Commonwealth v. Wimer

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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).

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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).

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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

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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).