COMMONWEALTH v. Douglas CURRIER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In these consolidated appeals, a youthful offender seeks to appeal the denial of two motions: (1) one seeking to relieve him of the obligation to register as a sex offender, and (2) one seeking impoundment of his Juvenile Court file. For the reasons that follow, we dismiss the appeal of the order denying the first motion for lack of jurisdiction, and affirm the order denying the second motion.
Background. In 2010, when he was sixteen years old, the defendant was indicted as a youthful offender for assault with intent to rape, and for assault and battery. These charges were based on the sexual assault of a forty-seven year old teacher's aide, during which the defendant “punched and slapped the victim in the head and face,” “slamm[ed] the [v]ictim's head and face against the wall,” and tried “to force her into sexual intercourse over her screams and pleas.” The charges were resolved by a plea agreement in which the defendant was adjudicated a youthful offender with respect to the assault with intent to rape charge, and delinquent with respect to the assault and battery charge. A Juvenile Court judge issued a split sentence under which the defendant was committed to the Department of Youth Services (DYS) until age twenty-one or discharge by DYS, and received a suspended prison sentence of three to three and one-half years, with terms of probation lasting until September 29, 2018. As one of the many terms of probation that were imposed, the defendant was required to register as a sex offender with the Sex Offender Registry Board (SORB). SORB eventually classified the defendant as a level two sex offender, a classification that was affirmed in Superior Court.
In June of 2017, the defendant filed what was titled a “Motion for Revision of Terms of Probation.” That motion requested -- in pertinent part -- that he be relieved of his obligation to register as a sex offender. Notably, the motion sought not only that the defendant's obligation to register be removed as a condition of probation, but also that he be relieved from having to register more generally. After hearing testimony from four witnesses, the judge denied defendant's motion insofar as he was seeking to be relieved of his obligation to register.2 She explained her reasoning in a comprehensive twenty-five page memorandum of decision.
Discussion. 1. Motion for revision of terms of probation. The defendant now seeks to appeal the judge's order on his motion seeking revision of probation insofar as that order denied his request to be relieved from having to register as a sex offender. Such an appeal is not properly before us.
A decision not to waive the registration requirement can be challenged only through a petition to a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, § 3. See, e.g., Ernest E. v. Commonwealth, 486 Mass. 183, 185 & n.4 (2020), quoting Commonwealth v. Ronald R., 450 Mass. 262, 266-267 (2007) (“G. L. c. 211, § 3, ․ grants this court ‘general superintendence ․ to correct and prevent errors and abuses’ for the furtherance of justice”).3 In fact, the case on which the defendant principally relies itself recognizes that a G. L. c. 211, § 3, petition provides the exclusive means of review. See Commonwealth v. Samuel S., 476 Mass. 497, 499-500 (2017).4 To the extent that the defendant seeks to have sex offender registration removed from his conditions of probation -- as opposed to his being relieved from that requirement more generally -- that appeal would be moot. See Commonwealth v. Feliz, 486 Mass. 510, 513 (2020) (challenges to probation conditions are moot once probation has ended).
2. Motion to impound. Separately, the defendant challenges an order by the judge denying his motion to have the Juvenile Court file impounded. The Commonwealth argues that this appeal also is not properly before us, on the grounds that such a challenge should have been brought as a petition to the single justice of this court. See Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 601 (2000). However, because there is no ongoing action in the trial court, an appeal brought in the ordinary course is proper. Compare rule 12(a) with rule 12(b) of the Uniform Rules on Impoundment Procedure, Trial Court Rule VIII (2015).
In our view, the judge did not abuse her discretion in denying the defendant's motion to impound. As the judge noted, rule 2 (a) (1) of the Uniform Rules on Impoundment Procedure requires those seeking impoundment to file a written motion “describ[ing] with particularity (i) the material sought to be impounded, (ii) the duration for which impoundment is sought, (iii) the reasons impoundment is necessary, and (iv) the reasons other alternatives to impoundment will not afford adequate protection.”5 Also, “[t]he movant shall include proposed findings and a proposed order ․ with the motion.” Uniform Rules on Impoundment Procedure 2 (a) (1). The defendant failed to specify the duration for which he sought impoundment, to address other alternatives to impoundment, or to supply proposed findings and a proposed order. His failure to comply with rule 2 by itself was sufficient to justify the denial of his motion.6
Disposition. We dismiss the defendant's appeal of the order dated December 6, 2017, that denied his motion for revision of probation conditions insofar as that order denied his request to be relieved from having to register as a sex offender. We affirm the order dated August 24, 2018, denying his motion to impound.
Dismissed in part; affirmed in part.
2. The judge terminated the separate probation condition that the defendant continue to wear a global positioning system (GPS) device. The Commonwealth did not appeal.
3. In Doe, Sex Offender Registry Bd. No. 147721 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 38, 43-47 (2012), a case cited by neither party, we recognized our jurisdiction to consider the validity of an order that a Juvenile Court judge purportedly made pursuant to G. L. c. 6, § 178E (f). That case involved an unusual confluence of circumstances not present here, and it, in fact, directly undercuts the defendant's arguments. The judge there had allowed a juvenile's timely motion to be relieved from sex offender registration and then, years later, purported to rescind that relief on a motion for reconsideration. See id. at 39. In a challenge the juvenile had brought to the jurisdiction of SORB requiring him to register, we concluded that we had jurisdiction to consider whether the judge had authority to reverse his decision regarding G. L. c. 6, § 178E (f). See id. at 42-47. In ruling for the juvenile, we emphasized the limited role that the Legislature gave judges with regard to whether someone should be exempted from sex offender registration. See id. at 47-48. We also recognized that a sex offender cannot be relieved of having to register pursuant to G. L. c. 6, § 178E (f), if “he has been convicted of ․ a sexually violent offense.” Id. at 43 n.9.
4. In Samuel S., after finding that the juvenile failed to follow the correct procedure, the Supreme Judicial Court nonetheless reached the underlying merits because “it w[ould] serve a substantial public interest to resolve the questions presented by the juvenile's appeal.” See 476 Mass at 500. The defendant requests that we do the same. Passing over whether we, as a court that lacks general superintendence powers, even have the authority to resolve an issue for which no jurisdiction lies, the defendant has not identified any important legal issues that warrant such treatment. Finally, we note that unlike the situation here, in Samuel S., the juvenile had raised a timely request pursuant to G. L. c. 6, § 178E (f), to be relieved of the duty to register, see id. at 499.
5. To the extent that the defendant argues that the judge committed legal error because the Uniform Rules of Impoundment Procedure do not apply to some of the materials at issue, see rule 1 (a) of the Uniform Rules of Impoundment Procedure, his contentions on this point do not rise to the level of appellate argument required by Mass. R. A. P. 16 (a) (4), as appearing in 481 Mass. 1629 (2019). See Adoption of Zak, 90 Mass. App. Ct. 840, 842 n.4 (2017).
6. This is not say that an argument cannot be forged that some of the material in the record should be impounded. In particular, we note that two categories of information in the record -- documents from his SORB file, which the defendant himself submitted into court, and information from the file of the Department of Children and Families (DCF) -- otherwise enjoy protection from public view pursuant to statute or regulation. See G. L. c. 6, § 178M; G. L. c. 119, § 51E. Our affirmance of the order denying the motion for impoundment is without prejudice to the defendant's refiling a proper motion under rule 2.
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