Opinion
No. 12–P–1988.
2013-12-23
John DOE, Sex Offender Registry Board No. 7424 v. SEX OFFENDER REGISTRY BOARD.
By the Court (WOLOHOJIAN, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment affirming the decision of the Sex Offender Registry Board (board) classifying him as a level 3 sex offender. The plaintiff is serving a life sentence as a result of his 1984 conviction of murder in the second degree. He committed that crime while released on parole after his conviction in 1980 of rape of a child with force (the underlying index sex offense). The plaintiff is fifty-five years old, and there is no anticipated date for his release from incarceration.
This appeal is governed in all materials respects by Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67 (2012) ( Doe No. 6904 ). As in Doe No. 6904, the plaintiff argues that the hearing examiner's decision was unreasonable because the statute requires an assessment of “current” dangerousness, and here he is serving a life sentence with no release date. See id. at 76 (plaintiff argued “that holding the hearing four years before his release is unreasonable pursuant to the statute, G.L. c. 6, § 178L[1][ a ], and that he was prejudiced by a hearing held so long before his eventual release date”).
The board's only response to this argument is that it has been waived. We disagree. First, the argument was fairly presented to the judge in the plaintiff's motion for judgment on the pleadings.
Here, the board's recommended classification was communicated to the plaintiff on or about May 10, 2010. A de novo evidentiary hearing was held by the hearing examiner on September 14, 2010, and the final decision issued on August 26, 2011.
Second, although the record does not indicate that the plaintiff sought at the administrative level to postpone the hearing, he fairly raised the issue of speculativeness as a result of holding the hearing before any known release date. The hearing examiner himself, in fact, candidly acknowledged that because the plaintiff's release date was “uncertain,” he could not assess the plaintiff's evidence because he was not permitted to “speculate on [the plaintiff's] future lifestyle stability.” The record contains nothing to indicate that the plaintiff poses any risk of reoffense while he remains incarcerated. Nor does the board argue otherwise. The hearing examiner's decision rested upon his assessment of the plaintiff's potential risk of reoffense and dangerousness should he be released into the community at some future unknown date, however remote. There was no evidence as to when—if ever—the plaintiff would be released. We held in Doe No. 6904 that, “[a]s a matter of applied analysis, ... where no administrative justification was provided, a procedure imposing a final classification approximately four years old at the time of the offender's release from incarceration, and affording a reclassification no earlier than five years after his release, is inconsistent with the statutory purpose.” 82 Mass.App.Ct. at 78. Similarly here, where the classification is based on evidence over three years old and no release date is yet in sight, and no administrative justification is provided, the classification decision cannot stand.
The plaintiff's motion for judgment on the pleadings was filed before Doe No. 6904 was decided. Although Doe No. 6904 was released approximately one month before the Superior Court judge's decision on the motion, it was not mentioned in the decision.
The judgment is reversed, and a new judgment shall enter vacating the classification decision of the board. Any new classification decision must be based on a new evidentiary hearing complying with the timing requirements of Doe No. 6904, supra at 73–78.
So ordered.