Opinion
19-P-1406
03-15-2021
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 24801 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (SORB) classification of Doe as a level two sex offender. We affirm.
Discussion. Doe challenges his classification, arguing that the hearing examiner abused her discretion by failing to consider scholarly articles Doe presented and in applying the required factors; that the decision was not supported by substantial evidence; and that the examiner abused her discretion by denying Doe's motion to grant funds for an expert. Doe also argues that the hearing examiner violated his due process rights by failing to make separate findings about whether Internet publication of Doe's information will effectively serve to protect the public safety.
1. Consideration of scholarly articles. Where an offender presents evidence relevant to the risk of recidivism, the hearing examiner must at least consider that evidence. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 622-623 (2010). Here, Doe, age seventy-one at the time of the hearing, presented six scholarly articles, two of which addressed the correlation between the risk of recidivism and age. The hearing examiner found that three of these articles "referenced sex offender screening tools," but that Doe had presented no evidence that he had ever been administered any of the screens. From the record before us, it appears that the hearing examiner reviewed these first three articles and considered their applicability to Doe's case before deciding not to give them any weight. The hearing examiner "consider[ed] and [gave] appropriate weight" to the remaining three articles. It is for the hearing examiner to weigh the evidence presented. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019) (Doe No. 22188 ), citing Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No. 68549 ). On the record before us, the hearing examiner exercised her discretion in conformity with applicable law. Contrast Doe No. 22188 , supra at 739, 744. The record therefore does not support Doe's contention that the hearing examiner abused her discretion by "reject[ing]" the articles he submitted.
Moreover, the articles, as Doe concedes, are cited in 803 Code Mass. Regs. § 1.33 (2016). Therefore, merely by applying the required regulatory factors, the hearing examiner incorporated the articles into her decision.
2. Application of the required factors. Doe contends that the hearing examiner's decision should be overturned, as it was an abuse of discretion and was not supported by substantial evidence pursuant to G. L. c. 30A, § 14 (7).
a. Abuse of discretion. "[A] hearing examiner has discretion . . . to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor." Doe No. 68549 , 470 Mass. at 109-110. "[A] reviewing court is required to give due weight to [the examiner's] experience, technical competence, and specialized knowledge" (quotation and citation omitted). Id. at 110. An abuse of discretion occurs where the hearing examiner makes "a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Here, the hearing examiner weighed the applicable regulatory factors, including six high-risk and risk-elevating factors, some of which she accorded greater weight, and two risk-mitigating factors, one of which she gave "full weight" and one of which she simply considered.
Doe contends that the hearing examiner committed an abuse of discretion by not reducing his risk further based on his age. However, Doe admits that, regardless of her consideration of the scholarly articles, the hearing examiner applied full mitigating weight to the age factor. Doe's argument is essentially that it was an abuse of discretion for the hearing examiner to follow the regulations. The hearing examiner explicitly found that, "while remaining mindful of [Doe's] age of 71 . . . he has been incarcerated for over two decades with his ability to volitionally control any emergent deviant sexual urges while in the community setting remaining untested," thus balancing Doe's age, factor 30, against his offense-free time in the community (see factor 29). The applicable regulations specify that advanced age should not be applied uniformly, 830 Code Mass. Regs. § 1.33(30)(a) (2016), and it is clear from her decision that the hearing examiner considered Doe's individual circumstances. On this record, we conclude that it was not arbitrary and capricious for the examiner to do no more than give full weight to this factor. See Doe No. 68549 , 470 Mass. at 109-110.
Doe also argues that the hearing examiner abused her discretion by considering factor 2. However, as we stated in Doe, Sex Offender Registry Bd. No. 356315 vs. Sex Offender Registry Bd., Mass. App. Ct., No. 19P1306, slip op. at 9-10 (March 12, 2021), factor 2 is a properly promulgated regulation and does not exceed SORB's statutory authority. The hearing examiner here was thus entitled to apply factor 2, and her finding that Doe committed multiple sexual assaults on the same person over the span of five years means her consideration of this factor was not an abuse of discretion.
It is apparent from the hearing examiner's careful weighing of the factors, that "the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex." Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). Doe points to no clear error of judgment in weighing the factors and, on the record before us, the outcome is within the range of reasonable alternatives. See L.L., 470 Mass. at 185 n.27. We therefore discern no abuse of discretion.
b. Substantial evidence. "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6). The substantial evidence standard requires that the offender's classification be established by clear and convincing evidence. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015). Review "does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion [as an agency] . . . but only 'whether a contrary conclusion is not merely a possible but a necessary inference.'" Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015), quoting Doe No. 68549 , 470 Mass. at 110. The weight given to the regulatory factors is within the hearing examiner's discretion and we do not substitute our judgment on the weight of the evidence for that of an agency. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 775 (2006). Finding that Doe had raped the prepubescent daughter of the woman with whom he lived, the hearing examiner applied the high-risk factor 3 (adult offender with child victim) with "greater weight." The hearing examiner applied risk-elevating factors 7, extra-familial victim; 10, contact with the criminal justice system; and 19, level of physical contact. See 803 Code Mass. Regs. § 1.33. In reaching her decision, the hearing examiner also applied risk-mitigating factors 30, advanced age, which received full weight, and factor 33, home situation and support systems. See 803 Code Mass. Regs. § 1.33. We therefore conclude that the hearing examiner's decision was supported by substantial evidence.
3. Denial of Doe's motion for expert funds. Doe sought funds to hire an expert to address the effect of his age on his risk of recidivism. Prior to hearing, the hearing examiner denied Doe's motion, ruling that factor 30 adequately addressed the decline in recidivism rates as an offender ages. In her written decision, the hearing examiner gave Doe's age full mitigating weight, as discussed above.
A hearing examiner has the authority -- that is, the discretion -- to provide funds for an indigent offender to retain an expert. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 774 (2008). That said, "[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. In an attempt to show particularized need, Doe argues that factor 30 does not properly consider further decreases in the risk of recidivism after age seventy. We are not persuaded that this constitutes "a condition or circumstance special to him" sufficient to require an expert. Id. Doe points to no unique individual characteristics, such as his health or opportunity to interact with potential victims, which might render an expert opinion useful. Doe points only to his advanced age, which is already contemplated in the regulations.
Furthermore, Doe suffered no prejudice from the denial of his motion. In fact, as discussed above, the hearing examiner considered articles Doe introduced addressing this very argument and gave this factor full mitigating weight. On the record before us, we therefore conclude that the hearing examiner did not abuse her discretion in denying Doe's motion for funds for an expert.
4. Publication of Doe's information. Doe contends that remand is necessary for the hearing examiner to make explicit findings regarding public access to his registry information. See 803 Code Mass. Regs. § 1.20(2) (2016). Doe's hearing was conducted prior to the requirement that hearing examiners make explicit findings on "whether and to what degree public access to the offender's personal and sex offender information . . . is in the interest of public safety." 803 Code Mass. Regs. § 1.20(2)(c) (2016). See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019) (Doe No. 496501 ). Here, the hearing examiner found "that a public safety interest is served by public access to [Doe's] personal information." While the hearing examiner made no explicit subsidiary findings about how publication of Doe's information serves a public safety interest, we have the discretion whether to remand for such findings. Id. at 657-658.
Given that Doe committed a contact offense on an extra-familial, prepubescent victim, we are satisfied that "the underlying facts of the case . . . so clearly dictate the appropriate classification level that . . . a remand for explicit findings is not necessary." Doe No. 496501 , 482 Mass. at 657 n.4.
"Accordingly, public availability of Doe's name, photograph, address, and offenses would enable members of the public to take precautions to avoid encountering Doe in situations in which the members of the public are vulnerable. It would also enable residents, including those with minor children, to determine whether Doe lives in their neighborhood, which might have an impact on their decisions regarding the supervision of their children."Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 145-146 (2019). See Doe No. 496501 , supra at 655 ("Where a sexually violent offender presents a moderate risk to reoffend and a moderate degree of dangerousness, Internet publication will almost invariably serve a public safety interest").
Judgment affirmed.
By the Court (Milkey, Blake & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 15, 2021.