Doe v. Sex Offender Registry Bd.

470 Mass. 554

23 N.E.3d 938

John DOE, Sex Offender Registry Board No. 34186

v.SEX OFFENDER REGISTRY BOARD.

SJC–11607.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 3, 2014.

Decided Feb. 2, 2015.

Jennifer K. Zalnasky for the plaintiff.

John R. Puricelli, Cambridge, for the defendant.

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

Opinion

HINES, J.

After the Sex Offender Registry Board (board) classified the plaintiff as a sex offender, a judge in the Superior Court concluded that the board lacked jurisdiction over the plaintiff because his conviction under art. 134, 10 U.S.C. § 934 (1994), the “general” provision of the Uniform Code of Military Justice (code), was not a “like violation” sex offense requiring registration. See G.L. c. 6, §§ 178C –178P. The board appealed, and we transferred the case from the Appeals Court to this court. We conclude that art. 134, although general in scope, assimilates the elements of underlying offenses and that under the circumstances here, where the plaintiff was convicted on specifications detailing “like violation” offenses, the art. 134 conviction is a sex offense under G.L. c. 6, § 178C. Accordingly, we vacate the judgment

and reinstate the board's classification of the plaintiff as a level two sex offender.

1. Factual background and procedural history. We summarize the facts found by hearing examiners after evidentiary hearings, supplemented by undisputed facts from the record. The plaintiff was convicted by general court martial of the following three specifications in violation of art. 134 : (1) “Did ... knowingly transport or ship in interstate commerce visual depictions of one or more minors, under the age of [eighteen] years, engaging in sexually explicit conduct, in violation of [18 U.S.C. § 2252(a)(1) ]”; (2) “Did ... knowingly receive visual depictions of one or more minors, under the age of [eighteen] years, engaged in sexually explicit conduct, which depictions had been shipped or transported in interstate commerce, in violation of [18 U.S.C. § 2252(a)(2) ]”; and (3) “Did ... knowingly transport in interstate commerce for purposes of sale or distribution, obscene, lewd, lascivious or filthy pictures or images of his penis, in violation of [18 U.S.C. § 1465 ].” 10 U.S.C. § 934 (1994).

The charge was brought in 1999 after a “sting” operation in which the plaintiff, then a captain of the United States Air Force serving in Portsmouth, New Hampshire, sent lewd comments and images depicting child nudity and children in sexually suggestive poses to a Keene, New Hampshire, police officer. The police officer was posing as a fourteen year old male in an Internet chat room. The plaintiff pleaded guilty to the art. 134 charge and to each of the underlying specifications.¹ The plaintiff was sentenced to confinement for thirty months without pay or benefits and thereafter dismissed from military service.

After the plaintiff's release from confinement in 2000 or 2001,² he moved to Massachusetts. In 2002, the board notified the plaintiff of his duty to register as a level two sex offender. Following the plaintiff's appeal and an evidentiary hearing before a hearing examiner, the board upheld the classification. The examiner determined that the specifications underlying the plaintiff's

art. 134 conviction were each a “like violation” to sex offenses under G.L. c. 6, § 178C —specifically, dissemination of child pornography, G.L. c. 272, § 29B ; and possession of child pornography, G.L. c. 272, § 29C.³ The examiner further concluded that the plaintiff poses a moderate risk to reoffend and a moderate degree of dangerousness. The plaintiff did not appeal the hearing examiner's decision.

In July, 2009, the board sought reclassification of the plaintiff's status from level two to level three based on his arrest in April, 2009, for failure to register, enticing a child under the age of sixteen, and disseminating matter harmful to a child. A new hearing examiner, in 2010, also concluded that the specifications underlying the plaintiff's art. 134 conviction were each a “like violation” to Massachusetts sex offenses and further concluded that the plaintiff poses a high risk to reoffend and a high level of dangerousness and classified him as a level three sex offender.

The plaintiff appealed the 2010 decision, and a Superior Court judge reversed, ordering the plaintiff's release from the obligation to register as a sex offender. The judge determined that the board lacked jurisdiction over the plaintiff, reasoning that the plaintiff's conviction under art. 134, a “non-specific” provision of the code, is not a “like violation” to a Massachusetts sex offense.⁴ In his analysis, the judge also noted that “[m]ilitary defendants in courts-martial are not provided the same constitutional protections as defendants in civilian criminal courts” and requiring the plaintiff to register as a sex offender would be “fundamentally unfair” where he was convicted only under a “non-specific” provision of the code.

The board filed a motion to reconsider, which the judge denied without a hearing, and then appealed both the judgment and the denial of the motion for reconsideration. On appeal, the board

argues that the hearing examiners properly concluded that the plaintiff's military conviction is a “like violation” sex offense under G.L. c. 6, § 178C, and seeks reinstatement of the board's 2002 classification of the plaintiff as a level two sex offender.⁵

2. Discussion. a. Standard of review. Judicial review of a board decision is governed by G.L. c. 30A, § 14, and is “confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court.” G.L. c. 30A, § 14(5). See G.L. c. 6, § 178M. A reviewing court will not disturb the board's decision unless that decision was (a) in violation of constitutional provisions; (b) in excess of the board's authority; (c) based on an error of law; (d) made on unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts found by the judge, where the judge is constitutionally required to make independent findings of fact; or (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. G.L. c. 30A, § 14(7). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 108–109, 18 N.E.3d 1081 (2014). In conducting our review, we “give due weight to the experience, technical competence, and specialized knowledge” of the board. G.L. c. 30A, § 14.

b. “Like violation” analysis. The board argues that the judge erred in concluding that the plaintiff is not a sex offender as defined in G.L. c. 6, § 178C, and is not subject to the board's jurisdiction. The judge found that the plaintiff's conviction under art. 134, a “non-specific” provision of the code, could not be a like violation under the elements-based test required by Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615, 925 N.E.2d 533 (2010) (Doe No. 151564 ).⁶ For the reasons

explained below, we conclude that the judge's ruling was erroneous.

We begin our analysis with the statutory definition of a sex offender. “A sex offender is defined as a person who has been convicted of any violation of Massachusetts law enumerated as a sex offense in the sex offender registry law, as well as any ‘like violation of the laws of [a military authority].’ ” Doe No. 151564, supra at 615, 925 N.E.2d 533, quoting G.L. c. 6, § 178C. This definition reflects a decision by the Legislature in 1999 to expand the “sex offender” definition to include not only the enumerated sex offenses under Massachusetts law and “a like violation of the law of another state,” but also “a like violation of ... the United States or a military, territorial or Indian tribal authority.” Compare G.L. c. 6, § 178C, as amended by St. 1999, c. 74, § 2, with G.L. c. 6, § 178C, inserted by St. 1996, c. 239, § 1.⁷ We first had the opportunity to interpret the undefined term “like violation” in Doe No. 151564, where we adopted an elements-based approach. We determined that the applicable test is whether the “elements [of the foreign conviction] are the same or nearly the same as an offense requiring registration in Massachusetts” and explicitly rejected the board's argument that it could consider the conduct underlying a conviction in the “like violation” analysis. Doe No. 151564, supra at 615, 618, 925 N.E.2d 533. Our concern was that offenders have sufficient “notice and clarity about whether registration is required.” Id. at 618, 925 N.E.2d 533.

The plaintiff's argument that he is not a sex offender flows from our holding in Doe No. 151564, supra, requiring congruity between the elements of a sex offense in violation of the laws of another jurisdiction and a Massachusetts sex offense. To support this argument, the plaintiff seizes on the fortuitous absence of a provision in the code criminalizing the nonviolent sex offenses⁸ underlying the art. 134 charge. This argument is facially plausible because art. 134 itself is a general article and has no corollary to a Massachusetts sex offense.⁹ As a consequence, the plaintiff argues, the specifications setting forth the particular provisions¹⁰ of Federal criminal law underlying the art. 134 charge may not be considered under the elements-based test in Doe No. 151564, supra at 615, 925 N.E.2d 533. The board argues that the plaintiff's guilty plea to the general provision of art. 134 incorporates the underlying specifications and elements of the Federal offenses stated therein, which in turn are like violations of Massachusetts law. Resolution of the issue requires us to examine relevant provisions of the code for guidance in discerning the proper status of specifications. As explained below, we are persuaded that the board's argument is more consistent with the treatment of...