Opinion
10-P-2259
12-20-2011
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 201034 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 petitioner appeals a judgment of the Superior Court affirming a final classification decision by the Sex Offender Registry Board (board) that requires him to register as a level three (high risk) sex offender.
On appeal, the petitioner contends that the hearing examiner misapplied the board's statutory and regulatory guidelines for assessing risk and dangerousness. Specifically, he claims that the examiner erred by drawing a negative inference from the petitioner's failure to participate in sex offender treatment where such treatment was neither available nor required during his incarceration. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 625 (2010). For substantially the reasons set forth in the board's brief at pages thirteen through twenty-four, we affirm.
The hearing examiner determined, correctly, that there was no evidence presented suggesting that the petitioner participated in sex offender specific treatment while incarcerated. However, rather than use this fact as an aggravating risk factor, he noted, properly, that he could not draw a favorable inference and use it as a factor mitigating the petitioner's risk of reoffending. There was no error.
In addition, there was substantial evidence in the record supporting the hearing examiner's conclusion that the petitioner was highly likely to reoffend and posed a substantial danger to vulnerable victims without the benefit of community informational access. The petitioner had a lengthy and violent criminal history, and was convicted, among other things, of rape and abuse of a child. A sex offense involving a child, in and of itself, indicates a high risk. See 803 Code Mass. Regs. § 1.40(9)(c)(12) (2002).
Judgment affirmed.
By the Court (Rapoza, C.J., Mills, & Graham, JJ.),