Opinion
21-P-243
04-06-2022
John DOE, Sex Offender Registry Board No. 22460 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 two sex offender. On appeal, he contends that the hearing examiner erred in (1) failing to ascribe a specific weight to various regulatory factors, (2) applying "factor 9" (history of alcohol and substance abuse) in her findings, and (3) determining that a public safety interest is served by online dissemination of Doe's registry information. We affirm.
Background. In 1992, Doe committed the governing offenses against his then girlfriend of ten months (victim A). Specifically, on the evening of February 29, 1992, while Doe was driving his car with A as the passenger, Doe became angry because he feared that A intended to end their relationship. Doe drove at high rates of speed, lost control of the vehicle, and crashed into some bushes. After arriving at Doe's home, Doe grabbed A by the hair, forced A inside, threatened her, choked her, punched her in the stomach, and placed her in fear for her life. Doe's activity persisted over the course of several hours, involved a handgun, and led to the sexual misconduct for which he was convicted. Doe forced A into the bedroom, yelled at her, pointed a gun at her face, and threatened to kill her. Doe performed oral sex on her and vaginally raped her. After raping A, Doe told her that "she performed better under fear."
Following trial, a jury convicted Doe of two counts of aggravated rape, kidnapping, assault by means of a dangerous weapon, and assault and battery. Doe was denied parole on various occasions because of his failure to participate in sex offender treatment.
The record before the hearing examiner included detailed information provided by two other women formerly involved with Doe. Doe's former wife (victim B) stated, by written letter, that her twelve year marriage to Doe was filled with "torture and abuse" and that she "lived in fear of [Doe]." For example, B detailed how Doe became angry over "lumpy oatmeal" and "slap[ped her] around" to the point of breaking her collar bone. She described instances where Doe would slap, kick, and degrade her, give her black eyes, call her names, and tie her up in the basement. B further disclosed that Doe would often utilize another method of inflicting harm where he would "sit[ ] on top of a person, cover[ ] their mouth and nose," and remain in this position until the person passed out. B further described Doe's repeated torture of their two children.
Doe's former live-in girlfriend (victim C) also revealed that "[Doe] had abused her, both mentally and physically," for the seven years that she had known him. C detailed instances in which Doe committed the same or similar acts against her that he committed against B, including Doe's suffocation "method." Furthermore, C highlighted one evening of abuse where Doe placed a gun to her head and demanded she eat matter from his nasal cavity and "satisfy him or he would kill her." When C asked why he inflicted these harms, Doe stated that accepting the abuse was a way for C "to show her total devotion to him."
The hearing examiner's findings, which are supported by the administrative record, describe in substantial detail myriad additional instances of abuse, torture, and conduct inflicted by Doe upon A, B, and C.
As discussed above, Doe was incarcerated for his crimes against A. Following his release from prison in 2012, SORB classified Doe as a level three sex offender. Following a reclassification hearing in 2019, SORB designated Doe as a level two sex offender.
On June 28, 2019, Doe filed a motion for reclassification and received a recommendation for reclassification by SORB as a level two sex offender. Doe challenged SORB's recommendation, and a reclassification hearing was held at the Billerica Police Department on November 27, 2019. On January 17, 2020, after finding Doe's risk of recidivism and degree of dangerousness to be moderate, the hearing examiner issued a final decision that required Doe to register as a level two sex offender. Doe appealed SORB's decision to the Superior Court on January 28, 2020. Following a hearing, a Superior Court judge allowed SORB's motion for judgment on the pleadings and entered a judgment affirming SORB's reclassification decision. Doe appeals therefrom.
Discussion. 1. Standard of review. "A reviewing court will not disturb SORB's decision unless that decision was (a) in violation of constitutional provisions; (b) in excess of SORB's authority; (c) based upon an error of law; (d) made upon unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts found by the court, where the court is constitutionally required to make independent findings of fact; or (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe No. 68549 ), citing G. L. c. 30A, § 14 (7).
2. Failure to specify weight ascribed to regulatory factors. Doe first argues that a hearing examiner must specify the level of weight given to each regulatory factor, and the failure to do so precludes a court from performing a "meaningful review" of Doe's level two classification. Under the facts of this case, the argument is unavailing.
A hearing examiner has broad discretion to consider how much weight to ascribe each factor, and "a reviewing court is required to ‘give due weight to [the examiner's] experience, technical competence, and specialized knowledge.’ " Doe No. 68549 , 470 Mass. at 109-110, quoting G. L. c. 30A, § 14 (7). As noted above, the hearing examiner's ultimate decision must be supported by "substantial evidence," id. at 109, and further "must show that the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex." Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). The decision, as well as the application of regulatory factors, must be sufficiently reasoned and explained to enable effective review. Id., and cases cited.
As noted supra, in applying nine of the regulatory factors, the hearing examiner did not explicitly specify the amount of weight given to each factor. While not required, it might assist our review if a hearing examiner explicitly articulates whether he or she ascribes a threshold, moderate, high, or some other degree of weight to each applied factor. See, e.g., Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 143 (2019) (Doe No. 23656 ). That notwithstanding, here we are satisfied that Doe's level two classification was supported by substantial evidence and was neither arbitrary nor capricious. For example, with respect to factor 10 (contact with criminal justice system), the hearing examiner detailed Doe's criminal history apart from the governing offenses. Furthermore, the hearing examiner properly distinguished among convictions, arrests, and dispositions other than conviction. Similarly, with respect to factor 12 (behavior while incarcerated), the hearing examiner detailed incidents of Doe's conduct and referenced his twenty-eight disciplinary reports for offenses including lying, fighting, and possession of a knife. Moreover, prior to delineating and explaining the applicability of the various risk-elevating factors, risk-mitigating factors, and additional factors, the hearing examiner provided a detailed history and analysis of Doe's offenses, sentences, and conduct, made reliability and credibility determinations regarding the uncharged allegations, and incorporated details and relevant considerations into her findings. By way of further example, with respect to factor 15 (hostility towards women), the hearing examiner noted Doe's "many years of physical and emotional abuse of women" and found this risk-elevating factor to apply. Having already detailed numerous instances of Doe's violence toward women earlier in her findings, see note 1, supra, the hearing examiner was not obligated to regurgitate her findings with respect to this unambiguously applicable factor. Similarly, that factor 19 (level of physical contact) was applicable is inferable from the hearing examiner's earlier findings and narrative. In short, viewing the hearing examiner's decision in its totality, the application of these factors was sufficiently explained to permit an effective review of her decision, which we conclude was supported by substantial evidence.
3. Factor 9. Doe contends that the hearing examiner should not have applied any weight to factor 9 (history of alcohol and substance abuse). Although the record appears to show that, many years ago, Doe had criminal convictions for possession of a class D substance, possession with intent to distribute a class D substance, and possession of hallucinogens, SORB agrees with Doe that the judge should not have applied factor 9 in this case. Assuming that SORB's concession is correct, we agree with SORB that the error does not require reversal. Here, the hearing examiner only applied minimal weight to factor 9 in view of the age of the convictions. Furthermore, apart from factor 9, the evidence and other factors applied by the hearing examiner -- all supported by the record -- constituted substantial evidence that supported and justified the classification of Doe as a level two sex offender. See Doe No. 23656 , 483 Mass. at 139 (level two classification supported by substantial evidence despite error in applying certain factor). Otherwise said, after excising the minimal weight applied by the hearing examiner to factor 9, we agree "that there was substantial evidence to support each element by clear and convincing evidence ... [and] conclude that there was no error in the hearing examiner's classification of Doe as a level two sex offender." Id. at 146.
4. Public dissemination. Finally, Doe claims that, in this case, the law allowing dissemination of his information bears no reasonable relation to a permissible legislative objective and violates his State and Federal constitutional rights. We disagree. First, for the reasons delineated supra, there was substantial evidence supporting the hearing examiner's determination that a public safety interest warrants publication of Doe's sex offender registry information. Her determination finds further support given the serious and violent nature of Doe's sex offenses, Doe's lengthy history of brutality toward women, and other factors detailed by the hearing examiner. As to Doe's constitution-based claims, prior case law and our conclusion that Doe's level two classification was supported by substantial evidence compel rejection of Doe's arguments. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762 (2006) (as-applied constitutional challenge to sex offender registration statute failed where "substantial evidence" supported decision); Commonwealth v. Olaf O., 57 Mass. App. Ct. 918, 919 (2003) ("community notification is deemed not to be punishment for ex post facto or for cruel and unusual punishment analysis, but rather to be a collateral, regulatory measure"). See also Seling v. Young, 531 U.S. 250, 267 (2001) (civil regulatory scheme cannot be deemed punitive as applied and does not violate double jeopardy or ex post facto clauses). Accordingly, we discern no error, abuse of discretion, or other basis to reverse the hearing examiner's decision.
Judgment affirmed.