Commonwealth v. Cole (Lawyers Weekly No. 10-097-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11316 COMMONWEALTH vs. CASEY L. COLE. Plymouth. November 5, 2013. ‑ June 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Community Parole Supervision for Life. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Separation of powers, Sentence, Sex offender, Parole, Severability. Due Process of Law, Sentence, Sex offender, Parole. Parole. Imprisonment, Parole. Practice, Criminal, Sentence, Parole. Statute, Validity, Severability. Complaint received and sworn to in the Brockton Division of the District Court Department on March 22, 2010. A motion to correct sentence, filed on July 12, 2012, was considered by Mary L. Amrhein, J. The Supreme Judicial Court granted an application for direct appellate review. Beth L. Eisenberg, Committee for Public Counsel Services (Laura M. Banwarth with her) for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. Jeffrey G. Harris, Margaret Fox, Elizabeth A. Lunt, & Patricia Garin, for Massachusetts Association of Criminal Defense Lawyers & another, amici curiae, submitted a brief. GANTS, J. The issue presented on appeal is whether community parole supervision for life (CPSL) violates our separation of powers doctrine, articulated in art. 30 of the Massachusetts Declaration of Rights, by improperly delegating to the parole board, an entity of the executive branch, the exercise of the judicial power to impose sentences. We conclude that CPSL grants to the parole board a quintessential judicial power, the power to determine whether a defendant should be sentenced to additional terms of imprisonment, and therefore violates art. 30. Because the imposition of a CPSL sentence by the parole board constitutes an unconstitutional violation of our separation of powers doctrine, the defendant’s CPSL sentence must be vacated. Background. The defendant, Casey Cole, was classified as a level two sex offender by the Sex Offender Registry Board (SORB), and therefore was required to register as a sex offender and provide SORB with notice of any change of address. See G. L. c. 6, § 178E (h). See also G. L. c. 6, §§ 178C-178P. On March 22, 2010, a complaint issued charging the defendant with failing to provide notice of a change of address, as a level two or level three sex offender, in violation of G. L. c. 6, § 178H (a) (1). Among the potential penalties identified in the complaint was “lifetime community parole supervision.” On August 23, […]