Opinion
11-P-2027
12-22-2014
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22048 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 Superior Court judgment affirming the final classification decision of the Sex Offender Registry Board (board) to classify Doe as a level three sex offender. Doe contends that his due process rights were violated when the board conducted his final classification hearing while he was civilly committed as a sexually dangerous person (SDP) with an indeterminate date of release. We affirm.
Background. On July 13, 2005, Doe was declared an SDP under G. L. c. 123A, and was civilly committed for one day to life. On September 28, 2009, the board notified Doe that it recommended he register as a level three sex offender. On October 2, 2009, Doe challenged the board's recommendation and requested a de novo hearing to determine his final classification. The de novo classification hearing was held before a hearing examiner on April 29, 2010. At the time of the hearing, Doe's petition for release from his civil commitment pursuant to G. L. c. 123A, § 9, was still outstanding and scheduled for trial on May 13, 2010. On July 14, 2010, the hearing examiner rendered her final decision classifying Doe as a level three sex offender. Doe petitioned the Superior Court for judicial review of this final classification on July 28, 2010. On June 28, 2011, a Superior Court judge denied Doe's motion for judgment on the pleadings and affirmed the board's decision to classify Doe as a level three sex offender. Doe appealed.
The hearing examiner based Doe's final classification upon several index offenses spanning over a twenty-year period from 1964 to 1987, which included in 1964 two adjudications of delinquency for indecent assaults upon two children under the age of fourteen -- the first was on a girl and the second on a boy; in 1977 one conviction for rape of a child -- an eleven year old girl; and in 1987 two convictions for forcible rape of his three year old daughter and one conviction for possession of child pornography.
Discussion. The "board is required to classify incarcerated sex offenders before they are released" into the community. Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 688 (2011) (Doe, No. 1) (citation omitted). "An offender's final classification before his release back into the community is necessary to accomplish the statutory purpose of protecting the public from recidivists." Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 73 (2012) (Doe, No. 6904). "The board must begin classification proceedings at least sixty days prior to the offender's release, G. L. c. 6, § 178L(1)(a), and must classify the offender at least ten days before the offender's earliest possible release date, G. L. c. 6, § 178E(a)." Doe No. 6904, supra, quoting from Doe, No. 1, supra. "There are[, however,] no statutory limitations on commencing classification proceedings earlier than the sixty days prior to release," except that the "final classification evidentiary hearing [must] be held at a reasonable time prior to [the offender's] release from incarceration." Doe, No. 6904, supra at 73, 75.
Here, the board went forward with Doe's final classification hearing at roughly the same time as Doe's petition for release from civil confinement proceeded, with the final classification hearing preceding Doe's scheduled § 9 trial by only two weeks. This two-week gap between Doe's final classification hearing and his earliest possible release date from confinement differs vastly from the interval between these two events in Doe, No. 6904. There, we vacated a classification when, despite the offender's request to postpone the final classification hearing, the board proceeded with the hearing eight months prior to the offender's earliest possible release date and ultimately four years before his actual release. See id. at 68, 78. However, "[w]e emphasize[d] that the result we reach[ed was] based on the specific facts and circumstances of th[at] case." Id. at 78. In comparison, the possibility of Doe's release from confinement and reentry to the community was imminent here, as Doe's scheduled § 9 trial was only two weeks away. Had the board waited, they would have run the risk of Doe being released into the community without classification. See Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 904, 905 (2012) (in affirming a final classification in strikingly similar circumstances, we stated that the "fact that an SDP theoretically could be released at any time provides more reason to go forward with the classification process now, not less"). We see no error here with the board proceeding with Doe's final classification hearing when it did.
Doe raises for the first time on appeal that the amendment to G. L. c. 6, § 178E(a), applies to preliminary classifications of sex offenders and not to final classifications. Since Doe failed to raise the issue in Superior Court, it is waived. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).
Judgment affirmed.
By the Court (Green,
The panelists are listed in order of seniority.
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Clerk Entered: December 22, 2014.