John Doe v. Sex Offender Registry Bd.

100 Mass.App.Ct. 1124

182 N.E.3d 340 (Table)

John DOE, Sex Offender Registry Board No. 6729

v.SEX OFFENDER REGISTRY BOARD.

20-P-1102

Appeals Court of Massachusetts.

Entered: February 11, 2022.

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 (SORB) as a level three sex offender. With one exception, we discern no error in the hearing examiner's application of the relevant classification factors, and, even without considering the erroneously-applied factor, conclude that the hearing examiner's classification determination was well supported. We are not persuaded that, in this case, which predates the Supreme Judicial Court's decision in Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ), the hearing examiner's failure to make detailed findings supporting her conclusion that a substantial public safety interest is served by Internet dissemination of Doe's sex offender registry information requires a remand. Accordingly, we affirm.

Background. We summarize the facts as set forth in the hearing examiner's decision, "supplemented by undisputed facts from the record." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No. 10800 ). In 1998, when Doe was twenty-five years old, he pleaded guilty in District Court to indecent assault and battery on a child under fourteen and accosting or annoying a person of the opposite sex; he was sentenced to eighteen months in the house of correction, six months to be served, and the balance suspended with probation and counselling. As a result of that conviction, in 2003 Doe was classified as a level two sex offender.

Following his release from incarceration, Doe was convicted of subsequent sex crimes involving two different minors. In the first case, Doe was convicted of two counts of rape and abuse of a child, and three counts of indecent assault and battery; the crimes occurred in 2005 and the victim was a fourteen year old girl whom Doe met when the child began babysitting for Doe's family. In the second case, Doe was convicted of repeatedly raping another fourteen year old, a girl whom he encountered at a house party, in 2007.² As a result, in 2008, SORB reclassified Doe as a level three sex offender, see G. L. c. 6, § 178K (2) (c ) ; Doe requested a hearing to challenge the reclassification.

After a de novo hearing, at which both SORB and Doe introduced evidence, the hearing examiner classified Doe as a level three offender, finding by clear and convincing evidence that Doe "present[ed] a high risk to reoffend and [of] danger[ousness to the public], and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination of [Doe's] sex offender registry information." Doe sought judicial review of that decision in the Superior Court pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. The parties filed cross motions for judgment on the pleadings; a judge ruled in favor of SORB and against Doe, and Doe now appeals from the judgment against him.

Discussion. 1. Standard of review. "In reviewing SORB's decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ " Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). We may, however, "set aside or modify SORB's classification decision where ... the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe No. 496501, 482 Mass. at 649.

To support a level three sex offender classification, SORB bears the burden of showing, by clear and convincing evidence, see Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), "that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination [of registration information]." Doe No. 496501, 482 Mass. at 646, quoting G. L. c. 6, § 178K (2) (c ). The hearing examiner is required to make express findings as to each of the required elements, see Doe No. 496501, supra at 656-657, and is required to consider a nonexhaustive list of twelve statutory factors, see G. L. c. 6, § 178K (1) (a )-(l ), as well as any other information "useful" to the examiner's determinations of risk and dangerousness. G. L. c. 6, § 178L (1 ). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014). SORB's guidelines govern the application of each statutory factor, setting out thirty-eight relevant aggravating and mitigating considerations. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019) (Doe No. 23656 ), citing 803 Code Mass. Regs. § 1.33 (2016).

2. "Repetitive" and "compulsive" behavior. Doe argues that the hearing examiner's "full weight" application of factor 2 (repetitive and compulsive behavior) was error because the factor's application is precluded by the hearing examiner's failure to make discrete findings that Doe's behavior was both "repetitive" and "compulsive."³ See G. L. c. 6, § 178K (1) (a ) (ii) ; 803 Code Mass. Regs. § 1.33(2)(a). We do not agree.

Pursuant to the regulations, factor 2 is applied "when a sex offender engages in two or more separate episodes of sexual misconduct" where there is "time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct." 803 Code Mass. Regs. § 1.33(2)(a). SORB may "give increased weight" to factor 2 where the offender "ha[s] been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit[s] a subsequent act of sexual misconduct." Id. "[T]he most weight shall be given to an offender who engages in sexual misconduct after having been charged with or convicted of a sex offense." Id.

Here, the hearing examiner found that Doe committed sexual assaults in 1993, 2005, and 2007, the latter two of which occurred after he had pleaded guilty to indecent assault and battery on a child under fourteen and accosting or annoying a person of the opposite sex for the 1993 offense. The hearing examiner found this behavior to be "repetitive and compulsive," and we discern no error in the hearing examiner's application of this factor at its "full weight."⁴ See 803 Code Mass. Regs. § 1.33(2)(a).

3. Specificity of hearing examiner's findings. The hearing examiner identified each of the statutory factors that she considered in reaching her final classification decision in Doe's case. As to some, but not all, of the factors she considered, the hearing examiner ascribed specific weight. Doe argues that absent an explicit weighing of each of the factors that the hearing examiner considered, the hearing examiner's findings are too general and conclusory for meaningful review. While our task is complicated by the absence of specific guidance from the hearing examiner about the weight given to each factor, we conclude that, even had the hearing examiner weighed each of the eight factors most favorably to Doe, there is clear and convincing evidence supporting his level three classification.⁵

Of the statutory factors that the hearing examiner considered, she ascribed "full weight" to "high-risk" factors 2 (repetitive and compulsive behavior) and 3 (adult offender with child victim); "moderate weight" to risk-elevating factors 10 (contact with criminal justice system) and 11 (violence unrelated to sexual assaults); and "some consideration" or "minimal weight" to high-risk factor 21 (diverse victim type). See G. L. c. 6, § 178K (1) (a ) (ii)-(iii), (b ) (iii) ; 803 Code Mass. Regs. §§ 1.33(2)(a), (3)(a), 10(a), 11(a), 21(a). The hearing examiner considered, but gave "only minimal weight" to risk-mitigating factors 30 (advanced age), and 34 (stability in community). See G. L. c. 6, § 178K (c ), (d ) ; 803 Code Mass. Regs. §§ 1.33(30)(a), 34(a). The examiner "consider[ed]" eight other factors -- four "high-risk" factors (factors 7, 16, 19, and 22), two "additional factor[s]" (factors 37 and 38), and one "risk-mitigating" factor (factor 33) -- without assigning specific weights to any of them. See G. L. c. 6, § 178K (a ), (b ) (i) & (iii), (c ), (k ), (l ) ; 803 Code Mass. Regs. §§ 1.33(7)(a) (relationship between offender and victim), (16)(a) (public place), (19)(a) (level of physical contact), 22(a) (number of victims), 33(a) (home situation and support systems), 37(a) (other information related to nature of sexual behavior), 38(a) (victim impact statement). "[T]he hearing examiner carefully considered and weighed all the evidence that was presented. [She] found that multiple statutory and regulatory factors indicated that Doe presented a high risk of reoffense and a high degree of dangerousness, and that evidence in mitigation was insufficient to lower these risks." Doe No. 10800, 459 Mass. at 637. Even if we were to assume for the purposes of argument that the hearing examiner gave minimal weight to the factors unfavorable to Doe and "full weight" to the unweighted mitigating factors, we are still satisfied that the hearing examiner's conclusion was supported by substantial evidence and was not arbitrary, capricious, or an abuse of discretion, and that it was in accordance with the law. See G. L. c. 30A, § 14 (7) (e ), (g ).⁶

4. Sex offender treatment. While incarcerated, Doe refused sex offender treatment because he "d[id] not want anything to be used against him at his civil commitment hearing."⁷ In his affidavit to SORB, Doe recognized his need for therapy and addressed his plan to seek...