Opinion
11-P-642
03-26-2012
COMMONWEALTH v. ALLAN G. BRALEY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 18, 2009, the defendant admitted to facts sufficient to establish one count of failure to register as a sex offender, G. L. c. 6, § 178H(a). A District Court judge continued the case without a finding for one year and placed the defendant on probation for that same one year. Following a probation violation, a second District Court judge entered a finding of guilty and sentenced the defendant to six months in the house of correction. After the decision whether to impose community parole supervision for life (CPSL) was delayed, a third District Court judge, after hearing, imposed CPSL. On appeal, the defendant challenges the imposition of CPSL because the original complaint did not specifically allege the predicate condition or offense for imposing it.
In its brief, the Commonwealth brought to our attention that this court had rejected just such an argument in a case that involved 'a complaint identical to the one in the instant case,' and that the Supreme Judicial Court had granted further appellate review in that case. Commonwealth v. Kateley, 78 Mass. App. Ct. 1115 (2010), further appellate review granted, 459 Mass. 1104 (2011). We stayed the current appeal pending a decision by the Supreme Judicial Court in Kateley, which the court issued on February 24, 2012. 461 Mass. 575 (2012). Although the court reversed the defendant's conviction on other grounds, it went on to reach the CPSL issue, concluding 'that the complaint issued against the defendant . . . did not meet the requirements of art. 12.' Id. at 585. Because the Commonwealth has conceded that the complaint here is 'identical' to the one at issue in Kateley, we are constrained to conclude that it also is insufficient to support the imposition of CPSL. Therefore, although we affirm the defendant's conviction (the defendant not having challenged it), we vacate his sentence and remand this matter to the District Court for resentencing consistent with this memorandum and order.
So ordered.
By the Court (Graham, Rubin & Milkey, JJ.),