Doe v. Sex Offender Registry Bd.

• Decision Date: 26 June 2012
• Docket Number: No. 11–P–926.,11–P–926.
• Citation: 970 N.E.2d 345,82 Mass.App.Ct. 67
• Parties: John DOE, Sex Offender Registry Board No. 6904 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 67

970 N.E.2d 345

John DOE, Sex Offender Registry Board No. 6904

v.SEX OFFENDER REGISTRY BOARD.

No. 11–P–926.

Appeals Court of Massachusetts, Essex.

Argued March 2, 2012.

Decided June 26, 2012.

Elizabeth Caddick for the plaintiff.

Christopher M. Bova for the defendant.

Present: KATZMANN, SIKORA, & AGNES, JJ.

KATZMANN, J.

The plaintiff, John Doe, appeals from the Superior Court's judgment affirming the decision of the Sex Offender Registry Board (board) to classify him as a level three (high risk) sex offender. He contends that the board erred in holding a final classification evidentiary hearing four years prior to his release. We vacate the classification and remand for a new hearing before the board.

Background. 1. Facts. Doe was convicted in 1992 on one count of indecent assault and battery on a child under the age of fourteen in violation of G.L. c. 265, § 13B. He was sentenced to the Massachusetts Correctional Institution at Cedar Junction for a term of from seven to ten years, three years to be served and the balance of the sentence suspended with probation for five years. In 2003, he admitted to sufficient facts on one count of open and gross lewdness in violation of G.L. c. 272, § 16, for which he received a continuance without a finding of guilty. In 2005, Doe violated the terms of his probation on the open and gross lewdness charge, which resulted in the revocation of his probation on the 1992 conviction, the imposition of the balance of the sentence on that conviction, and the entry of a finding of guilty on the charge of open and gross lewdness.

On June 4, 2005, the board notified Doe that it was recommending a level three classification. He challenged the board's recommendation and requested a de novo hearing. G.L. c. 6, § 178L(1)( c ). On July 22, 2008, the de novo hearing was conducted. Doe moved to reschedule the hearing due to his incarceration both prior to and during the hearing. The hearing officer denied Doe's motion because Doe was scheduled to appear before the parole board in March, 2009, and, if granted parole, Doe would have been eligible for release in August, 2009. After taking evidence, hearing arguments from both parties, and applying the evidence to the statutory and regulatory risk factors, the hearing examiner concluded that Doe posed a risk of reoffense and degree of dangerousness consistent with a level three sex offender.

On October 15, 2008, Doe filed an action for judicial review challenging the hearing examiner's final classification decision. Doe was denied parole in March, 2009, and ultimately was scheduled for release in 2012. On May 27, 2009, Doe filed a motion for judgment on the pleadings. On September 8, 2009, a Superior Court judge denied the motion, affirmed the board's final classification decision, and dismissed Doe's complaint. The judge found that “the hearing examiner's decision was supported by substantial evidence. [Title 803 Code Mass. Regs. § 1.04(2) (2004) ] does not preclude consideration of the open and gross lewdness conviction. Further, there need not be a mandatory status of release before [the board] may conduct a hearing and make a final classification decision.” Doe now appeals.

2. Statutory scheme. The Legislature enacted the Sex Offender Registry Law to protect the public from the “danger of recidivism posed by sex offenders.” St.1999, c. 74, § 1. The statutory scheme sets forth “a two-step classification process, beginning with initial classification followed by final classification based either on de novo hearing or sex offender's failure to object to initial classification.” Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 59–60, 927 N.E.2d 455 (2010)( Doe, No. 3974), citing Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 771–772, 857 N.E.2d 485 (2006)( Doe, No. 3844).

“Once [an initial classification] decision has been reached, the board notifies the offender of the recommendation. The offender then has the option either to accept or to reject the recommendation. If the offender rejects the recommendation, the second stage of the process is triggered. During this second stage, the offender is provided an individualized evidentiary hearing before a hearing examiner. At the hearing, the offender has the opportunity to present relevant evidence bearing on the obligation to register and the recommended classification level. However, the board has the burden to prove by a preponderance of the evidence that the offender has the duty to register and the appropriate level. 803 Code Mass. Regs. § 1.10 (2002). The hearing examiner is not bound by either the recommendation of the board or the classification worksheet completed during the initial review. Instead, the hearing examiner conducts a de novo hearing and makes a final determination regarding the offender's duty to register and the appropriate classification level. The examiner is required to issue a written decision containing a statement of the issues involved in the hearing; a summary of evidence, including credibility determinations; specific findings of fact, if appropriate, on all relevant disputed factual matters; rulings of law on all relevant disputed legal issues; conclusions drawn from the findings of fact and rulings of law, if appropriate; and the final registration determination and classification level. 803 Code Mass. Regs. § 1.22(1) (2002).”

Doe, No. 3844, supra at 772 (footnote omitted).

In determining the classification level, based upon the individual's risk of reoffending and degree of dangerousness, the board is required to consider a variety of factors, aggravating and mitigating, relevant to determining the risk of reoffense and dangerousness. G.L. c. 6, § 178K(1)( a )-( k ). 803 Code Mass. Regs. § 1.40 (2004). A level three classification, the highest level (and the level designated to Doe in this case), is appropriate “[w]here the board determines 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.” G.L. c. 6, § 178K(2)( c ), as amended by St.1999, c. 74, § 2. Pursuant to G.L. c. 6, § 178M, an offender “may seek judicial review ... of the board's final classification and registration requirements.”

Discussion. 1. Constitutional arguments. In the Superior Court, Doe argued that holding a classification hearing, while he was incarcerated, deprived him of his right to due process under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights because while incarcerated he could not present evidence required by the board's factors. That argument was rejected by this court in Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass.App.Ct. 683, 688–689, 948 N.E.2d 1268 (2011)( Doe, No. 1 ), and is not pursued on appeal. Rather, on appeal, Doe makes a different due process argument. He contends that the board violated his right to procedural due process when it held his de novo classification hearing four years prior to his scheduled release date because “the information forming his classification determination will, at the time of his discharge four years hence, be stale and be missing mitigating information about his rehabilitation, treatment, and stability achieved during those years.” We are without jurisdiction to decide the constitutional question as formulated on appeal, but not argued below. As the Supreme Judicial Court has said in a case involving a different board offender:

“Here, Doe should have filed an original action in the Superior Court, seeking a judicial declaration of the constitutionality of the classification scheme and, in particular, the factors employed by the board in evaluating sex offenders for risk of reoffense and degree of dangerousness posed to the public. By such action, Doe could have received a plenary hearing on the factual and legal bases for his grievance, and the board would have been afforded the opportunity to rebut his contentions.”

Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630, 947 N.E.2d 9 (2011)( Doe, No. 10800 ).¹

2. Statutory argument. a. Background. After Doe was assigned an initial classification of level three offender by the board, he contested the classification and requested an evidentiary hearing pursuant to G.L. c. 6, § 178L, and 803 Code Mass. Regs. § 1.07(2) (2004). The board scheduled the hearing for July 22, 2008. Doe filed a “Petitioner's motion to re[s]chedule hearing due to extended incarceration before release.” The motion sought rescheduling of the hearing to “a date to be determined after his date for release from custody has been established, pursuant to [the board's] regulations.” In that motion, he noted that he was denied parole in March, 2008, and that he would not have another hearing until March, 2009. Furthermore, “[i]f somehow he was granted parole in 2009, his earliest release from custody date would be in August, 2009.” Doe also stated that “[d]ue to the work and program scheduling at the [Massachusetts Correctional Institution at] Gardner ..., [he] has been ineligible and unable to avail himself [of] sex offender treatment programs within the correctional institution.” As a result, he would not be able at the hearing to offer “any evidence as to sex offender treatment from a certified program.” In moving that the hearing be rescheduled after his date for release from custody had been established, Doe stated: “The purpose of the statute, as constitutionally sanctioned, is to categorize individuals upon their likelihood of reoffending and their danger to the public; therefore, by implication the statute applies to and evaluates a person who is living among the public or about to be” (emphasis added).

At the outset of the hearing on July 22, 2008, Doe's counsel...