Commonwealth v. Harding

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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
 11

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
 13

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.
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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.