Doe v. Sex Offender Registry Bd.

472 Mass. 492

35 N.E.3d 710

John DOE, Sex Offender Registry Board No. 3839

v.SEX OFFENDER REGISTRY BOARD.

SJC–11604.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Sept. 3, 2014.

Decided Aug. 21, 2015.

Matthew J. Koes for the plaintiff.

William H. Burke for the defendant.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, & LENK, JJ.

Opinion

DUFFLY, J.

In 1990 and 1991, the plaintiff, John Doe, Sex Offender Registry Board No. 3839(Doe), was adjudicated a delinquent juvenile by reason of sex offenses he committed in 1989 and 1990, when he was fourteen and fifteen years old. Following his adjudications, Doe was committed to the Department of Youth Services (DYS), where he remained for over nine years, pursuant to orders extending his commitment beyond his eighteenth birthday. In April, 2000, Doe was committed temporarily to the Massachusetts Treatment Center (treatment center) for evaluation on the Commonwealth's petition that Doe be civilly committed as a sexually dangerous person (SDP); thereafter, he was found to be sexually dangerous and was civilly committed to the treatment center for a period of from one day to life. In January, 2011, twenty years after Doe committed the offenses, the defendant Sex Offender Registry Board (SORB) classified him as a level three sex offender. In September, 2013, Doe was determined to be no longer sexually dangerous, and was discharged from the treatment center.

Doe contends that the sex offender registration statute, G.L. c. 6, §§ 178C –178Q (registration statute), as applied to him, constitutes an ex post facto punishment, and violates his rights to due process and protection against double jeopardy, because the requirement that he register as a sex offender was triggered by juvenile adjudications that preceded the statute's enactment. See St. 1996, c. 239, § 1. He maintains also that, even if the registration statute does not operate impermissibly as applied to him, the hearing examiner's determination that he is a level three sex offender was unsupported by substantial evidence. Doe argues that the hearing examiner did not properly consider his youth at the time of his offenses, and that the decision was based on factual errors and unreliable evidence. Doe argues further that the evidence underlying the classification was stale, because the hearing resulting in the final classification took place more than three years before his discharge from the treatment center.

We conclude that the registration statute was not applied retroactively as to Doe; the hearing examiner considered Doe's youth in accordance with the regulatory factors in effect; and the factual errors complained of either were de minimis or were

determinations adequately supported by evidence in the record, and were not erroneous. Doe's contention regarding staleness, however, is valid. A final classification by SORB must be based on current evidence of a sex offender's risk of reoffense and dangerousness to the community, see G.L. c. 6, §§ 178C –178Q, and a final classification made over three years prior to an offender's release from confinement is presumptively stale. See Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 35 N.E.3d 698, 2015 WL 4946073 (2015) (Doe No. 7083 ). Because Doe's classification determination was not based on current evidence of the relevant risk factors, he is entitled to new evidentiary hearing at which SORB will bear the burden of establishing his risk of reoffense and his level of danger to the community. See id. at 481, 35 N.E.3d 698.

Background and prior proceedings. In 1990, Doe admitted to sufficient facts to support a finding of delinquency on a charge that in 1989, when he was fourteen years old, he raped a six year old girl. He was placed on probation for that offense. While on probation, Doe sexually assaulted two nine year old girls, and in 1991, he was adjudicated delinquent on two counts of indecent assault and battery of a child under the age of fourteen. He was committed to DYS, where he was confined until he reached the age of twenty-five.

In April, 2000, in anticipation of Doe's discharge from confinement, the Commonwealth filed a petition in the Superior Court pursuant to G.L. c. 123A, § 12 (e ), seeking to have Doe temporarily committed to the treatment center pending a probable cause hearing on its petition that Doe be civilly committed as an SDP. In September, 2002, a Superior Court judge determined that there was probable cause to believe that Doe was an SDP, and ordered that Doe undergo examination and diagnosis at the treatment center. See G.L. c. 123A, § 13. In January, 2003, a Superior Court jury found that Doe was an SDP, see G.L. c. 123A, § 14, and Doe was committed to the treatment center for an indeterminate period of one day to life.

In May, 2007, Doe filed a petition under G.L. c. 123A, § 9, seeking discharge from the treatment center. After a trial in July, 2010, a jury found that Doe remained an SDP. Doe filed a second petition for discharge in August, 2010, and in September, 2013, after two qualified examiners¹ submitted reports opining that Doe was no longer sexually dangerous, a Superior Court judge issued

an order discharging Doe from the treatment center. See Johnstone, petitioner, 453 Mass. 544, 553, 903 N.E.2d 1074 (2009) (if two qualified examiners opine that petitioner is not currently sexually dangerous, Commonwealth cannot meet its burden in proceeding under G.L. c. 123A, § 9, to establish that petitioner remains sexually dangerous).

While these proceedings were taking place, SORB separately considered whether Doe should be required to register as a sex offender pursuant to G.L. c. 6, §§ 178C –178Q, and, if so, at what level. In May, 2010, two months before the trial on Doe's first petition for discharge, SORB notified Doe of its recommendation that he be classified as a level three sex offender.

See G.L. c. 6, § 178L. Doe sought administrative review of SORB's recommended classification and, in July, 2010, two weeks before trial on his petition for discharge, but more than three years prior to his eventual discharge, an evidentiary hearing was conducted by a SORB hearing examiner. See G.L. c. 6, § 178L (2). In January, 2011, the hearing examiner issued a decision finally classifying Doe and ordering that he register as a level three sex offender. Doe sought review of the final classification order in the Superior Court, pursuant to G.L. c. 30A, § 14(7), and G.L. c. 6, § 178M. A Superior Court judge affirmed, and Doe appealed. We granted Doe's application for direct appellate review.

Discussion. 1. Retroactive application. Unless relieved of the obligation to do so,² every sex offender in the Commonwealth must register with SORB. See G.L. c. 6, § 178E (a )-(c ), (g )-(h ), (l ) ; Roe v. Attorney Gen., 434 Mass. 418, 424, 750 N.E.2d 897 (2001). Doe falls within the statutory definition of “sex offender,” which includes a person “who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense ... on or after August 1, 1981.” See G.L. c. 6, § 178C. General Laws c. 6, § 178K (2) (d ), prohibits SORB from exercising its power to relieve an offender from registration in specified circumstances, including “if a sex offender has been determined to be a sexually violent predator,” or “has been convicted of a sex offense involving a child or a sexually violent offense, and such offender has not already registered pursuant to this chapter for at least ten years.”

Doe contends that the order to register as a level three sex offender, pursuant to G.L. c. 6, §§ 178C –178Q, was based solely on his juvenile adjudications in 1990 and 1991, which predated the enactment of the registration statute in 1996.³ As such, Doe maintains, the sex offender registration statute operates retroactively in effect, and is unconstitutional as applied to him.⁴ In considering Doe's retroactivity claim, we apply the “new legal consequences” test. See Moe v. Sex Offender Registry Bd., 467 Mass. 598, 607, 6 N.E.3d 530 (2014). A “statute is retroactive in effect where ‘the new provision attaches new legal consequences to events completed before its enactment.’ ” Id., quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Under this test, we examine “the degree of connection between the operation of the new rule” (Doe's obligation to register) “and a relevant past event” (Doe's juvenile adjudications). See Landgraf v. USI Film Prods., supra at 268–270, 114 S.Ct. 1483.

We have concluded previously that new legal consequences had attached, and therefore that the registration statute applied retroactively in effect, in a case where SORB “determin[ed] that [a sex offender] had a mandatory obligation to register annually, solely by virtue of his prior conviction.” See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 784–785, 882 N.E.2d 298 (2008) (Doe No. 8725 ). In that case, the version of the statute then in effect, see St. 1999, c. 74, § 2, mandated that the offender register because he had been convicted of a sexually violent offense, and provided that, due to the nature of his conviction, the offender could “never be excused from registration.” Id. at 785, 882 N.E.2d 298, citing G.L. c. 6, § 178K (2) (d ). Because the sole basis for requiring that the offender register was his conviction of

rape in 1979, we concluded that “the registration law attached new legal consequences to events that occurred before its enactment,” and “must be considered retroactive.” Id. at 787, 882 N.E.2d 298. We noted, however, that the registration statute would operate prospectively if “a conviction for sexual offenses ... subject[s] a person only to potential registration and classification, or even a presumption of registration, with the ultimate registration requirement tied to an assessment (by [SORB] ) of the person's current level of...