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SJC Weighs in on Whether Failure to Advise Defendants of Sex Offender Registration Constitutes Ineffective Assistance

balance-1172786In a recent decision – Commonwealth v. Sylvester – the Supreme Judicial Court discussed whether an attorney’s failure to advise a client of his obligation to register as a sex offender during a 2002 plea constituted ineffective assistance of counsel. The decision, however, fails to address how additional sex offender registration requirements imposed after 2002 would impact the Court’s analysis of this issue.

The background was as follows. The defendant pleaded guilty in 2002 to a charge of indecent assault and battery, as a result of which he registered as a sex offender. In 2008, the defendant pleaded guilty to a charge of failure to register as a sex offender “and a Superior Court judge sentenced the defendant to probation for three years and imposed community parole supervision for life [CPSL].” In 2013, the defendant filed a motion to withdraw the 2002 guilty plea, in which he argued that his plea counsel was ineffective in failing to communicate a full appreciation of the consequences of pleading guilty to a sex offense. Specifically, the defendant asserted (1) that plea counsel failed to explain that he “‘might have to register with the police indefinitely’”; and (2) that he would not have pleaded guilty if he had “‘fully understood that ‘registering’ meant that [he] would … someday be subject to lifetime community parole.’” The judge denied the defendant’s motion.

In its decision, the SJC noted that “‘[g]enerally, under Massachusetts law, defense counsel’s failure to inform a defendant of collateral or contingent consequences of a plea does not render a plea involuntary[,]’ Commonwealth v. Roberts, 472 Mass. 355, 362 (2015), quoting [Commonwealth v.] Shindell, 63 Mass. App. Ct. [503,] 505 [2005],” and that “the Appeals Court [in Shindell] [had] concluded, on this basis, that defense counsel is not constitutionally required to warn of sex offender registration consequences.” Nonetheless, the SJC considered the defendant’s argument that Padilla v. Kentucky, 559 U.S. 356, 364-366 & n.8 (2010), regarding counsel’s failure to warn of the immigration consequences of a plea, had “abrogated the distinction between direct and collateral consequences and created a new framework for determining whether a consequence of conviction has a uniquely ‘close connection’ to the criminal process to require warnings under the right to counsel guaranties of the Sixth Amendment. Under that framework, the defendant assert[ed] that, to provide constitutionally effective assistance, counsel must warn clients about consequences of sex offender registration when they are considering whether to plead guilty to a ‘sex offense’ as defined in G.L. c.6, §178C.” In response to the defendant’s contention, the SJC “reiterate[d] [its previously expressed] conclusion that the only mandate stemming from the Padilla case is that deportation may not be treated as a collateral consequence outside the scope of the Sixth Amendment.” 

The SJC further stated that “[a]lthough not required, the framework used in the Padilla case … can be applied here…. Applying the Padilla factors [the likelihood of consequences, the severity of penalties, and the state’s recognition of a “critical” need for warnings] …, [the Court] reject[ed] the defendant’s contention that the sex offender registry scheme as it existed in 2002 had a uniquely close connection to the criminal process such that it should be included within the scope of constitutionally required warnings under the Sixth Amendment.” The Court stated, “Even though we agree that consequences of the sex offender registry statutes are ‘practically inevitable,’ Padilla, 559 U.S. at 364, after a defendant pleads guilty to a ‘sex offense’ …, we conclude that the accompanying penalties, as they existed in 2002, were not so severe as to require defense counsel to advise clients about consequences of registration as a constitutional matter.” The Court noted that “certain aspects of the sex offender registry scheme” focused upon by the defendant — “[i]nternet dissemination of personal information, the requirement for homeless persons to register every thirty days, and the previously enforced CPSL provision” — “were first enacted or became more severe after the defendant pleaded guilty in 2002.” Regarding the question whether the state recognized a “critical” need for warnings to defendants in 2002, the SJC noted the following: (1) “c.6, §178E(d), … requires a judge to notify a defendant pleading guilty to an enumerated sex offense ‘that such plea may result in such sex offender being subject to the provisions of sections 178C to 178P, inclusive’ [regarding sex offender registration],” but §178E(d) also “provides … that noncompliance with this provision ‘shall not be grounds to vacate or invalidate the plea’”; (2) the version of Mass. R. Crim. P. 12 (describing the procedure for entering a guilty plea) that was in effect at the time of the defendant’s plea did not require that the judge “include any warnings about sex offender registration”; and (3) at the time of the defendant’s plea, the “tender of plea” form used in the District Court “contained a warning about deportation but not about sex offender registration.” In light of the foregoing, the SJC concluded that “the judge did not abuse her discretion in denying the defendant’s motion to withdraw his [2002] guilty plea.” In so ruling, however, the Court left “for another day the question whether such advice would be constitutionally ineffective based on the current statutory scheme for sex offender registration.”

The sex offender registration requirement has a significant impact on a person’s life, including impacting a person’s housing and employment options. It is not something that either attorneys or people charged with sex offenses should take lightly. If you were convicted of a sex offense after 2002 and your attorney failed to advise you of the sex offender registration requirements prior to trial or a plea, you may be in a position to argue that the plea should be vacated. Call Attorney Daniel Cappetta for a consultation on this important issue today – he is a skilled attorney who has helped many clients successfully vacate pleas.