Doe v. Sex Offender Registry Bd.
| Decision Date | 23 June 2022 |
| Docket Number | 21-P-139 |
| Parties | JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 5648 v. SEX OFFENDER REGISTRY BOARD. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
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 one sex offender. 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).
In August 1984, the eight year old daughter of Doe's then girlfriend (victim) informed her mother that she was "having discharge and her underwear was stained." The mother brought the victim to the hospital to be examined and it was discovered that the victim had gonorrhea. The victim then reported to her mother that Doe, who was twenty-two years old at the time, anally raped her on multiple occasions over the prior year and a half, and after each incident, provided her with money.
In November 1984, Doe was indicted on six counts of rape of a child under the age of sixteen years old. On April 14, 1988, Doe pleaded guilty to one count of rape of a child under the age of sixteen years old,[1] and he was sentenced to ten years imprisonment, with six months to serve and the balance suspended for three years with probation. Doe was released from incarceration in August 1988, and his probation concluded in August 1991. In September 2002, SORB notified Doe of his duty to register as a level two sex offender, pursuant to G. L. c. 6, § 178K (2) (b). Doe did not respond to the recommendation, and his level two classification was finalized in November 2002.
Sixteen years later, in September 2018, Doe filed a motion for reclassification. In response, SORB recommended that Doe remain a level two sex offender, and Doe requested a de novo hearing to challenge SORB's recommendation. Doe also filed a motion to terminate his registration obligation. At the time of the January 2020 hearing, Doe was fifty-eight years old. At the hearing, Doe submitted documentary evidence, including a personal statement, a letter from his landlord, and a letter from his physician. In his personal statement, Doe stated that he has lived in the same apartment in Boston since 2010. He stated that his health is poor, and that he suffers from various medical conditions, including "Type II Diabetes with diabetic nephropathy; Chronic Obstructive Pulmonary Disease (COPD); premature extensive Coronary Artery Disease (CAD) with status post triple vessel Coronary Artery Bypass Grafting (CABG); hypertension with multiple previous coronary procedures; obstructive sleep apnea; peripheral vascular disease; and chronic bronchitis." Doe further stated that he has been unable to work since undergoing cardiac triple bypass in 2003, and that he lives a "very quiet life." The letter from Doe's landlord confirmed his living arrangements and that Doe was current on his rent. The letter from Doe's physician confirmed Doe's poor medical condition and his inability to work.
Following the reclassification hearing, the hearing examiner issued a written decision. Therein, he applied full weight to high-risk factor 3 (adult offender with child victim) because at the age of twenty-two, Doe offended against a prepubescent victim. The hearing examiner also considered several risk-elevating factors. He gave increased weight to factor 7 (extrafamilial victim), as Doe was not related to the victim; applied minimal weight to factor 10 (contact with criminal justice system) because, although Doe has a lengthy criminal history, he has been offense-free since 2001; moderately applied factor 11 (violence unrelated to sexual assaults) due to Doe's history of violent nonsexual criminal behavior; considered factor 15 (hostility towards women) in light of the fact that Doe had seven restraining orders taken against him by two different women; and applied factor 19 (level of physical contact) due to the nature of the index offense.
The hearing examiner also applied several risk-mitigating factors. He gave full weight to factor 29 (offense-free time in the community) because Doe had been offense free for eighteen years at the time of the hearing; applied moderate weight to factor 30 (advanced age) given that at the time of the hearing, Doe was fifty-eight years old, two years shy of the threshold age at which significant mitigation is afforded by the regulations to offenders with child victims; applied minimal weight to factor 31 (physical condition) because, although Doe's physician confirmed his medical conditions, he did not address the nexus between those conditions and Doe's risk of reoffense; and finally, applied moderate weight to factor 34 (materials submitted by the sex offender regarding stability in the community) considering the materials Doe submitted addressing his residential stability.
After weighing the applicable factors, the hearing examiner concluded that Doe presented a low risk of reoffense and a low degree of danger to the public such that a public safety interest would not be served by access to or dissemination of his registry information. Accordingly, Doe was reclassified as a level one sex offender. Doe appealed that decision to the Superior Court, contending that he should be relieved of his obligation to register as a sex offender in light of both the significant passage of time since his only sex offense and his present medical condition. A Superior Court judge affirmed Doe's level one classification, and this appeal followed.
Discussion.
"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). "A reviewing court may set aside or modify SORB's classification decision where it determines that 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, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501). "[0]ur review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the hearing examiner], but only 'whether a contrary conclusion is not merely a possible but a necessary inference.'" Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014) (Doe No. 68549), quoting Goldberg v. Board of Health of Granby, 444 Mass. 627, 638 (2005).
To support a level one classification, SORB must prove, by clear and convincing evidence, that Doe's "risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability." Doe No. 496501, 482 Mass at 646, quoting G. L. c. 6, § 178K (2) (a.) ." [R] egistration can be required only based on an assessment 'of the person's current level of dangerousness and risk of reoffense'" (emphasis omitted). Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass.App.Ct. 383, 387 (2009) (Doe No. 24341), quoting Doe, Sex Offender Registry Bd. ...
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