Doe v. Sex Offender Registry Bd.

100 Mass.App.Ct. 1104

173 N.E.3d 54 (Table)

John DOE, Sex Offender Registry Board No. 372711

v.SEX OFFENDER REGISTRY BOARD.

20-P-699

Appeals Court of Massachusetts.

Entered: August 9, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender and from the Superior Court's denial of his motion for relief from judgment. We vacate the judgment. A new judgment shall enter remanding the case to SORB.

Background. The hearing examiner found the following facts. On or about May 8, 2011, Doe met two teenage girls -- the first age fifteen and the second age sixteen. He instructed them in "the business of prostitution" and took photographs of each. Both girls thereafter engaged in prostitution with multiple customers and turned over the proceeds of these activities to Doe. On May 11, 2011, Doe committed statutory rape of the first victim and took photographs of her that constitute child pornography and sent them to his cell phone and to an email address. The second victim freed herself from Doe on May 12, 2011. The first victim prostituted for Doe until she escaped on May 19, 2011. Doe was arrested and pleaded guilty to four counts of rape and abuse of a child, G. L. c. 265, § 23 ; seven counts of accessory before the fact, to wit statutory rape, G. L. c. 274, § 2 ; and nine counts of deriving support from a minor prostitute, G. L. c. 272, § 4B.²

The hearing examiner applied several high-risk and risk-elevating factors, giving "moderate weight" to factor 2 (repetitive and compulsive behavior) and factor 3 (adult offender with child victim); applying factor 7 (extrafamilial victims) and factor 22 (number of victims); and giving "full weight" to factor 19 (level of physical contact involved in sexual assaults). The hearing examiner applied additional risk-elevating factors, giving "minimal weight" to factor 9 (alcohol and substance abuse); "moderate weight" to factor 10 (contact with the criminal justice system); and applying factor 11 (violence unrelated to sexual assaults), factor 12 (behavior while incarcerated), and factor 13 (noncompliance with community supervision). The hearing examiner "deemed either not controlling or inapplicable to the facts of this case" those factors not specifically enumerated. The hearing examiner found "there are no risk mitigating factors to consider in this case."

The hearing examiner classified Doe as a level three sex offender. Doe then filed a complaint in the Superior Court for judicial review of the hearing examiner's decision. The Superior Court judge entered an order denying Doe's motion for judgment on the pleadings and affirming his classification. Thereafter, Doe filed a motion for relief from judgment based on ineffective assistance of counsel. A Superior Court judge denied this motion. Doe appeals from both decisions.

Discussion. Doe argues that the Superior Court judge erred by denying his motion for judgment on the pleadings because the hearing examiner's decision was arbitrary and capricious and not supported by substantial evidence and the hearing examiner did not make specific findings about publication of Doe's registry information. He further argues that the judge erred by denying his motion for relief from judgment because Doe's counsel at the SORB hearing was constitutionally ineffective.

1. Repetitive and compulsive behavior (factor 2). This court has rebuffed a facial constitutional challenge to factor 2. See Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292 (2021). Since then, a judge of the Superior Court has declared the repetitive and compulsive factor, 803 Code Mass. Regs. § 1.33(2) (factor 2), to be invalid. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., Docket No. 20-1130-B (April 16, 2021) (Wilkins, J.). SORB has not appealed that decision and has acknowledged to this court in other cases that the Superior Court memorandum and order in that case is binding on it and represented that it no longer relies on factor 2.

Like other panels to have considered the issue, we treat that decision as binding on this case, such that Doe's classification should be reviewed without application of factor 2. See Doe, Sex Offender Registry Bd. No. 2453 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 1132 (2021). See also Doe, Sex Offender Registry Bd. No. 526277 v. Sex Offender Registry Bd., 20-P-466 (July 16, 2021); Doe, Sex Offender Registry Bd. No. 524065 v. Sex Offender Registry Bd., 20-P-480 (July 15, 2021).

2. 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). 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).

Doe argues that without applying factor 2, his level three classification is not supported by substantial evidence. SORB argues that even without the application of factor 2, the hearing examiner would have reached the same conclusion. Given the hearing examiner's reliance on factor 2 and its heft as a...