Doe v. Sex Offender Registry Bd.
| Decision Date | 22 August 2022 |
| Docket Number | 21-P-529 |
| Parties | JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526379 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).
John Doe appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (SORB) decision to classify him as a level three offender in accordance with G. L. c. 6 § 178K (2) (c0 . He argues, among other things, that the level three classification is unsupported by substantial evidence and was an abuse of discretion in light of SORB's initial level two recommendation. We affirm.
Background.
We summarize the facts as set forth in the hearing examiner's decision, reserving some facts for our discussion of the issues. See Doe, Sex Offender Registry Bd. No. 108 00 v. Sex Offender Registry Bd. 459 Mass. 603, 606 (2011) .
In November 2017, Doe initiated a Facebook conversation with an undercover police officer who was posing as a fifteen year old girl (Victim 3). Despite learning that Victim 3 was underage, Doe continued to send sexually explicit messages: describing his penis, detailing sexual acts he wished to do to the minor, and requesting photos of her vagina. Doe told Victim 3 he was thirty-four years old and expressed concern about going to jail, but nevertheless traveled to meet the minor for sex. Following his arrest, Doe pled guilty to enticing a child under the age of sixteen for sexual intercourse, in violation of G. L. c. 265, § 26C. He was sentenced to one year of incarceration and required to register with SORB. See G. L. c. 6, § 178C (defining "sex offender registry").
At the time of his conviction, Doe had two prior incidents of sexual misconduct, both from June 2016. In the first incident, Doe sexually assaulted a female resident (Victim 1) while living at a homeless shelter. He approached Victim 1 while making sexually explicit remarks and exposed his penis to her. He then followed her to her room, forced himself on her, and grabbed her breasts, buttocks, and vagina. Doe was charged with several offenses related to this incident,[1] but the case was nolle prossed after the Commonwealth lost contact with the victim. Two days after that incident, Doe assaulted a pregnant woman at the same homeless shelter (Victim 2) . He grabbed her buttocks and told her he wanted her to "taste his dick," before accosting her again some hours later.[2]
Pursuant to G. L. c. 6, § 178L (1) (a.), SORB made a preliminary "recommendation" that Doe register as a level two sex offender. Doe requested a hearing to challenge the recommendation and counsel was appointed. He was also notified in writing that:
At the hearing, the examiner further explained that he was "not bound by the [level two] recommendation" and would independently assess the evidence; he told the parties that he could "agree or disagree" with the recommendation and would not use the original preliminary classification worksheet to make his decision. Doe indicated he understood the procedure and did not have any questions.
After considering five exhibits and thirty-three enclosures,[3] the hearing examiner classified Doe as a level three sex offender. In reaching his decision, the hearing examiner applied two high-risk factors and eight risk-elevating factors, and considered two risk-mitigating factors. Doe sought judicial review in the Superior Court, pursuant to G. L. c. 30A, § 14 and G. L. c. 6, § 178M, and, following cross motions for judgment on the pleadings, a Superior Court judge affirmed the level three classification.
Discussion.
"Our review of the Superior Court judge's decision is de novo, but our review of the underlying agency decision is more limited." Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass.App.Ct. 219, 224 (2020) (Doe No. 390261) . "An agency decision should be set aside only if a 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." Id., quoting Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 88 (2019) (Doe No. 523391). See G. L. c. 30A, § 14 (7). In reviewing a final SORB classification, we give "due weight to the experience, technical competence, and specialized knowledge of the agency" (citation omitted). Doe No. 390261, supra.
After careful review of the hearing examiner's decision, we discern no abuse of discretion and conclude that the level three classification is supported by substantial evidence in the record.
A level three classification is appropriate where the hearing examiner determines by clear and convincing evidence that the risk of reoffense is high and the degree of danger to the public is high such that a substantial public safety interest is served by active dissemination of the offender's information.[4] Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 30-32 (2021) (Doe No. 33940), citing G. L. c. 6, § 178K (2) (c0 . The hearing examiner is not bound by SORB's preliminary recommendation and must make an independent assessment of the evidence. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 772 (2006); 803 Code Mass. Regs. §§ 1.04(3), 1.06, 1.14(1) (2016).
In assessing the offender's dangerousness and likelihood to reoffend, the hearing examiner is "guided by [several] statutory risk factors" and various "aggravating and mitigating considerations."[5] Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 133-134 (2019). See G. L. c. 6, § 178K (1) (a) - U); 803 Code Mass. Regs. § 1.33 (2016). A hearing examiner abuses his discretion if he makes "a clear error of judgment in weighing the [relevant factors] . . . such that the decision falls outside the range of reasonable alternatives." Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass.App.Ct. 292, 299 (2021) (Doe No. 356315), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) .
Here, the hearing examiner concluded by clear and convincing evidence that Doe posed "a high risk to reoffend and a high degree of danger[] such that a substantial public safety interest is served by active dissemination ... of his sex offender registry information." The hearing examiner applied high-risk factor 2 (repetitive and compulsive behavior) with "the most weight" because he found that Doe had "engaged in three separate episodes of sexual misconduct" and committed the governing offense "after having [already] been charged with a sex offense against Victim 1." He also applied high-risk factor 3 (adult offender with a child victim), because Doe's most recent offense involved attempting to have sex with a fifteen year old.[6] In addition to these high-risk factors, the hearing examiner considered eight risk-elevating factors[7] and two risk-mitigating factors.[8]
Doe does not challenge any of these subsidiary findings as erroneous, but rather takes issue with the conclusions that the hearing examiner drew from them. He claims the hearing examiner's analysis was "too general and conclusory to permit meaningful review" because the hearing examiner failed to ascribe any quantity of weight to nine of the applicable factors.[9] Although the hearing examiner did not explicitly indicate the precise weight that he attributed to several of the factors, that omission does not prevent us from conducting a meaningful review. The hearing examiner did not merely list or mechanically apply the relevant factors but gave a detailed account of the evidence he considered and an explanation of how each factor informed his decision. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 639, 651 (2012). On the record before us, we are satisfied that the level three classification is within the range of reasonable alternatives.[10] Doe No. 356315, 99 Mass.App.Ct. at 299-300.
Doe takes particular issue with the fact that the hearing examiner ordered a level three classification after SORB recommended a level two classification. He claims he "was not informed...
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