Opinion
11-P-714
04-30-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 57892 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
John Doe appeals from a Superior Court judgment upholding a decision by the Sex Offender Registry Board (board) requiring Doe to register as a level three sex offender. On appeal, Doe argues that the decision to classify him as a level three sex offender was an abuse of discretion and arbitrary and capricious. We affirm.
Background. On April 11, 2003, Doe entered guilty pleas in Worcester Superior Court for the crimes of rape of a child with force and indecent assault and battery on a child under fourteen. These crimes involved offenses against Doe's biological daughter. On June 20, 2005, Doe entered guilty pleas in Bristol Superior Court for the crimes of rape of a child with force and two counts of indecent assault and battery on a child under fourteen. The victims in this case were Doe's nieces.
On September 3, 2008, the board notified Doe of his obligation to register as a level three sex offender. Doe challenged this classification, and on May 28, 2009, a hearing examiner conducted a de novo hearing. On August 11, 2009, the hearing examiner issued a comprehensive decision concluding that Doe poses a high risk to reoffend and a high degree of danger to the public. The hearing officer therefore ordered Doe to register as a level three sex offender. Doe sought judicial review of the order and argued in the Superior Court that the hearing officer '. . . abused his discretion and acted arbitrarily and capriciously by giving little weight to the plaintiff's limited victim pool, successful progress in sex offender treatment, abstinence from drugs and strictly monitored [ten-]year probation supervision when released.' On October 12, 2010, a Superior Court judge denied Doe's motion for judgment on the pleadings and affirmed the board's classification decision. The judge reviewed the hearing officer's thorough, comprehensive decision and found that the decision was neither arbitrary nor capricious. The judge noted that the hearing officer considered the mitigating evidence presented by the plaintiff. Doe's appeal to this court raises the same issues as those raised in the Superior Court.
Discussion. We review the board's decision to determine whether it is '[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.' G. L. c. 30A, § 14(7). See G. L. c. 6, § 178M. 'In conducting our review, we 'give due weight to the experience, technical competence, and specialized knowledge' of the board.' Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010), quoting from G. L. c. 30A, § 14(7).
We have reviewed the hearing officer's decision and note that he recited the very compelling aggravating factors supporting his decision to classify Doe as a level three sex offender. The hearing officer noted that Doe had committed multiple offenses against three young children; that Doe's victims were family members; that Doe's offenses included infliction of bodily injury; that Doe has a long criminal history; and that Doe has a significant history of drug and alcohol abuse. See G. L. c. 6, §§ 178K(1)(a)(ii) and (iii); §§ 178K(1)(b)(ii) and (iii); § 178K(1)(g).
The hearing officer balanced the foregoing evidence against mitigating factors, including Doe's participation in, and successful completion of, sex offender treatment while incarcerated and his continuing obligation to participate in sex offender-specific treatment as a condition of parole, §§ 178K(1)(c) and (h), and specifically noted that Doe 'has taken responsibility for his crimes and developed victim empathy.' The hearing officer noted that all of Doe's 'victims were intrafamilial female victims,' which decreased the pool of potential victims, and that Doe 'will be subject to lifetime community parole and ten years probation upon his release.' Despite the presence of these mitigating factors, the hearing officer nevertheless found 'that Doe poses a high risk to reoffend and a high degree of danger to the public such that his identifying information should be disseminated to the public.'
While Doe takes issue with the degree to which the hearing officer considered the mitigating evidence, he alone was entitled to weigh the evidence and draw any reasonable inferences therefrom. 803 Code Mass. Regs. § 1.21(1)(g)(2002). It is clear from the hearing officer's decision that he carefully considered all of the evidence in concluding that Doe poses a high degree of dangerousness and risk of reoffending, and we can discern no abuse of discretion in that finding.
Judgment affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),