Defending Failure to Register Cases

Pasqua Scibelli

Larni Levy

 

Alternative Commitment & Registration Support Unit

 

 

            Failure to register cases (G.L.c. 6, §178H) are being prosecuted with great fervor by the District Attorneys’ offices. The consequences of a guilty finding can be severe with the possibility of long sentences followed by lifetime community parole (“LCP”). This article is in response to the many calls we receive from attorneys seeking guidance on defending these important cases with far reaching consequences.

            Often we encourage counsel to vigorously defend rather than accept the sometimes enticing pleas offers from the prosecution. A recent victory in the Appeals Court , Commonwealth v. Ramirez, Docket 06-P-497 ( May 10, 2007 ), illustrates the importance of a strong defense.

            Lack of Knowledge

            In Ramirez, the Commonwealth failed to prove that the defendant had actual notice of his obligation to register. The court held that evidence of knowledge required under this statute must be specific and personal to each defendant and that “absent a defendant’s conscious disregard of the information necessary to provide him with the requisite knowledge, the Commonwealth cannot meet its burden by establishing that the knowledge was available to the defendant.” Id.

            In this case, the Commonwealth charged the defendant with failing to register for a 1984 sex offense. The date of the offense listed in the complaint was the date of his arrest. The Commonwealth argued, among other theories, that the defendant received actual notice of his duty to register at the time of his arrest and that this satisfies the statute’s knowledge requirement. The Appeals Court held that there was no evidence that the defendant received notice of registration on the date of his arrest – the mere fact of arrest “without evidence that he was informed that day precisely what he was arrested for, is not enough.” The Court also found that the complaint only alleged the failure to register on the date of the arrest and that the defendant did not gain knowledge of the reasons for the arrest until the following day at his arraignment. Therefore, the Commonwealth had failed to prove the offense as charged.

            Congratulations to Elaine Fronhofer, appellate counsel for Mr. Ramirez, and Steve Newman, trial counsel, for their excellent advocacy.

 

Trial Tips:     

-                          Often the strongest defense to a charge of failure to register is that the Commonwealth failed to prove that the defendant had knowledge of his registration obligations.

 

-                          Consider drafting a jury instruction requiring proof of “conscious disregard” of notice in addition to actual receipt of notice.

 

-                          Move for a Required Finding on grounds that the Commonwealth has not proved facts necessary to support the offense on the date charged.

 

-                          Bill of Particulars is very important. You need to know the exact date or dates of offense(s) alleged by the Commonwealth.

 

-                          Advise clients to register immediately to avoid charges for failing to register following arrest.

 

             Lifetime Community Parole

            The statute requires the mandatory imposition of lifetime community parole following a conviction for failure to register and can be imposed after the defendant has served committed time OR after he has been released from probation or parole supervision OR upon expiration of a continued without a finding OR upon discharge from the treatment center pursuant to section 9 of chapter 123A, whichever occurs first.  The requirements imposed by the Parole Board on sex offenders subject to LCP can be very restrictive and onerous and last a lifetime.  Your client may have a hard time complying and any violation may result in the increase of his underlying sentence. For this reason, avoiding the imposition of this enhanced sentence is crucial. The following summary offers some guidance on how to avoid this sentence.

                                   

1.      Does it apply to your client?

 

LCP applies to:

 

·        Any level 1, 2 or 3 offender who is convicted of failing to register and has been convicted or adjudicated  of any of the following offenses: chapter 265, sections 13B, 13F, 22A, 23, 24B and 26 and conspiracy to commit, being an accessory to, or a like violation in another state. (indecent assault and battery on a child, indecent assault and battery on a mentally retarded person, rape of a child under 16 with force, rape and abuse of a child,  assault of a child with intent to commit rape, and  kidnapping of a child) §178H(a)(1)

 

·        Any level 2 (moderate risk) or level 3 (high risk) offender convicted of a second and subsequent failure to register, regardless of underlying index offense.  §178H(a)(2)

 

·        May also apply to any level 2 or 3 offender convicted of first offense of failure to register. See Section 178H (3).  Interpretation of this section is unclear.   Added to the statute by amendments effective December 20, 2006, this section may apply to all level  2 or 3 offenders convicted of a first offense who are not included in section (a)(1), i.e., those offenders who were convicted of sex crimes not enumerated in section (a) (1). However, one can argue that this provision in the context of the whole statute is vague and ambiguous. Commonwealth v. Richards, 426 Mass. 689 (1998) (criminal statues are strictly construed in favor of defendant) (rule of lenity)

 

LCP does not apply to:

 

·        Presumably, this provision does not apply to juveniles since the statute refers only to persons “convicted” of failing to register. 

 

·        Because LCP is an enhanced penalty, it may not be imposed for conduct which occurred before July 1, 2006 or December 20, 2006 , the dates the statutory amendments went into effect.  (Sections (a)(1) and (a)(2) were added to the statute effective July 1, 2006 ; and section (a)(3) was added to the statute effective December 20, 2006 ).   Imposition of LCP for conduct prior to July 1, 2006 or December 20, 2006 would violate state and federal constitutional prohibitions against ex post facto laws.  See Commonwealth v. Talbot, 444 Mass. 586, 597 (2005). 

 

2.      What dispositions preclude imposition of LCP?

 

·        The only dispositions that clearly do not require the LCP penalty are: filed without a change of plea, pretrial probation or G filed. See Doe No. 1211 v. SORB, 447 Mass. 750 (2006) (G filed is not a judgment of conviction where no sentence was imposed). 

 

3.      Should you object to the imposition of LCP after a CWOF despite statutory language which suggests LCP can be imposed upon expiration of a CWOF?

 

·        Counsel should object on the record to the imposition of LCP after a disposition of a continued without a finding (CWOF).  It should be argued that the statutory language allowing for the imposition of LCP “upon expiration of a continued without a finding” is unconstitutional pursuant to Apprendi v. New Jersey , 530 US 466 (2000).  Apprendi holds that the due process clause of the federal constitution requires proof beyond a reasonable doubt of the facts supporting an enhanced penalty.  A CWOF is a finding of sufficient facts, not a finding of guilt beyond a reasonable doubt.     

 

·        An argument can be made that this section does not apply to CWOFs unless there has been a violation of the conditions of a CWOF and a guilty finding has been imposed. Even then, it can be argued that a guilty finding is constitutionally insufficient to support the imposition of LCP absent a record that shows the elements of the charge were proven beyond a reasonable doubt. Apprendi v. New Jersey , 530 US 466 (2000).   

 

The statute states that LCP applies to “any person convicted,” and later mentions that LCP applies upon “expiration of a continuance without a finding.” This language is unconstitutionally vague. What does expiration mean since cases with CWOF dispositions are often dismissed?  The two sections of the statute are contradictory and can only be read in harmony if “expiration” is defined as a violation of the terms and the imposition of a guilty finding after a finding that the elements of the crime charged were proven beyond a reasonable doubt. Commonwealth v. Richards, 426 Mass. 689 (1998) (criminal statues are strictly construed in favor of defendant) (rule of lenity); Wilson v. Comm’r of Transitional Assistance, 441 Mass. 846 (2004) (contradictory provisions of a statute must be harmonized and interpreted as a whole); Wardell v. Director of Division of Employment Security, 397 Mass. 433 (1986) (admission pursuant to a CWOF is not a conviction).

 

4.      What must be charged in the complaint in order for LCP to be imposed?

 

·        The underlying conviction and that the defendant is a level 1, 2 or level 3 offender must be charged in the complaint or indictment and proved beyond a reasonable doubt. Commonwealth v. Pagan, 445 Mass. 161 (2005).  See also Apprendi v. New Jersey , 530 U.S. 466. (2000) (sentencing for enhanced penalties must meet constitutional requirements) A second and subsequent violation must also be charged and proved.

 

5.      Must LCP be imposed by a Judge and how much discretion, if any, does the Judge have?

 

·        As an enhanced penalty, LCP must be imposed by the court. Commonwealth v. Talbot, 444 Mass. 586 (2005) (LCP is an enhanced penalty); Sheehan v. Superintendent of Concord Reformatory, 254 Mass. 342 (1926) (imposition of sentences upon those convicted is a function of the courts).

 

·        It can be argued that the district court lacks jurisdiction to impose LCP where the cumulative penalties for a violation of parole could amount to more than 2˝ years in the house of correction. G.L.c. 279, §23 and G.L.c. 218, §26. See also G.L.c. 127, §133D(c) (1st violation – 30 days HOC, 2nd violation – 180 days HOC and 3rd violation – 1 year HOC on and after). Be aware that this argument could inspire the prosecutor to indict the case in order to moot the legal issue.

 

RETURN TO SLJ NEWS AND UPDATES