Opinion
19-P-850
10-28-2020
John DOE, Sex Offender Registry Board No. 62427 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level 2 sex offender. On appeal, Doe claims the hearing examiner's decision to classify him as a level 2 offender is unsupported by substantial evidence. Doe also contends that the hearing examiner abused his discretion in discrediting certain expert testimony, and failed to include an explicit finding, by clear and convincing evidence, that publication of Doe's registry information on the Internet serves the public's safety interest. We see no error in most aspects of the decision, but vacate the judgment so that the matter may be remanded solely for explicit findings on the issue of Internet dissemination.
1. Doe's classification as level 2 offender. Doe claims that the hearing examiner misapplied certain risk factors in his decision to classify Doe as a level 2 offender, rendering the decision arbitrary and capricious. We disagree.
"When analyzing the validity of a decision by [SORB], a reviewing court must determine whether the decision is supported by substantial evidence" (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011). "Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion" (quotation and citation omitted). Id. Ultimately, we give due weight to the experience, technical competence, and specialized knowledge of SORB, and the burden is on Doe to demonstrate the invalidity of SORB's decision. See id.
a. Aggravating factors. Doe claims that the hearing examiner misapplied multiple aggravating risk factors in reaching his decision to classify Doe as a level 2 offender. Specifically, Doe claims the hearing examiner erred in considering aggravating factor 9 (alcohol and substance abuse) because Doe did not have a history of alcohol or substance abuse. However, on at least one occasion, Doe was intoxicated when he sexually assaulted the victim. Therefore, the hearing examiner could properly consider this aggravating factor, where substance use was involved in Doe's sexual misconduct. See 803 Code Mass. Regs. § 1.33(9)(a) (2016) ("Factor 9 applies ... when the offender's substance use was a contributing factor in the sexual misconduct").
Doe further contends that the hearing examiner improperly gave weight to aggravating factor 16 (public place). According to Doe, none of his offenses occurred in areas that constitute a "public place." We disagree.
"For purposes of factor 16, a ‘public place’ includes any area ... that is open to the scrutiny of others or where there is no expectation of privacy." 803 Code Mass. Regs. § 1.33(16)(a) (2016). Here, Doe sexually assaulted the victim on a couch in his living room, while the victim's mother was sleeping on another couch in the same room. Given the presence of the victim's mother in the living room, Doe undoubtedly had no reasonable expectation of privacy at the time of the assault, rendering his living room a public place for the purposes of 803 Code Mass. Regs. § 1.33(16)(a). Therefore, we are satisfied that the hearing examiner did not abuse his discretion in applying this aggravating risk factor. See Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 529 & n.5 (2020).
b. Mitigating factors. As with the hearing examiner's application of the aggravating risk factors, Doe claims that the hearing examiner misapplied numerous mitigating risk factors in reaching his decision to classify Doe as a level 2 offender. We disagree.
First, Doe claims the failure to award mitigating consideration to factor 29 (offense-free time in the community) constitutes an abuse of discretion. We disagree. Mitigating consideration will be awarded where the offender has lived in the community offense-free for at least five years. See 803 Code Mass. Regs. § 1.33(29)(a) (2016) (risk of reoffense decreases for most offenders after living offense-free for five to ten years; risk of reoffense decreases substantially after ten years of offense-free time). Here, Doe had not yet reached the five year mark for offense-free time in the community. Therefore, the hearing examiner did not abuse his discretion in failing to award mitigating consideration to this factor, as it was not applicable to Doe's case.
Doe also claims that the hearing examiner failed to provide sufficient mitigating consideration to factor 28 (supervision by probation or parole) and factor 33 (home situation and support systems). See 803 Code Mass. Regs. §§ 1.33(28), (33) (2016). Furthermore, Doe claims error in the hearing examiner's failure to further "elaborate" on the weight of this evidence. We disagree.
Here, we find no error in the hearing examiner's failure to explicitly "elaborate" on the exact weight given to each mitigating factor. In his decision, the hearing examiner detailed Doe's compliance with his probation terms, and noted the positive support network that has surrounded Doe since his release from prison. Given the hearing examiner's careful consideration of all facts relating to factors 28 and 33, we find no error in the hearing examiner's decision to award "mitigating consideration" and "some risk-mitigating weight" to each factor respectively. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012) (no error where classification based upon "sound exercise of informed discretion rather than mechanical application of a checklist").
The hearing examiner assigned mitigating consideration to the fact that Doe incurred no disciplinary reports during his period of incarceration, and has continued to satisfy all probation requirements since his release in August of 2012. Furthermore, the hearing examiner credited the testimony and numerous letters of support that were submitted on Doe's behalf, such that the hearing examiner explicitly found that Doe was "surrounded by persons who love and support him."
Finally, Doe argues that the failure to provide full mitigating weight to factor 32 (sex offender treatment) constitutes an abuse of discretion. We disagree. While the record is clear that Doe has actively participated in the sex offender treatment required under the terms of his probation, the hearing examiner also found that Doe on multiple occasions has denied the allegations that were against him. Because the hearing examiner was permitted to look at such evidence of denial when assigning weight to factor 32, we find no error in his decision to assign moderate mitigating weight, rather than full weight, to Doe's participation in sex offender treatment. See 803 Code Mass. Regs. § 1.33(32)(a)(4) (2016) (lack of responsibility and degree of minimization for offender's own behavior may diminish weight applied to factor 32).
Doe denied the allegations against him in a letter dated March 12, 2010 to SORB, and also denied the allegations against him during his evaluation by Dr. Leonard Bard.
2. Expert testimony. Doe claims that the hearing examiner abused his discretion in disregarding the evidence of an expert, Dr. Leonard Bard, who concluded that Doe posed only a low risk of recidivism and a low degree of danger to the public. We disagree.
"Doe is not entitled to a guarantee that SORB will reach the same conclusion as his expert." Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 137 (2019). The hearing examiner may consider, yet may also decline to adopt, an expert's conclusions, so long as he explains on the record his reasons for rejecting the expert's testimony. See id. at 136-137. Here, the hearing examiner carefully considered the expert testimony of Bard, but disagreed with him in a few key areas. Most importantly, Bard utilized methodologies different from those required by SORB when reaching a final determination. As a result, the hearing examiner chose not to credit portions of Bard's testimony. Given the difference in methodologies, we find no error in the hearing examiner's decision to decline to adopt Bard's recommendation. See id.
In particular, the hearing examiner noted that offense-free time does not begin to accrue until Doe's release from prison. See 803 Code Mass. Regs. § 1.33(29)(a) ("offense free time begins on the date of an offender's most recent release from custody for a sex offense or non-sexual violent offense"). Bard, on the other hand, found offense-free time to accrue from the time of Doe's last proven offense.
--------
3. Internet dissemination. Finally, Doe claims that the hearing examiner failed to include explicit findings, demonstrating by clear and convincing evidence, that publication of Doe's registry information on the Internet serves the public's interest in safety. We agree.
When considering the offender's risk of reoffense and degree of dangerousness, a determination must also be made as to the degree to which public access to an offender's personal and sex offender information will serve the public's interest in safety. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655 (2019). Even where an offender poses a moderate risk to reoffend and a moderate degree of dangerousness, classification as a level 2 offender is unjustified where Internet access to that offender's information will not realistically serve the public's interest in safety. See Doe No. 524553, 98 Mass. App. Ct. at 528.
Ultimately, the hearing examiner is charged with making explicit findings by clear and convincing evidence that Internet dissemination of the offender's information serves to protect the public against the risk of reoffense. See Doe, Sex Offender Registry Bd. No. 496501, 482 Mass. at 655-656. Even though this rule is to be applied prospectively to hearings occurring after it was announced, a reviewing court may nonetheless remand the decision when such explicit findings are absent from the record. See id. at 657. A reviewing court also has the discretion to decline to remand the decision where the underlying facts "so clearly dictate" that Internet dissemination is warranted. Id. at 657 n.4.
Here, the hearing examiner made no explicit findings as to the issue of Internet dissemination. Furthermore, the record has little, if any, substantive discussion as to whether or not Internet access to Doe's registry information would realistically serve the interest of public safety. Therefore, because this is not a case where the underlying facts "clearly dictate" that Internet dissemination of Doe's registry information is warranted, the judgment is vacated and a new judgment shall enter remanding the case to SORB for explicit findings on this issue. See Doe No. 524553, 98 Mass. App. Ct. at 529.
So ordered.
Vacated and remanded.