Opinion
No. 11–P–1544.
2012-07-2
John DOE, Sex Offender Registry Board No. 179373 v. SEX OFFENDER REGISTRY BOARD.
By the Court (GRAHAM, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment of the Superior Court denying his motion for judgment on the pleadings and affirming the final decision of the Sex Offender Registry Board (the board) classifying him as a level three sex offender. We affirm.
Procedural background. The plaintiff was classified as a level three sex offender after an evidentiary hearing conducted pursuant to G.L. c. 6, § 178L. Prior to the hearing, the plaintiff moved to have the hearing continued until after his release. That motion was denied. In a detailed written decision, the hearing examiner ruled that the plaintiff presented a high risk to reoffend and that he posed a high degree of danger to the community. The board then classified the plaintiff as a level three sex offender. The plaintiff sought judicial review of the board's decision and, after a hearing, a Superior Court judge issued a detailed written decision affirming the board's decision. This appeal ensued. The board's case. The board submitted documents showing that, on June 20, 2007, the plaintiff was found to be a youthful offender by virtue of his 2004 rape of a five year old child. He was committed to the Department of Youth Services (DYS) until his twenty-first birthday. The documents also reflect the plaintiff's admission to sexually abusing five different girls and one boy between April and November of 2004.
The plaintiff's case. The plaintiff offered the testimony of his caseworker, one of his clinicians, and expert witness Dr. Eric Brown. The plaintiff also offered a number of documents showing that he had made progress in his treatment while committed to the DYS.
The hearing examiner's decision. The hearing examiner detailed the evidence presented at the hearing in her written finding. Under the heading “The Petitioner's Other Sexual Misconduct,” the hearing examiner described the plaintiff's admission to five separate sexual assaults on female children as well as a sexual assault on a cognitively limited boy. While the plaintiff was not adjudicated delinquent for any of these assaults, the hearing examiner found by a preponderance of the evidence that the plaintiff had committed them. The hearing examiner also considered the mitigating factors presented by the plaintiff, including the fact that the plaintiff has made progress in sex offender treatment, that he accepts responsibility for his behavior, and that he has obtained a high school diploma and is continuing his education. The hearing examiner considered, but gave little weight, to Dr. Brown's opinion that the plaintiff presents a low risk of reoffending and danger to the community.
The hearing examiner ultimately concluded that the aggravating factors, such as the nature and number of the plaintiff's sexual assaults, outweigh the mitigating factors which apply to the plaintiff. Accordingly, she found that the plaintiff is highly likely to reoffend and poses a high degree of dangerousness to young and/or vulnerable victims.
Discussion. The plaintiff raises several claims in this appeal. First, he argues that the hearing examiner erroneously considered the uncharged sexual offenses to which he admitted. The hearing examiner could not, and did not, consider the other assaults as prior offenses “in relation to the classification factor that looks at the dates, number, and nature of prior offenses[.]” Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 777 (2008). However, she was permitted to consider the conduct underlying the other assaults in deciding whether the plaintiff's conduct was repetitive and compulsive. Ibid. She followed the guidelines, “never mentioning the [other assaults] as a separate prior charge, but rather viewing the underlying conduct (1) as suggesting a pattern of behavior,” id. at 777–778, and (2) supporting her finding that the plaintiff has the “capacity to sexually offend against multiple children in a repetitive and compulsive manner.” There was no error.
Nor was there error in the hearing examiner's denial of the plaintiff's motion to continue the hearing until after his release. “[T]he board is required to classify incarcerated sex offenders before they are released: 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, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 60 (2010). Moreover, “[t]he final identification and classification of [sex] offenders before their release back into the community, and the dissemination, where their classification calls for such dissemination, of information regarding the offender's identity, offenses, and address, are necessary to accomplish the statutory purposes” of the sex offender registry laws. Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass.App.Ct. 683, 688 (2011).
Contrary to the plaintiff's argument, he was not prejudiced by the hearing examiner's denial of his motion to continue. The hearing took place less than two months before the plaintiff's scheduled release,
and the board was required to determine whether he posed a current risk to the public. See Roe v. Attorney Gen., 434 Mass. 418, 428 (2001). While the plaintiff contends that he was prejudiced because the hearing examiner held against him the facts that his postrelease living arrangements were not yet determined and he had no time in the community offense-free, the hearing examiner was required to consider those factors. See 803 Code Mass. Regs. §§ 1.40(9)(a)(2002) (requiring the board to consider the amount of time the plaintiff has spent in the community offense-free), 1.40(10) & (12) (requiring the board to consider the level of supervision to which the plaintiff will be subjected post-release and his postrelease living arrangements). “[T]he board does not have the authority to determine the constitutionality of the regulations that it must employ to reach a final classification decision,” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 628 (2011), and the plaintiff was not prejudiced by the hearing examiner's consideration of factors which do not mitigate the plaintiff's risk of reoffense and degree of dangerousness in light of his incarceration at the time of the hearing.
The hearing therefore took place at a reasonable time prior to the plaintiff's release from incarceration. Cf. Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., Mass.App.Ct. No. 11–P–926 (June 26, 2012) (holding that final classification hearing held four years before offender's earliest scheduled release date was unreasonable).
The plaintiff also argues that the hearing examiner abused her discretion when she rejected Dr. Brown's opinion. The hearing examiner is explicitly empowered to “assess the reliability of the exhibits introduced into evidence and credibility of witnesses,” and to “draw all reasonable inferences therefrom[.]” 803 Code Mass. Regs. § 1.21(1)(g) (2002). She need not accept the opinion of a witness testifying on behalf of a sex offender, and we will not consider the weight she assigns evidence proffered by the offender to be an abuse of discretion where the decision is supported by substantial evidence. Doe, No. 10800, supra at 637.
We disagree with the plaintiff's contention that the hearing examiner's decision in this case was not supported by substantial evidence. In reviewing the decision, “we give ‘due weight to the experience, technical competence, and specialized knowledge’ of the board.” Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010), quoting from G.L. c. 30A, § 14(7). Here, there was evidence that the plaintiff: “engag [ed] in a continuing course of sexual misconduct involving separate incidents with either the same victim or others,” demonstrating repetitive and compulsive behavior; intentionally sexually assaulted several prepubescent children; was four years old when he first sexually offended and continued to sexually offend until his commitment; committed his governing offense in a public place; offended against an especially vulnerable male victim; offended against the same victim over a period of time; had a high level of physical contact with his victims; and offended against several victims, both male and female. See 803 Code Mass. Regs. § 1 .40(2), (3), (4), and 9 (2002). Because the record amply supports the hearing examiner's conclusion that the plaintiff presents a high degree of dangerousness and high risk of reoffending, the Superior Court judge did not err in affirming the classification.
Judgment affirmed.