Opinion
21-P-1141
01-26-2023
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 389586 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). APPEALS COURT
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Doe appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. Because the hearing examiner erred in denying Doe's motion for expert funds, we vacate the judgment and remand the matter for further proceedings consistent with this memorandum and order.
Background.
The key facts are not in dispute. At the time of the governing offenses, Doe (then in his early fifties) worked as a youth acting coach. Between 2009 and 2011, Doe sexually abused two of his students using what he self-reported as "grooming" techniques. In 2012, Doe pleaded guilty to multiple counts of indecent assault and battery on a child for his abuse of these two victims, and he was sentenced to nine and one-half to ten years in State prison, followed by ten years of probation. Doe's extensive probation conditions included mandatory sex offender counseling as well as restrictions designed to prevent any unsupervised access to minors.
These restrictions prohibited Doe from engaging in contact with children without a supervising adult being aware of his status as a sex offender, and from working or volunteering at a place that would place him in contact with children. In addition, Doe was required to comply with global positioning system (GPS) monitoring for the length of his probation.
While he was incarcerated, Doe participated in sex offender treatment. In 2017, in anticipation of his release, he underwent a comprehensive evaluation by a psychologist to determine if further treatment was advisable. The report produced from that evaluation (2017 report) ended up playing a critical role in the hearing examiner's classification decision.
Based on Doe's own disclosures, the 2017 report documented that "from the ages of [fourteen] to [twenty-nine], he engaged in voyeurism, transvestic fetishism, and exhibitionism" and, on at least one occasion, frotteurism. He revealed that he had "more than 1000s of victim," before he was thirty years old. As documented by the 2017 report, Doe twice sought out and entered therapy because "he knew [his behavior] was wrong." Doe reported to the psychologist that he no longer "fantasized about engaging in voyeuristic, transvestic and exhibitionistic behaviors . . . because he has been 'healed.'" As part of the evaluation, the psychologist looked at various actuarial tools to assess the risks that Doe posed, including the Static-99R and Stable-2007. As the psychologist recognized, the combined results of these tools placed Doe "in the Low-Moderate risk range" for reoffending. However, "[d]espite" this, the psychologist concluded in the 2017 report that "[Doe] is recommended for placement in the Residential Treatment Unit due to his significant high sex drive, paraphilias, and sexual deviance." In other words, the psychologist found that Doe continued to present risks that warranted an intensive level of treatment based on his mental state as revealed in large part by Doe's self-reporting of decades-old events.
Doe also participated in a penile plethysmography test (PPG) that indicated a general lack of sexual arousal when exposed to various stimuli. The hearing examiner gave the PPG results "no weight," and Doe does not challenge this on appeal.
A subsequent evaluation in 2018 indicated that his Stable-2007 had decreased even further.
The extent to which Doe suffers from paraphilias or other mental abnormalities implicates whether and how to apply SORB's statutory risk factor known as factor 1. See 803 Code Mass. Regs. § 1.33(1)(a) (2016) ("The Board shall consider documentation from a licensed mental health professional that indicates that the offender has been diagnosed with a paraphilic disorder related to sexual fantasies, urges, and behaviors"). Accordingly, in advance of his 2019 classification hearing, Doe requested expert funds to analyze the 2017 report and a separate document potentially bearing on his mental state. The hearing examiner denied Doe's motion for expert funds in its entirety. She reasoned in pertinent part that because factor 1 "regard[s] an offender's mental abnormality," she "d[id] not find an expert [was] necessary." The examiner went on to discuss the 2017 report at length, devoting seven pages to the prior uncharged conduct that Doe reported had ceased "many years" before his governing offenses. The 2017 report was cited as the sole basis for her conclusion that factor 1 applied, and she cited it as well in concluding that three other risk-elevating factors applied, and in support of her general conclusions.
The other document was a lengthy letter that Doe had written to a former girlfriend who was the mother of one of the victims. As discussed below, Doe also initially sought expert funds to examine issues related to his age.
A Superior Court judge found that the hearing examiner erred in denying Doe expert funds as to whether he suffered a mental abnormality. In relevant part, the judge reasoned as follows:
"[I]t was error to rely on a diagnosis of paraphilia but decline to award the petitioner funds for petitioner to retain his own expert to evaluate that diagnosis. Expert opinion is required to support application of Factor 1. Doe, No. 89230 v. Sex Offender Registry Board, 452 Mass. 764, 772-73 (2008). While there was, arguably, expert opinion supporting the [e]xaminer's finding that Doe suffers from paraphilia . . ., 'the validity and significance of a particular expert opinion are often subject to debate . . . [and] the accuracy of the
classification decision may well be enhanced by the addition .. . . of additional expert evidence[.]' Id., 452 Mass. At 773.
. . .
"Doe's Motion for Funds focused on an issue particular to him: his alleged diagnosis of paraphilia. As this diagnosis is not a matter of common knowledge and it clearly had a bearing on his classification, he had the right to expert opinion to evaluate it."
Nevertheless, the judge upheld the level three determination, finding that "substantial evidence support[ed] the [level three] classification separate and apart from the paraphilia diagnosis." This appeal followed.
Discussion.
As the Superior Court judge acknowledged, the Supreme Judicial Court has stated that factor 1 is one of three factors in SORB's regulations for which "expert evidence presented on behalf of the sex offender may be most relevant and material." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) (Doe 89230). See also Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender Registry Bd., 98 Mass.App.Ct. 307, 311-314 (2020) (Doe 58574) (error to deny funds to assess physical condition under factor 31 as this factor was one of three factors expressly considered in Doe 89230). SORB concedes that "[t]he Superior Court correctly determined that the [h]earing [e]xaminer abused her discretion by denying [Doe's] motion for expert funds and then applying [f]actor 1 [mental abnormality] in the classification analysis." At least under the particular facts presented here, we see no reason to disturb SORB's concession. See Doe 58574, supra at 313.
Doe initially sought expert funds in part to assess the impact of his advanced age on his risk of recidivism. Because SORB created factor 30 to directly account for this impact, an expert generally is not required to assess this issue, at least where the hearing examiner is giving a petitioner mitigating credit for his advanced age. See, e.g., Doe 58574, 98 Mass.App.Ct. at 311 n.7. Based on various considerations present here, the hearing examiner gave factor 30 only "minimal weight." In his appellate brief, Doe does not argue that the hearing examiner erred by not allowing funding for an expert to look at any age- related issues specific to him, and we therefore need not reach that issue. In the event that the hearing examiner were to grant Doe an entirely new hearing, as discussed in note 7, infra, nothing in this memorandum and order is intended to prevent Doe from re-requesting funding for an expert on the age-related issues.
What remains is to determine the effect of the hearing examiner's error. In its brief, SORB argued that her improper denial of funds was harmless because -- even omitting Doe's "mental abnormalities" -- substantial evidence supported the level three classification. However, as we have since clarified in an opinion published after SORB's brief was filed, "the proper standard of review when an offender successfully challenges the application of a regulatory factor is to ask whether the error may have affected the classification and, if so, to remand to SORB." Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass.App.Ct. 797, 804 (2 022) (Doe 22188 II) .
"In this regard we start by asking whether the underlying facts of the case . . . clearly dictate the appropriate classification level" (quotation and citation omitted). Doe 22188 II, 101 Mass.App.Ct. at 804. While the seriousness and nature of Doe's sex offenses certainly cut in favor of a higher classification level, there are considerations here on which a hearing examiner could conclude that a classification lower than level three was warranted. These include, for example, Doe's low (and decreasing) risk assessment scores and the highly restrictive probation conditions that were imposed on him. This being the case, we cannot reasonably conclude on this record that the facts "clearly dictate" the highest classification level. Moreover, given the extent to which the hearing examiner relied on the 2017 report, especially with respect to her invocation of factor 1, we conclude that her denial of funding through which Doe could have an expert address whether he suffered from a mental abnormality "may have affected the ultimate classification." See Doe 22188 II, supra at 805.
We therefore do not reach the other issues that Doe has raised.
Conclusion.
We vacate the judgment affirming SORB's decision classifying Doe as a level three sex offender. A new judgment shall enter vacating SORB's decision and remanding the matter to SORB for further proceedings consistent with this memorandum and order.
At the hearing before us, SORB's counsel pointed out that Doe is now entitled to a reclassification hearing, and he suggested that it may make more sense for the hearing examiner to hold an entirely new hearing rather than to supplement the existing administrative record. We leave this decision to the hearing examiner on remand, at least in the first instance.
So ordered.
The panelists are listed in order of seniority.