SORB Practice Aids

• FAILURE TO REGISTER
• SUPERIOR COURT REVIEW OF SORB CLASSIFICATION DECISION
• PERFECTING AN APPEAL FROM THE SUPERIOR COURT TO THE APPEALS COURT
• STEPS REQUIRED TO PERFECT AN APPEAL TO THE APPEALS COURT
• PROCEDURES FOR FILING OF CIVIL APPEALS BRIEFS
• SECURING FUNDS FOR INTERPRETERS IN CASES BEFORE THE SORB
• PERFORMANCE STANDARDS FOR ASSIGNED COUNSEL [good link coming soon]
  

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Attorneys accepting an appointment to represent a client at his hearing before the Sex Offender Registry Board (“the board”) accept the responsibility to represent the client in the superior court review of the board’s decision under G.L. c. 6, § 178M. Certification to take criminal cases in the superior court is not necessary, as long as the attorney has completed the Sex Offender Registration and Notification training course provided by CPCS through MCLE.

If a client wants to appeal the board’s decision, the attorney must file a civil complaint in the superior court within 30 days of the board’s decision. Filing a Notice of Appeal with the board will not preserve the client’s right to superior court review. Only the filing of a civil complaint in superior court will preserve his right.

The complaint should be accompanied by the following motions or documents:

Any motions filed subsequent to the filing of the complaint must comply with Rule 9A of the Massachusetts Superior Court Rules.Service of the complaint is accomplished by mailing a copy of the complaint and the summons by certified or registered mail to the Sex Offender Registry Board and the Attorney General’s Office pursuant to Rule 4(a), Rule 4(b), and Rule 4(d)(3) of the Massachusetts Rules of Civil Procedure.

An appeal may be taken from the decision of the superior court to the Appeals Court. The Notice of Appeal must be filed in the superior court within 60 days of date of entry of the judgment , pursuant to Rule 4 of the Rules of Appellate Procedure. If the client chooses to appeal, appointed counsel must preserve the right to appeal and refer the appeal to CPCS for assignment of appellate counsel. Counsel must also refer to Appellate Rules 8(b)(1), 9(c)(2) and 18(b) in order to properly preserve the client’s rights.

Sample copies of the complaint and accompanying motions and documents are included in the training materials. The training materials also contain copies of the relevant statutes, rules and orders, including G.L. c. 30A, § 14, Mass. R. Civ. P. 3, 4, 5 and 12, Mass. Sup. Ct. R. 9A, and Superior Court Standing Order I-96.

We have recently realized that we need the help of Superior Court counsel to meet certain deadlines imposed for appeals in civil cases.  These deadlines are imposed by the Massachusetts Rules of Appellate Procedure.  For this reason, we are requesting that Superior Court counsel whose client wishes to appeal to the Appeals Court take steps necessary to “perfect” the appeal.

Upon receipt of the Superior Court’s memorandum and order on the Motion for Judgment on the Pleadings, counsel should confer with the client as to whether s/he wishes to appeal the decision to the Appeals Court.  Should the client wish to do so, we request that Superior Court counsel immediately notify the CPCS Assignment Coordinator by fax (617-988-8455) that an appeal will be taken.

The steps required to appeal an adverse decision by the Superior Court to the Appeals Court are listed below.  Attorneys appointed by CPCS to represent former offenders before the Sex Offender Registry Board hearing examiner and in the Superior Court are, as of this date, requested to complete steps 1-7 from the attached checklist.  CPCS will attempt to assign the case to an appellate attorney during this time.

When steps 1-7 have been completed, please send copies of the following documents to the SORB Assignment Coordinator, 44 Bromfield Street, Boston, MA 02108:

Thank you for your cooperation.  Your efforts to help bring our clients’ cases before an appellate tribunal are greatly appreciated.

Upon receipt of notice of a decision from the Superior Court unfavorable to your client, and upon the client’s request, these are the steps that must be taken to appeal his case to the Appeals Court.

[1]   In the event that Superior Court counsel believes it necessary to include a transcript of proceedings in the Superior Court in the record on appeal, additional steps must be taken.  These include ordering the transcript or parts of the transcript from the court reporter and providing notice of the transcript order to opposing counsel.  M.R.A.P 8(b)(1).  They also include an obligation to file the transcript with the Superior Court civil clerk within a particular time frame and to provide notice to opposing counsel.  See   M.R.A.P  9(c)(2).  Superior Court counsel should read these rules carefully in the event counsel determines that a transcript should be ordered.[2]   Appellants who are not indigent must pay the filing fee to the clerk of the Appeals Court within ten days of receipt of the notice of assembly of record.  No additional request to enter the case on the docket need be made.  M.R.A.P 10(a)(1).

PROCEDURES FOR FILING OF CIVIL APPEALS BRIEFS

Appeals from orders of the superior court denying relief to former sex offenders are considered civil appeals. The procedures governing the filing of civil appeals are set forth at Rules 18 and 19 of the Massachusetts Rules of Appellate Procedure and in the Appeals Court Standing Order Governing the Filing of an Appendix Consisting of Three or More Volumes.The rules and procedures for civil appeals are significantly different from the rules and procedures governing criminal appeals.

Mass. R. App. P. 18 and 19 and the Appeals Court Standing Order are appended to this memo.

Here, in summary form, is a chronology of what the rules specify and require.

PLEASE NOTE:   THE PARTIES ARE STRONGLY ENCOURAGED TO AGREE ON THE CONTENTS OF THE RECORD APPENDIX IN CIVIL APPEALS.  SEE M.R.A.P. 18(b).  SUPERIOR COURT COUNSEL WILL HAVE SENT A LETTER TO COUNSEL FOR THE SEX OFFENDER REGISTRY BOARD INDICATING THAT THE APPELLANT’S RECORD APPENDIX AND EXHIBITS VOLUME WILL CONTAIN THE TRANSCRIPT OF THE PROCEEDINGS BEFORE THE HEARING EXAMINER, ALL PAPERS AND EXHIBITS FILED AND DECISIONS ISSUED IN THE PROCEEDINGS BEFORE THE HEARING EXAMINER, AND ALL PAPERS AND EXHIBITS FILED AND DECISIONS ISSUED IN THE PROCEEDINGS IN THE SUPERIOR COURT.  IN THE EVENT THAT APPELLATE COUNSEL BELIEVES THAT IT IS UNNECESSARY TO INCLUDE ALL OF THESE DOCUMENTS, PLEASE CONSULT WITH COUNSEL FOR THE BOARD.  IF THE BOARD DISAGREES WITH YOUR ASSESSMENT, YOU MUST INCLUDE THE DOCUMENTS IN THE RECORD APPENDIX AND EXHIBITS VOLUME.

In sex offender registration cases in which the client requires either a foreign language or sign interpreter, CPCS will pay for the services of an interpreter for pre-hearing preparation. The Sex Offender Registry Board provides interpreters, upon request, at its expense during classification hearings.

In order to obtain authorization for payment of an interpreter, for pre-hearing preparation, attorneys must request authorization for the funds from the CPCS SORB assignment coordinator, Cyteria Nicks. The SORB assignment coordinator will issue written authorization for payment not exceeding $500.00.

To retain the services of a foreign language interpreter, attorneys must obtain a list of certified interpreters from the Office of Court Interpreter Services and secure the services of an interpreter. The Office of Court Interpreter Services’ telephone number is 617-742-8383 extension 343.  To retain a sign language interpreter, attorneys should contact the Massachusetts Commission for the Deaf and Hard of Hearing at 617-740-1600.

The defendant is charged with knowingly failing to register as a sex offender. You may not convict the defendant of the crime of knowingly failing to register as a sex offender unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly failing to register as a sex offender are as follows:

[You may consider evidence of mental illness, cognitive impairment or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation to register and in determining whether he deliberately and intentionally failed to register.] 

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt. The defendant has no burden of proof. Only if you are satisfied that each of these elements has been proven beyond a reasonable doubt, may you convict the defendant of knowingly failing to register.

Useful Authorities:

M.G.L. c. 6, § 178E (a).  M.G.L. c. 6, § 178H.  Lambert v. California, 355 U.S. 225 (1957). Commonwealth v. Burns, 388 Mass 178 (1983).  Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass App. Ct. 408 (2003).  Commonwealth v.Holiday, 349 Mass. 126, 128 (1965).  People v. Barker, 34 Cal.4th 345 (2004).  People v. Jose Juan Garcia, 25 Cal.4th 744 (2001).  Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004).People v. Sorden, 36 Cal. 4th 65(2005). State v. Young, 140 N.C. App. 1, 11 (2000).

The defendant is charged with knowingly failing to annually verify sex offender registration information during the month of his birth.  You may not convict the defendant of the crime of knowingly failing to annually verify sex offender registration information during the month of his birth unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly failing to annually verify sex offender registration information during the month the defendant’s birth are as follows. 

[You may consider evidence of mental illness, cognitive impairment, or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation to annually verify his registration information by informing the Sex Offender Registry Board in writing of his current [home address] [work address][address of post-secondary institution in which he is employed/attends] and in determining whether he deliberately and intentionally failed to verify his registration information during the month of his birth.] 

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt.  The defendant has no burden to proof.  Only if you are satisfied that each of these elements has been proven beyond a reasonable doubt, may you convict the defendant of knowingly failing to annually verify sex offender registration information. 

Useful Authorities: 

M.G.L. c. 6, § 178H. M.G.L. c 6, § 178F.  Lambert v. California, 355 U.S. 225 (1957). Commonwealth v. Burns, 388 Mass 178 (1983).  Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass. App. C. 408 (2003).  Commonwealth v.Holiday, 349 Mass. 126, 128 (1965).  People v. Jose Juan Garcia, 25 Cal 4th 744 (2001). Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004). People v. Barker, 34 Cal. 4th 345 (2004.People v. Sorden, 36 Cal. 4th 65(2005). State v. Young, 140 N.C. App. 1, 11 (2000).

The defendant is charged with knowingly failing to annually verify sex offender registration information during the month of his birth.  You may not convict the defendant of the crime of knowingly failing to annually verify sex offender registration information during the month of his birth unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly failing to annually verify sex offender registration information during the month of birth are as follows.

  
[You may consider evidence of mental illness, cognitive impairment or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation to annually verify sex offender registration information by informing the police of his current [home address] [work address] [address of post-secondary institution in which he is employed/attends] and in determining whether he deliberately and intentionally failed to verify registration information during the month of his birth.]  

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt.  The defendant has no burden to proof.  Only if you are satisfied that each of these elements has been proven beyond a reasonable doubt, may you convict the defendant of knowingly failing to annually verify sex offender registration information during the month of his birth.

Useful Authorities: 

M.G.L. c. 6, § 178H.  M.G.L. c. 6, § 178F 1/2.  Lambert v. California, 355 U.S. 225 (1957).Commonwealth v. Burns, 388 Mass 178 (1983).  Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass. App. C. 408 (2003).  Commonwealth v.Holiday, 349 Mass. 126, 128 (1965).  The People v. Jose Juan Garcia, 25 Cal 4th 744 (2001). Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004). People v. Barker, 34 Cal. 4th 345 (2004.People v. Sorden, 36 Cal. 4th 65(2005). State v. Young, 140 N.C. App. 1, 11 (2000). 

The defendant is charged with knowingly failing to verify sex offender registration information. You may not convict the defendant of the crime of knowingly failing to verify sex offender registration information unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly failing to verify sex offender registration information are as follows:

[You may consider evidence of mental illness, cognitive impairment or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation to register and in determining whether he deliberately and intentionally failed to verify his registration information in writing to the Sex Offender Registry Board every ninety days.]

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt. The defendant has no burden of proof. Unless you are satisfied that each of these elements has been proven beyond a reasonable doubt, you may not convict the defendant of knowingly failing to verify his sex offender registration information.

Useful Authorities:

M.G.L. c. 6, § 178H.  M.G.L. c. 6, § 178F.  Lambert v. California, 355 U.S. 225 (1957). Commonwealth v. Burns, 388 Mass 178 (1983).  Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass App. Ct. 408 (2003).  Commonwealth v.Holiday, 349 Mass. 126, 128 (1965).  People v. Jose Juan Garcia, 25 Cal 4th 744 (2001). Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004). People v. Barker, 34 Cal. 4th 345 (2004.People v. Sorden, 36 Cal. 4th 65(2005). State v. Young, 140 N.C. App. 1, 11 (2000). 

The defendant is charged with knowingly failing to verify sex offender registration information. You may not convict the defendant of the crime of knowingly failing to verify sex offender registration information unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly failing to verify sex offender registration information are as follows: 

Second, that the defendant was [convicted of] [adjudicated delinquent or youthful offender for] a crime for which, under the law, he is required to register as a sex offender. The Commonwealth alleges that the defendant was convicted of [    ]. I instruct you that [     ] is an offense for which registration is required under the law. Third, that the defendant was released from [a jail] [a prison] [a Department of Youth Services detention facility] [Bridgewater Treatment Center] or from probation or parole on or after August 1, 1981. [Fourth that the defendant was not relieved of the obligation to register by a court or by the sex offender registry board.] [Fifth, that notice of his obligation to verify registration information was provided to the [legal guardian of the then juvenile] [agency having custody of the then juvenile in the absence of a legal guardian] and to then juvenile’s most recent attorney of record.] Sixth, that the defendant listed his address with the Sex Offender Registry Board as a homeless shelter. Seventh, that the defendant received timely notice of his obligation to verify his sex offender registration information every ninety days in person at the police station, as long as he listed his address as a homeless shelter. It is not enough to show that an attempt was made to provide notice to the defendant. It must be demonstrated that the defendant in fact personally received such notice. Eighth, that the defendant knew and understood that he was obliged to verify his sex offender registration information in person at the police station every ninety days. Ninth, that the defendant had the opportunity to verify his sex offender registration information in person at the police station every ninety days. Tenth, that the defendant deliberately and intentionally failed to verify his sex offender registration information.
[You may consider evidence of mental illness, cognitive impairment or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation to register and in determining whether he deliberately and intentionally failed to verify his registration information in person at the police station every ninety days.]

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt. The defendant has no burden of proof. Unless you are satisfied that each of these elements has been proven beyond a reasonable doubt, you may not convict the defendant of knowingly failing to verify his sex offender registration information.

Useful Authorities:

M.G.L. c. 6, § 178H; M.G.L. c. 6, § 178F. Lambert v. California, 355 U.S. 225 (1957).Commonwealth v. Burns, 388 Mass 178 (1983).  Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass App. Ct. 408 (2003).  Commonwealth v.Holiday, 349 Mass. 126, 128 (1965).   People v. Jose Juan Garcia, 25 Cal 4th 744 (2001). Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004). People v. Barker, 34 Cal. 4th 345 (2004.People v. Sorden, 36 Cal. 4th 65(2005). State v. Young, 140 N.C. App. 1, 11 (2000).

The defendant is charged with knowingly failing to verify sex offender registration information. You may not convict the defendant of the crime of knowingly failing to verify sex offender registration information unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly failing to verify sex offender registration information are as follows:

First, that the defendant [resides], [works], [is employed at/attends a post-secondary institution] in the Commonwealth of Massachusetts.

Second, that the defendant was [convicted of] [adjudicated delinquent or youthful offender for] a crime for which, under the law, he is required to register as a sex offender. The Commonwealth alleges that the defendant was [convicted of] [adjudicated delinquent or youthful offender for] [             ]. I instruct you that [    ] is an offense for which registration is required under the law. In order to convict the defendant of failure to verify sex offender registration information, you must find beyond a reasonable doubt that he was [convicted of] [adjudicated delinquent for] [           ].

Third, that the defendant was released from [a jail] [a prison] [a Department of Youth Services detention facility] [Bridgewater Treatment Center] or from probation or parole on or after August 1, 1981.

[Fourth that the defendant was not relieved of the obligation to register by a court or by the sex offender registry board.]

[Fifth, that notice of his obligation to register was provided to the then juvenile’s [legal guardian] [agency having custody of the juvenile in the absence of a legal guardian] and to the then juvenile’s most recent attorney of record.]

Sixth, that the defendant has been classified by the Sex Offender Registry Board as a sexually violent predator.

Seventh, that the defendant received timely notice of his obligation, as a person classified as a sexually violent predator, to verify his sex offender registration information every ninety days by personal appearance at the police station in the town in which he resides. It is not enough to show that an attempt was made to provide notice to the defendant. It must be demonstrated that the defendant in fact personally received such notice.

Eighth, that the defendant knew and understood that he was obliged to verify his sex offender registration information every ninety days by personal appearance at the police station in the town in which he resides.

Ninth, that the defendant had the opportunity to verify his sex offender registration information every ninety days by personal appearance in the police station in the town in which he resides.

Tenth, that the defendant deliberately and intentionally failed to verify his sex offender registration information.

[You may consider evidence of mental illness, cognitive impairment or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation to verify his registration information in person at the police station every ninety days and in determining whether he deliberately and intentionally failed to do so.]

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt. The defendant has no burden of proof. Unless you are satisfied that each of these elements has been proven beyond a reasonable doubt, you may not convict the defendant of knowingly failing to verify his sex offender registration information.

Useful Authorities:

M.G.L. c. 6, § 178H.  M.G.L. c. 6, § 178F ½. Lambert v. California, 355 U.S. 225 (1957). Commonwealth v. Burns, 388 Mass 178 (1983).  Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass App. Ct. 408 (2003).  Commonwealth v.Holiday, 349 Mass. 126, 128 (1965).  People v. Jose Juan Garcia, 25 Cal 4th 744 (2001). Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004). People v. Barker, 34 Cal. 4th 345 (2004.People v. Sorden, 36 Cal. 4th 65(2005). State v. Young, 140 N.C. App. 1, 11 (2000).

The defendant is charged with knowingly failing to provide notice to the Sex Offender Registry Board ten days prior to a change of address.  You may not convict the defendant of the crime of knowingly failing to provide notice of a change of address unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly failing to provide notice of a change of [home address] [work address] [address of post-secondary institution in which he is employed/attends] are as follows.

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[You may consider evidence of mental illness, cognitive impairment or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation to provide notice in writing to the Sex offender Registry Board ten days prior to a change of [home] [work] [post-secondary institution in which he is employed/attends] address and in determining whether he deliberately and intentionally failed to inform the Sex Offender Registry Board in writing ten days prior to a change of address.]

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt.  The defendant has no burden to proof.  Only if you are satisfied that each of these elements has been proven beyond a reasonable doubt, may you convict the defendant of knowingly failing to provide notice of a change of address as a registered sex offender.

Useful Authorities:

M.G.L. c. 6, § 178H.  M.G.L. c. 6, § 178E (h), (j) & (p).  M.G.L. c. 6 § 178F. (Lambert v.California, 355 U.S. 225 (1957).   Commonwealth v. Burns, 388 Mass 178 (1983). Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass. App. C. 408 (2003).  Commonwealth v. Holiday, 349 Mass. 126, 128 (1965).  People v.Jose Juan Garcia, 25 Cal 4th 744 (2001).  Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004).People v. Barker, 34 Cal. 4th 345 (2004. People v. Sorden, 36 Cal. 4th 65(2005). State v.Young, 140 N.C. App. 1, 11 (2000).

The defendant is charged with knowingly failing to provide notice to the police ten days prior to a change of [home address] [ work address] [address of post-secondary institution where he is employed/attends].  You may not convict the defendant of the crime of knowingly failing to provide notice of a change of address unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly failing to provide notice of a change of [home address] [work address] [address of post-secondary institution in which he is employed/attends] are as follows.

First, that the defendant [resides], [works] or [is employed at or attends a post-secondary institution] in the Commonwealth of Massachusetts.

Second, that the defendant was [convicted of] [adjudicated delinquent or youthful offender for] a crime for which, under the law, he is required to register as a sex offender.  The Commonwealth alleges that the defendant was [convicted of] [adjudicated delinquent or youthful offender for] [          ].  I instruct you that [         ] is an offense for which registration is required under the law. In order to convict the defendant of failure to provide notice of a change of address to the Sex Offender Registry Board, you must find beyond a reasonable doubt that he was [convicted of] [adjudicated delinquent or youthful offender for][                    ].

Third, that the defendant was released from [a jail] [a prison] [a Department of Youth Services detention facility] [Bridgewater Treatment Center] or from probation or parole on or after August 1, 1981.

[Fourth that the defendant was not relieved of the obligation to register by a court or by the Sex Offender Registry Board.]

[Fifth, that notice of his obligation to register was provided to the then juvenile’s [legal guardian] [agency having custody of the juvenile in the absence of a legal guardian] and the then juvenile’s most recent attorney of record.]

Sixth, that the defendant received timely notice of his obligation to inform the police in person ten days prior to a change of [home address] [work address] [address of post-secondary institution in which he is employed/attends].  It is not enough to show that an attempt was made to provide notice to the defendant.  It must be demonstrated that the defendant in fact personally received such notice.

Seventh, that the defendant knew and understood that he was obliged to inform the police in person ten days prior to a change of [home address] [work address] [address of post-secondary institution in which he is employed/attends].

Eighth, that the defendant knew he would change his [home address] [work address] [address of post-secondary institution where he is employed/attends] ten days prior to such a change.

Ninth, that the defendant did change his [home address] [work address] [address of post-secondary institution where he is employed/attends].

Tenth, that the defendant had the opportunity to inform the police in person ten days prior to a change of [home address] [work address] [address of post-secondary institution in which he is employed/attends].

Eleventh, that the defendant deliberately and intentionally failed to inform the police in person ten days prior to a change of [home address] [work address] [address of post-secondary institution in which he is employed/attends].

[You may consider evidence of mental illness, cognitive impairment or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation to provide notice to the police in person ten days prior to a change of [home] [work] [post-secondary institution in which he is employed/attends] address and in determining whether he deliberately and intentionally failed to inform the police in person ten days prior to a change of address.]

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt.  The defendant has no burden to proof.  Only if you are satisfied that each of these elements has been proven beyond a reasonable doubt, may you convict the defendant of knowingly failing to provide notice to the police in person ten days prior to a change of address.

Useful Authorities:

M.G.L. c. 6, § 178H.  M.G.L. c. 6, § 178E (h), (j) & (p).  M.G.L. c. 6 § 178F ½ . (Lambert v.California, 355 U.S. 225 (1957).   Commonwealth v. Burns, 388 Mass 178 (1983). Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass. App. C. 408 (2003).  Commonwealth v. Holiday, 349 Mass. 126, 128 (1965).  People v.Jose Juan Garcia, 25 Cal 4th 744 (2001).  Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004).People v. Barker, 34 Cal. 4th 345 (2004. People v. Sorden, 36 Cal. 4th 65(2005). State v.Young, 140 N.C. App. 1, 11 (2000).

The defendant is charged with knowingly providing false information on the registration form which certain former sex offenders are required by law to complete. You may not convict the defendant of the crime of knowingly providing false information on a registration form unless each of the elements of the offense has been proven beyond a reasonable doubt.

The elements of the crime of knowingly providing false information on a Sex Offender Registry Board registration form are as follows:

[You may consider evidence of mental illness, cognitive impairment or other impediment to his comprehension in determining whether the defendant knew of and understood his obligation not to provide false information on a Sex Offender Registry Board registration form and in determining whether he knowingly provided false information.]

The burden is on the Commonwealth to prove each and every one of these elements beyond a reasonable doubt. The defendant has no burden of proof. Only if you are satisfied that each of these elements has been proven beyond a reasonable doubt, may you convict the defendant of knowingly providing false information on a Sex Offender Registry Board registration form.

Useful Authorities:

M.G.L. c. 6, § 178E (a).  M.G.L. c. 6, § 178H.  Lambert v. California, 355 U.S. 225 (1957). Commonwealth v. Burns, 388 Mass 178 (1983).  Commonwealth v. Crimmins, 46 Mass. App. Ct. 489 (1999).  Commonwealth v. Welch, 58 Mass App. Ct. 408 (2003).  Commonwealth v.Holiday, 349 Mass. 126, 128 (1965).  People v. Barker, 34 Cal.4th 345 (2004).  People v. Jose Juan Garcia, 25 Cal 4th 744 (2001).  Bartlett v. S. Alameida, Jr., 366 F. 2d 1020 (2004).People v. Sorden, 36 Cal. 4th 65(2005). State v. Young, 140 N.C. App. 1, 11 (2000).

A sex offender … who knowingly: (i) fails to register; (ii) fails to verify registration information; (iii) fails to provide notice of a change of address; or (iv) who knowingly provides false information shall be punished in accordance with this section.

The Obligation to Register

As a threshold matter, the defendant’s criminal record should be compared with the enumerated sexual offenses listed in G.L. c. 6, § 178C to make sure that the statute applies to him.  Check the dates of his conviction, release from custody, and release from supervision.  He does not have to register as a sex offender if the last of those dates occurred before August 1, 1981.

If the defendant is subject to registration, he must register two days prior to release from custody or within two days of being informed of his obligation to register by probation or parole.  G.L. c. 6, § 178E.   Under G.L. c. 6, § 178E (l), all other offenders must register within 10 days of September 10, 1999, the effective date of the statute. The same statutory provision requires that the board send notification to the offenders under § 178E(l), but the responsibility of the offender to register is not abrogated by the board’s failure to send notice.

Offenders must verify their registration information annually during the month of their birth. Former offenders who have listed their address as a homeless shelter must verify their registration every ninety days.  G.L. c. 6, § 178F.  Offenders who move out of the Commonwealth, who move within the Commonwealth, and who change employment or attendance at post-secondary school, must notify the board ten days prior to the change.  G.L. c. 6, § 178E.

Arguing Lack of Knowledge

The most likely defense to your client’s failure to register is that he did not know that he had an obligation to do so.  Knowledge is an element that the Commonwealth must prove under G.L. c. 6, § 178H. [2]  Lambert v. California, 355 U.S. 225, 229 (1957) (an ordinance criminalizing failure to register as a felon violated the due process clause where the state has not proved that the defendant had actual knowledge of his duty to register).  An Arizona appeals court reversed a defendant’s conviction for failure to register as a sex offender because the record did not demonstrate that the defendant had actual knowledge.  State v. Garcia, 156 Ariz. 381, 384 (1987).  The court rested its decision on Lambert, supra, holding that it would violate due process to convict the defendant for the omission of an act without proof that the defendant had knowledge that he was required to affirmatively act.  Garcia, 156  Ariz. at 382-383.

The factual portion of the defense may turn on proof of notification of your client of the obligation to register by a member or law enforcement, the court, a  probation or parole officer, an attorney or the Sex Offender Registry Board.  If he was convicted recently, the court, probation, or the prison will surely say that they notified him of his obligation.  If he was convicted before the current law took effect, the board will likely say that he was sent a letter of notification.

Since the board sends notification to the last known address, G.L. c. 6, §178E(l), your client may never have received the letter if he has moved.  If he did receive the letter, he may have thrown it away, thinking it was “junk mail” because the outside of the envelope does not identify the sender.

The Commonwealth has not met its burden by simply proving notice of the obligation to register to the defendant.  In a California case, People v. Garcia, 25 Cal.4th 744, 747 (2001), the court held that the California registry law requires that the state show that the defendant actually knew of the registration requirement, not simply that he received notice.  In that case, it was clear that the state of California gave the defendant notice of his obligation to register on several occasions.  Garcia, supra, 25 Cal.4th at 748.  The defendant contended that he did not read or understand the notices and thus had no actual knowledge of his obligation to register.  The court stated that “[a] jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement.” Garcia, supra, 25 Cal.4th at 752.  The court specifically rejected the axiom that “ignorance of the law is no excuse” because it would allow the court to convict the defendant for failing to take an action without his ever having knowledge of his obligation to act.  Garcia, supra, 25 Cal.4th at 754.  See also People v.Edgar, 104 Cal. App. 4th 210 (2002).

Knowledge is an essential element of the crime and “…[t]herefore, the issue of [knowledge] cannot be viewed as an affirmative defense and, of course, it cannot be removed from jury consideration.” Commonwealth v. Burns, 388 Mass. 178 (1983). In discussing what constitutes proof of knowledge, the Massachusetts Appeals Court has said that “[f]urther, ‘notice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop.” Commonwealth v.Welch, 58 Mass App. Ct. 408 (2003). In the only case thus far to interpret the failure to register provision, the Massachusetts Appeals Court held that the Commonwealth need not prove that the defendant intended to deceive the Board in order to prove the knowing provision of false information. Commonwealth v. Fondakowski, 62 Mass. App. Ct. 939 (2005). In Fondakowski, the Court stated that “

[w]

hen the word ‘knowingly’ is used in a criminal statute, it ‘commonly imports a perception of the facts requisite to make up the crime.’” quotations omitted.

Another possible factual scenario is that an official told the defendant that he did not have to register.  In one case, the defendant was convicted in 1972 but not released from probation until 1982.  He was charged with failure to register but a district court judge dismissed the case, finding that the sex offender registry law did not apply to persons convicted before 1981.  In fact, he did have an obligation to register because he was on probation after 1981.  A new complaint issued almost immediately to which his obvious defense was that he was misinformed by a judge about his obligation.  Other judges, probation officers, police officers and lawyers have likely provided defendants with erroneous interpretations of the law.

Further, the defendant may have been correctly informed that he did not have to register at a prior time when the registry law was being challenged in the courts.  Registration was stayed from October of 1999 to June 28, 2001 pending a final decision in Roe v. Attorney General, 434 Mass. 418 (2001).  Anyone who inquired about his obligation to register as a sex offender during the stay would have been told that he did not have to register at that time.  One can imagine a defendant who had been told in the past that he did not have to register shrugging off suggestions that he should register today.

The defendant may have received notice yet have no actual knowledge because of a language barrier, an inability to read, or a mental impairment that makes it difficult to comprehend or remember obligations. California appellate courts have recognized such an impairment as a potential defense in failure to register cases. People v. Barker, 34 Cal. 4th 345 (2004). The defense was limited recently to cases where there is “evidence that an involuntary condition – physical or mental, temporary or permanent – deprived a defendant of actual knowledge of his or her duty to register”, adding that only the most disabling of conditions would qualify, i.e. severe Alzheimers or general amnesia induced by severe trauma.People v. Sorden, 36 Cal. 4th 65 (2005). The North Carolina Court of Appeals has held that the sex offender registration statute requiring offenders to register changes of address within 10 days of a move was unconstitutional as applied to an incompetent defendant who was neither formally notified of the statute’s requirements nor, by reason of his incompetence, had the wherewithal to inquire. State v. Young, 140 N.C.App. 1, 11 (2000).