Opinion
21-P-529
08-22-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526379 v. SEX OFFENDER REGISTRY BOARD.
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 2 3.0
John Doe appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (SORB) decision to classify him as a level three offender in accordance with G. L. c. 6, § 178K (2) (c0 . He argues, among other things, that the level three classification is unsupported by substantial evidence and was an abuse of discretion in light of SORB's initial level two recommendation. We affirm.
Background.
We summarize the facts as set forth in the hearing examiner's decision, reserving some facts for our discussion of the issues. See Doe, Sex Offender Registry Bd. No. 108 00 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) .
1. Governing offense and prior sexual misconduct.
In November 2017, Doe initiated a Facebook conversation with an undercover police officer who was posing as a fifteen year old girl (Victim 3). Despite learning that Victim 3 was underage, Doe continued to send sexually explicit messages: describing his penis, detailing sexual acts he wished to do to the minor, and requesting photos of her vagina. Doe told Victim 3 he was thirty-four years old and expressed concern about going to jail, but nevertheless traveled to meet the minor for sex. Following his arrest, Doe pled guilty to enticing a child under the age of sixteen for sexual intercourse, in violation of G. L. c. 265, § 26C. He was sentenced to one year of incarceration and required to register with SORB. See G. L. c. 6, § 178C (defining "sex offender registry").
At the time of his conviction, Doe had two prior incidents of sexual misconduct, both from June 2016. In the first incident, Doe sexually assaulted a female resident (Victim 1) while living at a homeless shelter. He approached Victim 1 while making sexually explicit remarks and exposed his penis to her. He then followed her to her room, forced himself on her, and grabbed her breasts, buttocks, and vagina. Doe was charged with several offenses related to this incident, but the case was nolle prossed after the Commonwealth lost contact with the victim. Two days after that incident, Doe assaulted a pregnant woman at the same homeless shelter (Victim 2) . He grabbed her buttocks and told her he wanted her to "taste his dick," before accosting her again some hours later.
Doe was charged with indecent assault and battery on a person over fourteen (G. L. c. 265, § 13H), open and gross lewdness and lascivious behavior (G. L. c. 272, § 16), and accosting and annoying another (G. L. c. 272, § 53).
Victim 2 obtained a harassment prevention order as a result of this second incident.
2. Preliminary recommendation and hearing examiner's decision.
Pursuant to G. L. c. 6, § 178L (1) (a.), SORB made a preliminary "recommendation" that Doe register as a level two sex offender. Doe requested a hearing to challenge the recommendation and counsel was appointed. He was also notified in writing that:
"[T]he classification hearing will determine whether the petitioner shall be required to register as a sex offender, and if so, to what classification level he shall be assigned. Th[e] classification levels . . . are assigned in consideration of clear and convincing evidence adduced at the hearing towards an assessment of the offender's relative risk to reoffend . . . and his degree of dangerousness to the public.
"The hearing will be a de novo proceeding. Neither the offender's recommended classification, nor the process by which it was derived, will be considered at the hearing. The classification level determined by the Hearing Examiner will be the final agency decision."
At the hearing, the examiner further explained that he was "not bound by the [level two] recommendation" and would independently assess the evidence; he told the parties that he could "agree or disagree" with the recommendation and would not use the original preliminary classification worksheet to make his decision. Doe indicated he understood the procedure and did not have any questions.
After considering five exhibits and thirty-three enclosures, the hearing examiner classified Doe as a level three sex offender. In reaching his decision, the hearing examiner applied two high-risk factors and eight risk-elevating factors, and considered two risk-mitigating factors. Doe sought judicial review in the Superior Court, pursuant to G. L. c. 30A, § 14 and G. L. c. 6, § 178M, and, following cross motions for judgment on the pleadings, a Superior Court judge affirmed the level three classification.
No testimony was offered by either party.
Discussion.
1. Standard of review.
"Our review of the Superior Court judge's decision is de novo, but our review of the underlying agency decision is more limited." Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass.App.Ct. 219, 224 (2020) (Doe No. 390261 ) . "An agency decision should be set aside only if a 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." Id., quoting Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 88 (2019) (Doe No. 523391 ). See G. L. c. 30A, § 14 (7). In reviewing a final SORB classification, we give "due weight to the experience, technical competence, and specialized knowledge of the agency" (citation omitted). Doe No. 390261 , supra.
2. Level three sex offender classification.
After careful review of the hearing examiner's decision, we discern no abuse of discretion and conclude that the level three classification is supported by substantial evidence in the record.
A level three classification is appropriate where the hearing examiner determines by clear and convincing evidence that the risk of reoffense is high and the degree of danger to the public is high such that a substantial public safety interest is served by active dissemination of the offender's information. Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 30-32 (2021) (Doe No. 33940 ), citing G. L. c. 6, § 178K (2) (c0 . The hearing examiner is not bound by SORB's preliminary recommendation and must make an independent assessment of the evidence. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 772 (2006); 803 Code Mass. Regs. §§ 1.04(3), 1.06, 1.14(1) (2016). In assessing the offender's dangerousness and likelihood to reoffend, the hearing examiner is "guided by [several] statutory risk factors" and various "aggravating and mitigating considerations." Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 133-134 (2019). See G. L. c. 6, § 178K (1) (a) - U); 803 Code Mass. Regs. § 1.33 (2016). A hearing examiner abuses his discretion if he makes "a clear error of judgment in weighing the [relevant factors] . . . such that the decision falls outside the range of reasonable alternatives." Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass.App.Ct. 292, 299 (2021) (Doe No. 356315 ), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) .
"[S]ubsidiary facts need be proved only by a preponderance of the evidence." Doe No. 390261 , 98 Mass.App.Ct. at 224, quoting Doe No. 523391 , 95 Mass.App.Ct. at 86.
Whether particular factors are applicable, and how much weight to give them, are matters left to the hearing examiner's sound discretion. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014).
Here, the hearing examiner concluded by clear and convincing evidence that Doe posed "a high risk to reoffend and a high degree of danger[] such that a substantial public safety interest is served by active dissemination ... of his sex offender registry information." The hearing examiner applied high-risk factor 2 (repetitive and compulsive behavior) with "the most weight" because he found that Doe had "engaged in three separate episodes of sexual misconduct" and committed the governing offense "after having [already] been charged with a sex offense against Victim 1." He also applied high-risk factor 3 (adult offender with a child victim), because Doe's most recent offense involved attempting to have sex with a fifteen year old. In addition to these high-risk factors, the hearing examiner considered eight risk-elevating factors and two risk-mitigating factors.
Although Doe was communicating with an undercover officer, his conduct demonstrated that he was willing and motivated to have sex with a fifteen year old.
Factor 7 (extrafamilial victims); factor 10 (contact with the criminal justice system); factor 13 (noncompliance with community supervision); factor 15 (hostility toward women); factor 16 (public place); factor 20 (diverse sexual behavior); factor 21 (diverse victim type); and factor 22 (number of victims).
Factor 33 (home situation and support system) and factor 34 (stability in the community).
Doe does not challenge any of these subsidiary findings as erroneous, but rather takes issue with the conclusions that the hearing examiner drew from them. He claims the hearing examiner's analysis was "too general and conclusory to permit meaningful review" because the hearing examiner failed to ascribe any quantity of weight to nine of the applicable factors. Although the hearing examiner did not explicitly indicate the precise weight that he attributed to several of the factors, that omission does not prevent us from conducting a meaningful review. The hearing examiner did not merely list or mechanically apply the relevant factors but gave a detailed account of the evidence he considered and an explanation of how each factor informed his decision. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 639, 651 (2012). On the record before us, we are satisfied that the level three classification is within the range of reasonable alternatives. Doe No. 356315 , 99 Mass.App.Ct. at 299-300.
Doe argues that the hearing examiner failed to specifically state how much weight he attributed to factors 3, 7, 10, 13, 15, 16, 20, 21, and 22. We disagree that the hearing examiner did not denote the level of weight given to factor 7 (relationship between offender and victim). With respect to factor 7, the hearing examiner stated that he gave it "increased weight."
While we are satisfied, here, that the hearing examiner's application of the regulatory factors was sufficiently reasoned to permit effective review of the decision, it would aid judicial review if hearing examiners explicitly stated whether they are ascribing a threshold, moderate, high, or some other degree of weight to each applied factor.
Doe takes particular issue with the fact that the hearing examiner ordered a level three classification after SORB recommended a level two classification. He claims he "was not informed that challenging the [recommendation] could result in . . . a higher classification level" and argues that the hearing examiner acted vindictively to punish him for challenging the recommendation. The record, however, reveals no evidence of vindictiveness or retaliatory intent. The hearing examiner issued a thoughtfully reasoned decision after de novo review and made all the necessary findings based on substantial evidence in the record. Moreover, Doe was represented by counsel and received written and oral notice that the hearing examiner would make an independent assessment of his classification. While Doe was not explicitly told that the hearing examiner could order a higher classification level, the notice he received was adequate to apprise him of that possibility.
"In the absence of facts and circumstances peculiar to [North Carolina v. Pearce, 395 U.S. 711 (1969)]," the hearing examiner is under "no duty ... to establish on the record [an] absence of vindictiveness." Mann v. Commonwealth, 359 Mass. 661, 665 (1971). We decline to adopt a presumption of vindictiveness in this context. See J_d. at 663-665; Gavin v. Commonwealth, 367 Mass. 331, 336-339, 341-343 (1975); Commonwealth v. Tirrell, 382 Mass. 502, 506-509 (1981).
We note that SORB could avoid similar challenges in the future by informing offenders explicitly and in plain language that, at a hearing on a petitioner's challenge to a recommended classification, the hearing examiner can order a classification either higher or lower than the recommended level.
3. Expert funds.
Finally, Doe argues that the hearing examiner erred in denying his motion for expert funds. A hearing examiner may grant expert funds where an offender "identif[ies] a condition or circumstance special to the . . . offender and explain[s] how that condition is connected to his . . . risk of reoffense or level of dangerousness." 803 Code Mass. Regs. § 1.16(4)(a) (2016). The motion must "include supporting documentation or affidavits verifying the specific condition . . . that the offender suffers from" and must "identify the . . . type of [e]xpert [w]itness who would provide testimony." 803 Code Mass. Regs. § 1.16(4) (a).
The hearing examiner was within his discretion to deny Doe's motion for expert funds because the motion did not establish a connection between Doe's mental health conditions and his dangerousness or risk of reoffense. See Doe No. 339940 , 488 Mass. at 29-30. Doe provided only an affidavit from his attorney stating that Doe had been diagnosed with several mental health conditions, which was unaccompanied by any medical records or documentation. The affidavit did not specify when Doe had been diagnosed, how his mental health conditions affected his sexual behavior, or whether Doe had received any treatment for the conditions. Contrast Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender Registry Bd., 98 Mass.App.Ct. 307, 310-312 (2020) (offender provided records verifying diagnosis and treatment as well as scientific literature explaining effect of offender's specific condition on sexual behavior). The affidavit simply stated that Doe's conditions "[c]ertainly . . . are related to his risk of reoffense and degree of dangerousness." Such broad and conclusory statements are insufficient to establish the necessary connection between the offender's condition and his dangerousness or risk of reoffense. See Doe No. 339940 , 488 Mass. at 28. Accordingly, we discern no abuse of discretion in the denial of Doe's motion for funds. See id.
Anxiety, depression, bipolar disorder, attention deficit hyperactivity disorder, and posttraumatic stress disorder.
While Doe's motion did reference some scientific studies, those studies involved conditions with which Doe has not been diagnosed.
Judgment affirmed.
(Green, C.J., Walsh & D'Angelo, JJ. )
The panelists are listed in order of seniority.