Opinion
11-P-1479
12-26-2012
COMMONWEALTH v. SAMMIE COLEMAN.
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
This is the defendant's appeal from his conviction of failing to register as a sex offender. As the defendant acknowledged at oral argument, his claim that the Sex Offender Registration Information (SORI) and Sex Offender Registry Board (SORB) records were improperly admitted in evidence is controlled by our recent decisions in Commonwealth v. Fox, 81 Mass. App. Ct. 244 (2012), and Commonwealth v. Albino, 81 Mass. App. Ct. 736 (2012).
Both decisions issued after the defendant filed his brief.
There is likewise no merit to the defendant's contention that the evidence was insufficient to establish a knowing violation of his registration obligations. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence (which included, among other materials tending to show his knowledge, a form acknowledgement of duty to register, signed by the defendant) was plainly sufficient. The defendant's claim that the statutory scheme (which, as then in effect, imposed greater burdens on sex offenders who listed homeless shelters as their residences than on those who were homeless without such a listing) violates his constitutional right to equal protection fails for substantially the reasons set forth in the Commonwealth's brief at pages twenty-one through twenty-five. The challenged distinction did not involve a suspect classification, and it was rational for the statutory scheme to require persons living in a specified homeless shelter to identify, and maintain as current, the homeless shelter in which they were residing, while recognizing that no such specificity was practical for persons who were not associated with any shelter. See Williamson v. Lee Optical of Okla., Inc ., 348 U.S. 483, 489 (1955) ('The legislature may select one phase of one field and apply a remedy there, neglecting the others').
The jury were not required to credit the defendant's testimony that he was not wearing his glasses when he signed the form, did not read what he signed, and did not receive an information sheet advising him of his obligations. See Koonce v. Commonwealth, 412 Mass. 71, 75 (1992).
A 2010 amendment to the statute eliminated this distinction.
Finally, assuming that the judge erred in allowing the Commonwealth to admit evidence of the defendant's 1982 convictions on charges of rape of a child to impeach his credibility, we are satisfied that the evidence did not prejudice the defendant. Conviction of a sex offense requiring registration is an element of the charged offense, and the fact that the defendant was convicted of such an offense was both well known to the jury and stipulated by the defense. While the precise nature of the offense was immaterial, by reason of the stipulation, it is likewise undisputed that the defendant did not register as required, and that he signed a form acknowledging his registration obligations. Any error in the admission of evidence of the specific nature of the prior conviction surely 'did not influence the jury, or had but very slight effect.' Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
But for the stipulation, the prior convictions would have been admissible for substantive effect, and not merely for impeachment.
For substantially the same reasons, the defendant is not entitled to relief by reason of the Commonwealth's reference to the defendant as a 'level 3' offender.
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As the Commonwealth acknowledges in its brief, the complaint on which it proceeded was inadequate to support the imposition of community parole supervision for life. See Commonwealth v. Kateley, 461 Mass. 575, 585 (2012). The conviction is affirmed, the lifetime community parole portion of the sentence is accordingly vacated, and the case is remanded for resentencing. See Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 197 (2008).
So ordered.
By the Court (Cypher, Green & Carhart, JJ.),