Opinion
20-P-414
05-17-2021
John DOE, Sex Offender Registry Board No. 22708 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (SORB) decision classifying him as a level three sex offender. The principal issue on appeal is whether Doe's final classification hearing in June 2018 was premature because Doe was committed as a sexually dangerous person (SDP) at the time and was not released until one month later in July 2018. Doe claims that the hearing examiner abused her discretion by denying his motion to continue the final classification hearing. Doe also argues that the hearing examiner improperly relied on a 2017 phallometric assessment interpretative report (PPG report). We affirm.
Background. Doe sexually assaulted four different boys beginning when Doe was age eighteen and continuing into his thirties. In 1983, Doe sexually assaulted his first victim, an eleven year old neighbor in New York, and pleaded guilty to sexual abuse in the second degree, a like offense to indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. Doe sexually assaulted his second and third victims, both eleven at the time, on multiple occasions in 1992 and 1993, while Doe was a staff member at the Hillcrest Education Center in Lenox. Both victims were residents in Doe's care. In 1995, Doe pleaded guilty to rape and abuse of a child (victim two) and indecent assault and battery of a child (victim three) and was sentenced to prison for three to five years. Beginning on the day he was released from prison on those convictions, and on multiple occasions over the next three years, Doe sexually abused the fourth victim; Doe's teenaged and developmentally disabled son. In 2003, victim four reported Doe's abuse, and Doe pleaded guilty to rape and abuse of a child. Doe was sentenced to prison for nine to ten years.
In 2014, Doe was adjudged an SDP and was civilly committed to the Massachusetts Treatment Center (treatment center) for an indefinite period. SORB notified Doe that he would be classified as a level three, high risk offender upon release from confinement, and Doe challenged that preliminary classification. The final classification hearing was scheduled for June of 2018. Doe sought a continuance or stay of the final classification hearing, arguing that the hearing was premature when his SDP trial for discharge pursuant to G. L. c. 123A, § 9, was scheduled for the following month. Doe claimed prejudice if a continuance was not granted, because "the hearing decision [would] be based upon ‘stale’ information, and ... [Doe's] liberty and privacy rights would be violated." The hearing examiner denied Doe's motion.
Doe was represented by counsel at the evidentiary hearing on final classification, after which the hearing examiner made findings and applied several high risk and risk aggravating factors, see 803 Code Mass. Regs. § 1.33 (2016), including factors 1 (mental abnormality); 2 (repetitive and compulsive behavior); 3 (adult offender with child victim); 5 (adjudicated SDP or released from civil commitment); 7 (relationships between offender and victims); 13 (noncompliance with community supervision); 16 (offenses in public place); 17 (male offender with male victim); 18 (extravulnerable victims); 19 (high level of physical contact); 21 (diverse victim types); and 22 (multiple victims). The hearing examiner also considered, but did not apply, several risk mitigating factors, including factors 28 (supervision by probation or parole); 30 (advanced age); 32 (sex offender treatment); and 33 (home situation and support systems). The hearing examiner considered recent psychological or psychiatric profiles regarding Doe's risk to reoffend, including the PPG report, and concluded that "the evidence in this case overwhelmingly supports that [Doe's] risk of re-offense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination of sex offender registry information."
Discussion. 1. Motion to continue. Doe claims that the denial of his motion to continue was an abuse of discretion because he was denied an opportunity to produce the evidence subsequently developed at his G. L. c. 123A, § 9, discharge trial. Doe also claims that the "information considered by the hearing examiner was rendered stale by the most current expert evidence that was submitted at the SDP hearing; thus, the final SORB decision was not based on [Doe's] current circumstances, contrary to the SORB's mandate" and was in violation of Doe's "right to due process of law." We disagree.
"[C]onsistent with the statutory purpose of classification according to current risk to reoffend, a final classification evidentiary hearing [must] be held at a reasonable time prior to release from incarceration." Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 75 (2012) (Doe No. 6904). This "reasonable time" constraint serves to ensure "that a sex offender's final classification reflects a level of risk and dangerousness that is current at a time when the offender's release is imminent," thereby "protecting vulnerable members of the community through reliable notification of an offender's risk of reoffense and degree of dangerousness." Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 488 (2015) (Doe No. 7083 ). At the same time, holding the evidentiary hearing within a reasonable time of the offender's release protects the offender's "liberty interest in receiving a classification that reflects consideration of current, rather than stale, risk factors." Id.
By statute, SORB must start classification proceedings not "less than 60 days prior to the release or parole of a sex offender from custody or incarceration," G. L. c. 6, § 178L (1) (a ), and it must "classify ... a sex offender at least 10 days before the offender's earliest possible release date." G. L. c. 6, § 178E.
In determining what constitutes a reasonable time, a hearing examiner is called upon to exercise "sound discretion in balancing the public safety interest in promptly obtaining a final classification ... with the potential harm to the sex offender." Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 391 (2013). We review the hearing examiner's decision for abuse of that discretion. See id. at 392.
Here, Doe's final classification hearing preceded the trial on his petition for release from his SDP commitment by approximately one month. This one-month gap was within the timeframe set forth in the statute and was far shorter than in other cases where the final classification hearing was determined to be premature. See Doe No. 7083, 472 Mass. at 478 (final classification hearing premature where it took place "at least eighteen months" before earliest release date); Doe No. 6904, 82 Mass. App. Ct. at 77 (final classification hearing premature where it took place "eight months prior to the next parole hearing, and ultimately four years prior to [the offender's] scheduled release").
Where the hearing examiner's decision was based, in large part, on evidence generated less than one year before the final classification hearing and close to Doe's annual SDP review, we are satisfied that Doe's final classification was current. That is, it reflected his risk to the public and dangerousness level at the time of his release. See Doe No. 7083, 472 Mass. at 488 (final classification decision must reflect "a level of risk and dangerousness that is current ... when the offender's release is imminent"). Moreover, "the board is required to classify incarcerated sex offenders before they are released." Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 60 (2010). Had SORB delayed the final hearing, Doe may well have been released into the community without classification, in violation of G. L. c. 6, § 178E (a ). The fact that Doe theoretically could have been released at any time following his § 9 discharge trial "provid[ed] more reason to go forward with the classification process ..., not less." Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 904, 905 (2012). Simply put, there was no abuse of discretion in the denial of the motion to continue.
Even were we to conclude that the final classification hearing was premature, Doe has failed to establish prejudice. In addition, Doe failed to update the record with evidence from his § 9 trial when given the opportunity, and he has not offered any evidence from that proceeding that would have materially altered the outcome.
2. The PPG report. Doe concedes that a PPG report may be considered by a hearing examiner. See Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 794-795 (2008) (Doe No. 15606 ). He claims, however, that the hearing examiner placed undue emphasis on or otherwise improperly considered the PPG report. We disagree. For example, the hearing examiner's decision not to apply factor 28 regarding the mitigating effect of probation or parole was not based on Doe's PPG report, but on evidence that Doe offended on multiple occasions while on parole.
Similarly, while the hearing examiner discussed Doe's PPG report in connection with her consideration of Doe's age, her decision not to apply advanced age as a mitigating factor was based primarily on Doe's continued offending as he aged, that he was not yet sixty, and that he continued to report deviant sexual fantasies as late as April 2017. We also note that the hearing examiner clearly understood the limited purpose for which she could consider the PPG report. She specifically stated that "the behavioral health specialist who conducted the PPG noted that the PPG should not be used as a diagnostic tool or to predict risk for recidivism." See Doe No. 15606, 452 Mass. at 795 (while hearing examiner "was, obviously, mindful of the test result ... there is no indication in [her] carefully worded ... decision that [she] placed any significant reliance on the information or that [she] misunderstood the test's general purpose").
Doe argued in the Superior Court that the result of the SDP trial, where Doe was found not sexually dangerous, must mean that the jury credited the efficacy of Doe's sex offender treatment. The judge rejected that argument as speculative and conclusory. Deciding the case as we do, we need not separately address Doe's argument that the Superior Court judge erred.
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Judgment affirmed.