Commonwealth v. Dalton (Lawyers Weekly No. 10-048-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11429 COMMONWEALTH vs. RYAN DALTON. Suffolk. January 6, 2014. ‑ March 17, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Practice, Criminal, Sentence, Judicial discretion. Statute, Construction. Words, “May not.” Civil action commenced in the Supreme Judicial Court for the county of Suffolk on August 15, 2011. The case was reported by Lenk, J. Pamela Alford, Assistant District Attorney, for the Commonwealth. Lawrence P. Murray for the defendant. 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 may 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, […]