Opinion
11-P-447
03-27-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD No. 137668 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a Superior Court judgment which affirmed a decision of the defendant, Sex Offender Registry Board (board), classifying the plaintiff as a level three sex offender. Specifically, the plaintiff avers that the hearing examiner improperly considered unreliable hearsay, recorded during an investigation into charges that were voluntarily dismissed by the Commonwealth, and, in any event, the affirmance of a level three classification constitutes an abuse of discretion. We affirm.
In June, 2005, the plaintiff was indicted on four counts of forcible rape of a child, and one count of indecent assault and battery on a person under fourteen years of age. In April, 2006, the plaintiff pleaded guilty to indecent assault and battery, and was sentenced to a period of incarceration, which gave rise to the plaintiff's subsequent duty to register with the board. The remaining indictments were nolle prosequi, and not prosecuted by the Commonwealth. Prior to being released from custody, the board notified the plaintiff that he would be required to register as a level three (high risk) offender. In response to the plaintiff's request for a de novo hearing, the administrative hearing officer held an evidentiary hearing whereby she identified several, applicable statutory and regulatory risk factors which were not outweighed by mitigating factors, and factual findings, ultimately concluding that the board had met its burden of proving by a preponderance of the evidence that the plaintiff posed a high risk to reoffend. Accordingly, the hearing officer ordered him to register as a level three offender. The plaintiff then sought judicial review of the decision of the hearing officer pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. The Superior Court judge, on the plaintiff's motion for judgment on the pleadings, affirmed the classification decision.
'[The plaintiff] is a 60-year-old male who was incarcerated for approximately four years and will be potentially released . . . after being convicted for molesting an extrafamilial [the plaintiff, the victim's great uncle, is related to him only through marriage], extravulnerable nine-year-old boy on a least one occasion. His sexual abuse involved a high level of physical contact, he committed multiple sex acts during the assaults and he continues to minimize his offending behavior against the [v]ictim. I find the [p]etitioner's behavior as described by the [v]ictim in the official Palmer [p]olice department investigation to be predatory and dangerous. He will not be on any community supervision when he is released.
'The positive factors in this case are that [the plaintiff] adjusted well during his incarceration. He began sex offender therapy shortly after his sentence commenced and has many milestones yet to achieve . . . . More recent treatment reports demonstrate slow progress and the [p]etitioner is still engaged in the therapy.
'However, given [the plaintiff's] anticipated short time at liberty, early stages of treatment, and the highly intrusive sexual contact employed upon the young male child [v]ictim in this case, I find full public dissemination of the [p]etitioner's personal data is appropriate at this time.'
In the order affirming the board, the judge stated: 'I conclude that the [h]earing [o]fficer's decision is supported by substantial evidence, is neither arbitrary nor capricious, and is not based upon an error of law. In particular, I believe that the [h]earing [o]fficer could properly consider police reports containing statements of the victim pertaining to the charges (i.e. forcible rapes of a child) which were later nolle prossed. The victim's statements were consistent and detailed and were corroborated by the fact that the petitioner admitted to some sexual contact with the victim and indeed pleaded guilty to indecent assault and battery on that victim. See Doe, [Sex Offender Registry Board] No. 10304 [v. Sex Offender Registry Bd.], 70 Mass. App. Ct. 309, 312-313 (2007).'
Pursuant to its regulations, the board 'is not bound by the rules of evidence observed by courts but may receive and consider evidence of a kind 'on which reasonable people are accustomed to rely in the conduct of serious affairs." Doe, No. 10304, supra at 312, citing 803 Code Mass. Regs. § 119(1) (2002). 'When analyzing the validity of a decision by the [sex offender registry] board, a reviewing court must determine whether the decision is supported by substantial evidence.' Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011) (internal quotations and citations omitted). 'Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion." Ibid., quoting from G. L. c. 30A, § 1(6).
Here, the hearing officer did not err in relying on the police report, criminal history report, and docket entries and she properly considered the evidence when classifying the plaintiff, as such documents bore the requisite indicia of reliability. Doe, No. 10304, supra. Further, evidence of the defendant's past substance abuse was relevant, even if he was sober at the time of the offense. See 803 Code Mass. Regs. § 1.40(16) (2004). Both the hearing examiner and the judge, on judicial review, held the statements made by the victim, as memorialized in the police report, to be sufficiently detailed and corroborated. See Doe, No. 10800, supra at 638.
The evidence is sufficient to bring the hearing officer's ultimate decision within the bounds of reasonable administrative discretion. This broad range of discretion afforded to the hearing officer extends to the significance of the plaintiff's long history of substance abuse, and apparent inability to remedy that problem, admitted 'inappropriate' sexual contact with an extra-vulnerable same-sex, nonfamilial victim (apparently triggered by alcohol abuse), and lack of supervised community time or committed support network to that decision. See Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. 683, 689-691 (2011). The hearing examiner identified several factors that guided her decision that the defendant presented a sufficiently high risk of reoffense and danger to the public, and which were not shown to be outweighed by factors warranting a lesser risk assessment.
Doe no longer attends AA meetings because, he says, they are 'too short' to do him any good.
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Consequently, the judge did not abuse his discretion in affirming the hearing examiner's decision.
Judgment affirmed.
By the Court (Cohen, Brown & Fecteau, JJ.),