Commonwealth v. Domino

• Decision Date: 14 June 2013
• Docket Number: SJC–11215.
• Citation: 465 Mass. 569,989 N.E.2d 859
• Parties: COMMONWEALTH v. Kim DOMINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 569

989 N.E.2d 859

COMMONWEALTH

v.Kim DOMINO.

SJC–11215.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Feb. 4, 2013.

Decided June 14, 2013.

Andrew S. Crouch for the defendant.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

Having twice been convicted of rape of a child, the defendant is a sex offender subject to the requirements of the Sex Offender Registration and Community Notification Act, G.L. c. 6, §§ 178C–178P (sex offender registration act or act). Following his release from prison in early 2008, and prior to having been assigned a final classification level by the Sexual Offender Registry Board (SORB), the defendant registered with SORB, listing as his permanent address a relative's apartment where he in fact did not reside. He subsequently pleaded guilty to a charge of failing to register as a sex offender, in violation of G.L. c. 6, § 178H ( a ). The District Court judge imposed a fine of $500 and, given the defendant's prior convictions of rape of a child, also imposed community parole supervision for life (CPSL) pursuant to G.L. c. 6, § 178H ( a ) (1).

The defendant moved to vacate the imposition of CPSL and to withdraw his plea on three grounds. He claimed, first, that G.L. c. 6, § 178H ( a ), does not authorize the imposition of CPSL where a sex offender is, as here, sentenced only to payment of a fine. Second, he maintained that, because it was solely by virtue of an impermissible substantive amendment of the complaint that CPSL could be imposed, it must be vacated. Third, the defendant argued that he received ineffective assistance of counsel in having been dissuaded from accepting a plea offer made before the complaint was amended; had he accepted that offer, he claimed, he would not now be subject to CPSL. The judge denied his motions to vacate the imposition of CPSL and to withdraw his plea, as well as his motion for a new trial, based on claims of newly discovered evidence and the contention that, because he had pleaded guilty to an act that was not in fact a crime, his plea was not voluntary and intelligent.

The defendant appealed from the denial of his motions and we granted his application for direct appellate review. Because we conclude that G.L. c. 6, § 178H ( a ), authorizes the imposition of CPSL where the sentence is a fine; that the amendment of the complaint to add the defendant's prior convictions serving as predicate offenses for the imposition of CPSL was one of form and hence proper; that the defendant has not shown he was provided ineffective assistance of counsel in connection with the plea process; that the judge correctly concluded that a sex offender may be criminally liable for failing to register where, as here, he had been convicted of a sex offense but SORB had not yet determined his final classification level; and that the judge did not abuse her discretion in denying the motion for a new trial on the basis of newly discovered evidence, we affirm the orders of the District Court judge.

1. Background. In 2004, the defendant was convicted on an indictment charging two counts of rape of a child, subsequent offense, in violation of G.L. c. 265, § 23.¹ On January 17, 2008, after his release from custody, the defendant submitted to SORB a form listing his permanent address as “homeless.” SORB informed him by letter dated March 26, 2008, that, in connection with its impending determinations whether he would have a continuing duty to register as a sex offender and, if so, at what classification level, he had the right to submit documentary evidence for its consideration. In May, 2008, the defendant notified SORB that his home address was a specific address on Sargent Street in Holyoke. SORB would later learn that this was his mailing address only and that he did not live there. When SORB notified the defendant on May 19, 2008, that it was initially recommending that he register as a level three sex offender, the defendant requested a hearing to challenge the recommendation. On December 15, 2008, after an evidentiary hearing, SORB notified the defendant of its final determination that he must register as a level three sex offender.

On June 6, 2008, investigators from the Holyoke police department visited the Sargent Street address. They spoke with Florence Gonzalez, a tenant who lived in the apartment above the one that the defendant claimed as his residence, who told them that she did not know the defendant and that he did not live at the address. Investigators also spoke with Nancy Andujar, who lived in the apartment that the defendant had given as his home address. Andujar, the defendant's former mother-in-law and the grandmother of his children, stated that the defendant had stayed at the house on only one occasion, that he did not live there, and that he only used the house as a mailing address. Officers also spoke with the defendant's children, who stated that he lived somewhere in Springfield. Later that day, the defendant again changed his residency information with SORB, stating that he was homeless, but listing the Sargent Street address as both a mailing address and a work address.

On June 16, 2008, based on the investigators' June 6 visit, a criminal complaint issued against the defendant in the District Court for failing to register as a sex offender, in violation of G.L. c. 6, § 178H ( a ). The “penalty” portion of the complaint stated in pertinent part that “[l]ifetime community parole supervision is also required upon conviction if ... the defendant's underlying offense was G.L. c. 265, §§ 13B, 13F, 22A, 23, 24B, or 26....” The complaint, however, did not set forth the defendant's prior convictions of rape of a child in violation of G.L. c. 265, § 23. The prosecutor made defense counsel aware of these prior convictions on or about October 17, 2008. Plea discussions ensued and an offer was extended shortly thereafter, involving either a fine or probation; the offer remained on the table for some time. Worried about the possibility that CPSL might also be imposed, defense counsel advised his client not to accept the plea offer. On August 19, 2009, the judge allowed the Commonwealth's motion to amend the complaint, over objection, by adding that the defendant had previously been convicted of rape of a child, and that his failure to register “triggers [the] penalty of lifetime community parole.” ²

On August 31, 2009, the defendant tendered a guilty plea, requesting a sentence of a $500 fine, while the Commonwealth recommended a ninety-day period of incarceration and imposition of CPSL. The judge ordered the defendant to pay a fine of $500 and imposed CPSL. In light of her sentence, the judge offered the defendant the opportunity to withdraw his plea and to proceed to trial. The defendant chose not to withdraw his plea.

2. Discussion. a. Motion to vacate CPSL or withdraw plea. The defendant claims error in the denial of his motion to vacate CPSL or to withdraw his plea. He maintains that the judge lacked statutory authority to impose CPSL where, as here, a defendant is punished only by the imposition of a fine; that the complaint was impermissibly amended; and that he received ineffective assistance of counsel in the plea process. We consider each claim in turn.

i. Imposition of CPSL where the only sentence is a fine.General Laws c. 6, § 178H ( a )(1), provides, in pertinent part:

“A person convicted under this paragraph, who has been adjudicated or convicted of any of the offenses set forth in section 13B, 13B 1/2, 12B 3/4, 13F, 22A, 22B, 22C, 23, 23A, 23B, 24B, and 26 of chapter 265 ... shall, in addition to terms of imprisonment authorized by this section, be punished by a term of [CPSL], to be served under the jurisdiction of the parole board.... The sentence of [CPSL] shall commence immediately upon the expiration of the term of imprisonment imposed upon such person by the court or upon such person's release from probation or parole supervision or upon the expiration of a continuance without a finding or upon discharge from commitment to the treatment center pursuant to section 9 of chapter 123A, whichever first occurs.”

Because a fine is not among the enumerated punishments in the final sentence of this provision, the defendant maintains that CPSL may not be imposed when the sentence for failing to register as a sex offender is merely a fine.

The defendant ignores, however, the first part of the quoted language, which requires that CPSL be imposed on any person who previously has been convicted of one of the enumerated offenses, including G.L. c. 265, § 23, of which the defendant has been twice convicted. See Commonwealth v. Williamson, 462 Mass. 676, 681–682, 971 N.E.2d 250 (2012) (provision's “language, on its face, requires the mandatory imposition of CPSL for those convicted under [it]”).³ The final sentence of this provision, upon which the defendant relies, addresses only when the mandatory sentence of CPSL shall commence, not whether it should be imposed, a matter already settled by the earlier language. That a fine is not among the enumerated sentences in the final sentence of this provision leaves open only the question when CPSL should commence in the circumstances where a fine alone is imposed. That question is readily answered. The Legislature plainly intended CPSL to commence as soon as the sex offender is no longer under supervision through other means, such as incarceration or probation. See G.L. c. 6, § 178H ( a ) (1). Accordingly, where, as here, a defendant is both mandatorily subject to CPSL and sentenced to a fine, CPSL must commence immediately upon imposition of that sentence, since the defendant is not otherwise subject to supervision pursuant to the conviction.

Reading the statutory language in this straightforward manner comports with the clear and broad command of the first part of the...