Opinion
No. 11–P–1038.
2012-12-4
John DOE, Sex Offender Registry Board No. 209892 v. SEX OFFENDER REGISTRY BOARD.
By the Court (KAFKER, COHEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a judgment of the Superior Court upholding his classification by the Sex Offender Registry Board (SORB) as a level 3 sex offender. He raises two issues: the denial of his motion for funds to retain an expert witness, and the sufficiency of the evidence to support his classification as a level 3 offender. We affirm.
1. Expert witness funds. After remand by the Superior Court judge in light of Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764 (2008), Doe filed a renewed and amended motion for expert witness funds for an evaluation of his developmental disabilities and how they impact his risk of reoffense or degree of dangerousness.
The hearing examiner again denied Doe's request for funds, explaining that at Doe's hearing she had considered exhibits concerning his social and cognitive functioning
It is not disputed that Doe is indigent.
and had not “draw[n] a nexus” between his deficiencies and his risk of reoffense. She further explained that even if an expert were to testify that Doe's intellectual functioning did not heighten his risk of dangerousness, she would make the same classification determination based upon other factors. She also noted that the affidavit of Doe's proposed expert described how some developmentally disordered individuals can lack control over their sexual behavior, and, thus, an evaluation would not necessarily be beneficial to Doe. It is evident from the hearing examiner's decision after remand that she gave thorough consideration to Doe's motion for expert funds and made a reasoned determination that expert evidence would not assist in the analysis of Doe's level of risk and danger. The denial of the motion was not an abuse of discretion. See id. at 775–777.
At the hearing, Doe had offered in evidence his 2004 aid in sentencing evaluation, which discussed his psychological profile at length, and a 2003 cognitive and educational evaluation.
2. Classification. In assessing Doe's challenge to his classification, “we give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting from G.L. c. 30A, § 14(7). The decision may be set aside only if it is unsupported by substantial evidence, is arbitrary or capricious, or is not in accordance with the law. G.L. c. 30A, § 14(7).
Doe asserts that the hearing examiner put inappropriate weight on two facts (Doe's denial that he committed the crime of rape of a child and his waiver of his parole hearing), while failing to take into account his high level of family support and expected stable living environment upon release. The record reveals, however, that the hearing examiner properly considered and applied both risk-elevating and risk-mitigating factors.
The evidence showed, and the hearing examiner properly could find, that three statutory “high risk” factors were applicable to Doe's case: repetitive and compulsive behavior, adult offender with child victim, and offender who declines parole, and that other risk-elevating factors also were implicated.
The hearing examiner also considered mitigating factors, including Doe's lack of other criminal history, his adjustment to incarceration, his anticipated six-year period of probation following release, and his expected return to his family's home. In the end, however, after weighing and considering all relevant considerations, the hearing examiner had ample grounds to conclude that a level 3 classification was appropriate, at least for the time being.
The hearing examiner noted the following characteristics of Doe's offense that present a heightened risk of reoffense and degree of dangerousness: extrafamilial child victim, indicating a greater potential pool of victims; male offender upon a male victim; extravulnerable victim, where the offender was in a position of trust as a caretaker; and Doe's denial of his crimes. She also noted that Doe had not yet accrued any offense-free time in the community because he was incarcerated at the time of the hearing, had declined early release by way of parole, and had refused to participate in sex offender treatment while incarcerated.
Her determination in this regard was supported by substantial evidence, was not arbitrary or capricious, and was in accordance with the law. Accordingly, Doe is not entitled to appellate relief.
The hearing examiner was not obliged to apply factor twelve, because that factor was inapplicable where Doe was incarcerated at the time of his hearing and not currently residing with his family. Nevertheless, she observed that “with sex offender treatment and established stability in the community,” Doe could be a candidate for reclassification in the future.
Judgment affirmed.