Opinion
11-P-1915
11-12-2014
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 3455 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a judgment of the Superior Court, which upheld a final decision of the defendant, the Sex Offender Registry Board (board), classifying him as a level three sex offender under the Sex Offender Registration and Community Notification Act, G. L. c. 6, §§ 178C-178P, and 803 Code Mass. Regs. §§ 1.00 et seq. (2004). We affirm.
Background. Doe has a history of sex offense convictions, which includes a 1986 conviction of open and gross lewdness and lascivious behavior, indecent assaults and batteries on persons age fourteen or older (in the aftermath of two separate incidents that occurred in 1994 and 1997), and assault with intent to rape (during the 1994 incident).
In July, 1986, while in his car, Doe followed a thirty-one year old woman as she was walking to her car in a mall parking lot with her nine month old baby. He stopped his car behind her vehicle so she could not make her way out of the lot. When she approached and asked him to move, she noticed that his pants were open, his penis was exposed, and he was fondling himself. She returned to her car and he drove off. Doe was convicted of open and gross lewdness and lascivious behavior, and received a suspended one-year sentence with probation for two years.
Doe's governing offenses occurred on December 22, 1994. On that date, while out on probation for a nonsexual criminal offense, at about 7:35 A.M., Doe forcibly knocked down an adult female who had been walking her dog in an alleyway behind her residence. Doe dragged the victim into a garage where he attempted to pull her pants down. The victim's screams alerted a maintenance man, who came to her aid and interrupted the violent attack. Doe fled. At trial, Doe acknowledged his involvement in the attack; however, he testified that he had been attempting to rob, not rape, his victim. The jury rejected Doe's assertion and convicted him of assault with intent to rape, indecent assault and battery, and assault and battery.
In addition, Doe was alleged to have indecently assaulted thirteen other women over a span of about two hours on that same December 22, 1994, morning -- variously grabbing the women's breasts, buttocks, and vaginal areas. A witness to one of the incidents recorded the license plate number of Doe's vehicle, and police apprehended Doe in his car. He was consequently charged with numerous counts of indecent assault and battery on a person age fourteen or older, but ultimately all of those charges were nol prossed. Based largely on the police reports, the hearing examiner credited the allegations against Doe as to ten of the victims. Doe also has a history of other criminal behavior and has a history of substance abuse -- to Doe's credit, he is currently in recovery.
Doe was convicted of assault in 1982 and of assault and battery in 1995.
While Doe was incarcerated, the board notified him of its decision to recommend that he be formally classified as a level three sex offender. Doe contested the board's decision. At the conclusion of a de novo evidentiary hearing (see G. L. c. 6, § 178L, and 803 Code Mass. Regs. § 1.07[2] [2004]), a hearing examiner affirmed the board's level three classification of Doe. The hearing examiner concluded that Doe posed a high risk to reoffend and bore a high degree of dangerousness. Doe appealed, initiating an action in Superior Court for review pursuant to G. L. c. 30A. See G. L. c. 6, § 178M. Determining that there was substantial evidence to support the decision reached by the hearing examiner, and that the decision was not arbitrary, capricious, or an abuse of discretion, a Superior Court judge denied Doe's motion for judgment on the pleadings and affirmed the final classification of Doe as a level three offender. Doe appealed from the resulting judgment.
Doe contends on appeal that (1) the board violated his due process rights and prejudiced his ability to offer favorable evidence by holding his classification hearing eight months prior to his projected release from State prison; (2) the hearing examiner failed to account for Doe's age; (3) Title 803 Code Mass. Regs. § 1.40(2) [2002] is "ultra vires" as it authorizes the board to "diagnose" a psychiatric disorder -- "repetitive and compulsive" behavior -- without expert evidence; and, relatedly, (4) the hearing examiner impermissibly relied on "unreliable" and "uncorroborated" hearsay evidence set forth in police reports in forming a conclusion that Doe's conduct was in fact repetitive and compulsive. Doe also claims that trial counsel's failure to timely raise these claims (except for one) constituted ineffective assistance of counsel.
The board concedes that Doe preserved his objection to the admission and reliance on hearsay evidence.
Discussion. 1. Timing of hearing. Doe argues for the first time on appeal that it was error for the board to subject him to a classification hearing eight months before his projected release from prison. He contends that his premature classification hearing deprived him of due process of law and an opportunity to present favorable evidence.
As Doe readily acknowledges, the board is legally obligated to classify incarcerated sex offenders prior to the time they are released from prison. See Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 688 (2011) (Doe No. 1). Doe asserts, however, that the board's obligation to conduct a prerelease classification proceeding pertains to the initial, and not the final, classification hearing.
Doe's argument ignores the full import of Doe No. 1, supra, and of Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53 (2010) (Doe No. 3974). In dictum construing the text of G. L. c. 6, § 178E(a), the Supreme Judicial Court pointed out that § 178E(a) "references the procedures" of § 178L and, therefore, that the legislative design "suggests" that the former "also incorporates the latter's reference to 'final' classifications." Doe No. 3974, supra at 61. We followed that dictum in Doe No. 1, supra at 687-688, and also rejected the associated due process arguments raised there. Id. at 688-689.
Also contrary to Doe's contention is our holding in Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67 (2012). There, in considering the time frame of a final classification, we acknowledged the board's obligation to begin classification proceedings no less than sixty days prior to an offender's release from custody and to classify the offender at least ten days prior to the earliest possible release date. Id. at 73. However, we stated that "[t]here are no statutory limitations on commencing classification proceedings earlier than the sixty days prior to release." Ibid. As Doe correctly points out, we concluded that "denying [a] motion to move the final classification hearing closer to the date of actual release -- and proceeding to classification four years prior to probable release -- were not 'reasonable' in light of the statutory purpose . . . ." Id. at 77. However, we "emphasize[d] that the result we reach[ed] [was] based on the specific facts and circumstances of [that] case." Id. at 78. By contrast, here Doe's sentence was due to actually expire in eight months. We see nothing unreasonable or premature about proceeding with Doe's de novo classification hearing eight months before his probable release from prison.
Nor are we persuaded by the fact that after the expiration of his sentence Doe remained in custody on the Commonwealth's petition to have him classified as a sexually dangerous person. Doe was still subject to release at any time. See Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 904, 905 (2012).
2. Age. Doe failed to advance this claim before the hearing examiner or the judge and we need not address it now. See Doe No. 3974, 457 Mass. at 63; Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 814 (2006). Notably also, nothing in the record supports a showing of particular circumstances special to Doe that would warrant the expenditure of expert funds in support of an age-related mitigation claim. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 774-775 (2008).
3. Reliance on hearsay. It is well settled that "the rules of evidence do not apply to a classification hearing." Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 647 (2012) (Doe No. 136652). Rather, "[h]earsay with adequate indicia of reliability may provide 'substantial evidence'" to support the board's decision. Ibid., citing Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312-313 (2007) (Doe No. 10304).
Such indicia of reliability include, but are not limited to, the "general plausibility and consistency of the victim's or witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration and the like." Doe No. 136652, 81 Mass. App. Ct. at 650, quoting from Doe No. 10304, 70 Mass. App. Ct. at 313.
Much of the information contained in the reports at issue here was corroborated by the facts of Doe's convictions for the incident on the same morning in 1994. The victims' factual accounts are also detailed and plausible. We discern no error, therefore, in the hearing examiner's conclusion that the police reports contained sufficient indicia of reliability for use in the classification analysis.,
Substantially for the reasons stated in the board's brief at pages 45-47, the hearing officer did not err in treating as useful information under G. L. c. 6, § 178L(1), the bare fact that Doe had been arraigned for several other alleged sexual offenses before committing his sex crimes in 1994 and 1997. The hearing officer made clear that those other allegations were not being considered as true, but that the arraignments bore marginal relevance on the issue of compulsiveness. As the hearing examiner explained, despite the arraignment experiences making Doe aware of the seriousness of allegations of sexual misconduct, he nonetheless committed later sexual offenses.
We also see no merit to Doe's related argument that 803 Code Mass. Regs. § 1.40(2) (2002), is ultra vires because it permits a diagnosis of "compulsive behavior" without the aid of expert testimony. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 786 (2006) (concluding that "the Legislature determined that expert testimony is unnecessary in these [classification] proceedings" and that "the board was not statutorily required to present expert testimony in support of its position before the examiner").
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4. Ineffective assistance. Finally, as there was no error in the proceedings below, Doe's claim of ineffective assistance of counsel cannot be maintained.
The judgment of the Superior Court is hereby affirmed.
So ordered.
By the Court (Green, Carhart & Maldonado, JJ.),
Clerk Entered: November 12, 2014.