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Doe v. Sex Offender Registry Bd.

Appeals Court of Massachusetts.
Sep 29, 2014
86 Mass. App. Ct. 1113 (Mass. App. Ct. 2014)

Opinion

No. 13–P–1043.

09-29-2014

John DOE, Sex Offender Registry Board No. 7083 v. SEX OFFENDER REGISTRY BOARD.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

John Doe appeals from a Superior Court judgment upholding the decision by the Sex Offender Registry Board (SORB) to classify him as a level three sex offender. Doe argues that holding a classification hearing eighteen months before his earliest possible release date violated his due process rights. We affirm.

Background. Doe has an extensive criminal history. He was convicted in 1987 of indecent assault and battery on a person over fourteen. In 1988, he pleaded guilty to three counts of aggravated rape and one count each of assault with intent to murder, assault and battery by means of a dangerous weapon, and breaking and entering in the nighttime to commit a felony. For the 1988 convictions he originally received concurrent sentences of ten to twelve years committed, but the sentences were later revised and he was released on February 11, 1999.

In 2004, Doe was arraigned on charges of rape and abuse of a child, two counts of indecent assault and battery on a child under fourteen, and failing to register as a sex offender. In 2006, he was convicted of failing to register after the other charges were dropped. While incarcerated in 2006, the Massachusetts crime lab matched Doe's DNA to a sample taken from a woman who was raped in 2003. He pleaded guilty to that rape in 2009 and received a sentence of five to eight years committed. Doe became eligible for parole on December 3, 2012.

The Commonwealth determined that the five year old alleged victim was too young to be a competent witness.

In 2006, the Commonwealth petitioned to have Doe civilly committed as a sexually dangerous person (SDP). See G.L. c. 123A. On January 31, 2007, he was found to be an SDP and was civilly committed, for an indefinite period, to the Massachusetts Treatment Center at Bridgewater (MTC). In 2011, the Community Access Board, which annually reviews the current level of dangerousness of civilly committed SDPs, unanimously found that Doe remained sexually dangerous. See G.L. c. 123A, § 6A.

In September, 2009, SORB notified Doe of his initial classification as a level three sex offender. He objected, and a classification hearing was scheduled and rescheduled throughout 2010. The classification hearing took place on February 1, 2012. At the time of the classification hearing, he had an August, 2013, trial date on his petition for release from civil confinement. He objected to the timing of the classification hearing on the basis that his earliest potential release date from his civil confinement was more than eighteen months away. He argued that his current risk was therefore zero, that his classification hearing was premature and should be postponed or left open until his release was imminent, and that SORB could determine his level of risk at that time. The hearing examiner denied his request to continue or leave open the classification hearing.

The trial was subsequently rescheduled for August, 2014.

On March 16, 2012, the hearing examiner issued a written decision finding that Doe presents a high risk of reoffending and a high degree of dangerousness, and classifying him as a level three sex offender. He appealed to Superior Court, which upheld SORB's determination. In his decision, the Superior Court judge found “as a matter of law that holding a classification hearing eighteen months prior to [Doe's] possible release is not inconsistent with the statutory purpose of the Sex Offender Registry Law.”

Discussion. We review the denial of Doe's motion to postpone the hearing for abuse of discretion. See Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 392 (2013). He argues that the hearing should have been postponed because SORB is required to classify sex offenders based upon their current level of risk, which would remain at zero for so long as the offender was incarcerated or civilly committed. The Supreme Judicial Court has considered and rejected this argument. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 59–61 (2010).

Doe next contends that holding the hearing eighteen months before his earliest possible release date violated his due process rights. As an initial matter, we note that he would be eligible for parole on December 3, 2012, approximately ten months after the hearing. Thus, this case does not present the issue raised in Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67, 75–77 (2012), where the offender's classification hearing took place four years before his scheduled release from incarceration. While Doe would remain civilly committed at least until August, 2013, even if he was granted parole, “an SDP theoretically could be released at any time.” Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 904, 905 (2012). SORB is required under the Sex Offender Registry Act, G.L. c. 6, §§ 178C –178Q, to “ensur[e] that sex offenders who are currently confined are classified before they are released,” and we have held there is no due process violation when SORB classifies a civilly committed sex offender prior to the offender's release from confinement. Id. at 904 (emphasis added).

There is a distinction to be drawn between the timing of a hearing for a person who is civilly committed and a person who is serving a criminal sentence. Here, the classification hearing was held within ten months of Doe's potential release from incarceration. The timing of the hearing with respect to his release from incarceration was therefore reasonable. Because a person who is civilly committed as an SDP is subject to periodic reviews to determine whether the person continues to be an SDP or is entitled to be released, the timing of the classification hearing with respect to Doe's civil commitment was well within the discretion of SORB. Accordingly, the hearing examiner did not abuse her discretion in denying the motion to continue or leave open the classification hearing.

Judgment affirmed.


Summaries of

Doe v. Sex Offender Registry Bd.

Appeals Court of Massachusetts.
Sep 29, 2014
86 Mass. App. Ct. 1113 (Mass. App. Ct. 2014)
Case details for

Doe v. Sex Offender Registry Bd.

Case Details

Full title:John DOE, Sex Offender Registry Board No. 7083 v. SEX OFFENDER REGISTRY…

Court:Appeals Court of Massachusetts.

Date published: Sep 29, 2014

Citations

86 Mass. App. Ct. 1113 (Mass. App. Ct. 2014)
17 N.E.3d 1118

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