Opinion
No. 11–P–115.
2012-05-25
COMMONWEALTH v. Eugene A. WILLIS.
By the Court (KAFKER, FECTEAU & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction for failing to register as a sex offender, G.L. c. 6, § 178H, arguing (a) that the statute's imposition of mandatory lifetime community parole exceeds the jurisdiction of the District Court, and (b) that the admission of certain hearsay documents violated his confrontation rights under the Sixth Amendment to the United States Constitution.
Commonwealth v. Kateley, 461 Mass. 575 (2012), which was decided after this case was argued, requires that we vacate so much of the sentence as imposes lifetime community parole. The amended complaint (which sought to add the enhanced penalty of lifetime community parole) violated art. 12 of the Massachusetts Declaration of Rights because it did not allege any predicate offense or condition for the enhanced penalty. Id. at 584. As in Kateley, the amended complaint in this case recites only the language of G.L. c. 6, § 178H, without putting this particular defendant on notice as to what he did to trigger the enhanced penalty of lifetime community parole. Although the Commonwealth later identified the predicate offenses in a bill of particulars produced in response to the defendant's motion for same, Kately requires that the predicate offenses be identified in the charging document. Because the enhanced penalty of lifetime community parole is mandatory, the art. 12 analysis of Commonwealth v. Pagan, 445 Mass. 161, 165–167 (2005), applies and “[a]ccordingly, under G.L. c. 6, § 178H( a ), the predicate condition or offense for imposing [lifetime community parole] (here, sex offender classification or prior conviction of certain sex offenses) must be alleged in the charging document.” Kateley, 461 Mass. at 584. In light of the above, we need not consider the defendant's argument that it lies outside the authority of the District Court to impose a sentence of community lifetime parole. What remains, therefore, is the defendant's argument that the documents of the Sex Offender Registry Board and the sex offender registry unit of the Boston police department were inadmissible hearsay (rather than business records), the admission of which violated his rights under the Sixth Amendment. This argument fails for the reasons contained in Commonwealth v. Fox, 81 Mass.App.Ct. 244, 245–246 (2012), and Commonwealth v. Albino, 81 Mass.App.Ct. 736, 737–738 (2012), which control in all material respects.
The lifetime community parole portion of the defendant's sentence is vacated. See Pagan, 445 Mass. at 174. Because the lifetime community parole was mandatory, it may have factored into the judge's thinking when imposing sentence. Ibid. The matter is accordingly remanded for resentencing solely under the first paragraph of G.L. c. 6, § 178H( a )(1) (in other words, without the imposition of lifetime community parole).
So ordered.