Offender Registration and Community Notification Act.
Judicial Court, Superintendence of inferior courts.
Crane for the petitioner.
H. Lazar, Assistant District Attorney, for the Commonwealth.
petitioner, Gabriel Aroian, filed a petition in the county
court pursuant to G. L. c. 211, § 3, seeking review of
an order of a District Court judge denying his motion for
relief from the requirement that he register as a sex
offender. A single justice of this court denied the petition
without a hearing. We affirm.
an investigation, police traced an uploaded child pornography
file to a computer at Aroian's home. A search warrant
issued, and a laptop computer, tablet computer, and a
computer storage device were seized. Thirty images of child
pornography were found on the laptop, consisting of
"pre-pubescent females approximately four through ten
years of age in various states of nudity with lewd displays
of their genitals or engaged in sexual activity."
Fifteen images of child pornography were found on the storage
device. On June 16, 2016, Aroian was charged with possession
of child pornography, in violation of G. L. c. 272, §
29C. After a plea colloquy, a District Court judge accepted
his guilty plea on March 26, 2018, and sentenced him to
eighteen months of probation, with conditions.
pleading guilty to possession of child pornography, in
violation of G. L. c. 272, § 29C, Aroian presumptively
was required to register as a sex offender. See G. L. c. 6,
§ 178C (possession of child pornography included within
definition of "sex offense"). See also
Commonwealth v. Ronald R., 450 Mass. 262, 264
(2007). Because he was not sentenced to "immediate
confinement," he was eligible to seek relief from the
registration requirement. See G. L. c. 6, § 178E (f)
(sex offender may be relieved from obligation to register
where judge determines "the circumstances of the offense
in conjunction with the offender's criminal history
indicate that the sex offender does not pose a risk of
reoffense or a danger to the public"). In his motion for
relief, Aroian asserted that he presented an "extremely
low" risk of reoffending, and submitted a mental health
evaluation by a forensic psychologist. After a hearing, the
same District Court judge denied the motion in a ruling dated
March 28, 2018. See L.L. v. Commonwealth,
470 Mass. 169, 179 (2014); Ronald R., supra
at 269. The judge found that the weight of the
forensic psychologist's report was compromised by his
failure to obtain a "comprehensive, complete and
credible history of [Aroian's] background and
issues." He concluded that Aroian failed to establish
that he should be relieved of the requirement that he
register as a sex offender. The judge subsequently denied
Aroian's motion to stay the registration requirement.
ten months later, on January 16, 2019, Aroian filed a G. L.
c. 211, § 3, petition in the county court, seeking
relief from judge's decision not to waive the
registration requirement. We review the single justice's
decision to deny the petition for abuse of discretion or
error of law. See, e.g., Adoption of Iris, 427 Mass.
582, 586 (1998). Finding neither, we affirm.
recognize that "[a] sex offender aggrieved by a denial
of relief from registration under § 178E (f_) has
'no automatic right of appeal.'" L.L., 470 Mass.
at 173 n.8, quoting Ronald R., 450 Mass. at 266-267.
Even where an alternative avenue of review is unavailable,
however, no party "should expect this court to exercise
its extraordinary power of general superintendence
lightly."  Commonwealth v. Richardson,
454 Mass. 1005, 1006 (2009), citing Commonwealth v.
Narea, 454 Mass. 1003, 1004 n.l (2009). "A single
justice, in his or her discretion, may . . . properly decline
to employ the court's extraordinary power of general
superintendence where exceptional circumstances are not
present." Narea, supra.
assessing whether exceptional circumstances are present, a
petitioner's failure promptly to seek the court's
intervention, pursuant to G. L. c. 211, § 3, may be
considered. See Commonwealth v. Ruiz, 480 Mass. 683,
696 (2018) (noting that there "may be circumstances in
which a single justice might deny such a petition as
untimely"); Commonwealth v. Lucerno, 450 Mass.
1032, 1033 (2008) (six week lapse "not so lengthy as to
compel the denial of relief") . Here, as G. L. c. 6,
§ 178E (f), required, the District Court judge acted on
Aroian's motion within fourteen days of sentencing. After
a hearing, the judge also denied Aroian's motion to stay
the registration requirement. Aroian nonetheless delayed
filing his G. L. c. 211, § 3, petition for nearly 300
days after the denial of his § 178E (f) motion, until
the Sex Offender Registry Board (SORB) concluded its
registration and classification proceedings. See
L.L., 470 Mass. at 173 n.8 (noting availability of
"statutory review process for decisions of [SORB]"
under G. L. c. 6, § 178M). In view of Aroian's
failure promptly to seek review under G. L. c. 211, § 3,
the single justice properly could have concluded that the
circumstances did not require the court's intervention.
court's extraordinary power of general superintendence
under G. L. c. 211, § 3, is "to be used
sparingly" (citation omitted). Doe, Sex Offender
Registry Bd. No. 76819 v. Sex Offender Registry Bd., 480
Mass. 212, 221 n.3 (2018). In view of Aroian's failure
promptly to seek review under G. L. c. 211, § 3, the
single justice properly could have concluded that there were