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Massachusetts: Order Relieving Sex Offender of Registration Not Vacated Upon Probation Violation

5-17-2013 Massachusetts:

The Massachusetts Supreme Judicial Court has held that once a judge relieves a sex offender of the requirement to register, a different judge lacks the authority to order the offender to register following a probation violation.

Douglas Ventura pleaded guilty to one count of possession of child pornography. After being sentenced to probation, pursuant to state law he moved to be relieved of the statutory requirement to register as a sex offender. The sentencing judge found that Ventura had demonstrated he did not pose a risk of re-offense or a danger to the public, and relieved him of the registration requirement.

About two-and-a-half years later, in September 2010, Ventura was charged with accosting and annoying a person of the opposite sex. At his probation revocation hearing, it was established that Ventura had watched two of his daughters’ friends through a hole in the shower wall of his home’s guest bathroom, which they used when they stayed at his house during overnight visits.

Ventura’s probation was revoked and he was sentenced to one year in prison and three years of probation on the new charge. As part of the sentence, the judge ordered him to register as a sex offender.

On appeal, the Supreme Judicial Court said the original charge of possession of child pornography qualified as a sex offense, but the charge of accosting and annoying a person of the opposite sex did not. Registration is a collateral consequence for convicted sex offenders; however, “Nothing in the act confers authority on a judge to impose an obligation to register as a condition of probation.”

The Court held the Sex Offender Registry Act allows a judge in certain circumstances to relieve a sex offender from the registration requirement, but does not permit a judge to order such registration. “It follows that the second judge may not, as part of the sentence imposed following probation revocation, impose a registration requirement as a condition of the probationary portion of that sentence.”

The Supreme Court rejected the state’s position that upon a violation of probation the prior order relieving Ventura of the registration requirement was vacated. Simply put, the Court found there was no statutory support for that position, saying the state’s “strained parsing of the statutory text” was “untenable.” Thus, the trial court’s order requiring Ventura to register as a sex offender was reversed. See: Commonwealth v. Ventura,465 Mass. 202, 987 N.E.2d 1266 (Mass. 2013). ..Source.. by Prison Legal News

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