Opinion
No. 10–P–1437.
2012-10-15
John DOE, Sex Offender Registry Board No. 196490 v. SEX OFFENDER REGISTRY BOARD.
By the Court (MILLS,
Justice Mills participated in the deliberation of this case prior to his retirement.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Background. The plaintiff was convicted of two index offenses (one in 2007 and one in 2008) and was incarcerated on concurrent sentences for two years. His scheduled release date was June, 2009. In January, 2008, the plaintiff received his initial classification as a level three offender. He sought a hearing before his final classification. The hearing was scheduled for July, 2008, eleven months prior to his scheduled release. His attorney sought a continuance of the hearing until after the plaintiff's release. The hearing officer denied the motion and the hearing was held. The plaintiff's final classification as a level three offender was issued on September 10, 2008, nine months prior to his anticipated release date.
The plaintiff sought judicial review of the final classification in Superior Court. See G.L. c. 6, § 178M; G.L. c. 30A, § 14. In his motion for judgment on the pleadings, the plaintiff sought a remand to the board for a new classification hearing to be held after his release from incarceration.
The Superior Court judge affirmed the final classification decision of the board. The plaintiff appealed. After filing his appeal, the plaintiff sought, and received, a stay in the Appeals Court and leave to file a motion in the Superior Court seeking a remand to the board based on his confinement at the Massachusetts Treatment Center (center) pursuant to a sexually dangerous person (SDP) proceeding. G.L. c. 123A, §§ 1 et seq. The plaintiff captioned his motion, “Motion pursuant to Rule 60 for Remand,” and requested a remand based on the change in his circumstances. The motion was denied by a judge who was acting without the benefit of the Appeals Court decision in Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67 (2012) ( Doe, No. 6904 ). The plaintiff appealed that ruling and the two appeals are consolidated for review.
This argument is without merit. See Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass.App.Ct. 683 (2011).
Discussion. The Commonwealth argues that the plaintiff's commitment to the center is not properly before the Appeals Court as neither the hearing officer, nor the Superior Court judge, had any knowledge that the plaintiff was the subject of an SDP petition. Furthermore, the Commonwealth asserts that because the motion was denied, the evidence that the plaintiff was committed as a sexually dangerous person is not before us. We disagree: the order denying the motion is properly before this court.
Under Mass.R.Civ.P. 60(b)(5), 365 Mass. 828 (1974), the judge may relieve a party from a final judgment if, among other things, “it is no longer equitable that the judgment should have prospective application.” See Boston Redev. Authy. v. Charles River Park “C” Co., 402 Mass. 1004, 1005 (1988). The party seeking relief must identify the circumstances arising since the entry of judgment that make continued operation of the judgment unfair. Ibid. Under rule 60(b)(6), relief from judgment is available for “any other reason [other than reasons (1)-(5) ] justifying relief from the operation of the judgment.” See Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 228 (1979). Such relief is available in “extraordinary circumstances.” Boston Redev. Authy., supra. When examining whether rule 60(b)(6) relief is warranted, we consider “whether the moving party has a meritorious claim or defense ... whether extraordinary circumstances warrant relief ... and whether the substantial rights of the parties in the matter in controversy will be affected by granting the motion.” Owens v. Mukendi, 448 Mass. 66, 72 (2006) (citations and quotation marks omitted). See Mt. Ivy Press, LP v. Defonseca, 78 Mass.App.Ct. 340, 346 (2010). We determine that the motion is pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974).
The plaintiff was not released into the community upon the completion of his sentence; rather, he was the subject of an SDP petition and ordered confined to the center for an indefinite term of one day to life. The issue in the present matter is whether the plaintiff's classification hearing, held prior to the plaintiff's indefinite commitment to the center, is reasonable under the statute or inconsistent with the statutory purpose of G.L. c. 6, § 178L(1)( a ).
Pursuant to statute, the center is maintained and staffed by the Department of Correction (department). G.L. c. 123A, § 2. As long as the plaintiff is confined at the center, the notification and classification requirements of G.L. c. 6, § 178E( a ), apply. Section 178E( a ), inserted by St.2006, c. 303, requires that “the agency which has custody of the sex offender,[[[
including the department of correction, ... shall transmit to the board said sex offender's registration data, which shall include ... the projected maximum release date and the earliest possible release date for the sex offender. All custodial agencies shall inform the board immediately of any transfers of sex offenders so that there may be contact with the offender throughout the classification process. The bureau shall classify such a sex offender at least [ten] days before the offender's earliest possible release date.”
We note that the definition of “sex offender” includes those adjudicated as sexually dangerous. G.L. c. 6, § 178C.
Due to the implication of “significant liberty interests,” the statute requires that the registration system must classify offenders on an individualized basis according to their risk of reoffense and degree of dangerousness. Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 772 (2008) ( Doe, No. 89230 ). However, the court has recognized that “the law [must] be tailored to achieve its purpose and that it [must] provide the procedural protections required by due process.” Ibid. As such, the fact finder must make particularized findings regarding the offender's current risk of reoffense and degree of dangerousness. See ibid.; Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass.App.Ct. 383, 385–386 (2009). These findings must also include all the treatment the plaintiff participated in, as well as his recent behavior, while incarcerated in the center. See 803 Code Mass. Regs. § 1.40(17) & (19) (2002) (factors 17 and 19).
Moreover, “[§ ] 1.37C(2) of 803 Code Mass. Regs. [ (2004) ] provides that an offender may seek reclassification three years after the final classification. However, where the offender has remained incarcerated, a motion for reclassification will not be reviewed by the board until the offender has remained at liberty for more than five years. Ibid. This is the sole mechanism for an offender to establish his or her reduced risk of dangerousness.” Doe, No. 6904, 82 Mass.App.Ct. at 77–78.
In the present case, the plaintiff has been indefinitely committed to the center with no imminent date of release.
In Doe, No. 6904, the court determined that a final classification hearing held more than four years prior to the plaintiff's scheduled release from incarceration without a valid administrative justification was not reasonable in light of the statutory purpose to classify offenders according to their “current risk to reoffend.” Id. at 77.
By statute, the department must update the board on any planned transfers or release prior to those changes in the plaintiff's status. For the plaintiff to remain classified as a level three offender while committed and, consequently, not provided a review of the statutory factors prior to his release, will not result in an assessment of his current risk of reoffense and degree of dangerousness at the time of his release. Further, he will not be entitled to a review of his classification until he has been released into general society for five years. The plaintiff's current classification is more than four years old at this time and he is committed for an indefinite term as an SDP. To allow his classification to stand without a reasonable administrative justification is inconsistent with the statutory purpose.
“It follows from the foregoing analysis that where the board has provided justification in the evidentiary hearing that a final classification should be imposed without delay, the evidentiary hearing can be reopened if a significant period of time has elapsed between the final classification and the offender's scheduled release, on an appropriate showing by affidavit and exhibits of a material change in circumstances impacting the offender's current dangerousness and risk to reoffend.” Doe, No. 6904, supra at 78 n. 4.
In light of Doe, No. 6904, and because the plaintiff's “liberty interests” are implicated, the matter must be remanded to the board for reconsideration of whether there is an administrative justification for immediate classification of the
plaintiff as a level three offender.
Judgment reversed. Order denying motion for remand reversed. A new order is to enter remanding the matter to the board for further proceedings consistent with this memorandum and order.