Opinion
21-P-360
04-28-2022
John DOE, Sex Offender Registry Board No. 17388 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment that affirmed, on judicial review under G. L. c. 6, § 178M, and G. L. c. 30A, § 14, the final decision of the Sex Offender Registry Board (board) classifying Doe as a level three sex offender. Doe argues that the board's hearing examiner erred or abused his discretion in denying Doe's motion for expert funds and in failing to give appropriate weight to various regulatory factors, resulting in the board's failure to prove by clear and convincing evidence that Doe's level three classification was warranted. We affirm.
Discussion. Our review is limited, and "[w]e reverse or modify the board's decision only if we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011).
1. Expert funds. Doe asserts on appeal that the hearing examiner abused his discretion in denying Doe's request for funds for an expert to testify about Doe's diagnosed antisocial personality disorder (ASPD). An offender seeking expert funds has the burden of showing a need for expert testimony on an issue that is "particular to him, ... is not a matter of common knowledge or experience, and ... ha[s] a bearing on [his] classification." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) (Doe No. 89230 ).
Here, Doe's motion for expert funds merely asserted in general terms that an expert was "needed to evaluate and testify regarding that [ASPD] diagnosis and its effect on his risk of recidivism and his level of danger." Attached to the motion was an evaluation from the Massachusetts Treatment Center (MTC), dated June 21, 2019 (three months before the classification hearing), stating that Doe had been diagnosed with ASPD. The motion argued that "[n]one of the factors in the [b]oard's regulation adequately addresses how to assess or determine the risk of reoffending for an individual who has been diagnosed with [ASPD] or how that diagnosis remits overtime." The motion further stated that counsel for Doe had spoken with a Dr. Angela Johnson who opined that ASPD "typically remits with age," that "antisocial tendencies are a predictor of recidivism," and that "she would need to do an evaluation to ascertain if it had remitted in [Doe] and how that would affect his risk of recidivism." The motion did not explain who Dr. Johnson was or what her qualifications to opine might be.
The hearing examiner, in denying the motion for expert funds, ruled that "[t]he diagnosis of [ASPD] is not a unique characteristic that requires an expert, nor does it implicate [f]actor 1," and "therefore an expert on this disorder is not necessary." Factor 1 is one of the "high-risk factors" under the board's classification regulations, 803 Code Mass. Regs. § 1.33 (2016). Insofar as factor 1 applies to adult males such as Doe, it provides that "[t]he presence of a statutorily defined mental abnormality specifically related to sexual deviance is significantly associated with an increased risk of reoffense. The Board shall consider documentation from a licensed mental health professional that indicates that the offender has been diagnosed with a paraphilic disorder related to sexual fantasies, urges, and behaviors." Factor 1(a). The hearing examiner did not find factor 1 applicable to Doe; rather, the examiner relied on other high-risk factors, certain risk-elevating factors, and some risk-mitigating factors in finally assigning Doe a level three classification.
Hereinafter we will refer to various classification factors by name and number, it being understood that each of them appears in the corresponding subpart of 803 Code Mass. Regs. § 1.33 (2016).
Among the factors the examiner applied were several -- specifically, factors 8, 10, 12, and 13 -- that refer to "antisocial" orientation or behavior. Nothing in the board's classification regulations makes application of those factors dependent on an ASPD diagnosis.
In these circumstances, we see no abuse of discretion in the examiner's denial of Doe's motion for expert funds. Doe had been diagnosed with ASPD only three months before the hearing. Doe cites no evidence that he had sought or obtained treatment for it or that it was in remission, despite the recommendation in the June 2019 MTC evaluation that Doe be placed in a "[h]igh [i]ntensity" individualized treatment track based in part on this diagnosis. The examiner did not rely on Doe's ASPD diagnosis as implicating high-risk factor 1 and thus as contributing to Doe's level three classification. Neither Doe's motion nor his appellate brief explains how an expert could assist the examiner in understanding how the ASPD diagnosis "had a bearing on Doe's classification," much less how consideration of ASPD might benefit Doe. Doe No. 89230 , 452 Mass. at 775. Simply put, the examiner reasonably concluded that Doe had failed to carry his burden of showing the need for expert funds.
2. Misapplication of risk factors. Doe next contends that the hearing examiner gave insufficient weight to two risk-mitigating factors, resulting in a decision unsupported by substantial evidence. In considering these arguments, we keep in mind that "[a] hearing examiner has discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No. 68549 ). "Accordingly, [o]ur review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the] agency, ... but only whether a contrary conclusion is not merely a possible but a necessary inference" (quotations and citations omitted). Id. at 110.
Doe first asserts that the examiner erred in giving only moderate weight to risk-mitigating factor 32, sex offender treatment. The examiner did so because of "the short duration of treatment thus far"; Doe had begun sex offender treatment only in October of 2018, less than a year before the classification hearing. Doe now argues, erroneously, that factor 32 does not allow for consideration of the duration of treatment and that this factor should have given full weight. Factor 32 expressly provides for different weight to be given depending on whether an offender has completed treatment, is currently participating in treatment, or has participated in the past but without completing treatment. Factor 32(a)(1)-(3). Here, where Doe evidently was participating in treatment but had done so only for a short time and had not yet completed treatment, we see no abuse of discretion in the examiner's decision to accord this factor only moderate rather than full risk-mitigating weight.
Doe next asserts that the examiner erred in giving only moderate weight to risk-mitigating factor 34, materials submitted by the offender regarding stability in the community. The examiner did so because, although Doe had submitted certificates of completion of various job-skills classes while incarcerated, these were at most "potentially useful toward future stability" but were "speculative at this time, given his current incarceration." Factor 34 allows mitigating consideration to be given where an offender submits materials regarding issues such as "residential stability, sustained sobriety, education or employment stability, type of employment, and non-work related activities." Factor 34(a). Here, where Doe submitted materials relevant only to potential future employment, without addressing his plans for residential stability, non-work related activities, or other aspects of stability in the community, there was no abuse of discretion in the examiner's decision to give this factor only moderate rather than full weight.
The hearing examiner elsewhere recognized, in considering factor 9 (alcohol and substance abuse), that Doe had maintained sobriety for a number of years.
Judgment affirmed.