Opinion
17-P-1269
03-11-2019
JOHN DOE, SEX OFFENDER BOARD NO. 390998 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge in the Superior Court granted the Sex Offender Registry Board (SORB) judgment on the pleadings and affirmed the plaintiff's final classification as a level two sex offender. On appeal, the plaintiff, John Doe No. 390998, contends that the SORB hearing examiner (1) abused her discretion in denying his motion for funds for an expert; (2) abused her discretion when weighing the plaintiff's offense-free time; (3) erred in weighing the factor of the plaintiff's support network; (4) erroneously considered nol prossed charges; and (5) erroneously found SORB proved his classification level by clear and convincing evidence. We affirm.
Discussion. 1. Motion for funds. The plaintiff contends that the hearing examiner abused her discretion in denying his motion for funds for an expert to testify as to the impact of his age and other factors relevant to his risk to reoffend. We disagree.
SORB contends that the plaintiff waived this issue by not raising it in the Superior Court. Because the plaintiff twice moved the hearing examiner for funds, we do not consider the issue waived and address the merits of his motion. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320 (2015) (argument waived when "Doe did not object to the consideration of this evidence either at the hearing or before the Superior Court" [emphasis added]).
When a party moves for funds, the hearing examiner must "consider whether funds for an expert are necessary given the individual circumstances of [the] case." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 624 (2010). "[T]he burden will be on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 774 (2008). We review decisions on motions for funds for an abuse of discretion. Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1, 11 (2014).
Here, the plaintiff does not advance any conditions or circumstances "special to him." See Doe, Sex Offender Registry Bd. No. 89230 , 452 Mass. at 774. SORB regulations already encompass consideration of how age, abstention from further criminal activity, and other community supports impact a sex offender's risk of reoffense. Specifically, 803 Code Mass. Regs. § 1.33(30)(a) (2016) instructs hearing examiners that "advancing age has a mitigating effect on risk of reoffense." The hearing gave Doe the benefit of this age-mitigating factor even though he did not strictly qualify under its terms. The examiner also took into account other mitigating factors, noting that his community support system, lack of new offenses, and stability in the community all mitigated his risk of reoffense. See 803 Code Mass. Regs. § 1.33(29)-(30), (34) (2016). We discern no abuse of discretion.
2. Consideration of offense-free time. The plaintiff next contends that the hearing examiner abused her discretion in giving insufficient weight to his offense-free time in the community. We disagree.
SORB contends that the plaintiff waived this issue by not raising it in the Superior Court. Because the plaintiff presented this issue to the hearing examiner by submitting scholarship on it and arguing it at the hearing, we do not consider it waived. Doe, Sex Offender Registry Bd. No. 203108 , 87 Mass. App. Ct. at 320.
The SORB regulations provide that "[t]he risk of reoffense decreases for most offenders after living in the community offense-free for five to ten years. The risk of reoffense lowers substantially after ten years of offense-free time in the community." 803 Code Mass. Regs. § 1.33(29)(a) (2016) ("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"). We review a hearing examiner's selection and weighing of the applicable regulatory factors for abuse of discretion. Doe, Sex Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 212 (2015).
Here, the hearing examiner properly applied this mitigating factor. Nothing in the current regulations or case law requires the examiner to expressly quantify her analysis, contrary to Doe's suggestion otherwise. Doe, Sex Offender Registry Bd. No. 291554 , 87 Mass. App. Ct. at 215. Accordingly, we discern no abuse of discretion.
3. Consideration of community support network. The plaintiff next contends that the hearing examiner abused her discretion in weighing the mitigating force of his community support network. We disagree.
"[T]he likelihood of reoffense is reduced when an offender is supported by family, friends, and acquaintances. [SORB] shall give greater mitigating consideration to evidence of a support network that is aware of the offender's sex offense history and provides guidance, supervision, and support of rehabilitation." 803 Code Mass. Regs. § 1.33(33)(a) (2016).
Here, the hearing examiner acknowledged that the plaintiff has a family support network consisting of his wife, sister, and brother-in-law. However, because his wife believed that the plaintiff never committed the governing sex offense, the hearing examiner determined that the wife is not likely to provide much "guidance, supervision, and support of rehabilitation," and she gave this mitigating factor "reduced weight." To the extent that the plaintiff contends that this is an impermissible "back door" consideration of denial of guilt, we disagree. The hearing examiner did not consider Doe's denial of guilt but merely acknowledged the likely effect the wife's disbelief in Doe's guilt would have on her ability to assist in his rehabilitation. We discern no abuse of discretion.
4. Consideration of nol prossed charges. The plaintiff further contends that the hearing examiner abused her discretion when considering nol prossed charges for sex offenses prior to his governing offense. We are also not persuaded.
Hearing examiners may consider conduct that did not result in a conviction, Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015), so long as such information is "useful in determining risk of reoffense and degree of dangerousness posed by any offender." 803 Code Mass. Regs. § 1.33(37) (2016). Here, the hearing examiner did not consider the nol prossed charges as accurate reports of the plaintiff's conduct but as evidence that despite his experiencing the consequence of committing a sex offense, he still committed one. See Souza, petitioner, 87 Mass. App. Ct. 162, 166 (2015) (evidence that sex offender committed offense after having served sentence for prior sex offense shows risk of reoffense). We discern no abuse of discretion.
5. Factors supporting SORB's classification. Finally, the plaintiff contends that SORB did not prove his level two classification by clear and convincing evidence because the hearing examiner relied on her "unguided interpretation" of SORB regulations and incorrectly weighed all applicable factors. This claim is also unavailing.
Evidence establishing a SORB classification must be clear and convincing to satisfy the "substantial evidence" requirement of G. L. c. 30A, § 14 (7), and principles of due process. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015). A hearing examiner does not violate either where, as here, she classifies an offender without expert testimony by relying on SORB's expertise embodied in its regulations. See Doe, Sex Offender Registry Board No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 785-786 (2006).
In this case, the hearing officer first considered the application of several statutory and regulatory high risk factors. Where the offense involved an eight year old neighbor, the hearing officer properly applied factors three (adult offender and prepubescent victim) and seven (extrafamilial victim). She also considered that living in his sister's home, he would have access to nieces, nephews, and their friends, and she applied factor twenty-three (victim access). The hearing officer also factored that the defendant's prior sexual assault arrest did not deter him from committing this offense. The hearing officer then balanced these high risk factors against several mitigating factors and arrived at a level two classification. The weight given to the regulatory factors is within the hearing examiner's discretion. We do not substitute our judgment on the weight of the evidence for that of an agency. Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 775 (2006). Accordingly, we discern no error.
Judgment affirmed.
By the Court (Maldonado, Singh & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 11, 2019.