Supreme Judicial Court, July 9, 2012

The imposition of community parole supervision for life for failing to register as sex offender, pursuant to G.L. 6, § 178H (a)(3), is discretionary and not mandatory.

The defendant was indicted for failure to register as a sex offender, second offense, G.L. 6, § 178H (a)(2) on November 20, 2008.  On July 14, 2009, the prosecutor and defendant, through his attorney, entered into a plea agreement wherein the defendant would plead guilty to the lesser included offense of failure to register as a sex offender, first offense, G.L. 6, § 178H (a)(3), and agree to the prosecutor’s sentencing recommendation.  The prosecutor reported the agreed recommendation as sentencing the defendant to one year in a house of correction "under the provisions of [G. L. c. 6, § 178H (a)(3),] which would still provide for lifetime parole."  The judge accepted the plea and joint recommendation.

Eight months later, the defendant filed a motion to vacate and correct the sentence, pursuant to Mass. R. Crim. P. 30.  He requested that the court vacate the portion of the sentence imposing community parole supervision for life (CPSL) because the judge erred in treating the imposition of CPSL as mandatory rather than discretionary.[1] The judge denied the motion and agreed with the Commonwealth that CPSL pursuant to G.L. 6, § 178H (a)(3) is mandatory.  The defendant appealed the lower court’s decision and the SJC transferred the appeal. 

The Court turned to the language of the statute in order to determine whether the imposition of CPSL for a first offense failure to register is discretionary.  It compared the language in G.L. 6, § 178H (a)(3) that states "[a]ny person convicted under this subsection who is a level 2 or level 3 sex offender shall . . . be subject to community parole supervision for life . . ." to the language "shall . . . be punished by a term of community parole supervision for life" used in G.L. 6, § 178H (a)(1)(applying to sex offenders convicted of certain enumerated offenses) and G.L. 6, § 178H (a)(2)(for second and subsequent offenses of level 2 and 3 offenders).  The Court found “[t]he Legislature utilized clear language in the first two subsections imposing mandatory CPSL ("shall . . . be punished by") but subsequently adopted ambiguous language ("shall . . . be subject to") in § 178H (a)(3). This use of different language strongly suggests the legislative intent to convey a different meaning.”  The Court found further support for CPSL being discretionary under G.L. 6, § 178H (a)(3) by looking to the statute’s legislative history. The Legislature originally considered language identical to the other subsections (“shall….be punished by”), but ultimately changed the language of G.L. 6, § 178H (a)(3) to (“shall…be subject to”).  Last the Court found that the first two subsections require mandatory CPSL for the most serious offenders and that it is  consistent with the statute’s scheme and purpose to allow discretion in imposing CPSL for those convicted under G.L. 6, § 178H (a)(3).

The Court held that the imposition of CPSL for failure to register, pursuant to G.L. 6, § 178H (a)(3), is discretionary.  It vacated the defendant’s sentence and remanded it to Superior Court for resentencing consistent with the opinion. 

[1] The defendant also asserted that because the Clerk did not announce CPSL when reading the sentence in open court that the CPSL should be vacated and not remanded for resentencing.  The SJC was not persuaded by this argument finding the defendant was on notice and had reason to understand that he was subject to CPSL as part of his sentence.