Opinion
11-P-98
04-13-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 113618 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
John Doe appeals from a Superior Court judgment affirming a decision of a hearing examiner of the Sex Offender Registry Board (SORB) requiring him to register as a high-risk, level three sex offender. Doe's primary challenge to his classification is that the hearing examiner allegedly failed to 'assign significance' to the fact that he was a juvenile at the time he committed the underlying sexual offenses. We affirm.
Background. In July, 2003, Doe, then fourteen years old, and another boy grabbed a fifteen year old girl, whom they knew, took her to the back of a house, and digitally raped her. Doe was adjudicated a delinquent after pleading guilty to a charge of indecent assault and battery on a person age fourteen or over and received a two-year suspended sentence to the Department of Youth Services (DYS). In August, 2005, while on probation, Doe vaginally raped a fifteen year old girl. He pleaded guilty to the offense and was committed to DYS custody until his twenty-first birthday.
In early 2010, Doe was classified as a level three sex offender. Doe appealed from the classification. Prior to his de novo hearing, Doe filed a motion for funds to retain an expert to address the viability of the Massachusetts Statutory Factors Inventory (MSFI). The motion was denied without prejudice. After the examiner affirmed the level three classification, Doe sought judicial review in the Superior Court. This appeal follows the denial of Doe's motion for judgment on the pleadings.
Discussion. We review the affirmance of the decision of the examiner in accordance with the Administrative Procedure Act, G. L. c. 30A, § 14(7). See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 614 (2010). Doe challenges his classification on the ground that the examiner failed adequately to consider the extent to which his age lessened the likelihood that he would reoffend. Contrary to Doe's assertion, the examiner did not disregard the material that he submitted on the issue of youthful offenders and recidivism. Instead, she considered Doe's age along with other 'positive aspects' of his case, including his completion of a sex offender treatment program and his relapse plan, and specifically noted that '[r]esearch indicates that Juvenile Offenders may be more amenable to treatment because of numerous differences between them and their adult counterparts.' Nevertheless, based on the severity of the two underlying offenses, the length of time (two years) that passed before Doe took responsibility for his offenses, the fact that Doe was not employed or enrolled in school, and the fact that Doe had lived in the community offense-free for fewer than three years, she ultimately determined that she could not yet 'assess whether [Doe] has sufficiently matured and internalized treatment concepts or appropriate coping mechanisms.' The examiner also concluded that Doe would likely be a candidate for future administrative review by the board.
Doe also argues that the examiner abused her discretion by denying his motion for expert funds. The purpose of allowing a motion for funds to secure expert testimony in a SORB classification hearing is to assist the examiner in analyzing the offender's level of risk of reoffending and dangerousness. See Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 794 (2008). In a motion in limine, Doe sought funds for an expert to testify to the viability of the Massachusetts Statutory Factors Inventory (MSFI). The examiner denied the request without prejudice, stating that the request was moot as the MSFI had not been used since 2002. She further stated that she would reserve ruling on the motion until the close of evidence.
At the hearing, trial counsel offered an alternative ground for funds, namely that expert testimony was required because Doe's 'offenses occurred when he was a juvenile.' The examiner again denied the request without prejudice, stating that if, after reviewing all of the evidence, she determined that the case warranted expert assistance, she would stay the proceeding, contact the parties, and reconvene after the expert had evaluated Doe. Ultimately, the hearing examiner affirmed the level three classification without requiring an expert.
We conclude that the hearing examiner did not abuse her discretion. The record does not support Doe's claim that he met his burden of showing that the examiner would have benefitted from expert testimony. Consequently, there was no error in the denial of Doe's motion for funds to obtain expert assistance.
Judgment affirmed.
By the Court (Kantrowitz, Berry & Vuono, JJ.),