No Sex Offender Registration for Defendant Convicted of Two Open Gross Charges Adjudicated in Same Proceeding

In Commonwealth v. Wimer, the Supreme Judicial Court ruled that the defendant did not have to register as a sex offender because his two convictions for sex offenses – specifically, two convictions for open and gross lewdness – were adjudicated during the same proceeding, such that he did not have a “second and subsequent” conviction (a prerequisite for imposition of the registration requirement under G.L. c.6, §178C).

The background was as follows. “[T]he defendant pleaded guilty to two counts of open and gross lewdness, in violation of G.L. c.272, §16. The charges arose from two incidents in which the defendant masturbated in front of his girl friend’s nine year old daughter. The defendant’s sentence on the second conviction included an order to register as a sex offender pursuant to G.L. c.6, §178C, which requires such registration upon a ‘second and subsequent adjudication or conviction of open and gross lewdness.’” Subsequently, the defendant challenged the registration requirement by filing in the trial court a motion to correct an illegal sentence, pursuant to Mass.R.Crim.P. 30(a). The judge denied the motion. On appeal, the defendant “argu[ed] that, as [his] two convictions were adjudicated during the same proceeding, he did not have a ‘second and subsequent’ conviction as required by §178C and, thus, he was not required to register as a sex offender.”

In its decision, the SJC agreed with the defendant’s argument and reversed the denial of the defendant’s motion to correct an illegal sentence. The Court noted that the phrase “second and subsequent” in G.L. c.6, §178C, “modifies ‘adjudication or conviction.’…. Both ‘adjudication’ and ‘conviction’ involve a legal proceeding. Although the defendant committed two separate incidents on two different occasions (one subsequent to the other), the resulting two convictions occurred in the same judicial proceeding. Thus, the second conviction was not a subsequent conviction.”

A conviction for a sex offense has significant collateral consequences that may impact a person’s ability to obtain employment and housing, among other things. If you or a loved one is facing a sex offense charge, or has been convicted of a sex offense and is facing classification proceedings in relation to sex offender ergistration, you will need the assistance of a skilled defense attorney to make sure that you benefit from the any helpful changes to the sex offender laws and statutes.  Attorney Daniel Cappetta handles criminal defense of all sexual assault charges, and knows several attorneys experienced in the field of sex offender classification litigation – call him for a free consultation today.