, one legislator stated, "An innocent person should not be incarcerated because of a wrongful conviction" (emphasis added). State House News Service (Senate Sess.), July 28, 2011, at 5 (statement of Sen. Cynthia Stone Creem). However, during a hearing about 2011 Senate Doc. No. 753 and 2011 House Doc. No. 2165, the Boston Bar Association provided a summary according to which the proposed legislation applied to "[p]ersons convicted of a crime in the Commonwealth ... who are either incarcerated or on some form of probation or parole for this conviction" (emphasis added). Testimony of the Boston Bar Association before the Joint Committee on the Judiciary in Support of S 753 and H 2165 (June 8, 2011), https://www.brandeis.edu/investigate/innocence-project/docs/s-753-06.08.11-d-siegel-testimony-summary-cost.pdf [https://perma.cc/ALE7-THKF].
Two convictions required Johnson to register as a sex offender because he pleaded guilty to two counts of indecent assault and battery. Where multiple convictions require a moving party to register as a sex offender, each conviction generally will not be the but-for cause of the registration requirement. See Black's Law Dictionary 273 (11th ed. 2019) (defining "but-for cause" as "[t]he cause without which the event could not have occurred"). However, where a moving party who is incarcerated for failing to register as a sex offender claims factual innocence of a single incident that led to multiple sex offense convictions, and where no other incident has led to convictions requiring that moving party to register as a sex offender, we will consider G. L. c. 278A, § 2 (2), to be satisfied.
The chapter 278A motion at issue here might not include all the information required by G. L. c. 278A, § 3 (b ), which Johnson must provide to be granted a hearing and to move forward with his application for DNA testing. See G. L. c. 278A, §§ 3 (e ), 6 (a ). If that is the case, then Johnson may file an amended motion that addresses these other requirements.
Reference
- Full Case Name
- COMMONWEALTH v. Don Earl JOHNSON.
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- 3 cases
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- Published