Opinion
No. 11–P–637.
2012-06-28
John DOE, Sex Offender Registry Board No. 3480 v. SEX OFFENDER REGISTRY BOARD.
By the Court (KANTROWITZ, COHEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a decision of the Sex Offender Registry Board (board) to reclassify him from a level two to a level three sex offender. A Superior Court judge affirmed the board hearing examiner's decision. On appeal, Doe argues the hearing examiner's decision was arbitrary and capricious, unsupported by substantial evidence, and a violation of due process. We affirm.
In 1995, Doe was sentenced to two years in the house of correction after pleading guilty to indecent assault and battery on a child under the age of fourteen in violation of G.L. c. 265, § 13B .
In 2003, Doe was classified as a level two sex offender, which he did not contest. In 2008, Doe was convicted of two counts of assault and battery, as well as three counts of violating an abuse prevention order. Pursuant to 803 Code Mass. Regs. § 1.37C(3) (2004), the board, on its own initiative, sought to reclassify Doe as a level three offender. Doe first argues this reclassification was not supported by substantial evidence, was arbitrary and capricious, and was a violation of due process because the examiner did not acknowledge that Doe had spent eleven years in the community with no new sex offenses. We disagree. “To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence.... Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ G.L. c. 30A, § 1(6). In reviewing the agency's decision, the court ‘shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ G.L. c. 30A, § 14(7). The decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law. G.L. c. 30A, § 14(7)( e ), ( g ).” Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006).
Doe sexually assaulted the twelve year old daughter of a family friend over a period of several months. Doe was nineteen to twenty years of age at the time of the assaults.
At the time of the reclassification hearing, Doe was incarcerated due to several violations of an abuse prevention order.
The hearing examiner applied 803 Code Mass. Regs. § 1.40(9)(a) (2002) as a factor when determining Doe's risk of reoffense. 803 Code Mass. Regs. § 1.40(9)(a) sets forth a scale and correlated risk for how long an offender has been in the community. “This [f]actor captures three relevant areas that need to be considered in the determination of risk. First, this [f]actor relates to the length of time the offender has had access to the community without committing any new offenses ” (emphasis added). Id. “For purposes of this [f]actor, the SORB defines a new offense as a conviction or adjudication for any sex offense, or, a conviction or adjudication for any offense that results in the offender serving a period of confinement that exceeds 60 days.” Id.
In March, 2008, Doe was convicted of assault and battery against his then wife, and he received a suspended sentence. On May 5, 2008, his wife reported that between March 22, 2008, and April 30, 2008, Doe had again assaulted her. Doe's wife reported the incidents to the police on May 5, May 7, and twice on May 8, 2008. The complaints were as a result of Doe calling his wife, using vulgar language, and on one occasion telling her she was “in for it,” all in violation of the no abuse and no contact order. He was convicted of three counts of violation of the abuse prevention order and one count of assault and battery.
The hearing examiner properly noted that Doe was currently incarcerated and for purposes of this factor was in the highest risk category, as he would be free for fewer than five years after this classification and his release from incarceration. The hearing examiner's application of this factor was not arbitrary or capricious and was supported by substantial evidence. Compare Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Board, 81 Mass.App.Ct. 639, 650–652 (2012) (error for hearing examiner not to consider that Doe was ten years old at the time of the index offense and not to explain how factors applied specifically to Doe).
Doe was incarcerated on November 21, 2008, and at the time of the reclassification hearing was set to be released on November 24, 2009, a period well over the “new offense” requirement of sixty days.
Doe also argues that his reclassification as a whole was not supported by substantial evidence and that the examiner incorrectly applied several risk factors. We disagree. The examiner properly applied 803 Code Mass. Regs. § 1.40(9)(c)(6),
as Doe had in fact been convicted of nonsexual violent offenses after his initial index offense. The hearing examiner also properly applied 803 Code Mass. Regs. § 1.40(9)(c)(5).
“The offender has been convicted or adjudicated of any non-sexual violent offenses. This element identifies the violent offender.” 803 Code Mass. Regs. § 1.40(9)(c)(6).
Doe was convicted of violating a restraining order subsequent to his sex offense.
“The offender committed a sex offense while on community supervision or he was convicted or adjudicated of violating a restraining order subsequent to his first conviction or adjudication for a sex offense.” 803 Code Mass. Regs. § 1.40(9)(c)(5).
Doe further argues that the hearing examiner improperly considered Doe's demonstrated lack of stability in his daily life, his alcohol abuse, and that his index offense was committed in a public place. We disagree. In reviewing the board's decision, we “give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G.L. c. 30A, § 14(7). The examiner went through each risk and mitigating factor he deemed relevant and gave appropriate weight to those factors, all of which was under his discretion. See Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 813 (2006). The examiner appropriately considered Doe's alcohol abuse and that his current life is wrought with instability, even if related to his divorce. Doe's argument that the examiner incorrectly deemed the victim's bedroom a “public place” is without merit. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. at 789 (stressing the regulation's emphasis on an area that is open to the scrutiny of others or where detection is more likely). On one occasion, a nine year old neighbor walked into the bedroom of the victim while the sexual assault was occurring.
Judgment affirmed.