John Doe, Sex Offender Registry Board No. 345593 v. Sex Offender Registry Board. ( 2023 )

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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-802
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 345593
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his final classification by the Sex Offender
Registry Board (board) as a level two sex offender. He argues
that the hearing examiner erred by applying factor 2 (repetitive
and compulsive behavior), the classification decision was
arbitrary and capricious and not supported by substantial
evidence, and given his age and physical condition no public
safety interest was served by public access to his sex offender
registry information. Doe also claims that the hearing examiner
abused her discretion in denying his motion to continue the
classification hearing to a date closer to his anticipated
release date which, in turn, led to a premature final
classification in violation of his right to procedural due
process. We vacate the judgment.
Background. We summarize the facts found by the hearing
examiner, supplemented where necessary with undisputed facts
from the record. On August 23, 2011, a jury convicted Doe of
four counts of rape and abuse of a child under G. L. c. 265
§ 23, and two counts of indecent assault and battery on a child
under G. L. c. 265 § 13B. Doe was sentenced to serve two terms
of ten to fifteen years in prison, to run concurrently, followed
by two ten-year terms of probation, to run concurrently. The
offenses occurred over a five-year period between February 2004
and April 2009. Doe was between forty-three and forty-eight
years old at the time, and the victim was between five and ten
years old. Doe was friendly with the victim's mother and often
babysat the victim and regularly visited the family. The sexual
misconduct included fondling of the girl's breasts and vagina
and performing oral sex on her. When the victim disclosed the
abuse, Doe admitted to some of the incidents, but maintained
that the victim either acquiesced or asked him to engage in
sexual conduct with her.
In January 2018, the board notified Doe that it was
recommending a level three classification. Doe challenged that
recommendation and requested a de novo hearing, pursuant to
G. L. c. 6, § 178L, which was held on March 13, 2019. At or
before the hearing, Doe requested a continuance to a date closer
to his release date, which was scheduled to occur in 2023.
2
Alternatively, he requested that the classification decision be
made provisionally. The hearing examiner denied that request on
the ground that Doe was scheduled to appear before the parole
board in August 2019 and, if granted parole, Doe would have been
released at that time. 1
A final decision was issued on May 31, 2019. The hearing
examiner concluded that Doe presented a moderate risk of
reoffending and a moderate degree of dangerousness and ordered
him to register as a level two sex offender. She further
concluded that the degree of dangerousness posed to the public
was such that public access to Doe's sex offender registry
information was warranted.
In reaching her conclusion, the hearing examiner found six
risk elevating factors applicable, see 803 Code Mass. Regs.
§ 1.33 (2016), including factor 2, repetitive and compulsive
behavior; factor 3, adult offender with child victim, to which
she accorded greater weight; factor 7, extrafamilial victim;
factor 12, behavior while incarcerated, which was accorded
minimal weight on the ground that the disciplinary reports Doe
received were limited in number (seven) and severity; factor 18,
extra vulnerable victim; and factor 19, level of physical
1 At oral argument counsel informed the panel that Doe was denied
parole in 2019, 2020, and 2021. Doe was released in September
2022.
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contact. The hearing examiner also considered the following six
risk mitigating factors, all of which she found applied: factor
28, supervision by probation; factor 30, advanced age, Doe was
fifty-eight at the time of the hearing; factor 31, physical
condition, Doe's medical records from the Massachusetts
Treatment Center (treatment center) indicated that he was
diagnosed with hypertension, skin allergies, stomach problems,
knee and back problems, and issues with his prostate (however,
given the absence of documentation by a physician that addressed
Doe's prognosis or limitations, the hearing examiner gave this
factor minimal weight); factor 32, sex offender treatment, to
which the hearing examiner accorded minimal weight on the ground
that Doe's participation in treatment tapered off after he was
transferred to the treatment center in April 2017 and by the
fall of 2018, his participation vacillated between acceptable,
fair, and unacceptable; factor 33, home situation and support
systems, Doe was not married and had no children and while he
has three siblings, he is close to only one sister who wrote to
the board stating that she and her husband would support Doe
upon his release; and factor 34, stability in the community,
which was given minimal weight because Doe provided no evidence
that he would have residential or employment stability upon his
release. The hearing examiner also considered factor 35,
psychological or psychiatric profiles, noting that evaluations
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of Doe from October 2017 indicated he was at an "average" and
"moderate" risk to reoffend, and by August 2018, those scores
had not changed.
Doe then sought judicial review of the board's decision in
the Superior Court and filed a motion for judgment on the
pleadings. The judge denied Doe's motion and, as we previously
noted, affirmed the board's decision.
Discussion. "We review a judge's consideration of an
agency decision de novo." Doe, Sex Offender Registry Bd. No.
523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89
(2019). Our review of the board's decision is limited, and we
will not disturb the board's classification unless "we determine
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. 10800
v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). In
reviewing the board's decision, we "give due weight to [its]
experience, technical competence, and specialized knowledge."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 649 (2019), quoting Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 602 (2013).
1. Application of factor 2. Doe argues, correctly, that
the hearing examiner misapplied factor 2 because he did not
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reoffend after being confronted, discovered, charged, or
convicted of a sexual offense. See Doe, Sex Offender Registry
Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct.
797, 799 (2022) (Doe No. 22188). The board concedes that factor
2 does not apply in the circumstances presented. When an
offender successfully challenges the application of a regulatory
factor, we must determine whether "the underlying facts of the
case . . . clearly dictate the appropriate classification level"
(citation omitted). Id. at 804. If they do not, we then "ask
whether the error may have affected the classification and, if
so, [we] remand to [the board]." Id.
We conclude that, despite the error, the underlying facts
of the case "clearly dictate" that a level two classification is
appropriate (citation omitted). Doe No. 22188, 101 Mass. App.
Ct. at 804. Doe sexually assaulted and raped a young girl who
was not a member of his family "more times than [the victim]
could count" over a five-year period. In addition, Doe was not
fully participating in sex offender treatment at the time of the
hearing, and there was no evidence that Doe would have
residential or employment stability upon his release. Given
these facts, among others, that support the risk elevating
factors applied by the hearing examiner, we are confident that
without considering factor 2, Doe was appropriately classified
as a level two sex offender.
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2. Substantial evidence. Next, Doe argues that the
decision to classify him as a level two offender is not
supported by substantial evidence and was arbitrary and
capricious. He claims that the hearing examiner employed a
mechanical, "checklist" approach, rather than conducting a
thorough analysis of the applicable regulatory factors. To the
contrary, our review of the record and the detailed
classification decision leads us to conclude that the hearing
examiner engaged in the required qualitative and objective
review that balanced all the relevant risk and mitigating
factors. As noted above, the evidence fully supported the
application of the risk factors on which the hearing examiner
relied. The age of the victim, the relationship between Doe,
the victim, and her family, Doe's level of contact with the
victim, Doe's conduct while incarcerated, and his minimal
participation in sex offender treatment were established by
clear and convincing evidence. The hearing examiner further
noted that Doe underwent a comprehensive evaluation on October
4, 2017, and was deemed to be "a moderate risk" to reoffend and
that "his risk to reoffend sexually has never been deemed 'low'
at any time during his participation in sex offender treatment."
Additionally, the hearing examiner properly gave minimal weight
to the mitigating factor of Doe's physical condition in the
absence of relevant documentation of his alleged limitations.
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Further, Doe also had failed to secure housing or employment at
the time of the final classification hearing. Consequently, the
classification decision was not arbitrary and capricious and was
supported by substantial evidence.
3. Public access to Doe's registration information. Doe
also argues that his sex offender registration information
should not be made public because the hearing examiner failed to
make a specific finding that he posed a danger to the public
and, further that public access of his information is not
warranted in light of his age (then fifty-eight) and current
physical condition.
The board's decision was issued about two months prior to
the Supreme Judicial Court's decision in Doe, Sex Offender
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643 (2019) (Doe No. 496501). In that case, the Supreme Judicial
Court held, in relevant part, that a hearing examiner must
explicitly determine by clear and convincing evidence that a
public safety interest is served by Internet publication of the
sex offender's registration. Id. at 656. However, the court
has since noted that where "'the underlying facts of the case
. . . so clearly dictate the appropriate classification level,'
[the court] [does] not exercise [its] discretion to remand . . .
on this element." Doe, Sex Offender Registry Bd. No. 23656, 483
Mass. 131, 145 (2019) (Doe No. 23656), quoting Doe No. 496501,
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supra at 657 n.4. Here, as in Doe No. 23656, although the
hearing examiner did not make separate and explicit findings
that the public availability of Doe's personal information would
serve the public interest, we conclude that the facts of the
case so clearly support a level two classification that it is
not necessary to remand for further findings. See Doe No.
23656, supra at 145-146.
As previously discussed, the hearing examiner found that
Doe committed multiple sexual offenses against a prepubescent
girl, who was not a member of his family. These facts placed
Doe in a high category for risk and danger because they are
indicative of having a deviant sexual interest. Accordingly,
the record supports the conclusion that publication of Doe's
personal information would serve the interest of public safety.
4. Due process violation. Doe also claims that the denial
of his motion to continue the de novo hearing was an abuse of
discretion and because he was not released until three and one-
half years later, the level two classification was based on
stale information in violation of the board's regulations and
his right to procedural due process. As noted, Doe's de novo
hearing was held on March 13, 2019, the final classification
decision was issued on May 31, 2019, a parole hearing was
scheduled for August 2019, and Doe was released from the
treatment center on September 16, 2022.
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We turn first to the question whether the denial of Doe's
motion to continue was an abuse of discretion. It was not.
While there is no question, as Doe asserts, that a final
classification hearing must "be held at a reasonable time prior
to release from incarceration," Doe, Sex Offender Registry Bd.
No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 75,
(2012) (Doe No. 6904), there is no dispute Doe could have been
released as early as August 2019. Thus, Doe's de novo hearing
preceded his potential release date by only five months.
Compare, for example, Doe No. 6904, where we held that holding a
classification hearing eight months before the sex offender's
appearance before the parole board was an abuse of discretion.
Id. at 77.
Notwithstanding our conclusion that the hearing examiner
acted within her discretion in denying Doe's motion, the fact
remains that Doe was not released until three and one-half years
later. In Doe, Sex Offender Registry Bd. No. 7083 v. Sex
Offender Registry Bd., 472 Mass. 475, 478 (2015) (Doe No. 7083),
the Supreme Judicial Court concluded that holding a
classification hearing ten months before the plaintiff's
earliest parole eligibility date and eighteen months before
their earliest possible release date from the treatment center
violated the plaintiff's right to procedural due process because
of the risk that the classification decision was based on
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"stale" information. In reliance on Doe No. 7083, Doe contends
that the classification decision must be vacated, and the matter
remanded to the board for a new hearing. We acknowledge, as Doe
asserts, that a final classification must be based on an
evaluation of the offender's risk of reoffense at a time
reasonably close to the actual date of release. See Doe No.
6904, 82 Mass. App. Ct. at 75. This did not happen here and,
consequently, Doe's due process rights were not protected.
The board concedes that Doe's procedural due process rights
were violated but argues that the classification decision should
not be vacated because Doe is currently eligible to petition the
board for reclassification. 2 Although in such a proceeding, Doe
would bear the burden of producing evidence that circumstances
had changed, "the bar for showing changed circumstances is 'very
low' and . . . the mere passage of time generally qualifies."
Doe, Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry
Bd., 99 Mass. App. Ct. 533, 541 n.7 (2021). "Once Doe has met
his burden, the board would bear the burden of persuasion --
based on 'clear and convincing evidence' –- 'that the
classification is current and correct'" (citation omitted).
2 In 2016, one year after the court's decision in Doe No. 7083,
was issued, the board promulgated 803 Code Mass. Regs. § 1.31
(2016), which gives offenders who have been finally classified
as a level two or three sex offender the right to petition the
board for reclassification three years after the initial
classification as long as certain conditions are met.
11
Doe, Sex Offender Registry Bd. No. 22164 v. Sex Offender
Registry Bd., 103 Mass. App. Ct. 431, 433 (2023). Thus, as the
board observes, Doe has a remedy nearly equal to the one he
seeks through this appeal. The problem is that Doe does not
want this remedy. In response to the panel's questions at oral
argument, counsel made clear that "[vacating] is our preferable
course." We are not in a position to force Doe to choose one
remedy over the other. Accordingly, the judgment is vacated,
and a new judgment shall enter vacating the decision of the
board and remanding the matter to the board for further
proceedings consistent with this memorandum and order.
So ordered.
By the Court (Vuono, Singh &
Englander, JJ. 3),
Clerk
Entered: December 20, 2023.
3 The panelists are listed in order of seniority.
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