Opinion
18-P-9
03-21-2019
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 522366 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
After an October 26, 2016 de novo hearing before a hearing examiner, the Sex Offender Registry Board (board) classified the plaintiff as a level two sex offender. The plaintiff sought judicial review of the board's decision, pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. A Superior Court judge denied the plaintiff's motion for judgment on the pleadings and affirmed the board's decision. On appeal, the plaintiff argues that the board's decision was arbitrary and capricious and an abuse of discretion, citing several regulatory factors allegedly erroneously applied. He also argues that his level two classification was not established by clear and convincing evidence and that it violated his constitutional due process rights. We affirm.
The board first recommended the plaintiff be classified as a level three sex offender, but the hearing examiner reduced the plaintiff's classification to level two.
Background. The plaintiff's classification as a level two sex offender followed his October, 2014 conviction of a single count of indecent assault and battery on a child, his long-time girlfriend's daughter. According to the victim, the plaintiff sexually assaulted her on more than one hundred occasions from the time she was ten years old until she turned sixteen years of age. The assaults initially took place when "she was sleeping in her mother's bed." Later, when "she began sleeping in her own room," the plaintiff would come into her room, get into bed with her, and sexually assault her there.
Based on the offense, the hearing examiner applied a number of high risk factors, including repetitive and compulsive behavior (factor 2) and extravulnerable victim based on her being asleep at the time of the assaults (factor 18). The hearing examiner gave "very limited weight" to a February 10, 2010 violation of probation appearing in the plaintiff's board of probation record due to a lack of any additional information on the violation (factor 13). The hearing examiner also gave "minimal, if any, mitigating weight" to the plaintiff's advanced age, given that he was only forty-three years old at the time of hearing (factor 30). The hearing examiner "somewhat temper[ed] the mitigating weight afforded" for the plaintiff's participation in sex offender treatment due to the limited information provided (factor 32). After considering these, as well as other, regulatory factors, the hearing examiner concluded that clear and convincing evidence established that the plaintiff posed a moderate risk of reoffense and a moderate risk of danger.
Discussion. The board's decision may only be set aside if it is determined that "the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6). Evidence establishing a sex offender classification must be "clear and convincing" to satisfy the substantial evidence requirement. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015).
Our review is highly deferential to the board, giving "due weight to the experience, technical competence, and specialized knowledge of [the board], as well as to the discretionary authority conferred upon it." Doe, Sex Offender Registry Bd. No. 10216 , supra. The hearing examiner's role is to "assess the reliability of exhibits introduced into evidence and credibility of witnesses; [and] draw all reasonable inferences therefrom." 803 Code Mass. Regs. § 1.19(1)(h) (2016). See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) ("province of the board, not this court, to weigh the credibility of the witnesses and to resolve any factual disputes"). Moreover, "the rules of evidence . . . shall not apply to classification hearings," so a hearing examiner may consider any evidence that "reasonable persons are accustomed to rely on in the conduct of serious affairs." 803 Code Mass. Regs. § 1.18(1) (2016). Our review of the challenged factors confirms that the hearing examiner's application of them was supported by substantial evidence in the record.
1. Application of regulatory factors. a. Repetitive and compulsive behavior (factor 2). The plaintiff argues that he was only convicted of a single offense and therefore application of this factor was erroneous. Yet there is no requirement in the regulation that each of the "two or more separate episodes of sexual misconduct" be the subject of a criminal conviction. 801 Code Mass. Regs. § 1.33(2)(a) (2016) (episodes must be separated by time or opportunity to reflect on wrongfulness of conduct). The hearing examiner relied on statements of the victim, which he found to be detailed and reliable, to support the finding that the plaintiff sexually assaulted her on several occasions over the course of a number of years. See Doe, Sex Offender Registry Bd. No. 10800 , 459 Mass. at 638 (hearing examiner may base findings on reliable allegations).
b. Extravulnerable victim (factor 18). The plaintiff argues that the record does not support the fact that the victim was actually sleeping when the assaults occurred, as the hearing examiner found. Rather, he argues that the record only suggests that the assaults occurred in the locations where the victim slept and therefore application of this factor was erroneous. Given the victim's statements that the plaintiff sexually assaulted her when "she was sleeping in her mother's bed" and later when "she began sleeping in her own room," the hearing examiner reasonably concluded that this factor applied. 803 Code Mass. Regs. § 1.33(18) (2016) (extravulnerable includes any condition that renders victim more susceptible to sexual assault or unable to effectively defend). See Doe, Sex Offender Registry Bd. No. 10800 , 459 Mass. at 633 ("province of the board, not this court, to weigh the credibility of the witnesses and to resolve any factual disputes").
c. Noncompliance with community supervision (factor 13). The plaintiff claims that the hearing examiner erred in giving any weight to this factor because his board of probation record indicated that his single violation of probation on February 10, 2010 was dismissed. Yet, the plaintiff's board of probation record indicates that a charge of leaving the scene after knowingly causing property damage was continued without a finding for one year on July 30, 2009; a probation violation notice issued on January 29, 2010; a finding of probation violation entered on February 10, 2010; and the case was subsequently dismissed. Thus, the hearing examiner appropriately took note of the finding of probation violation. See 803 Code Mass. Regs. § 1.33(13) (2016) (board may consider "number of violations," among other things). In any event, the hearing examiner explicitly gave "very limited weight" to this factor because the record did not include any additional information; this factor was not mentioned at all in the hearing examiner's summation, explaining his balancing of the factors.
d. Advanced age (factor 30). The plaintiff claims that the hearing examiner abused his discretion in ignoring or giving minimal weight to this factor, because "whatever risk the other factors may demonstrate, . . . age significantly mitigates that risk." Yet, as the hearing examiner noted, risk of reoffense "gradually declines when an offender is in his forties," but for those with child victims, there is no significant mitigating effect until the "offender is 60 years of age or older." 803 Code Mass. Regs. § 1.33(30) (2016). Given that the plaintiff was only forty-three years old at the time of hearing, the hearing examiner was well within his discretion to give this factor minimal weight.
e. Sex offender treatment (factor 32). The plaintiff contends that the hearing examiner erred in tempering the weight of this factor due to the plaintiff's failure to present additional information regarding his participation in treatment; he argues that he was not required by the regulations to submit such additional information. Yet 803 Code Mass. Regs. § 1.33(32) (2016) specifically states that "it shall be the responsibility of the offender to provide documentation from a treatment provider" and that such documentation must, at a minimum, include "the treatment provider's description of the treatment program's milieu, methodology, goals, and objectives; and a record of the offender's attendance, level of participation, and degree of progress." Here, the plaintiff's only submission on this point was a letter to the board in which he stated: "I am currently involved in the Sex Offender Education Group at this facility. I have never participated in any sex offender treatment, but plan to attend whatever groups are offered to me." The hearing examiner was well within his discretion in tempering the weight given to this factor.
2. Clear and convincing evidence of classification level. The plaintiff also contends that his level two classification was not established by clear and convincing evidence. He argues that most of the regulatory risk elevating factors were not applicable and that his offense was of the type (intrafamilial) that is associated with a lower risk of reoffense. Together with his current positive and supportive environment, the plaintiff argues that a level two classification was not warranted by the evidence. As previously discussed, the hearing examiner's application of the regulatory factors was supported by substantial evidence. The hearing examiner considered both risk elevating and mitigating factors and weighed them. We discern no abuse of discretion in the weighing of these factors and conclude that the level two classification was established by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 775 (2006).
The plaintiff's constitutional claims have been addressed several times by our appellate courts, and do not warrant further discussion here. See, e.g., Doe, Sex Offender Registry Bd. No. 380316 , 473 Mass. at 314 (classification procedure applying clear and convincing standard satisfies offender's procedural due process rights); Opinion of the Justices, 423 Mass. 1201, 1239-1241 (1996) (notification requirements part of distinct regulatory regime and not penal); Commonwealth v. Olaf O., 57 Mass. App. Ct. 918, 918-919 (2003) (same).
Judgment affirmed.
By the Court (Blake, Lemire & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 21, 2019.