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Commonwealth v. Johnson

Supreme Judicial Court of Massachusetts, Worcester

August 21, 2019

COMMONWEALTH
v.
DON EARL JOHNSON.

          Heard: May 9, 2019

         Indictments found and returned in the Superior Court Department on June 8, 1994. A postconviction motion for deoxyribonucleic acid testing, filed on August 8, 2018, was considered by Janet Kenton-Walker, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Edward Gauthier for the defendant. Donna-Marie Haran, Assistant District Attorney, for the Commonwealth. Meredith Shih, for Boston Bar Association, amicus curiae, submitted a brief.

          Ira L. Gant, Committee for Public Counsel Services, & Beth L. Eisenberg, for innocence program of Committee for Public Counsel Services & another, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LOWY, J.

         We are called upon to interpret the standing requirement of G. L. c. 278A (chapter 278A). That statute "allows those who have been convicted but assert factual innocence to have access to forensic and scientific testing of evidence and biological material that has the potential to prove their innocence." Commonwealth v. Williams, 481 Mass. 799, 799 (2019). "A person may file a motion for forensic or scientific analysis under" chapter 278A if that person is, among other requirements, "incarcerated in a state prison [or] house of correction, is on parole or probation[, ] or [is one] whose liberty has been otherwise restrained as the result of a conviction." G. L. c. 278A, § 2 (2).

         Don Earl Johnson is currently incarcerated in Federal prison for failing to register as a sex offender. He seeks deoxyribonucleic acid (DNA) testing of biological material pertaining to his only sex offense, of which he claims innocence. The Commonwealth argues that Johnson does not satisfy the requirements of G. L. c. 278A, § 2 (2), because he is not incarcerated for the crime that is the subject of his chapter 278A motion. Johnson argues that his current incarceration for failure to register is "as the result of" his sex offense, even though he is not incarcerated for that crime. We agree with Johnson, and therefore conclude that he has satisfied the requirements of G. L. c. 278A, § 2 (2), [1]

         Background.[2]

         Johnson was arrested in 1994 after a woman reported that she was beaten by two men and vaginally raped by one of them. The woman thought her assailant had ejaculated, and a hospital nurse provided police with an evidence collection kit. At the crime scene, police found spots on the ground that may have been semen.

         Johnson was indicted on two counts of aggravated rape and one count of assault and battery. The aggravated rape charges carried maximum sentences of life in prison. See G. L. c. 265, § 22 (a.) . Johnson pleaded guilty to two counts of indecent assault and battery and one count of assault and battery, and was sentenced to one year in a house of correction with a credit of 229 days.

         Two decades later, in 2014, Johnson filed pro se a chapter 278A motion for DNA testing of semen and an evidence collection kit in the police's possession.[3] The motion was denied without a hearing. Johnson, now represented by counsel, filed in 2018 a second motion for DNA testing of the evidence collection kit.

         Johnson stated in an affidavit accompanying his second chapter 278A motion that he was "currently serving a federal prison sentence . . . for federal failure to register as a sex offender." See 18 U.S.C. § 2250(a) (2012) (criminal penalty for knowing failure to "register or update a registration as required by the Sex Offender Registration and Notification Act"). Johnson asserted also that he was "required to register as a sex offender" "[a]s a result of" his 1994 convictions of indecent assault and battery, and that he had "no other sex offense convictions."[4] See Commonwealth v. Sylvester, 476 Mass. 1, 2, 10 (2016) ("indecent assault and battery" is "a sex offense under G. L. c. 6, § 178C," and "the duty to register as a sex offender is a 'practically certain' effect of a conviction for a sex offense as defined in" that section).[5] Finally, Johnson explained, "I pleaded guilty even though I was innocent because my attorney advised me that I already had [eight] months credit, that the plea would allow me to be out of jail 'right away,' that the risk of going to trial was a 'life sentence,' and that this was the case of ...


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