Opinion
18-P-394
04-17-2019
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22742 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
A Superior Court judge denied Doe's motion for judgment on the pleadings, affirming the Sex Offender Registry Board's (SORB) final classification of him as a level three sex offender. On appeal, Doe contends that (1) the hearing examiner abused his discretion in denying Doe's motion for expert funds, (2) his level three classification was not supported by substantial evidence, and (3) the hearing examiner's consideration of all of Doe's disciplinary reports and criminal convictions exceeded SORB's statutory authority. We affirm.
Discussion. 1. Motion for expert funds. Doe contends that evidence of a past seizure disorder and his use of Dilantin warranted exploration by an expert to determine to what extent, if any, that condition and treatment decreased his libido and risk of reoffense. We disagree.
Pursuant to 803 Code Mass. Regs. § 1.16(4)(a) (2016), a sex offender filing a written motion for expert funds must:
"1. identify a condition or circumstance special to the sex offender and explain how that condition is connected to his or her risk of reoffense or level of dangerousness;Whether to grant or deny a motion for expert funds is within the hearing examiner's discretion. Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770, 775 (2008).
"2. identify the particular type of Expert Witness who would provide testimony to assist the Hearing Examiner in his or her understanding and analysis; and
"3. include supporting documentation or affidavits verifying the specific condition or circumstance that the offender suffers from."
Here, Doe did not establish that he suffered from a condition that connected to his current risk of reoffense. See 803 Code Mass. Regs. § 1.16(4)(a). Rather, Doe's only supporting documentation was an entry in his Department of Correction records noting that he took Dilantin for seizures at some point either during or prior to 2000. However, Doe did not establish for the hearing examiner that at the time of the hearing he suffered from any seizure disorders, was currently taking antiseizure medication, or was experiencing a suppressed libido. Accordingly, we discern no abuse of discretion in the hearing examiner's decision to deny the motion for expert funds.
To the extent Doe contends that denying the motion violated his right to due process, this argument is unavailing. SORB may impose conditions on the discretionary grant of expert funds without violating due process rights. See Doe, Sex Offender Registry Bd. No. 89230 , 452 Mass. at 770-775.
2. Substantial evidence. Doe next contends that his level three classification was not supported by substantial evidence because the hearing examiner considered several inapplicable regulatory factors and did not conduct the proper analysis under other, applicable factors. We are not convinced.
To support a level three classification, SORB must show by clear and convincing evidence, see Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (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) (c). Review "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." Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015), quoting Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 114 (2014). In addition, "[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 , 470 Mass. at 109-110.
Here, Doe challenges the hearing examiner's application of factors 8, 10, and 24, see 803 Code Mass. Regs. § 1.33(8), (10), & (24) (2016), but we discern no abuse of discretion in the hearing examiner's application of these factors. Application of factor 8 was proper because the evidence showed Doe used a gun to kidnap the victim just before the governing offense of assault with intent to rape. The hearing examiner could reasonably infer, see Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011), that the gun was still present as Doe assaulted the victim. Factor 10 applies because, viewed as a whole, see Doe, Sex Offender Registry Bd. No. 68549 , 470 Mass. at 111, Doe's record revealed a lengthy history of criminality beyond the governing offense. Finally, application of factor 24 was proper because Doe did not satisfactorily complete sex offender treatment, and the studies that purport to undermine factor 24's premise, i.e., that failure to complete sex offender treatment increases an offender's risk of reoffense, are at best mixed and were considered by SORB when the regulations were amended. Accordingly, we give, as we must, due weight to SORB's technical expertise. G. L. c. 30A, § 14 (7).
Doe also contends that the hearing examiner improperly analyzed factors 11 and 37, see 803 Code Mass. Regs. § 1.33(11) & (37) (2016), but we discern no abuse of discretion. Doe takes issue with the hearing examiner giving full weight to factor 11 without considering the severity and frequency of Doe's nonviolent criminal offenses. However, contrary to Doe's contentions, the hearing examiner did scrutinize Doe's record of nonviolent offenses fully, including the facts underlying his most recent arrest for assault and battery. Similarly, the hearing examiner also gave proper consideration to Doe's prior acquittal of rape when the examiner weighed it under factor 37 as evidence of Doe's "risk of reoffense and degree of dangerousness." 803 Code Mass. Regs. § 1.33(37) (2016). The hearing examiner noted that it showed that the experience of an arrest and prosecution of a sexual offense did not deter Doe from committing the governing offense.
In sum, we fail to see that a lower classification is a necessary inference from the evidence in this case. See Doe, Sex Offender Registry Bd. No. 3839, 472 Mass. at 500-501.
3. Exceeding statutory authority. Finally, we are not persuaded by Doe's contention that SORB exceeded its statutory authority when it adopted regulations permitting the consideration of Doe's past and current criminal conduct and disciplinary reports. General Laws c. 6, § 178K (1) (i), requires SORB to consider "recent behavior" when assessing an offender's risk of reoffense; however, the factors provided in the statute are not exclusive and the hearing examiner was not precluded from considering past behavior. There was no error.
Doe waived these arguments by failing to present them to SORB in the first instance. See Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). We nonetheless exercise our discretion to address these claims on the merits. Cf. Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).
Judgment affirmed.
By the Court (Maldonado, McDonough & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 17, 2019.