In COMMONWEALTH vs. SHAWN P. ROGERS MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 #08-P-1877 the appeals court found a loophole in the homeless sex offender registration requirements found in G. L. c. 6, § 178F 1/2 stating that they only had to verify if they listed a homeless shelter as their address, not if they were actually homeless. The legislature amended the statute effective Nov 10th to remedy this which can be found below.
The court stated in the original case “c. 6, § 178H. The theory of the Commonwealth’s case was that the defendant violated G. L. c. 6, § 178F 1/2 , because he did not appear in person at his local police station to verify his registration data within ninety days of becoming homeless. We reverse.
Background. The following facts, derived from the trial record and the parties submissions, are not in dispute. By letter dated August 14, 2006, addressed to the defendant at the Falmouth address where he then resided, the Sex Offender Registry Board informed the defendant that he had been classified as a level three offender, and directed him to register at the local police department within two calendar days of receipt. On August 21, 2006, the defendant appeared in person at the Falmouth police station, provided all necessary information, and completed his registration paperwork.
Two months later, on October 24, 2006, the defendant met with Falmouth police Sergeant Douglas Decosta, the officer in charge of sex offender registration, to express concern that a local newspaper had published the defendant’s status as a level three sex offender. At that meeting, the defendant stated that he had become homeless and that he was planning to move to Florida. Sergeant Decosta told the defendant that he would need to notify the police of any move, but did not inform him of any specific requirements applicable to homeless sex offenders.
On March 20, 2007, Sergeant Decosta realized that he had not seen or heard from the defendant since their meeting in October. The police arrested the defendant on March 22, 2007, in the belief that, by this point, the defendant was required to have returned to the police station to verify his registration data. The defendant, who remained homeless at the time of his arrest, had been living on the streets, and not in a homeless shelter.
On January 30, 2008, the defendant was convicted of failing to register as a sex offender, and this appeal ensued. On January 7, 2010, we issued a memorandum and order pursuant to our rule 1:28, affirming the defendant’s conviction. Thereafter, on January 25, 2010, the defendant filed a petition for rehearing, raising an issue that had not been raised below or in the defendant’s brief on appeal, i.e., that, under the terms of G. L. c. 6, § 178F 1/2 , the conviction was unlawful. Upon our request, the Commonwealth filed a response, agreeing that we should grant the defendant relief in order to prevent a miscarriage of justice.
After review of the parties’ submissions, we have withdrawn that decision and exercise our discretion to consider and decide the issue belatedly raised in the defendant’s petition for rehearing. See Commonwealth v. Brown, 75 Mass. App. Ct. 361, 362 (2009).
Discussion. The fourth sentence of G. L. c. 6, § 178F 1/2 , inserted by St. 1999, c. 74, § 2, provides that a level two or level three sex offender ‘who lists a homeless shelter as his residence shall appear in person at such local police department every 90 days to verify that the registration data on file remains true and accurate. Because this section is silent as to an individual, like the defendant, who was homeless, but not living in a shelter, this requirement does not apply to him. See Commonwealth v. Scipione, 69 Mass. App. Ct. 906, 907 (2007); Commonwealth v. Bolling,72 Mass. App. Ct. 618, 622- 623 (2008). Although the defendant remained subject to the annual registration requirement for level two and level three offenders contained in § 178F 1/2 , the record establishes (and there is no dispute) that the defendant was in compliance with that requirement at the time of his arrest. See Commonwealth v. Scipione, supra.
In short, this defendant had not committed a crime at the time of his arrest, his conviction was forbidden by a rule of law, and a miscarriage of justice has resulted. Compare Commonwealth v. Clary, 388 Mass. 583, 588-589 (1983). Accordingly, the judgment is reversed, the finding is set aside, and the indictment is to be dismissed.”
Here is the session laws with some of the changes that will take affect. Specifically, Sections 40,41, and 42.
SECTION 37. Said chapter 6 is hereby further amended by striking out section 178A, as so appearing, and inserting in place thereof the following section:-
Section 178A. A victim of crime, witness or family member of a homicide victim, all as defined by section 1 of chapter 258B, may obtain all available criminal offender record information of the person accused or convicted of said crime. Criminal justice agencies may also disclose to such persons such additional information, including, but not limited to, evaluative information, as such agencies determine is reasonably necessary for the security and well being of such persons.
SECTION 38. Section 178C of said chapter 6, as so appearing, is hereby amended by striking out, in lines 12 and 13 and in line 51, the words “criminal history systems board” and inserting in place thereof, in each instance, the following word:- department.
SECTION 39. Section 178D of said chapter 6, as so appearing, is hereby amended by striking out, in line 2, the words “criminal history systems board” and inserting in place thereof the following word:- department.
SECTION 40. Section 178F of chapter 6, as so appearing, is hereby amended by striking out, in lines 14 to 16, inclusive, the words “A sex offender who lists a homeless shelter as his residence shall verify registration data every 45 days” and inserting in place thereof the following words: – A homeless sex offender shall verify registration data every 30 days.
SECTION 41. Section 178F½ of chapter 6, as so appearing, is hereby amended by striking out, in lines 14 to 15, the words “Such sex offender who lists a homeless shelter as his residence shall appear in person at such local police department every 45 days” and inserting in place thereof the following words:- A homeless sex offender shall appear in person at such local police department every 30 days.
SECTION 42. Said chapter 6, as so appearing, is hereby amended by inserting, after section 178F½,the following section:-
Section 178F ¾. A homeless sex offender shall wear a global positioning system device, or any comparable device, administered by the commissioner of probation.”
Attorney Ronald A. Sellon