Opinion
No. 10–P–2240.
2012-11-8
John DOE, Sex Offender Registry Board No. 28 v. SEX OFFENDER REGISTRY BOARD.
By the Court (RAPOZA, C.J. GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, a convicted sex offender, appeals from a Superior Court judgment affirming a decision by the Sex Offender Registry Board (board) requiring him to register as a level three sex offender. The plaintiff argues that (1) the hearing examiner's decision to classify him as a level three sex offender was not supported by substantial evidence; (2) the hearing examiner erred in finding that the plaintiff's behavior was “compulsive”; and (3) he is entitled to the benefit of Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764 (2008)( Doe, No. 89230 ), which interpreted G.L. c. 6, § 178L, to allow expert witness funds for plaintiffs whether or not the board intends to rely on expert evidence. We affirm.
Substantial evidence. The plaintiff contends that the hearing examiner's decision to classify him as a level three sex offender was not supported by substantial evidence. He also asserts that the hearing officer did not give sufficient attention to mitigating factors involving his efforts toward rehabilitation. These arguments are unavailing. The board's classification “may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006) ( Doe, No. 10216 ). “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). Our review of the board's decision must also accord due weight to that agency's “experience, technical competence and specialized knowledge.” Ibid., quoting from G.L. c. 30A, § 14(7).
Here, the hearing examiner's decision carefully evaluated the relevant regulatory factors. Based on the multiple incidents of sexual assault, she found that the petitioner demonstrated repetitive and compulsive behavior, a high risk factor. In addition, the examiner cited nine additional regulatory factors and subfactors that supported the classification. Her decision was well supported by substantial evidence.
The plaintiff's assertion that mitigating factors were not given sufficient consideration is similarly without foundation. Although the statute and regulations require that mitigating factors be considered, they do not prescribe what weight to give them. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632–633 (2011). Here, the hearing examiner was mindful of the petitioner's attempts toward rehabilitation and considered the relevant regulatory factors. She also reviewed excerpts of evaluations provided by Joseph J. Plaud, Ph.D., and Eric L. Brown, Psy.D., two qualified examiners, both of whom had previously opined that the plaintiff no longer met sexual dangerousness criteria in 2006. The fact that the hearing examiner classified the plaintiff as a level three sex offender does not establish that she failed to give such mitigating factors sufficient consideration.
Compulsive behavior factor. The plaintiff asserts that the factor of “compulsive behavior” (factor two) requires expert testimony and that the regulation promulgated by the board to define the term is “ultra vires.” Moreover, he claims that the characterization of his prior offenses as compulsive was inappropriate. The plaintiff failed to raise these arguments either in the administrative hearing or in Superior Court. Consequently, we deem them waived and need not address them. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493–494 (1983). Even if we were to reach these claims, however, they are without merit.
Unlike in sexually dangerous person proceedings, expert testimony is not required in the classification process, and a hearing examiner has the discretion to assess the factors enumerated in 803 Code Mass. Regs. § 1.40 (2004) without the aid of expert opinion.
See Doe, No. 10216, supra at 786. Furthermore, contrary to the plaintiff's contention, the regulation defining compulsive behavior is not ultra vires because “the regulations promulgated by the board are a proper delegation of power by the Legislature and have the force of law.” Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 777 (2006). Finally, considering that the plaintiff sexually assaulted two different children on two separate occasions, the examiner was justified in finding that the plaintiff had “repetitive[ly] and compulsive[ly]” engaged in sexual misconduct as defined by § 1.40(2).
Expert testimony may be required, however, where the classification is based on certain factors that were not relied on by the examiner in this case, including “mental abnormality” (factor one), “physical condition” (factor thirteen), and “psychological or psychiatric profiles indicating risk to reoffend” (factor fifteen). See Doe, No. 89230, 452 Mass. at 773 n. 15.
The two offenses occurred five years apart. The regulation defines the statutory term “compulsive” to include situations where “the court ... had sanctioned the offender for sexual misconduct and the offender, nonetheless, committed a subsequent act of sexual misconduct.” 803 Code Mass. Regs. § 1.40(2).
Expert funds. The plaintiff's last claim is that his case should be remanded to allow him to apply for expert funds. In Doe, No. 89230, 452 Mass. at 774, the Supreme Judicial Court held under G.L. c. 6, § 178L(1) that the board “has discretion to grant funds to an indigent sex offender for an expert witness or report, whether or not the board itself intends to rely on this type of expert evidence.”
Here, the petitioner failed to file a motion before the board or raise the issue in Superior Court despite the fact that his case was pending at the time Doe, No. 89230 was decided. He took no action such as filing a motion to stay the proceedings pending remand to the board on the issue of expert funds or supplementing his motion for judgment on the pleadings in light of the holding in Doe, No. 89230. Due to the petitioner's inaction, we consider the argument waived. See Albert v. Municipal Ct. of Boston, supra.
Even if we were to consider the issue on appeal, “the burden [is] on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.” Doe, No. 89230, supra at 775. Having failed to do so here, the petitioner has not satisfied his burden.
The petitioner primarily argues that he requires such funds in order to have Plaud and Brown testify. He claims that their testimony would be beneficial because they could assess his risk of reoffending since their original 2006 evaluations. We conclude, however, that the reasons articulated by the petitioner are not sufficient under Doe, No. 89230, which states “[a] general motion for funds to retain an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient.” Id. at 775 (emphasis added). As articulated on appeal, the petitioner's request is general in nature and fails to identify the condition or circumstance that amounts to “something more” that would require an expert opinion.
We also note that the hearing examiner did not rely on “factors [one, thirteen, or fifteen] in the classification process [which require] professional or expert opinions.” Id. at 772 n. 15. This is significant because those factors, which involve mental abnormality, physical condition, and psychological or psychiatric profile, “concern issues for which expert evidence presented on behalf of the sex offender may be most relevant and material.” Id . at 775. Where the examiner did not cite those factors, the petitioner would have no reason to offer expert evidence relating to them.
We need not consider the petitioner's ineffective assistance of counsel argument, raised for the first time in his reply brief. “Issues raised for the first time in a reply brief are not properly before us.” Henderson v. Commissioners of Barnstable County, 49 Mass.App.Ct. 455, 459 (2000). See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Even were we to do so, on the record before us, we cannot say that trial counsel was ineffective.
Judgment affirmed.