Opinion
21-P-187
05-27-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 338527 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, John Doe, appeals from a Superior Court judgment that affirmed his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. Because we discern no error in the SORB hearing examiner's conclusion that Doe posed a "moderate" risk of reoffense and dangerousness to the public, or in his implicit determination that a public safety interest was served by Internet publication, we affirm.
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). On May 29, 2011, a seven year old boy reported to Brockton police officers that Doe, then seventeen years old and the boy's former neighbor, had invited the boy on a walk. The boy had followed Doe into a wooded area, and reported to police that Doe then pulled down his pants and forced the boy to "suck his private parts." When they investigated, officers found what could have been semen in the area where the assault occurred.
Doe was arrested on May 30, 2011. At first, he denied the assault, but later admitted to police that he had taken the victim to the woods and put his penis in the victim's mouth; he blamed his conduct on marijuana use and expressed remorse. On December 8, 2016, Doe pleaded guilty to indecent assault and battery on a child under fourteen; SORB subsequently classified Doe as a level two sex offender. Doe challenged the classification and, following a de novo hearing, a SORB hearing examiner affirmed SORB's initial level two classification. Doe sought judicial review of that decision in the Superior Court pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. The parties cross-moved for judgment on the pleadings and a Superior Court judge affirmed SORB's level two classification determination. This appeal followed.
Doe was originally indicted for rape of a child with force and aggravated rape of a child. Initially deemed incompetent to stand trial, he was restored to competency in 2016. After a judge determined that his statements to the police were not voluntary and suppressed that evidence, see Miranda v. Arizona, 384 U.S. 436 (1996), Doe pleaded guilty to the lesser included offense.
Discussion.
Doe argues that we should review his claims de novo, contending that the failure of the regulations to consider his disability amounts to a constitutional violation. As we conclude, infra, that this appeal is not the proper vehicle for a challenge to the validity of the regulations, we do not reach that question.
"In reviewing SORB's decisions, we 'give due weight to the experience, technical competence, and specialized knowledge of the agency.'" Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). We may, however, "set aside or modify SORB's classification decision where . . . 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 ) .
To support a level two sex offender classification, SORB bore the burden of showing, by clear and convincing evidence, that "the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information." Doe No. 496501 , 482 Mass. at 646, citing G. L. c. 6, § 178K (2) (b). The hearing examiner must make express findings as to each of the required elements, see Id. at 656-657, on consideration of a nonexhaustive list of statutory factors, see G. L. c. 6, § 178K (1) (a.) - (1), as well as any other information "useful" to the hearing examiner's determinations of risk and dangerousness. G. L. c. 6, § 178L (1). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014). SORB's regulations govern the application of each statutory factor, setting out thirty-eight relevant aggravating, mitigating, and other considerations. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019) (Doe No. 23656 ), citing 803 Code Mass. Regs. § 1.33 (2016).
2. Specificity of hearing examiner's findings.
We are not persuaded by Doe's challenge to the adequacy of the hearing examiner's findings as to the required elements of a level two classification. Based on the facts summarized above, the hearing examiner applied, in some instances with specific weights, "risk elevating factors" (7) (extrafamilial victim); (9) (alcohol and substance use); (10) (contact with criminal justice system); (11) (violence unrelated to sexual assault); (13) (non-compliance with community supervision); (16) (public place); (17) (male offender against male victim); (18) (extravulnerable victim); (19) (level of physical contact); and (27) (age of victim). See 803 Code Mass. Regs. § 1.33. The hearing examiner also applied "risk mitigating factors" (28) (supervision); (32) (sex offender treatment); (33) (home situation and support system); and (34) (stability in community). Id. Finally, the hearing examiner applied "additional factors" (35) (psychological or psychiatric profile on risk to reoffend) and (37) (information related to the nature of sexual behavior). Id. Even reading the findings generously to Doe we are satisfied that there was substantial evidence to support the hearing examiner's conclusion that Doe presented a moderate risk of danger and reoffense, and to support a level two sex offender classification by clear and convincing evidence. See Doe No. 23656 , 483 Mass. at 139, 146.
That is, by assuming that, unless otherwise specified, the hearing examiner attributed minimum weight to each "risk elevating" factor and maximum weight to each "risk mitigating" factor.
To the extent that Doe argues that the hearing examiner failed to make explicit findings that Doe presented a moderate risk of both reoffense and dangerousness, he is mistaken.
Additionally, because we conclude that the hearing examiner's findings implicitly demonstrate that "a public safety interest is served by Internet publication of [Doe's] registry information," Doe No. 496501 , 482 Mass. at 656, we decline to exercise our discretion to remand the matter to the hearing examiner for explicit findings concerning the need for Internet publication of Doe's registry information. See Id. at 657.
The hearing examiner's decision predated Doe No. 496501 .
3. Consideration of Doe's age and disability.
Doe argues also that the hearing examiner failed to take into consideration Doe's intellectual disability and age at the time of the offense, and that he erred in rejecting portions of the testimony of Dr. Donald Sherak, which touched on these considerations. We are not persuaded.
To the extent Doe challenges his classification on the basis that the regulations fail to address his intellectual disability, we are not persuaded that he is entitled to relief on that basis. See Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 499-500 (2015), quoting Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 114 (2014) ("A challenge to the validity of a general regulation 'cannot be resolved by requesting declaratory relief in an appeal from an administrative agency decision because judicial review is confined to the administrative record'").
Doe's contention that the hearing examiner failed to consider the impact of Doe's intellectual ability is belied by the hearing examiner's findings -- including the findings, explicitly based on the testimony of Doe's expert witness, Dr. Sherak, that Doe had a "mild intellectual disability" and scored in the "low risk" category based on certain testing Dr. Sherak performed. The hearing examiner was required to fairly consider Doe's evidence; he was not required to credit it in its entirety. See Doe No. 23656 , 483 Mass. at 138 (Doe "entitled only to careful consideration of his expert's testimony").
Likewise, it is apparent from his findings that the hearing examiner independently considered Doe's age at the time of the offense. Indeed, his application of the statutory and regulatory factors bears this out explicitly. Additionally, the hearing examiner considered, as part of Doe's submission, certain scientific articles concerning juvenile offenders. We are satisfied that the hearing examiner gave proper consideration to Doe's circumstances before reaching his conclusion.
The cases on which Doe reliesDoe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612 (2010), and Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 639 (2012) - are factually distinguishable, and do not persuade us otherwise.
Doe's argument that the hearing examiner erred as a matter of law in rejecting Dr. Sherak's expert opinion about his risk level is likewise unavailing. Contrary to Doe's argument, the hearing examiner's findings demonstrate that he rejected Dr. Sherak's opinion not because it failed to take into account all the statutory and regulatory factors the hearing examiner was bound to consider, cf. Doe No. 23656 , 483 Mass. at 135-136, but because in reaching those conclusions Dr. Sherak relied on Doe's "self-report[ing]" about his sexual preferences, attitudes, and behavior when administering the assessment tools that informed Dr. Sherak's conclusion that Doe's risk of reoffense and dangerousness was "mild."
Judgment affirmed.
The panelists are listed in order of seniority.