Opinion
23-P-110
07-09-2024
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22770 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).
Neyman, Hershfang & Hodgens, JJ.
The panelists are listed in order of seniority.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, John Doe, appeals from a Superior Court judgment affirming a Sex Offender Registry Board (board) decision finally classifying him as a level three (high risk) offender. Discerning no error in the hearing examiner's finding that Doe poses a high risk of sexual reoffense and dangerousness, we affirm.
Background. We summarize the facts found by the hearing examiner, reserving some facts for discussion below. In August 1980, when Doe was twenty-one years old, he entered the home of a nineteen year old woman through an open window and raped her at knifepoint. Doe was subsequently convicted of aggravated rape, armed burglary, and assault with a dangerous weapon, and was sentenced to two concurrent terms of twenty years in prison followed by three years of probation.
In March 1994, Doe raped a fifty year old woman after breaking into her home in the middle of the night. He was later convicted of two counts of indecent assault and battery on a person fourteen or over, four counts of aggravated rape, and breaking and entering in the nighttime, and received concurrent prison sentences of from twenty-five to thirty years and from eighteen to twenty years, as well as five years of probation.
In August 2009, the board notified Doe of his duty to register as a level three offender. Doe challenged the recommendation, and in February 2019, the board conducted a de novo hearing before issuing a provisional decision ordering Doe to register as a level three offender.
Following a new hearing in June 2020, prompted by Doe's request to reopen and update the record prior to his release from prison, the board issued an updated decision again ordering Doe to register as a level three offender. Doe appealed, and the case was remanded after a Superior Court judge found that the hearing examiner had improperly applied two of the board's risk factors.
On August 13, 2021, the board issued an amended decision, again classifying Doe as a level three offender. A second Superior Court judge affirmed the amended decision and this appeal followed.
Discussion.
1. Standard of review.
"We review a judge's consideration of an agency decision de novo." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 89 (2019). In reviewing the board's decision, we must "give due weight to the experience, technical competence, and specialized knowledge of the [board], as well as to the discretionary authority conferred upon it." G. L. c. 30A, § 14 (7). See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006) (Doe No. 10216). We may only set aside the board's decision on a finding that the decision is unsupported by substantial evidence, arbitrary and capricious, an abuse of discretion, or not in accordance with the law. See Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490 Mass. 759, 762 (2022).
2. Sufficiency of the evidence.
To support Doe's level three classification, the board was required to prove, by clear and convincing evidence, that his "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" of Doe's registry information. G. L. c. 6, § 178K (2) (c). See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015). Doe contends that the board failed to meet this burden because the hearing examiner improperly applied the board's regulatory risk factors. See 803 Code Mass. Regs. § 1.33 (2016). Specifically, Doe avers that in classifying him as a level three offender, the hearing examiner assigned too much weight to factors related to his decades-old index offenses. Doe points to the fact that the hearing examiner declined to assign any weight to factor 12 (behavior while incarcerated or civilly committed) due to Doe's not having any serious disciplinary infractions during the last twenty years of his sentence and asserts that the examiner should have applied the same logic when assessing the predictive value of the characteristics of his prior offenses. This claim fails to persuade.
As an initial matter, we note that, absent a judicial declaration that they are unconstitutional, the hearing examiner was obligated to apply the board's regulatory risk factors as written. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630 (2011). Based on the circumstances of Doe's index offenses, the hearing examiner applied high-risk factor 2 (repetitive and compulsive behavior); and risk-elevating factors 7 (relationship between offender and victim), 8 (weapons, violence, or infliction of bodily injury), 18 (extravulnerable victim), 19 (level of physical contact), and 22 (number of victims). While each of these risk factors expressly states that the circumstances set forth therein increase an offender's risk of reoffense, dangerousness, or both, none direct the board to consider how much time has elapsed since the commission of the triggering offense. See 803 Code Mass. Regs. §§ 1.33(2), (7), (8), (18), (19), (22). Factor 12, in contrast, expressly allows the board to consider "the length of time that has elapsed between the offender's last [disciplinary] report and his release" in assessing risk based on an offender's behavior while incarcerated. See 803 Code Mass. Regs. § 1.33(12)(a). Accordingly, the hearing examiner's failure to consider the passage of time in applying the risk factors related to Doe's index offenses did not constitute error.
Doe also contends that the examiner applied factor 9 (alcohol and substance abuse) based on the circumstances of his index offenses. Although the hearing examiner noted that substance use was a factor in Doe's 1980 offense, she listed factor 9 separately from the factors that she applied based on the circumstances of Doe's index offenses, and her discussion of factor 9 primarily focused on drug and alcohol convictions that Doe incurred prior to being incarcerated, as well as on Doe's failure to attend substance use treatment programs while he was in prison. Based on Doe's past substance use issues, failure to attend substance use treatment programs, and the speculative nature of his sobriety on release, Doe's challenge to the examiner's decision to apply factor 9 with "full weight" is unavailing.
After reviewing the hearing examiner's decision, we are satisfied that her conclusion that Doe presents a high risk of reoffense and dangerousness was not grounded solely in the circumstances of Doe's index offenses. She applied risk-mitigating factor 30 (advanced age) with full weight based on Doe's current age and allowed further mitigation based on Doe's supervision by probation on his release. She nonetheless found that the mitigating effect of those factors was offset by the numerous factors that placed Doe at a greater risk of reoffense and dangerousness, several of which were unrelated to the circumstances of Doe's index offenses, including factors 9 (alcohol and substance abuse); 10 (contact with the criminal justice system); 11 (violence unrelated to sexual assaults); 13 (noncompliance with community supervision); and 24 (less than satisfactory participation in sex offender treatment). See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 764 (2006) (hearing examiner not required to find that "risk-reducing factors completely ameliorated . . . risk of reoffense and degree of dangerousness"). In total, the examiner's decision touches on eleven factors that increase Doe's risk of reoffense and dangerousness, including one that indicates Doe presents a high risk, i.e., factor 2 (repetitive and compulsive conduct). See Doe No. 10216, 447 Mass. at 788 (presence of "high-risk" factors lend support to examiner's decision to classify the plaintiff as level three offender).
We reject Doe's contention that the hearing examiner abused her discretion by applying factor 28 (supervision by probation) with only "very minimal mitigating weight" because Doe committed both of his index offenses while under probation supervision. We are also mindful that which factors to apply "and how much weight to ascribe to each factor," are matters within the hearing examiner's discretion, and, "a reviewing court is required to 'give due weight to [the examiner's] experience, technical competence, and specialized knowledge'" (citation omitted). Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014).
A fair reading of the decision also reveals that the hearing examiner did not, as Doe contends, engage in a "mechanical application" of the board's risk factors, but rather thoroughly analyzed the import of all the evidence presented to her, both aggravating and mitigating, and reached a decision that is supported by substantial evidence. See Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 813 (2006) ("As long as the [board's] interpretation of its regulations and statutory mandate is rational, and adhered to consistently, it should be respected, and given substantial deference" [quotation omitted]).
Judgment affirmed.