COMMONWEALTH vs. ANGEL D. BERRIOS, JR.

TRAINOR, J. The defendant appeals from the denial of his motion for release from unlawful restraint, which challenged, as illegal, the imposition of community parole supervision for life (CPSL). This case presents two issues for our review and determination: first, whether the defendant waived his right to challenge the sufficiency of the criminal complaints by admitting to sufficient facts; second, whether CPSL could legally be imposed on the defendant for failing to register where he received a continuance without a finding (CWOF) rather than a conviction. We affirm. [Note 1]

Factual and procedural background. The defendant, a level two sex offender as a result of having previously been adjudicated delinquent for rape of a child with force, was required to report annually to the Lawrence police department for verification of his required personal information. On December 19, 2006, the Lawrence police department mailed the defendant a letter mandating that he report to the station on January 10, 2007, in order to complete his verification. The defendant did not appear on that day; nor did he return any of the department's telephone calls over the following week. On January 19, the defendant was arrested for failing to register. After this initial complaint was issued, the district attorney's office learned that the defendant had taken three new jobs since September, 2006, but had not timely registered his revised employment status with the police department. This information formed the basis for two more complaints against the defendant for failing to register.

In total, three criminal complaints issued against the defendant for failing to register under G. L. c. 6, § 178H(a). The portions of the complaints seeking CPSL tracked the statutory

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language providing for CPSL after adjudication or conviction of specified offenses without identifying the prior crime of which the defendant had been convicted or specifically alleging that this particular defendant was subject to the enhanced penalty of CPSL. Although the defendant now argues that the failure of the complaint to allege with specificity the conduct that would subject him to the enhanced penalty deprived the court of jurisdiction to impose CPSL, he did not challenge the complaints with a motion to dismiss. Instead, the parties set out to negotiate a plea bargain, and both parties suggested a recommended sentence that included CPSL. [Note 2] On May 4, 2009, the defendant, represented by counsel, admitted to sufficient facts on the three complaints, and the District Court judge found that he did so "freely, voluntarily, intelligently, [and] with knowledge of the consequences." The judge accepted the admission to sufficient facts and imposed the defendant's recommended sentence, which included CPSL.

Eleven days after the plea hearing, so as to preserve his right to raise the issue, the defendant filed a motion to revise and revoke his sentence. On July 29, 2009, some two and one-half months after the plea hearing, the defendant filed a supporting memorandum for his motion to revise and revoke his sentence, arguing that a defendant who receives a CWOF cannot be sentenced to CPSL under G. L. c. 6, § 178H(a), because that statute requires a conviction. [Note 3] The judge denied the defendant's motion to remove the CPSL sentence. [Note 4] Approximately two weeks later, on August 18, 2009, the defendant filed a motion for release from unlawful restraint, Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), in which he made the same arguments he had previously made in his motion to revise and revoke his sentence. This motion was denied, and the defendant appealed.

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After finally docketing the appeal in August, 2011, the defendant filed a motion to terminate his probation, arguing that he had satisfied all probation requirements. A different motion judge noted that the docket explicitly stated that CPSL "will commence on the completion of continuance without a finding." The defendant claimed that he understood that to mean that CPSL would begin only on a violation of probation and entry of a guilty finding. The judge, deferring to the explicit statement on the docket, denied the defendant's motion. The defendant appealed. [Note 5], [Note 6]

Discussion. 1. Whether the defects in the complaints are jurisdictional. The Commonwealth concedes that the portions of the complaints that subjected the defendant to CPSL were insufficient because they merely tracked the statutory language of G. L. c. 6, § 178H(a), and did not specifically connect this defendant to the prior convictions. See Commonwealth v. Kateley, 461 Mass. 575 , 585 (2012); Commonwealth v. Batista, 465 Mass. 1008 , 1010 (2013). However, the Commonwealth asserts that the deficiencies in the complaints are irrelevant, because the defendant admitted to sufficient facts without first moving to dismiss the now challenged portions of the complaint. "A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea." Commonwealth v. Fanelli, 412 Mass. 497 , 500 (1992). See Commonwealth v. Senior, 454 Mass. 12 , 14 (2009); G. L. c. 277, § 47A. This rule prevents defendants from "waiv[ing] or terminat[ing] a trial by pleading guilty, sampl[ing] the penalty and

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then elect[ing] to litigate preexisting nonjurisdictional legal questions." Commonwealth v. Zion, 359 Mass. 559 , 563 (1971). [Note 7]

The defendant first argues that the defects in the complaints were jurisdictional, thus permitting the defendant to raise his objection at any time. We disagree. Jurisdictional defects are those that go to the "very power of the State to bring the defendant into court." Commonwealth v. Clark, 379 Mass. 623 , 626 (1980), quoting from Blackledge v. Perry, 417 U.S. 21, 30 (1974). There is no question that the District Court has the power to adjudicate the underlying crime of failing to register as a sex offender, and that power is in no way affected by improperly alleging CPSL in a complaint. The defects, therefore, are not jurisdictional.

2. Admission to sufficient facts as the equivalent of a guilty plea. [Note 8] The defendant next argues that the Fanelli waiver rule applies only to those who plead guilty, but not to those who, like the defendant, admit to sufficient facts. We disagree. "A judge is entitled to treat an admission to sufficient facts as the functional equivalent of a guilty plea if the admission was made knowingly and voluntarily." Commonwealth v. Greene, 400 Mass. 144 , 145-146 (1987). See Commonwealth v. Duquette, 386 Mass. 834 , 841-843 (1982); Commonwealth v. Villalobos, 437 Mass. 797 , 800-801 (2002). No Massachusetts appellate court, however, has determined whether admitting to sufficient facts is the functional equivalent of a guilty plea in the circumstances of treating a nonjurisdictional defect in the complaint as waived if it is not raised before admitting to sufficient facts. We see no compelling reason to create a distinction in this

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context between an admission to sufficient facts and a guilty plea. The same procedural safeguards afforded to defendants who plead guilty are also provided to defendants who admit to sufficient facts. See G. L. c. 278, § 18; Commonwealth v. Duquette, 386 Mass. at 844-846; Commonwealth v. Villalobos, supra; Souza v. Registrar of Motor Vehicles, 462 Mass. 227 , 234-235 & n.6 (2012) (Souza). The only difference is in the court's willingness to continue the matter without entering a finding of guilt upon the requirement that the defendant comply with certain conditions. [Note 9] Failure to comply with the conditions does not require the matter to be relitigated, because the defendant has already admitted to facts sufficient to prove guilt. A guilty verdict enters upon proof of failing to comply with the conditions, and the defendant is sentenced as if a guilty verdict had originally entered. "We provide the same procedural protections to defendants who admit to sufficient facts and those who plead guilty because if a defendant who admitted to sufficient facts were to violate his or her probation and have it revoked, a conviction would enter without a new plea hearing." Souza, 462 Mass. at 235 n.6, citing Commonwealth v. Villalobos, 437 Mass. at 801.

Because the procedural safeguards are identical, we conclude that the defendant's admission to sufficient facts for failing to register as a sex offender is the functional equivalent of pleading guilty to that crime for purposes of waiving nonjurisdictional

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defects in the charging document. [Note 10] Therefore, the defendant waived his right to challenge any nonjurisdictional defects, such as the deficiencies in the complaints, when he admitted to sufficient facts.

3. Validity of CPSL imposed after a CWOF. The defendant argues that the imposition of CPSL under G. L. c. 6, § 178H(a), requires a conviction, and that because he received a CWOF, CPSL was not legally imposed. The Commonwealth claims that the imposition of CPSL following a CWOF is supported by the plain language and legislative intent of the statute.

Our analysis begins with the statute itself, which provides in pertinent part:

"A person convicted under this paragraph, who has been adjudicated or convicted of any of the offenses set forth in sections 13B, 13B 1/2 , 13B 3/4 , 13F, 22A, 22B, 22C, 23, 23A, 23B, 24B and 26 of chapter 265 . . . shall, in addition to the term of imprisonment authorized by this section, be punished by a term of community parole supervision for life, to be served under the jurisdiction of the parole board, as set forth in section 133D of said chapter 127. The sentence of community parole supervision for life shall commence immediately upon the expiration of the term of imprisonment imposed upon such person by the court or upon such person's release from probation or parole supervision or upon the expiration of a continuance without a finding or upon discharge from commitment

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to the treatment center pursuant to section 9 of chapter 123A, whichever first occurs."

G. L. c. 6, § 178H(a)(1), second par., inserted by St. 2006, c. 139, § 26. Because the statute does not define "convicted," we interpret the term's meaning under the familiar rules of statutory construction. "We construe a statute in accord with 'the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated' . . . ." Champigny v. Commonwealth, 422 Mass. 249 , 251 (1996), quoting from Telesetsky v. Wight, 395 Mass. 868 , 872- 873 (1985). Additionally, "a statute must be construed so that 'effect is given to all its provisions, so that no part will be inoperative or superfluous.' " Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594 , 601 (2010) (Wheatley), quoting from Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136 , 140 (1998).

The defendant argues that CPSL can be imposed only on persons who are "convicted" of failing to register, not those who receive a CWOF. See G. L. c. 6, § 178H(a)(1). To support his interpretation of the statute, the defendant cites several cases holding that, under various other statutes, the term "conviction" or "convicted" does not encompass a CWOF. See Souza, 462 Mass. at 232-233; Commonwealth v. Jackson, 45 Mass. App. Ct. 666 , 670 (1998) (Jackson); Commonwealth v. Bartos, 57 Mass. App. Ct. 751 , 755-756 (2003).

In Souza the statute at issue, G. L. c. 90, § 24(1)(f)(1), extended the license-suspension period from six months to three years if the driver who refused a breath test had been "previously convicted" under G. L. c. 90. Souza, supra at 230. The Supreme Judicial Court concluded that the plaintiff's prior CWOF was not the equivalent of a conviction because the provision, G. L. c. 90, § 24(1)(d), that defined "conviction" for purposes of this statute [Note 11] "confine[d] itself to a guilty plea, a

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plea of nolo contendere, a finding of guilty, or a judgment of guilty" and excluded an admission to sufficient facts and a CWOF. Souza, 462 Mass. at 231. [Note 12] Similarly, in Jackson, 45 Mass. App. Ct. at 670-671, we concluded that the statute permitting impeachment by prior convictions, which is silent on CWOFs, did not encompass a CWOF within the word "convicted." The definition in the statute in question in Jackson was also specifically for purposes of that statute and was limited to "a plea of guilty or a finding or verdict of guilty." Id. at 668. Moreover, these cases are distinguishable because the statutes they interpreted were wholly silent on CWOFs. That is not so here.

General Laws c. 6, § 178H(a)(1), the statute at issue here, explicitly references CWOFs. In the second sentence of the second paragraph of subsection (1), the Legislature provides that "[t]he sentence of community parole supervision for life shall commence immediately . . . upon the expiration of a continuance without a finding . . ." (emphasis supplied). Ibid. Under the accepted rules of statutory construction, we are required to give effect to all the provisions of the statute. Wheatley, 456 Mass. at 601. By choosing to commence CPSL on the expiration of a CWOF, the Legislature explicitly envisioned a situation in which CPSL is imposed upon those receiving a CWOF. The defendant's interpretation, which looks only to the first sentence of the second paragraph of subsection (l), would render the portion of the subsection concerning CWOFs entirely superfluous and ineffective. See Wheatley, supra. In other words, if we were to construe the word "conviction" as excluding a CWOF, there would be no situation in which the term of CPSL could commence "upon the expiration of a continuance without a finding." G. L. c. 6, § 178H(a)(1). This we cannot do. "We are not free to ignore or to tamper with that clear expression of legislative intent." Commonwealth v. Jones, 417 Mass. 661 , 664 (1994). Therefore, we conclude that the Legislature intended that a conviction for the purposes of G. L. c. 6, § 178H(a)(1),

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includes a CWOF, and that CPSL can be imposed after the expiration of a CWOF. [Note 13]

Order denying motion for release from unlawful sentence affirmed.

Order denying motion to terminate probation affirmed.

Appeal from order vacating stay of execution of sentence dismissed as moot.