Opinion
18-P-1043
01-08-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524185 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
The plaintiff, John Doe, appeals from a Superior Court judgment affirming Doe's classification as a level three sex offender by the Sex Offender Registry Board (SORB). He argues on appeal that the hearing examiner (examiner) misapplied or overemphasized the weight of three classification factors, and claims that the classification was not grounded on clear and convincing evidence. Doe also claims that granting public access to Doe's personal and sex offender information is not in the interest of public safety and that active dissemination of such information would be unusually punitive and violative of his due process rights. We conclude that Doe's first argument regarding the examiner's application of the statutory factors is meritless. We also conclude that the examiner's determination that Doe posed a high risk of reoffense and a high level of dangerousness was merited by the presence of sufficient factors. Nonetheless, in view of the holding in Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 657 (2019) (Doe No. 496501 ), we remand to the examiner for separate and explicit findings on the necessity of releasing Doe's information to the public and on whether a "substantial public safety interest" would be served by "active dissemination" of his sex offender registry information.
Background. On February 17, 2016, Doe's five year old son told his mother that he had been fellated by Doe. Later that night, he also told her that Doe had digitally penetrated his anus. Doe's wife contacted police the next day. Soon thereafter, police discovered pornographic images of children, along with similar Internet searches and visited websites, on Doe's laptop. Doe was interviewed by police and admitted that he touched and placed his mouth on his son's penis. He also admitted that his laptop computer contained images of child pornography. In May 2016, Doe pleaded guilty to one count of rape and abuse of a child and one count of indecent assault and battery on a child under the age of fourteen. He was sentenced to two years of incarceration and five years of probation.
Doe's assault came to light while Doe's family was traveling home in the car. From the back of the car, the five year old victim told his mother, "I told daddy not to put my penis into his mouth." He then yelled angrily at Doe, "[D]on't put my penis in your mouth anymore."
Police found seven images depicting a child under the age of eighteen in the nude or partially clothed.
Doe was not charged with possession of child pornography.
SORB notified Doe of its recommendation that he be classified as a level three sex offender. Doe requested a hearing on the matter, and after the de novo hearing, the examiner issued a written decision that classified Doe as a level three sex offender under the factor-based classification scheme set forth in G. L. c. 6, § 178K (1), and 803 Code Mass. Regs. § 1.33 (2016). In coming to his determination, the examiner applied two statutory high risk factors. He gave aggravating weight to factor two (repetitive and compulsive behavior) because Doe's Internet searches for child pornography took place in 2015 and the assault of his son took place in 2016. He gave full weight to factor three (adult offender with child victim) due to the nature of the assault.
In order for episodes to be considered separate for purposes of factor two, "there must be time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct." 803 Code Mass. Regs. § 1.33(2) (2016). Uncharged conduct is properly considered by the examiner, so long as the examiner finds supporting reliable evidence under the preponderance of the evidence standard. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011).
The examiner also applied a number of risk-elevating factors. He gave "aggravating consideration" to factor nine (alcohol and substance abuse) because Doe had a history of marijuana and alcohol abuse and a diagnosis of polysubstance abuse. For obvious reasons he applied factor seventeen (male offender against male victim) and factor eighteen (extravulnerable victim) as well as factor nineteen (level of physical contact). He also applied factor twenty (diverse sexual behavior) because the defendant committed both contact and noncontact sex offenses. Additionally, in considering factor thirty-eight (victim impact statement), the examiner "fully recognize[d] the substantial impact the governing sex offense has had on the [v]ictim and his family." The victim, his mother, and his grandmother submitted victim impact statements for the examiner's review.
For example, his wife told police that she feels Doe has a drinking problem and that her daughter recently contacted police because her parents were arguing over Doe's drinking.
The examiner also incorporated a number of risk-mitigating factors into Doe's classification. He applied factor twenty-eight (supervision by probation or parole) because Doe was incarcerated at the time of the hearing and his sentence mandated five years of supervised probation after his release. He gave "moderate" mitigating weight to factor thirty-three (home situation and support systems) because letters from Doe's aunt, father, and family friend were supportive but failed to acknowledge the full extent of Doe's sex crimes. The examiner also applied "moderate" weight to factor thirty-four (materials submitted by the sex offender regarding stability in the community) because Doe submitted an affidavit that stated his father had offered to help Doe "get back on [his] feet." Doe's father also submitted an affidavit that stated he was working to find Doe a place to live upon release and would help Doe reapply for disability benefits and find a therapist. In the end, the examiner, after weighing all applicable factors, concluded that Doe presented a high risk of reoffense and a high degree of dangerousness, and that active dissemination of his registry information was prudent for public safety.
Doe appealed the examiner's decision to the Superior Court, arguing that SORB improperly applied relevant factors in considering the classification determination and that there was insufficient evidence to support its findings. The judge denied Doe's motion for judgment on the pleadings and affirmed the examiner's decision. Doe timely appealed.
Discussion. A level three classification must be based upon clear and convincing evidence that (1) Doe has a high risk of reoffending and (2) "the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination (community notification) of sex offender registry information." 803 Code Mass. Regs. § 1.03 (2016). See 803 Code Mass. Regs. § 1.20(2) (2016) (hearing examiner shall determine (1) offender's risk of reoffense, (2) offender's degree of dangerousness, and (3) degree to which public access to offender's personal and sex offender information is in interest of public safety). Classifications must be established by clear and convincing evidence. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 (2015). We "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L. c. 30A, § 14 (7).
1. Factors. Doe challenges the examiner's application of three statutory factors. First, Doe argues that factor two (repetitive and compulsive behavior) was erroneously applied because he "has only been convicted of one index crime and it was against one victim." This argument has no merit, as consideration for this factor is not limited to index crimes, but instead to "separate episodes of sexual misconduct." 803 Code Mass. Regs. § 1.33(2) (2016). The examiner rationally concluded that Doe's possession of child pornography began in 2015, based on the timing of Internet searches found on his computer. The assault took place the next year, in 2016. As such, there was no error.
"It is within the province of the hearing officer to assess the reliability of [the] evidence and to draw all reasonable inferences." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019).
Next, Doe claims that he should have received full mitigating weight for factor thirty-three (home situation and support systems) rather than merely "moderate mitigating weight." To support his claim, Doe asserts that his supporters were not required to have knowledge of his sex offense history. This is incorrect. When considering factor thirty-three, the examiner must consider the extent to which an offender's "support network . . . is aware of the offender's sex offender history and provides guidance, supervision, and support of rehabilitation." 803 Code Mass. Regs. § 1.33(33)(a) (2016). Upon review, however, and contrary to Doe's assertions, the letters written in support of Doe do not reflect a full understanding of Doe's sexual offender history. Again, concluding that the examiner's application of this factor was reasonable, we see no error.
The letter from Doe's aunt explains that she has visited him in jail and has seen a positive change in Doe since his incarceration. The affidavit from Doe's father acknowledges Doe's incarceration but does not address his crimes. The letter from Doe's friend includes a line about Doe's "current circumstance" but goes no further.
Third, Doe argues that factor thirty-four (materials submitted by the sex offender regarding stability in the community) was erroneously given "moderate" mitigating weight rather than the full weight it deserved. We disagree. The examiner properly applied moderate weight to this factor because Doe was incarcerated at the time and his future plans were speculative. While Doe's affidavit stated that his father would help Doe "get back on [his] feet," and Doe's father's affidavit asserted a willingness to help Doe find housing and reapply for disability benefits, Doe's father's attestations went no further. The statements were less than specific and the examiner's decision to moderate the full weight of this factor was well grounded.
Additionally, the examiner was free to consider Doe's admissions in workbook pages that he felt unsure of his stability in the community upon release.
2. Substantial evidence. Next, Doe asserts that the examiner's conclusion was not supported by substantial evidence, that the release of Doe's sex offender registry information is not in the public interest, and that "active dissemination" of his sex offender registry information is also not justified. After Doe's classification report was issued, and during the pendency of this appeal, the Supreme Judicial Court issued a decision holding that each of the three elements in a classification hearing must be supported by separate and explicit findings. Doe No. 496501 , 482 Mass. at 657. The purpose of this new rule is to "improve the rigor and accuracy of final classifications and provide for more effective judicial review." Id. For classifications that were pending before an appellate court when Doe No. 496501 was released, such as this one, a remand may not be necessary if "SORB's existing findings are sufficiently explicit to enable proper review," or when "the underlying facts of the case . . . so clearly dictate the appropriate classification level." Id. at 657 n.4.
Here, the examiner's findings were not separate and explicit for each of the three elements, as now required. Nonetheless, it is clear that the examiner considered dangerousness and risk of reoffense at length, and that the factors present were sufficient to support his determination on those two elements. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 144 (2019) ("The hearing examiner's analysis of each factor was meticulous, and indicates the presence of sufficient factors to merit [the examiner's] determination"). We cannot say the same for the third element of a level three classification: whether active dissemination of the offender's personal and sex offender information serves a substantial public safety interest. The active dissemination element received little attention in the examiner's report, and if it had any nexus to the examiner's analysis of the statutory factors, it is difficult to parse. On this record the force of the underlying facts regarding the need for active dissemination is an open question. As such, we exercise our discretion to remand to the examiner for the required findings mandated in Doe No. 496501 as to the appropriate level of public access to Doe's personal and sex offender registry information, and, in particular, whether "active dissemination" of his sex offender registry information is warranted. Accordingly, the judgment is vacated, and a new judgment shall enter remanding the case to SORB for further proceedings consistent with this memorandum and order.
Instead, the examiner concluded at the end of his classification decision, "Therefore, by the clear and convincing evidence standard, I find that the Petitioner presents a high risk of re-offense and high degree of dangerousness and active dissemination of his registry information is prudent for the sake of public safety."
"Unless the hearing examiner determines that a further hearing is required to evaluate an individual's risk of reoffense, an individual's degree of dangerousness, or the public safety interest served by [a particular level of notification], amended decisions may be issued without holding a de novo hearing." Doe No. 496501 , 482 Mass. at 658.
So ordered.
By the Court (Vuono, Desmond & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 8, 2020.