Opinion
21-P-283
05-11-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 23893 v. SEX OFFENDER REGISTRY BOARD.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. See G. L. c. 6, § 178K (2) (c0 . Doe contends that the hearing examiner improperly applied SORB's regulatory factors and, as a result, his classification is not supported by substantial evidence. Doe also contends that the hearing examiner erred in failing to make explicit findings that Internet dissemination of his registry information serves a public safety interest. We vacate the judgment and remand for further proceedings.
Background.
We summarize the facts as set forth in the hearing examiner's decision, "supplemented by undisputed facts from the record." Doe, Sex Offender Registry Bd. No. 10800 v.Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No. 10800 ). In 1992, while on parole, Doe raped his on-again, off-again ex-girlfriend (victim)- The victim had gone to Doe's apartment to collect her belongings and, fearing Doe's reaction if she refused, had sex with him. The victim noted that Doe was "drinking, but was not drunk at this time."
Several years prior to the index offenses, Doe pleaded guilty to violent crimes that arose from a single criminal episode. While he was incarcerated for those offenses, Doe incurred disciplinary reports related to an escape attempt and smoking marijuana. Doe was still on parole for these prior offenses when he committed the index offenses.
After they had sex, the victim went to get her things together to leave when Doe physically assaulted her with his hands and with a "broom stick type object." Doe also threatened the victim with a small kitchen knife, telling her that he would kill her if she left. Doe then raped the victim and forced her to shower with him. Doe then raped the victim again. Doe told the victim that he had killed before and that there "were plenty of woods around where they would never find [the victim's] body." When Doe left the apartment, the victim, appearing disheveled and beaten, knocked at a neighboring apartment for help. Law enforcement officials arrived shortly thereafter.
Doe was convicted of two counts of aggravated rape as well as kidnapping, assault and battery, and two counts of assault and battery by means of a dangerous weapon. Doe was sentenced to twenty to thirty years of incarceration for the index offenses and his sentences for the other offenses were to run concurrently. While incarcerated for those crimes, Doe incurred a disciplinary report for assault on another inmate.
Doe was classified a level three offender in June 2019, a decision that was affirmed by the Superior Court in February 2021.
Discussion.
Doe also argues that the Superior Court erroneously applied factor 9 (alcohol and substance use), factor 13 (noncompliance with community supervision), and factor 19 (level of physical contact). However, Doe does not identify error in the hearing examiner's application of these factors and, indeed, we see none. See Doe, Sex Offender Registry Bd. No. 524553 v.Sex Offender Registry Bd., 98 Mass.App.Ct. 525, 527 n.3 (2020) ("an appellate court reviewing a Superior Court's ruling under G. L. c. 30A, § 14 (7), 'is conducting an analysis of the same agency record, and there is no reason why the view of the Superior Court should be given any special weight'" [citation omitted]).
Doe argues that the hearing examiner improperly applied factor 8 (weapon, violence or infliction of bodily injury) and factor 24 (less than satisfactory participation in sex offender treatment), see 803 Code Mass. Regs. §§ 1.33(8) and (24) (2016), and as a result, his level three classification was not supported by substantial evidence.
To classify an offender as a level three, an examiner must show by clear and convincing evidence, see Doe, Sex Offender Registry Bd. No. 380316 v.Sex Offender Registry Bd., 473 Mass. 297, 314 (2015), that "the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination." G. L. c. 6, § 178K (2) (cO . "A reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v.Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ). "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Doe No. 10800 , 459 Mass. at 632, quoting G. L. c. 3 0A, § 1 (6).
First, Doe argues that the hearing examiner erred in applying factor 8 because there was no weapon, violence or infliction of bodily injury "during the commission of [the] sexual assault[s]," as required by the language of the regulation. 803 Code Mass. Regs. § 1.33(8) (a) (2016) . Doe does not dispute that there was a threat with a knife and a beating with a broomstick resulting in physical injuries. Instead, he parses the physical assaults from the rapes, arguing that, because the knife threat and the broomstick beating did not take place "during the criminal 'sexual intercourse, '" factor 8 is inapplicable. However, the language of the regulation is not so constrained. It speaks to weapons, violence and infliction of bodily injury during "the course of [a] sexual assault" and does not require these elements to coincide precisely with a specific sex act. Id. This is not a case where disparate separate crimes are improperly tied to a sex crime. The "course" of the sexual assaults in this case could well encompass the knife threat and the broomstick beating, just prior to the rapes, as a method of compelling compliance. Indeed, the hearing examiner found that "[i]n the commission of the sex offenses, [Doe] beat the [v]ictim with his hands and a broom stick and he threatened the [v]ictim with a knife."
The hearing examiner's consideration of elements from the index offenses in applying the regulatory factors, where Doe beat and then raped the victim, is consistent with the purpose of the statute and the regulatory scheme. Doe, Sex Offender Registry Bd. No. 22188 v.Sex Offender Registry Bd., 96 Mass.App.Ct. 738, 742 (2019) ("We 'accord an agency's interpretation of its own regulations considerable deference unless [it is] arbitrary, unreasonable, or inconsistent with the plain terms of the regulations themselves'" [citation omitted]). We perceive no error, the hearing officer acted within his wide discretion in interpreting the regulations to make such a finding. See Doe No. 496501 , 482 Mass. at 649, quoting Doe, Sex Offender Registry Bd. No. 205614 v.Sex Offender Registry Bd., 466 Mass. 594, 602 (2013) ("In reviewing SORB's decisions, we 'give due weight to the experience, technical competence, and specialized knowledge of the board'").
Second, Doe submits, and SORB concedes, that the hearing examiner improperly applied regulatory factor 24 (less than satisfactory performance in sex offender treatment) because "there was no evidence that Doe refused [sex offender] treatment after being placed on the waiting list in 2016." The hearing examiner acknowledged that Doe was on the waiting list but in his findings, he stated that Doe "declined participation in sex offender treatment. Therefore, this factor applies." However, the record supports Doe's assertion that he was "program compliant" while on the waiting list. SORB argues "there remain[s] substantial evidence to support the hearing examiner's level three classification" even absent consideration of factor 24. With the exclusion of factor 24, however, we "cannot say, with fair assurance, . . . that the judgment was not substantially swayed by the error" (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). It is for the hearing examiner, not for the court, to consider and weigh the multiple factors that serve to inform the classification calculus. See Doe, Sex Offender Registry Bd. No. 23656 v.Sex Offender Registry Bd., 483 Mass. 131, 143-144 (2019). Therefore, we defer to the SORB's expertise in these matters and remand to SORB to reassess Doe's classification without consideration of factor 24 as it was applied. See Doe, Sex Offender Registry Bd. No. 68549 v.Sex Offender Registry Bd., 470 Mass. 102, 109 (2014) .
2. Internet publication.
In Doe No. 496501 , 482 Mass. at 654, the Supreme Judicial Court ruled that, prospectively, before allowing Internet dissemination of a sex offender's registry information, a hearing examiner must make explicit findings that a public safety interest is served by Internet publication. Given that this case is being remanded for reconsideration, we also remand to allow the hearing examiner to make the requisite findings regarding whether Internet dissemination serves a public safety interest in accordance with Doe No. 496501 .
Conclusion.
The judgment is vacated, and a new judgment shall enter remanding the matter to the Sex Offender Registry Board for further proceedings consistent with this memorandum and order.
So ordered.
The panelists are listed in order of seniority.