Opinion
21-P-491
07-28-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 21890 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 his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. 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) (Doe No. 10800 ).
In March 1978, when Doe was sixteen years old, he forced an eleven year old girl (victim 1) and a ten year old boy (victim 2) from outside of their homes into a wooded area by threatening to "beat [their] faces in" if they did not follow him. Once in the wooded area, Doe made victim 1 remove her pants, and he placed his penis between her legs. Doe also repeatedly orally raped victim 1 and forced her to masturbate him. Doe then turned his attention to victim 2, instructing him to remove his pants and reveal his penis. After a period of time, Doe allowed the children to leave, and he fled the area himself. Victims 1 and 2 reported the incident to their mothers and the police, and Doe was charged with rape and indecent assault and battery on a child. Doe was adjudicated delinquent and was committed to the Department of Youth Services.
Just over four years later, in October 1982, when Doe was twenty years old, he followed a thirteen year old boy (victim 3) into a wooded area near a park. When victim 3 stopped to tie his shoe, Doe grabbed him from behind and held him at knife point, stating, "[Y]ou try to run or do anything and I'll kill you." Doe then pushed victim 3 deeper into the wooded area, and there, Doe forced his penis into victim 3's mouth. Doe also forced victim 3 to remove his pants and get down on his hands and knees while Doe penetrated victim 3's anus with his penis. At some point during the incident, Doe became startled by one of victim 3's friends calling out for him, and Doe fled the area. For these acts, Doe pleaded guilty to aggravated rape, sodomy, kidnapping, and rape of a child. On the convictions of aggravated rape, sodomy, and rape of a child, Doe was sentenced to three concurrent terms of from ten to fifteen years of imprisonment. On the kidnapping conviction, Doe was sentenced to a concurrent term of from nine to ten years of imprisonment. Charges of rape of a child, indecent assault and battery on a child, and assault by means of a dangerous weapon were placed on file.
In April 1985, Doe was adjudicated a sexually dangerous person (SDP) and was sentenced to the Massachusetts Treatment Center for a term of from one day to life. While civilly committed, Doe completed sex offender treatment. On March 28, 2006, Doe was adjudicated to be no longer sexually dangerous, and he was discharged from civil commitment that same day. In April 2007, SORB notified Doe of his duty to register as a level three sex offender, pursuant to G. L. c. 6, § 178K (2) (c0, and after Doe did not respond to the recommendation, Doe's level three classification was finalized in May 2007.
In December 2019, Doe filed a motion for reclassification. In response, SORB recommended that Doe be reclassified as a level two sex offender, and Doe requested a de novo hearing to challenge SORB's recommendation. Following the reclassification hearing, the hearing examiner determined that Doe posed a "moderate" risk of reoffense and "moderate" degree of dangerousness such that a public safety interest would be served by Internet publication of Doe's registry information. Doe, Sex Offender Registry Bd. No. 496501 v.Sex Offender Registry Bd., 482 Mass. 643, 646 (2019) (Doe No. 496501 ), quoting G. L. c. 6, § 178K (2) (b). Accordingly, Doe was reclassified as a level two sex offender. See G. L. c. 6, § 178K (2) (b). Doe appealed that decision to the Superior Court. A Superior Court judge affirmed Doe's level two classification, and this appeal followed.
Discussion.
On appeal, Doe argues that (1) the evidence presented by SORB at the reclassification hearing was insufficient to support a level two classification because the evidence was devoid of information regarding his current risk; (2) the hearing examiner's decision was arbitrary and capricious because it ignored substantial mitigating evidence; and (3) the hearing examiner's failure to ascribe weight to certain factors prevents us from conducting a meaningful review of her decision. Given the circumstances of this case, we are unpersuaded.
To begin, our review of the hearing examiner's decision is limited, and we will not disturb Doe's classification unless "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 No. 10800 , 459 Mass. at 633. "In reviewing SORB's decisions, we 'give due weight to [the hearing examiner's] experience, technical competence, and specialized knowledge.'" 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).
To support a level two sex offender classification, SORB must prove, "by clear and convincing evidence, that '(1) the offender's risk of reoffense is moderate; (2) the offender's dangerousness is moderate; and (3) a public safety interest is served by Internet publication of the offender's registry information.'" Doe, Sex Offender Registry Bd. No. 23656 v.Sex Offender Registry Bd., 483 Mass. 131, 138 (2019) (Doe No. 23656 ), quoting Doe No. 496501 , 482 Mass. at 656. "[R]egistration can be required only based on an assessment 'of the person's current level of dangerousness and risk of reoffense'" (citation omitted). Doe, Sex Offender Registry Bd. No. 24341 v.Sex Offender Registry Bd., 74 Mass.App.Ct. 383, 387 (2009). The hearing examiner is afforded the discretion to determine which statutory and regulatory factors are applicable, and how much weight to give them. See Doe, Sex Offender Registry Bd. No. 68549 v.Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014).
Here, the hearing examiner considered several applicable factors under 803 Code Mass. Regs. § 1.33 (2016), that reflect a "high risk of reoffense," including Doe's commission of sexual misconduct after previously being charged with and adjudicated delinquent for sex offenses, 803 Code Mass. Regs. § 1.33(2), Doe's commission of a sex offense against a child victim while he was an adult, 803 Code Mass. Regs. § 1.33(3), and Doe's prior adjudication as an SDP, 803 Code Mass. Regs. § 1.33(5) . See Doe No. 2 3 656, 483 Mass. at 142. Doe argues that it was an abuse of discretion for the hearing examiner to consider Doe's 1985 adjudication as an SDP because, in 2006, Doe was determined to be no longer sexually dangerous. We disagree; factor 5 (adjudicated sexually dangerous person or released from civil commitment) was applicable to Doe's case. Under factor 5, SORB "views any offender who has been adjudicated as a sexually dangerous person, . . . whether he has been released or not, to present a substantial risk to reoffend and degree of dangerousness." 803 Code Mass. Regs. § 1.33(5). In addition to the high-risk factors, the hearing examiner also determined that a number of risk-elevating factors were applicable based on the nature of Doe's sex offenses as well as the characteristics of, and his relationship to, the various victims.
In determining Doe's level of risk of reoffense and degree of dangerousness posed to the public, the hearing examiner was required to consider all of the regulatory factors she deemed applicable, including that Doe was previously adjudicated as an SDP and had been released from civil commitment. See 803 Code Mass. Regs. § 1.33 (SORB "shall use the following factors to determine each sex offender's level of risk of reoffense and degree of dangerousness posed to the public in reaching a final classification decision" [emphasis added]).
The petitioner has not argued that factor 5 is invalid, and we accordingly do not consider the issue. See Salisbury Nursing & Rehabilitation Ctr., Inc. v Division of Admin. Law Appeals, 448 Mass. 365, 371 (2007) (challenges to validity of regulation "properly brought in the Superior Court as an action for declaratory judgment").
Those factors included factor 7 (stranger victim), factor 8 (weapons, violence, or infliction of bodily injury), factor 9 (alcohol and substance use), factor 17 (male offender against male victim), factor 19 (level of physical contact), factor 21 (diverse victim type), factor 22 (number of victims), and factor 27 (age of victim). See 803 Code Mass. Regs. § 1.33.
On the other hand, and contrary to Doe's contentions, the hearing examiner gave due consideration to the applicable mitigating factors bearing on Doe's current risk. This included Doe's fourteen years of offense-free time in the community, 803 Code Mass. Regs. § 1.33(29), his sex offender treatment, 803 Code Mass. Regs. § 1.33(32), his residential stability and social support system, 803 Code Mass. Regs. § 1.33(33) & (34), and his age, although the examiner appropriately concluded that Doe's age at the time (fifty-eight) did not entitle him to the full benefit of the age factor because he was two years shy of the sixty year old threshold age at which point significant mitigation is afforded by the regulations to offenders with child victims. See 803 Code Mass. Regs. § 1.33(30).
With the exception of factor 9 (alcohol and substance use), which SORB concedes was erroneously applied by the hearing examiner, Doe does not dispute the facts underlying these considerations. Instead, Doe argues that the hearing examiner failed to properly balance the high-risk and risk-elevating factors against the mitigating factors. Specifically, he contends that the examiner gave too much weight to the static factors, which are based on offenses that occurred decades ago, and gave too little weight to the dynamic factors that speak to Doe's current risk. The argument has some force but, as we have noted, "[t]he hearing examiner has discretion to determine how much weight to ascribe to each factor under consideration." Doe No. 23656, 483 Mass. at 138-139. Indeed, much like the plaintiff in Doe No. 23656,
Id. at 143-144, quoting Doe, Sex Offender Registry Bd. No. 3839 v.Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015). Here, even excising factor 9 from the analysis, we conclude that there was substantial evidence to support a finding, by clear and convincing evidence, that Doe presented a moderate risk of reoffense and moderate degree of dangerousness such that the hearing examiner's reclassification of Doe as a level two sex offender was not arbitrary and capricious."Doe's progress toward a stable and productive life since his discharge from civil commitment is commendable. Yet '[o]ur review of a hearing examiner's decision does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, but only whether a contrary conclusion is not merely a possible but a necessary inference.'"
Lastly, Doe asserts that reversal is required because the hearing examiner failed to ascribe any quantity of weight to fifteen factors, rendering the decision "too general and conclusory to permit meaningful review." Although the hearing examiner did not explicitly indicate the precise weight she attributed to a fair number of factors, we are not persuaded that the omission prevents us from conducting a meaningful review of the decision. That is because, as SORB points out, nine of these factors -- which relate to the underlying offenses -- are static and do not require an attribution of weight by the hearing examiner because the amount of weight afforded is set by the regulations. And for the remaining factors, the hearing examiner did not merely list and apply them mechanically, but rather, she provided a detailed account of the evidence she considered and explained why each factor was applicable. See Doe, Sex Offender Registry Bd. No. 136652 v.Sex Offender Registry Bd., 81 Mass.App.Ct. 639, 651 (2012) ("SORB's decision must show that the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex").
Doe argues that the hearing examiner failed to specifically state how much weight she attributed to factors 3, 5, 7, 8, 9, 17, 19, 21, 22, 27, 29, 30, 32, 33, and 34. We disagree that the hearing examiner did not denote the level of weight given to at least three of these factors. With respect to factors 19 and 22, the hearing examiner stated that each applied with "increased weight." Further, the hearing examiner explicitly stated that Doe gained "some benefit" from factor 30, but did not "receive full benefit as he has not reached the prerequisite [sixty] years of age designated for child sex offenders."
The nine factors are factors 3, 5, 7, 8, 17, 19, 21, 22, and 27. See 803 Code Mass. Regs. § 1.33.
While not presently required, it might assist our review if a hearing examiner explicitly stated whether the hearing examiner was ascribing a threshold, moderate, high, or some other degree of weight to each applied factor. That said, here we are satisfied that the hearing examiner's application of the regulatory factors was sufficiently explained to permit effective review of her decision.
Judgment affirmed.
Desmond, Englander & Hershfang, JJ.
The panelists are listed in order of seniority.