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
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).
Background.
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 he 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.
In opposition to Johnson's second chapter 278A motion, the Commonwealth argued that (1) the denial of Johnson's first chapter 278A motion estopped Johnson from filing a new motion; and (2) Johnson does not have standing pursuant to G. L. c. 278A, § 2(2), because he "is not currently facing incarceration, or any other restraint on his liberty, as a result of his 1994 convictions for indecent assault and battery." Johnson's motion was again denied without a hearing. The judge wrote in the order denying the motion that "[a]fter review of the pleadings, exhibits and relevant law [Johnson]'s motion is denied for the reasons stated" in the Commonwealth's memorandum.
Johnson appealed from the denial of his second chapter 278A motion, and we allowed his motion for direct appellate review.
Discussion. 1. Estoppel. The Commonwealth argues, and the judge agreed, that Johnson is estopped from seeking forensic testing because his first chapter 278A motion to test the evidence collection kit was denied. However, when a moving party fails to satisfy the threshold requirements of chapter 278A, the moving party's motion is to be dismissed "without prejudice." G. L. c. 278A, § 3(e).
2. Standing. A moving party is "eligible to request" postconviction forensic or scientific analysis pursuant to chapter 278A only if he or she satisfies the standing requirements of G. L. c. 278A, § 2. Williams, 481 Mass. at 800.
With respect to G. L. c. 278A, § 2(2), Johnson is not "incarcerated in a state prison" or "house of correction," nor is he "on parole or probation." However, as the Commonwealth acknowledges, his "liberty has been otherwise restrained" because he is in Federal prison. The issue is whether he is in prison "as the result of" his convictions of the crimes of which he asserts factual innocence.
The Commonwealth argues that the phrase "as the result of" requires a moving party to show that his or her liberty has been restrained as a "direct" consequence of his or her conviction. Johnson's current prison sentence, the argument goes, is an "indirect" consequence because it was imposed for his failure to register as a sex offender, not for his commission of the crimes of which he now asserts factual innocence. In contrast, Johnson contends that the second factor is satisfied where a moving party "is incarcerated and would not be incarcerated but for his [or her] conviction."
Additionally, "[t]he omission of particular language from a statute is deemed deliberate where the Legislature included [the] omitted language in related or similar statutes." Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014). When chapter 278A was enacted, see St. 2012, c. 38, the Legislature had already required a "direct" result of criminal activity in other contexts. See G. L. c. 127, § 1, as amended through St. 1982, c. 108, § 1 (defining "[v]ictim" as, in part, "any entity which has suffered property damage or property loss as a direct result of the crime for which the sentence referred to in this chapter was imposed" [emphasis added]); G. L. c. 258C, § 3(b)(2)(G), as amended through St. 2010, c. 256, § 113 ("Expenses incurred for professional crime scene cleanup services necessary as the direct result of the commission of a crime ... shall be compensable ..." [emphasis added]).
Moreover, declining to read the word "direct" into G. L. c. 278A, § 2(2), is consistent with the purpose of chapter 278A. "Given [the Legislature's] compelling interest in remedying wrongful convictions of factually innocent persons," "it is entirely appropriate that we construe the language of G. L. c. 278A, § [2(2)], in a manner that is generous to the moving party." Commonwealth v. Clark, 472 Mass. 120, 136 (2015). Cf. Williams, 481 Mass. at 808 ("liberal reading of G. L. c. 278A, § 3[b][4], fully comports with the purpose of chapter 278A").
Conclusion. For the foregoing reasons, the order denying Johnson's second chapter 278A motion is vacated, and the case is remanded to the Superior Court for consideration of the question
So ordered.
Likewise, the floor debates and committee hearings about legislative proposals containing the phrase "as the result of" do not provide a definitive interpretation of that phrase. During the floor debate on 2011 Senate Doc. No. 1987, one legislator stated, "An innocent person should not be incarcerated because of a wrongful conviction" (emphasis added). State House News Service (Senate Sess.), July 28, 2011, at 5 (statement of Sen. Cynthia Stone Creem). However, during a hearing about 2011 Senate Doc. No. 753 and 2011 House Doc. No. 2165, the Boston Bar Association provided a summary according to which the proposed legislation applied to "[p]ersons convicted of a crime in the Commonwealth ... who are either incarcerated or on some form of probation or parole for this conviction" (emphasis added). Testimony of the Boston Bar Association before the Joint Committee on the Judiciary in Support of S 753 and H 2165 (June 8, 2011), https://www.brandeis.edu/investigate/innocence-project/docs/s-753-06.08.11-d-siegel-testimony-summary-cost.pdf [https://perma.cc/ALE7-THKF].