Opinion
21-P-234
06-09-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 372659 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 affirming the decision of the Sex Offender Registry Board (board or SORB) classifying him as a level three sex offender in accordance with G. L. c. 6, § 178K (2) (c0 . Doe argues that the hearing examiner (examiner) gave inadequate weight to Doe's participation in sex offender treatment and the examiner impermissibly applied a factor relating to repetitive and compulsive behavior. We affirm.
Standard of review.
"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). "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Doe, Sex Offender Registry Bd. No. 10800 v.Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6). "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" (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 523391 v.Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 88 (2019).
"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" (quotation and citation omitted) . Id. at 110.
Discussion.
Factor 32.
Doe's sole complaint about mitigating factor 32, sex offender treatment, is that the examiner inappropriately gave it only "moderate" weight. See 803 Code Mass. Regs. § 1.33(32) (2016). The examiner concluded that while Doe successfully completed the sex offender treatment program (SOTP), the "treatment review panel" (TRP) had concerns about Doe's "behavioral stability" and commented that Doe's "improved insight has not translated to improved behavioral or decreased interpersonal conflict." Moreover, the examiner noted that the TRP did not recommend Doe for participation in a graduate support program because it felt he would "negatively influence his peers."
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) .
The examiner's decision to give only moderate weight to risk mitigating factor 32 was supported by substantial evidence and does not constitute an abuse of discretion. The examiner gave factor 32 some weight and credited Doe for his treatment, but because of the TRP's concerns about Doe's continued behavioral instability, despite completing treatment, only giving moderate weight was reasonable.
Doe argues that, when weighing factor 32, the examiner ignored the treatment Doe had received since completing the SOTP. Although it is accurate that the examiner did not reference Doe's participation in weekly maintenance groups for some time after the TRP expressed its concerns, Doe also had stopped attending those groups as of the time of the hearing. Factor 32(a)(2), entitled "Currently Participating in Treatment," provides that "[t]he Legislature has identified current participation in treatment as a risk mitigating factor. . . . [O]ffenders who continue to participate in treatment after their treatment providers have determined that they have completed the program, may receive more weight under factor 32" (emphasis added). Here, where Doe was not currently participating in treatment at the time of the hearing, and where in any event the allowance of greater mitigating weight for such treatment is discretionary, we see nothing to be gained by remanding for the examiner to reconsider the weight to be given factor 32. See New Palm Gardens, Inc. v. Alcoholic Beverages Control Comm'n, 11 Mass.App.Ct. 785, 794-795 (1981) (remand pointless where no real doubt agency would reach same conclusion). Based on this record, there was no abuse of discretion in the examiner applying factor 32 with less than full weight.
Factor 2.
Doe next argues that the examiner erred in relying on factor 2 (repetitive and compulsive behavior) in her classification decision. Doe's argument relies on a trial court judge's decision in an unrelated case to partially invalidate factor 2 because of insufficient scientific support that an offender poses a higher risk of reoffense when he has not been discovered, confronted, or investigated between episodes. Here, however, Doe was charged with rape prior to committing the index crime, and therefore confronted and investigated between acts.The declaratory judgment, although enforceable against the board as far as it goes, see G. L. c. 231A, § 5, does not bar the board from applying factor 2 where the offender was confronted and investigated between acts, as were the circumstances in this case.
See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B (Apr. 16, 2021) (Wilkins, J.).
The board does not contest the general proposition that Judge Wilkins' declaratory judgment may apply to cases (such as this one) in which both the classification hearing and the Superior Court's judicial review were completed before the declaratory judgment entered.
Doe additionally argues that, even if factor 2 is valid, the examiner erred in relying on it because there was not substantial evidence of compulsion. But see Doe, Sex Offender Registry Bd. No. 356315 v.Sex Offender Registry Bd., 99 Mass.App.Ct. 292, 297 (2021). Doe further argues that factor 2 is entitled to less weight here because the type of sex offense for which he was originally confronted (statutory rape) is quite different from the offense giving rise to his registration requirement (rape). Because Doe could have raised these arguments to the examiner, but did not do so, they are waived. See Doe, Sex Offender Registry Bd. No. 3974 v.Sex Offender Registry Bd., 457 Mass. 53, 63 (2010).
We are unpersuaded by Doe's argument that because factor 2 may no longer be applied and given "threshold weight" when an offender has not been confronted between offenses, factor 2 must necessarily be given less weight where, as here, it still applies. See Doe, Sex Offender Registry Bd. No. 22188 v.Sex Offender Registry Bd., 96 Mass.App.Ct. 738, 741 (2019) (describing, prior to partial invalidation of factor 2, threshold weight to be given factor 2 where offender had not been confronted between episodes). Factor 2 by its own terms may be given "increased weight" when an offender has been confronted between offenses, and that is the weight the examiner gave it here. We see no abuse of discretion in that decision.
Judgment affirmed.
The panelists are listed in order of seniority.