Opinion
10-P-1509
04-13-2012
JOHN DOE, SEX OFFENDER BOARD NO. 480 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 petitioner appeals his classification as a level three sex offender by the Sex Offender Registry Board (board). Specifically, he objects to the hearing examiner's use of purportedly unreliable hearsay evidence and his failure to afford sufficient probative value to character letters favorable to the petitioner. We discern no merit in these arguments and therefore affirm.
We recite the pertinent facts, as the hearing examiner could have found them. In 1981 the petitioner, then a juvenile, was adjudicated delinquent on one count of raping a child, G. L. c. 265, § 23. In 1998 the petitioner pleaded guilty to two counts of rape and abuse of a child under sixteen, G. L. c. 265, § 23, one count of assault with intent to rape a child under the age of sixteen, G. L. c. 265, § 24B, and four counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. Subsequently, in 2008, a board hearing examiner determined that the petitioner had a high risk of reoffense and classified him as a level three sex offender. The classification was upheld on judicial review and the defendant moved for a new trial on the basis of ineffective assistance of counsel, which motion was denied. His appeal of the denial of the motion for a new trial and his direct appeal are here consolidated.
The petitioner's first argument, that the hearing examiner improperly utilized unreliable hearsay evidence, is unavailing. Under the procedures set forth for SORB hearings, the board 'is not bound by the rules of evidence observed by courts but may receive and consider evidence of a kind 'on which reasonable people are accustomed to rely in the conduct of serious affairs,' 803 Code Mass. Regs. § 119(1).' Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312 (2007). Hearsay evidence bearing the requisite indicia of reliability constitutes admissible and substantial evidence in an administrative proceeding. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011). The evidence of which the petitioner complains, regarding the offenses that led to his juvenile detention, was properly admitted. Despite the fact that two reports referred to the petitioner's assault on a male victim and one report noted the petitioner's 'contact with some young girls,' the evidence was reliable. These reports, in combination with the petitioner's adjudication of delinquency, are sufficiently corroborative of sexual offenses against children.
The petitioner next argues that the hearing examiner's decision is not supported by substantial evidence. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762-764 (2006); Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 809-813 (2006). Our review of the record, according due weight to the hearing examiner's expertise, G. L. c. 30A, § 14(7), indicates that there was sufficient evidence to classify the petitioner as a level three sex offender. Contrary to the petitioner's assertion, the hearing examiner's decision took mitigating factors into full consideration and permissibly concluded that they were outweighed by the risk-elevating factors. In essence the judge concluded that the petitioner's efforts at rehabilitation were commendable, but were of such recent vintage that they were outweighed by his lengthy history of sexual and dangerous nonsexual offenses. There was no error.
The petitioner also has three convictions for armed robbery.
To the extent that the petitioner purports to appeal the denial of his motion for a new trial on the grounds of ineffective assistance of counsel, his brief presents neither a factual basis nor legal argument on this issue. Consequently, this line of attack fails to rise to the level of adequate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Judgment affirmed.
Order denying motion for new tr ia l af fi rm ed .
By the Court (Vuono, Grainger & Carhart, JJ.),