Opinion
11-P-498
04-18-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 80453 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, was convicted of rape of a child after sexually assaulting his then-girlfriend's young daughter three or four times per week for at least two weeks. He appeals his classification as a level three sex offender pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. Doe argues that the Sex Offender Registry Board (board) failed to account for his age as a mitigating factor, erred in using his lack of time in the community after imprisonment as an aggravating factor, considered unreliable hearsay, and lacked substantial evidence. Because the board's decision was supported by substantial evidence and was legally sound, we affirm. ,
Doe also asserts that the board could not properly find that he engaged in compulsive behavior without hearing expert testimony. However, he acknowledged that his offenses constituted compulsive behavior before the board and the Superior Court, and cannot raise this claim for the first time on appeal. See Secretary of Admn. & Fin. v. Commonwealth Employment Relations Bd., 74 Mass. App. Ct. 91, 95 (2009).
To the extent the plaintiff contends that certain of the board's regulations are unconstitutional, we lack jurisdiction to hear his claims on an appeal from the board's classification. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629-631 (2011). The appropriate means to present these issues is an action for a declaratory judgment in the Superior Court. Id. at 630.
Doe argues that, under Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 621-623 (2010), the hearing examiner for the board was required to consider that an individual of his age (in his late forties at the time of classification) has a reduced risk of recidivism compared to a younger offender. However, the board's regulations do not include the offender's age as a factor. See id. at 619-621. Therefore, the board must consider age only if evidence is presented that indicates it is relevant to the offender's risk of reoffense. See id. at 622. Doe presented no evidence or argument to the board on the issue of his age. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006) (arguments waived if not presented to board).
The plaintiff next argues that the board acted arbitrarily and capriciously in treating his lack of time in the community after release as an aggravating factor before his release from prison. The board's regulations list as a factor the length of time an offender has been in the community without reoffending, stating that 'the likelihood of recidivating decreases for most offenders after the first five to ten years following release from incarceration and becomes substantially lower after ten years in the community . . . .' 803 Code Mass. Regs. § 1.40(9)(a) (2002). The hearing examiner interpreted this regulation to create three categories of offenders: those, like Doe, who have been out of prison less than five years without reoffending, comprising the highest-risk category; those five to ten years out, posing a decreased risk; and those more than ten years out, presenting the lowest risk of reoffense under this factor. This interpretation is reasonable, and we therefore owe it 'substantial deference.' Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. at 813. Our courts have accepted this reading. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 782-783 & n.6 (2006); Loe v. Sex Offender Registry Bd., 73 Mass. App. Ct. 673, 677 (2009). The board may, and indeed must, conduct a final classification hearing while an offender is still incarcerated. See Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 687-690 (2011). While incarcerated, an offender will always fall in the highest-risk category on this factor, but the examiner may find the factor not applicable. See id. at 689-690. The examiner's decision was not arbitrary or capricious, particularly in light of the other factors present.
Doe also contends that he was prejudiced by the hearing examiner's consideration of hearsay in the form of a police report describing threats allegedly made by Doe and other documents containing the same information. The hearing examiner specifically stated in her decision that she would not give those documents 'significant weight' and would use the information therein only to 'show a time-line of events and why the [plaintiff] was held awaiting trial.' For this purpose, the hearsay was corroborated by correctional records showing that Doe's bail was revoked. Cf. Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312-313 (2007). The hearing examiner did not refer to the records at all in her discussion of the factors leading her to classify Doe as a level three offender. Even assuming that admitting the documents was erroneous, the examiner's decision was nonetheless reasonable. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 765 n.12 (2006).
Charges based on the purported threats ended in a nolle prosequi, for reasons that do not appear in the record.
Finally, Doe argues that his classification as a level three offender was not supported by substantial evidence. The hearing examiner found that several applicable factors established in the board's regulations weighed in favor of Doe's dangerousness and likelihood of reoffense: repetitive and compulsive behavior; adult offender and child victim; having fewer than five years in the community after release from prison; offending against the same victim more than once over a period of time; committing a statutorily defined sex offense involving a child; and refusing to undergo available sex offender treatment while incarcerated. See 803 Code Mass. Regs. § 1.40(2), (3), (9)(a), (9)(c)(3), (9)(c)(12), & (17) (2002). She noted that Doe denied his crimes and did not take responsibility for his actions. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. at 808-809; 803 Code Mass. Regs. § 1.40(9)(c)(13) (2002). On the other hand, the examiner considered mitigating factors including satisfactory adjustment to incarceration, lack of other criminal history, and the fact that the victim was not extrafamilial or a stranger. See 803 Code Mass. Regs. § 1.40(3)(a), (9)(b), & (19) (2002). These findings were all supported by substantial evidence and were largely consistent with the proposed findings submitted by Doe to the examiner. The examiner's decision was within her discretion. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). See Smith v. Sex Offender Registry Bd., supra at 812-813.
Doe argues that Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. at 621-623, overrules Smith, supra, and holds that the board must consider more recent studies indicating that denial does not correlate with recidivism. We disagree. As with the age factor discussed above, the plaintiff did not submit the studies on which he now relies to the board, and therefore has waived this contention. See Smith, supra at 810.
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Judgment affirmed.
By the Court (Rapoza, C.J., Kafker & Meade, JJ.),