Commonwealth v. Dalton

5 N.E.3d 1206, 467 Mass. 555, 2014 WL 982850, 2014 Mass. LEXIS 132
CourtMassachusetts Supreme Judicial Court
DecidedMarch 17, 2014
StatusPublished
Cited by18 cases

This text of 5 N.E.3d 1206 (Commonwealth v. Dalton) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dalton, 5 N.E.3d 1206, 467 Mass. 555, 2014 WL 982850, 2014 Mass. LEXIS 132 (Mass. 2014).

Opinion

Gants, J.

Under G. L. c. 6, § 178E (f), where a defendant convicted of a sex offense is not “sentenced to immediate confinement,” the judge “shall relieve such sex offender of the obligation to register” as a sex offender with the Sex Offender Registry Board (SORB) if the judge, within fourteen days of sentencing, determines that “the circumstances of the offense in conjunction with the offender’s criminal history indicate that the sex offender does not pose a risk of reoffense or a danger to the public.” However, § 178E (f) also provides that a judge “may not make such a determination or finding if the sex offender . . . has been convicted of a sex offense involving a child.” The defendant in this case was convicted of statutory rape of a fourteen year old girl, in violation of G. L. c. 265, § 23, which is a “sex offense involving a child” as defined in G. L. c. 6, § 178C, and was not sentenced to immediate confinement. The issue presented in this case is whether a judge [556]*556may relieve the defendant of the obligation to register with SORB because § 178E (f) declares that a judge “may not,” rather than “shall not,” make the required determination. We conclude that the judge may not.

Background. After a jury-waived trial, the defendant was found guilty of one count of statutory rape and sentenced to a term of probation of six years, with special conditions.1 The defendant filed a motion for relief from the obligation to register as a sex offender, and the Commonwealth filed an opposition. After hearing, the judge found that, if § 178E (f) allows him the discretion to determine that the circumstances of the offense in conjunction with the defendant’s criminal history indicate that the defendant does not pose a risk of reoffense or a danger to the public, “the circumstances in this case present exactly the situation in which that discretion should be applied in favor of the defendant.”2 The judge recognized that “[t]he more difficult question” is whether he was barred under § 178E (f) from relieving the defendant of the obligation to register because the defendant had been convicted of a sex offense involving a child. The judge concluded that § 178E (f) did not bar him from doing so. He reasoned that the Legislature used the word “may” when it allowed a judge or a board to exercise discretion, and “shall” when it prohibited such discretion, and that the choice of the words “may not” in § 178E (f) reflected the Legislature’s intent to grant a judge the discretion to relieve a defendant of the obligation of registering with SORB even where the defendant has been convicted of a sex offense involving a child. The Commonwealth sought relief from the judge’s order relieving the defendant of the obligation to register by filing a petition with the single justice of this court pursuant to G. L. 211, § 3. The single justice reserved and reported the petition to the full court.

[557]*557Discussion. General Laws c. 6, § 178E if), provides as follows:

“In the case of a sex offender who has been convicted of a sex offense . . . and who has not been sentenced to immediate confinement, the court shall, within [fourteen] days of sentencing, determine whether the circumstances of the offense in conjunction with the offender’s criminal history indicate that the sex offender does not pose a risk of reoffense or a danger to the public. If the court so determines, the court shall relieve such sex offender of the obligation to register under [G. L. c. 6, §§] 178C to 178P, inclusive. The court may not make such a determination or finding if the sex offender has been determined to be a sexually violent predator; has been convicted of two or more sex offenses defined as sex offenses pursuant to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071, committed on different occasions; has been convicted of a sex offense involving a child or a sexually violent offense; or if the sex offender is otherwise subject to minimum or lifetime registration requirements as determined by [SORB] to [G. L. c. 6, §] 178D.”

“[T]he meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms.” Commonwealth v. Boe, 456 Mass. 337, 347 (2010), quoting James J. Welch & Co. v. Deputy Comm’r of Capital Planning & Operations, 387 Mass. 662, 666 (1982). Because criminal penalties may be imposed on a defendant who is required to register and fails to do so, we apply the “rule of lenity” in interpreting the registration requirement and “ ‘resolve any ambiguities’ against the Commonwealth.” Commonwealth v. Ventura, 465 Mass. 202, 212 (2013), quoting Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 618 (2010). Therefore, if the statute were “found plausibly to be ambiguous, the defendant is given the benefit of the ambiguity.” Commonwealth v. Wotan, 422 Mass. 740, 742 (1996). We conclude that there is no such plausible ambiguity in § 178E if); where, as here, a defendant is convicted of a sex [558]*558offense involving a child, the language of § 178E (f) clearly prohibits a judge from making the determination that “the circumstances of the offense in conjunction with the offender’s criminal history indicate that the sex offender does not pose a risk of reoffense or a danger to the public,” and thereby prohibits a judge from relieving the defendant of the obligation to register with SORB.

According to the plain language of § 178E (f), where a judge sentences a defendant to a term of probation rather than a sentence of “immediate confinement,” the judge for many defendants has the discretion timely to consider the circumstances of the offense and the criminal history of the defendant, and determine whether the defendant “does not pose a risk of reoffense or a danger to the public.” Where a judge makes such a determination, the judge is required to relieve the defendant of the obligation to register with SORB. However, for certain defendants, including a defendant convicted of a sex offense involving a child, a judge “may not make such a determination” and therefore lacks the authority to relieve the defendant of the obligation to register. See Commonwealth v. Domino, 465 Mass. 569, 582 (2013) (defendant “statutorily foreclosed” from relief from registration under § 178E [f], because of prior convictions of rape of child); Roe v. Attorney Gen., 434 Mass. 418, 424 n.13 (2001) (“exceptions to registration” under § 178E [f] “do not apply to . . . those convicted of sex offenses involving a child or sexually violent offenses”).

The use of the word “may” in a statute is generally permissive, reflecting the Legislature’s intent to grant discretion or permission to make a finding or authorize an act. See, e.g., School Comm, of Greenfield v. Greenfield Educ. Ass’n, 385 Mass. 70, 81 (1982) (“the word ‘may’ does not impose a mandate but simply authorizes an act”). The use of the words “may not” denies such discretion or permission, and is therefore mandatory in nature. See, e.g., Edwards, petitioner, 464 Mass.

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Cite This Page — Counsel Stack

Bluebook (online)
5 N.E.3d 1206, 467 Mass. 555, 2014 WL 982850, 2014 Mass. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dalton-mass-2014.