Commonwealth v. Harding ( 2020 )

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SJC-12875
COMMONWEALTH vs. FRANCIS X. HARDING, JR.
Bristol. May 4, 2020. - October 5, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.1
Sex Offender. Sex Offender Registration and Community
Notification Act. Practice, Criminal, Probation. Statute,
Construction.
Complaint received and sworn to in the Fall River Division
of the District Court Department on June 14, 2012.
A probation violation hearing was held on July 24, 2018,
before Cynthia M. Brackett, J., and a motion for reconsideration
was also heard by her.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Eric Tennen for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney, for
the Commonwealth.
Nancy Dolberg, Committee for Public Counsel Services &
another, amici curiae, submitted a brief.
1 Chief Justice Gants participated in the deliberation on
this case and authored this opinion prior to his death.
2
GANTS, C.J. The defendant is a home-improvement contractor
who specializes in the repair of old homes. He has been self-
employed in this capacity for more than thirty years and
operates his business out of his home in Newton, where he has a
workshop. After an evidentiary hearing, a District Court judge
found that the defendant violated a special condition of
probation because he reported on the sex offender registration
form that his work address was his home and did not report as a
work address the home in Lynn where he was doing repair work.
He was also found to have violated the special condition of
probation that he not "work . . . with children" under sixteen
years of age because there was an infant in the Lynn home where
he worked. We reverse, and we vacate the findings that the
defendant violated his conditions of probation.2
Background. In 2015, the defendant pleaded guilty to
charges of indecent assault and battery on a child under
fourteen and possession of child pornography. A District Court
judge sentenced him to five years of probation and imposed four
special conditions of probation relevant to this appeal: (1) he
was required to register as a sex offender with the Sexual
Offender Registry Board (SORB), which later classified him as a
2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services and the Massachusetts Association
for the Treatment of Sexual Abusers.
3
level three sex offender;3 (2) his location was to be continually
monitored by a global positioning system device; (3) he was
required to have no contact with and stay away from the victim;
and (4) he was required "not to work, volunteer, [or] reside
with children under [sixteen] years old."
In April 2015 and again in January 2017, the defendant
filled out and submitted SORB's sex offender registration form.
In the section asking about employment, he identified himself as
"self-employed," which was one of the available options on the
form. Where the form asked for the name of the "employer," he
identified himself as his employer and gave his home address as
the employer's address.
Every two weeks, the defendant met with his probation
officer and provided invoices from his home-improvement work to
prove that he was employed. These invoices included the
addresses of the homes where he provided home-improvement
services. For almost three and one-half years, the defendant
had the same probation officer, who at no point informed the
defendant that he had to register an employment address other
than his home address. His lawyer also informed him that he did
3 Sex offenders in Massachusetts are classified based on
their risk of reoffending and the degree of danger they pose to
the public. Level three sex offenders have a high risk of
reoffending and pose a high degree of danger to the public. See
G. L. c. 6, § 178K.
4
not have to register his clients' addresses as work addresses.
In January 2016, the defendant was asked by a family
residing in Lynn to restore the windows of their home. The
defendant removed the windows and took them to his workshop in
Newton, where he performed the majority of the work. At the
time, the family had no children.
The same family hired the defendant again in September 2017
to repair other parts of the exterior of the house, including
the gutters and some woodwork. For the next several months the
defendant provided services at both his workshop and the house.
By this time, the family had a baby, but the defendant never had
any contact with the child; all of the services that the
defendant provided were outside the home. The defendant
prepared thirteen invoices regarding this second work
assignment, all of which he provided to his probation officer,
covering services he rendered between September 2017 and March
2018. They identified the Lynn address of the client but did
not specify where the services were performed or how many days
he had worked to perform these services.
In March 2018, the defendant was stopped by a Revere police
officer who was conducting surveillance of a shopping plaza for
possible drug transactions and who knew from querying the
defendant's license plate on the officer's computer system that
the defendant was a registered sex offender. The officer asked
5
the defendant what he was doing at the shopping plaza, and the
defendant responded that he was on his way home from his job in
Lynn and had stopped to get something to eat. Following the
encounter, the officer contacted the Lynn police to determine
whether the defendant had a registered work address in Lynn and
learned that he did not.
On April 5, 2018, the defendant was served with a notice of
probation violation stating that he "[f]ail[ed] to register with
SORB from [September 2017 to April 2018] his employment." The
notice was later amended to add the allegation that he had
failed to abide by the probation condition that he "refrain from
work (employment) where children [sixteen years of age] or
younger are present." After a hearing, a District Court judge
found that the defendant had violated both conditions of
probation. The judge later denied the defendant's motion for
reconsideration and ordered that the defendant's probation be
extended by one year. The defendant appealed, and we
transferred the appeal to this court on our own motion.
Discussion. The defendant raises two issues on appeal.
The first is whether he was required, as a self-employed home-
improvement contractor, to identify the temporary work sites
where he performed his work as his "work address" under the SORB
registration statute, G. L. c. 6, § 178E. The second is whether
the defendant's condition of probation -- that he was "not to
6
work, volunteer, [or] reside with children under [sixteen] years
old" -- prohibited him from performing home-improvement services
at a house where a young child resided and provided adequate
notice of such a prohibition. We consider each in turn.
1. Registration of "work address." Pursuant to G. L.
c. 6, §§ 178E (a), 178E (h), 178F, and 803 Code Mass. Regs.
§ 1.05(2)(g) (2016), a sex offender subject to the terms of the
statute is required to register and annually verify his "work
address or intended work address" with SORB. Under G. L. c. 6,
§ 178E (j), if a registrant "intends to change his work
address," he must notify SORB in writing "not later than ten
days prior to establishing the new work address" (emphasis
added). SORB then provides notice of the change of work address
to the police departments in all municipalities "where such sex
offender previously worked, where such sex offender intends to
work, where such sex offender resides or intends to reside and
where the offense was committed." See id.; 803 Code Mass. Regs.
§ 1.05(9). Registration information, including the work address
of those classified as level two and level three sex offenders,
is also made publicly available on the SORB website. See 803
Code Mass. Regs. § 1.05(7).
The statutory scheme defines "employment" as "employment
that is full-time or part-time for a period of time exceeding
[fourteen] days or for an aggregate period of time exceeding
7
[thirty] days during any calendar year, whether compensated or
uncompensated." G. L. c. 6, § 178C. The statute does not,
however, define "work address." The Commonwealth argues, and
the District Court judge agreed, that every time the defendant
worked for a client for the requisite number of days -- fourteen
consecutive or thirty nonconsecutive during the calendar year --
this should be considered a separate instance of "employment,"
and the defendant was consequently required to provide that
client's address as his "work address." For a number of
reasons, we disagree.
The issue before us is whether the defendant's home
address, where he had a workshop and did much of his restoration
work, was his "work address" or whether he was required to
characterize all of his client's addresses for whom he worked
fourteen consecutive or thirty nonconsecutive days as his "work
address" on the sex offender registration form. Because the
statutory language is ambiguous on that point, we "interpret the
statute so as to render the legislation effective, consonant
with sound reason and common sense." See Commonwealth v.
Morgan, 476 Mass. 768, 777 (2017), quoting Seideman v. Newton,
452 Mass. 472, 477 (2008).
We note that the Commonwealth's interpretation of the
meaning of "work address" is not reflected in SORB's sex
offender registration form. Under "section F -- employment,"
8
the form provides four alternative boxes for the registrant to
check: "employed," "self-employed," "unemployed," and
"volunteer." Beneath that, it asks for the name of the
employer, and below that for an address, which one reasonably
would think would be the address of the employer. The defendant
identified himself as self-employed and therefore gave his own
address as the employer's address. The form reflects the
apparent understanding that "work address" is the employer's
work address. The interpretation that the Commonwealth asks us
to adopt would suggest that a registrant who is self-employed
might not be self-employed at all, because each client for whom
the registrant provided services for the requisite time period
would be deemed the employer, whose address the registrant would
be required to record. No reasonable registrant filling out
this form would understand the form to ask for this information.
Nor would the Commonwealth's interpretation make practical
sense. Under that interpretation, a self-employed sex offender
would be required to register, at least ten days in advance, the
address of any work site at which he would be spending more than
fourteen consecutive days or more than thirty days in a calendar
year. But, as the defendant and amici note, independent
contractors may not know in advance how long a project will
take. For example, if the defendant expected to spend ten days
working on a home, he would be under no obligation to register
9
that client's address with SORB. But if the work took longer
than expected and stretched beyond fourteen days, he would be in
violation of the statute because he would have failed to
register the address ten days in advance of beginning his
employment there. In addition, if the job lasted for only
fifteen days, the defendant would have to deregister the address
the day after registering it.
Similarly, if the defendant worked for a client for ten
days in January, and the same client rehired him for ten days in
May and for another ten days in August, each time for a
different project, the defendant would have to register the
client's address as his "work address" at the end of the August
project, when the work would be already complete. When he was
first hired in January, he would have had no way of knowing that
he would eventually have to register that client's address and
would be unable to comply with the requirement to register it
ten days before beginning the work.
Moreover, independent contractors sometimes do not receive
ten days' advance notice of the commencement of work. Under the
Commonwealth's interpretation, if a homeowner needed repair work
to begin immediately and the independent contractor was
available to provide those repairs, the contractor would have to
delay starting the work for ten days so that he could provide
SORB with the required ten days' advance notice.
10
For all these reasons, as a practical matter, the
Commonwealth's definition of "work address" is unworkable. We
will not adopt a construction of a statute "if the consequences
of such construction are absurd or unreasonable." Attorney Gen.
v. School Comm. of Essex, 387 Mass. 326, 336 (1982). Cf.
Commonwealth v. Rosado, 450 Mass. 657, 662-663 (2008) (homeless
sex offender did not violate registration statute by failing to
register everywhere he stayed because it would have been "almost
impossible" for him to comply with ten-day notice requirement).
In addition, requiring a self-employed sex offender to
identify a client as an employer would be fundamentally unfair
to the clients. Under the Commonwealth's interpretation of
"work address," a homeowner who hired a landscaper to cut the
lawn every week or a carpenter to renovate a back porch would be
identified as the sex offender's employer, and his or her home
would be listed as the sex offender's work address. If the
independent contractor were a level two or level three sex
offender, this information would be publicly available on SORB's
"sex offender internet database," see G. L. c. 6, § 178D, a
public website that is searchable by city, town, county, or ZIP
code, as well as by a registrant's name. The defendant,
however, is not an employee but an independent contractor, and
publishing his clients' addresses as though his clients were his
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employers would mischaracterize the relationship.4 See Attorney
General's Fair Labor Division, Independent Contractors,
https://www.mass.gov/service-details/independent-contractors
[https://perma.cc/5JCN-68A6] (distinguishing between employees
and independent contractors, and defining independent
contractors as individuals whose work "is done without the
direction and control of the employer; and . . . is performed
outside the usual course of the employer's business; and . . .
is done by someone who has their own, independent business or
trade doing that kind of work"); G. L. c. 149, § 148B.
And, as the amici note, if the defendant, or other self-
employed registrants like him, were required to provide a
client's address as a "work address," many clients who might
otherwise hire him might refrain from doing so because they
might not want their home address listed on SORB's website as
the sex offender's place of employment. As a result, the
otherwise self-employed sex offender might soon be functionally
unemployed. SORB itself recognizes that stable employment
diminishes a sex offender's likelihood of reoffense. See 803
4 Employers in Massachusetts are subject to a complex
statutory scheme, which includes civil and criminal penalties
for noncompliance, that would not be applicable to the clients
of a self-employed independent contractor. See e.g., G. L.
c. 149, § 148 (governing payment of wages and establishing
penalties for failure to comply); G. L. c. 151, § 16 (requiring
employers to display posters informing employees of their rights
under State and Federal wage and hour laws).
12
Code Mass. Regs. § 1.33(34)(a) (2016) (identifying "employment
stability" as factor reducing sex offender's risk of reoffense
and degree of dangerousness). We will not infer that the
Legislature intended to give "work address" a meaning that could
create significant obstacles to an independent contractor's
ability to work, which could, in turn, increase the likelihood
of reoffense.
The Commonwealth's interpretation also fails to comport
with the rule of lenity. "Although the registration requirement
is remedial and not punitive, criminal penalties may be imposed
on a defendant who is required to register and fails to do so.
Accordingly, 'we apply the "rule of lenity" and resolve any
ambiguities' against the Commonwealth" (citations omitted).
Commonwealth v. Ventura, 465 Mass. 202, 212 (2013).
Where, as here, the statute does not provide clear guidance
about what constitutes a "work address" that must be registered
with SORB, and particularly where the SORB registration form
permits registrants to register as "self-employed," we conclude
that G. L. c. 6, § 178E, does not require independent
contractors to register their temporary work sites as their
"work address." Cf. Rosado, 450 Mass. at 663 (sex offender
registration form ambiguous where instructions required homeless
registrants to provide approximate location within city but
failed to provide registrants with ability to indicate their
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homeless status). The most reasonable and administrable
interpretation of "work address" under § 178E, and the one that
comports with the rule of lenity, is the interpretation apparent
from SORB's sex offender registration form: it is the work
address of the sex offender's employer, not the work site
address of a self-employed sex offender's clients.
Because we conclude that the defendant's "work address" was
his home address, we need not address the challenges raised by
the defendant regarding whether there was sufficient evidence
that the defendant worked for the requisite number of days at
the Lynn home for the family to be deemed his employer or
whether he knowingly violated the registration statute.5
2. Condition that defendant not work "with" children. As
a special condition of his probation, the defendant was
instructed "not to work, volunteer, [or] reside with children
under [sixteen] years old." The probation officer who issued
the violation notice interpreted that condition to mean that the
defendant could not work in the presence of children; the notice
of violation stated that the defendant failed to "refrain from
5 We note that, on appeal, the Commonwealth concedes that
there was insufficient evidence to support a finding by a
preponderance of the evidence that the defendant knowingly
violated the registration statute by failing to register the
Lynn address as an employment address. For this reason alone,
the Commonwealth agrees that this finding of a violation of
probation must be vacated.
14
work (employment) where children [sixteen years of age] or
younger are present." The judge agreed, finding him in
violation of this condition "for working at the [client's] house
when there was a child present there at the time." But working
with children and working in the presence of children are two
quite different things.
Defendants are "entitled to know what conduct is forbidden
by [their] probation condition[s]. The constitutional rule
against vague laws applies as equally to probation conditions as
it does to legislative enactments." Commonwealth v. Power, 420
Mass. 410, 421 (1995), cert. denied, 516 U.S. 1042 (1996).
Probation conditions "need not provide the fullest warning
imaginable": "[t]he notice requirement can be satisfied by 'an
imprecise but comprehensible normative standard.'" Commonwealth
v. Kendrick, 446 Mass. 72, 75 (2006), quoting Commonwealth v.
Orlando, 371 Mass. 732, 734 (1977). But they must "provide
reasonable guidance with respect to what activities are
prohibited." Kendrick, supra.
The defendant's condition of probation clearly barred him
from "work . . . with children," such as teaching at a school or
being a camp counsellor. But the defendant's actions --
performing repair work that did not involve children but that
took place at a home where a child happened to be present -- are
not prohibited by his probation condition. He did not "work
15
with children" in replacing a gutter or restoring exterior
woodwork, nor could he, where the child was an infant.
Had the sentencing judge been concerned that the defendant,
as an independent contractor, might be working inside a home
where children resided, the judge could have imposed a special
condition that the defendant have "no unsupervised contact" with
children. See, e.g., Ventura, 465 Mass. at 204 n.3 ("no contact
with children under sixteen years of age unless accompanied by
an adult"); Kendrick, 446 Mass. at 73 ("[n]o contact [with]
children under [sixteen years] of age"). The judge, in fact,
did impose a special condition of "no contact," but that
condition only prohibited the defendant from having contact with
the victim, not from having contact with any child. Where the
judge required the defendant only to refrain from working,
volunteering, or residing with children, the defendant did not
violate this probation condition by working on the exterior of a
home while a supervised infant was present inside the house.
Nor did he have fair notice that such conduct would be deemed a
violation of this condition.
Conclusion. The District Court judge's finding that the
defendant violated his conditions of probation is reversed and
vacated. We remand the matter to the District Court for entry
of an order consistent with this decision.
So ordered.