Opinion
10-P-1807
12-07-2011
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 141936 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 was ordered to register as a level three sex offender and appeals therefrom. His main argument centers around the authority of the Sex Offender Registry Board (board) to reclassify him from level two to level three based upon subsequent criminal behavior.
Shortly after the earlier classification decision, the plaintiff, while out on parole, committed another series of criminal acts, including disturbing the peace and being involved in an incidence of domestic violence. He also failed to register as a level two offender. His parole was revoked and he spent additional time in prison. As a result, the board moved to reclassify him as a level three (high risk) offender.
On de novo review, the hearing officer addressed the relevant regulatory aggravating factors, noted the mitigating factors, and concluded that level three was the appropriate classification. The decision was affirmed in the Superior Court in a comprehensive memorandum.
Including, among others, that the offender: assaulted an extrafamilial victim; has spent little time in the community; has an extensive criminal history; was convicted of sexually violent offenses; denies responsibility for the predicate offense; failed to comply with parole/probation requirements; and has a long history and continues to experience problems abusing alcohol and other substances.
Including, among others, that the offender: was currently supervised by probation or parole; and was currently in sex offender treatment.
As below, the plaintiff here raises several arguments that essentially boil down to the contention that the board could not raise his classification level because of his failure to register, such failure not being demonstrated to increase his 'dangerousness' level.
The short answer to this is that the board did not raise the plaintiff's classification level solely because he failed to register (although that was a significant factor). Additionally, 803 Code Mass. Regs. § 1.37C(3)(a)(5) (2004) permits the board to act as it did. As the Superior Court judge wrote:
Providing, in part, that '[t]he board may, on its own initiative, seek to reclassify any registered and finally classified sex offender upon [r]eceipt of any information that indicates the offender may present an increased risk to reoffend or degree of dangerousness. This could be based on, but not limited to, information indicating the sex offender has: . . .
3. violated the terms or conditions of community supervision;
4. been incarcerated more than 60 consecutive days at any time following his Final Classification; [or] 5. failed to comply with the provisions of M. G. L. c. 6, § 178C through 178Q.'
'[T]he regulations explicitly state that the [b]oard may seek to reclassify when it has 'any information that indicates the offender may present an increased risk to reoffend or degree of dangerousness.' 803 Code Mass. Regs. § 1.37C(3)(a). The conclusion that an offender presents an increased danger to the public or is at an increased risk of reoffense may be based on information that indicates the offender has 'violated the terms or conditions of community supervision . . . [or] failed to comply with the provisions of [the sex offender registry law, or SORL].' . . . The SORL requires that Level 2 and 3 sex offenders register. G. L. c. 6, § 178F 1/2 . A failure to register is therefore a dangerousness enhancing offense because it is a failure to comply with the SORL and, as such, [is] indicative of [an] increased dangerousness or risk to reoffend [footnote omitted].
'Here, it is undisputed that the plaintiff has failed to comply with the SORL by failing to register as a sex offender. There is no mistake of fact. In addition, the regulations clearly provide that this failure enhances dangerousness, and therefore, there is no mistake of law. Furthermore, the plaintiff's failure to register and subsequent domestic violence and disturbing the peace arrests put him in violation of his probation, which is an additional dangerousness-enhancing factor under 803 Code Mass. Regs. § 1.37C(3)(a).'
The plaintiff's constitutional due process challenge is governed, to his detriment, by Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 777 (2006) (rejecting due process challenge to regulatory scheme on ground that methodology lacks 'objective classification'). See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 627-628 (2011) (challenge that regulatory classification scheme violates offender's 'due process rights . . . because predictions about future misconduct are frequently inaccurate and, consequently, result in erroneous classifications' may not be raised in context of classification proceedings themselves, but instead can only be raised in independent declaratory relief action filed in Superior Court).
To the extent that we do not address any remaining claims, 'they 'have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
For these reasons, as well as for substantially those in the brief of the Commonwealth and the memorandum of decision of the judge below, we affirm.
Judgment affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),