Doe v. Sex Offender Registry Bd.

• Decision Date: 10 May 2021
• Docket Number: No. 19-P-1063,19-P-1063
• Parties: John DOE, Sex Offender Registry Board No. 6969 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 533

169 N.E.3d 534

John DOE, Sex Offender Registry Board No. 6969

v.SEX OFFENDER REGISTRY BOARD.

No. 19-P-1063

Appeals Court of Massachusetts, Plymouth.

Argued December 23, 2020.

Decided May 10, 2021.

Xiomara M. Hernandez, for the plaintiff.

David L. Chenail, for the defendant.

Present: Rubin, Neyman, & Ditkoff, JJ.

DITKOFF, J.

The plaintiff, John Doe,¹ appeals from the judgment of a Superior Court judge dismissing Doe's appeal from the decision denying his motion to vacate his classification as a level three sex offender and to afford him a new hearing because he was improperly denied counsel. Concluding that Doe properly challenged this denial under G. L. c. 30A, § 14, we vacate the judgment of dismissal. Agreeing with the Superior Court judge's alternative holding that the Sex Offender Registry Board (SORB) did not abuse its discretion in denying the motion to vacate, we remand for the entry of a judgment affirming SORB's decision.

1. Background. In May 1983, when Doe was approximately fourteen years old, he was adjudicated delinquent by reason of indecent assault and battery, G. L. c. 265, § 13B, for a sexual assault on a three year old girl. In June 2000, he admitted to sufficient facts of assault and battery, G. L. c. 265, § 13A, arising from an incident in which he tried to make an adult woman masturbate him. In June 2003, he pleaded guilty to open and gross lewdness, G. L. c. 272, § 16, for entering the bedroom of a ten year old girl and masturbating in front of her.

In September 2004, after SORB notified Doe that he had been preliminarily classified as a level three sex offender, Doe requested a hearing to challenge the classification, checking the box on the form he sent to SORB indicating that he was indigent and requesting the appointment of an attorney. Doe also filled out the affidavit of indigency in support of his request for an attorney. In October 2004, SORB sent a request to Doe to provide a "copy of [his] most recent pay stub" to substantiate his eligibility for an appointed attorney. The form indicated, in bold text, that "[f]ailure to provide appropriate documentation (as checked off above) will result in denial of your request for a free appointed attorney." In November 2004, SORB mailed Doe a second notice to provide a "copy of [his] most recent pay stub." This form indicated, in capital, bold, and underlined text, "failure to respond to this notice within ten (10) days will result in a denial of your indigency request and your case will be scheduled for hearing." In December 2004, SORB mailed Doe a notice stating that he was "found ineligible for appointment of counsel" because "[n]o documentation [was] received," and informing him that a classification hearing would be scheduled.

On April 1, 2005, Doe's classification hearing was held. At the start of the hearing, the hearing examiner stated to Doe, "You're here without an attorney today," to which Doe responded in the affirmative. Recognizing that Doe, in his hearing request form, "indicated [he was] indigent and ... requested the appointment of an attorney," the hearing examiner stated:

"[F]or whatever [sic ], you went back and forth with the Sex Offender Registry Board and you [were] determined either not to be indigent or a lawyer was not appointed to represent you. I don't know the circumstances why. I'm sure it's in the file here at some point but you're here today without an attorney. And I'm now going to give you this waiver of counsel and authorization representative form indicating that you read it, please, and then sign it where it says signature, if you so wish. You don't have to, that you had the right to have an attorney appointed to represent you if you were indigent. You could have retained your own attorney. You could have had an authorized representative, friend, brother, sister, whatever, to represent and act as an attorney on your behalf.

"Without that being done beforehand, you're appearing today, knowing you had a right to have a lawyer and are going to proceed without an attorney."

Doe signed the waiver of counsel form and proceeded without the representation of an attorney throughout the hearing. At the conclusion of the hearing, the examiner told Doe that he had a right to seek judicial review of the decision in the Superior Court, and that "[a]t the back of the decision, there will also be information about that hearing process, because that will be another process, brand new process if you so wish."

In a decision dated May 16, 2005, SORB notified Doe that he had been classified as a level three sex offender.² In support of his decision, the hearing examiner considered the nature of Doe's sex offense as a juvenile against a vulnerable three year old victim, the fact that that offense took place in public, his failure to benefit from meaningful sex offender treatment as a juvenile, his reoffenses as an adult against both an adult and a child extrafamilial victim while on community supervision, his lengthy criminal history, and his substance use history. He also considered the mitigating factors that Doe was in sex offender treatment and performing well, that his sex offense adjudication was dated, that he was on strict community supervision, and that he presently had a stable living environment.

On May 23, 2018, about thirteen years later, Doe filed a motion to vacate his final classification with an attached affidavit. In his affidavit, Doe stated he was "under the impression that [an attorney] would be present at the hearing to represent [him]."³ Doe explained, "Up until now I haven't requested a new hearing because I didn't know how to go about doing it. I overheard someone talking about them getting their level lowered.^{[4 ]} I asked them how they did it and they said to contact C.P.C.S. [the Committee for Public Counsel Services] and request an attorney be appointed to represent me."

If he had an attorney present at the hearing, Doe stated, he would have made sure the attorney called attention to the fact that his juvenile "case [was] over twenty years old at the time and the closest case to the hearing date is an [o]pen and [g]ross which is a no-hands-on charge." He also alleged that his aunt was present at the hearing to testify, but that the "board representative" said, "[S]he can't come into the meeting." Doe stated that, if he had had an attorney present, the attorney could have ensured that the aunt would be allowed to testify on his behalf, which could have lowered his classification level. Doe did not describe the nature of the aunt's testimony or explain why that testimony would have been helpful to him.

A SORB hearing examiner denied Doe's motion. Doe filed a timely complaint for judicial review in Superior Court under G. L. c. 30A, § 14, of SORB's decision denying his motion to vacate his final classification. In response, SORB filed a motion to dismiss for want of subject matter jurisdiction. In the alternative, SORB requested judgment on the pleadings. A Superior Court judge allowed SORB's motion to dismiss. In the alternative, the judge stated that Doe did not state a valid reason for his delay in filing the motion and that Doe was not prejudiced by the lack of counsel at the hearing. This appeal followed.

2. Standard of review. "To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88, 120 N.E.3d 1263 (2019) ( Doe No. 523391 ), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76, 35 N.E.3d 788 (2015) ( Doe No. 356011 ). "The decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe No. 356011, supra, quoting Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787, 857 N.E.2d 492 (2006) ( Doe No. 10216 ). In our review of an agency's decision for an abuse of discretion, we consider "whether the decision was reasonable." Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 457, 86 N.E.3d 474 (2017) ( Doe No. 209081 ). "An appeal from a SORB classification decision is confined to the administrative record." Doe No. 523391, supra. "We ‘give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ " Doe No. 356011, supra, quoting Doe No. 10216, supra. "We review a judge's consideration of an agency decision de novo." Doe No. 523391, supra at 89, 120 N.E.3d 1263.

3. Subject matter jurisdiction. Under G. L. c. 30A, § 14, a petitioner may request judicial review of a final decision of an agency, so long as the decision resulted from an adjudicatory proceeding. See School Comm. of Hudson v. Board of Educ., 448 Mass. 565, 577, 863 N.E.2d 22 (2007). Accord Desrosiers v. Governor, 486 Mass. 369, 387, 158 N.E.3d 827 (2020).

General Laws c. 30A, § 1, defines an adjudicatory proceeding as "a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing."

SORB argues that we lack subject matter jurisdiction because "neither the Sex Offender Registry Law nor [SORB]’s regulations provide an offender with a mechanism to vacate a final classification." We reject this proposition. It has long been established that an administrative agency has the authority to reopen an adjudicatory proceeding. "In the absence of express or perceived statutory limitations, administrative agencies possess an inherent power to reconsider their decisions." Stowe v. Bologna, 32 Mass. App. Ct. 612, 615, 592 N.E.2d...