Doe v. Sex Offender Registry Bd.

• Docket Number: 22-P-802
• Decision Date: 20 December 2023
• Parties: JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 345593 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

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JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 345593
v.
SEX OFFENDER REGISTRY BOARD.

No. 22-P-802

Appeals Court of Massachusetts

December 20, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), 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 (board) as a level two sex offender. He argues that the hearing examiner erred by applying factor 2 (repetitive and compulsive behavior), the classification decision was arbitrary and capricious and not supported by substantial evidence, and given his age and physical condition no public safety interest was served by public access to his sex offender registry information. Doe also claims that the hearing examiner abused her discretion in denying his motion to continue the classification hearing to a date closer to his anticipated release date which, in turn, led to a premature final classification in violation of his right to procedural due process. We vacate the judgment.

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Background.

We summarize the facts found by the hearing examiner, supplemented where necessary with undisputed facts from the record. On August 23, 2011, a jury convicted Doe of four counts of rape and abuse of a child under G. L. c. 265 § 23, and two counts of indecent assault and battery on a child under G. L. c. 265 § 13B. Doe was sentenced to serve two terms of ten to fifteen years in prison, to run concurrently, followed by two ten-year terms of probation, to run concurrently. The offenses occurred over a five-year period between February 2004 and April 2009. Doe was between forty-three and forty-eight years old at the time, and the victim was between five and ten years old. Doe was friendly with the victim's mother and often babysat the victim and regularly visited the family. The sexual misconduct included fondling of the girl's breasts and vagina and performing oral sex on her. When the victim disclosed the abuse, Doe admitted to some of the incidents, but maintained that the victim either acquiesced or asked him to engage in sexual conduct with her.

In January 2018, the board notified Doe that it was recommending a level three classification. Doe challenged that recommendation and requested a de novo hearing, pursuant to G. L. c. 6, § 178L, which was held on March 13, 2019. At or before the hearing, Doe requested a continuance to a date closer to his release date, which was scheduled to occur in 2023.

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Alternatively, he requested that the classification decision be made provisionally. The hearing examiner denied that request on the ground that Doe was scheduled to appear before the parole board in August 2019 and, if granted parole, Doe would have been released at that time.^[1]

A final decision was issued on May 31, 2019. The hearing examiner concluded that Doe presented a moderate risk of reoffending and a moderate degree of dangerousness and ordered him to register as a level two sex offender. She further concluded that the degree of dangerousness posed to the public was such that public access to Doe's sex offender registry information was warranted.

In reaching her conclusion, the hearing examiner found six risk elevating factors applicable, see 803 Code Mass. Regs. § 1.33 (2016), including factor 2, repetitive and compulsive behavior; factor 3, adult offender with child victim, to which she accorded greater weight; factor 7, extrafamilial victim; factor 12, behavior while incarcerated, which was accorded minimal weight on the ground that the disciplinary reports Doe received were limited in number (seven) and severity; factor 18, extra vulnerable victim; and factor 19, level of physical

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contact. The hearing examiner also considered the following six risk mitigating factors, all of which she found applied: factor 28, supervision by probation; factor 30, advanced age, Doe was fifty-eight at the time of the hearing; factor 31, physical condition, Doe's medical records from the Massachusetts Treatment Center (treatment center) indicated that he was diagnosed with hypertension, skin allergies, stomach problems, knee and back problems, and issues with his prostate (however, given the absence of documentation by a physician that addressed Doe's prognosis or limitations, the hearing examiner gave this factor minimal weight); factor 32, sex offender treatment, to which the hearing examiner accorded minimal weight on the ground that Doe's participation in treatment tapered off after he was transferred to the treatment center in April 2017 and by the fall of 2018, his participation vacillated between acceptable, fair, and unacceptable; factor 33, home situation and support systems, Doe was not married and had no children and while he has three siblings, he is close to only one sister who wrote to the board stating that she and her husband would support Doe upon his release; and factor 34, stability in the community, which was given minimal weight because Doe provided no evidence that he would have residential or employment stability upon his release. The hearing examiner also considered factor 35, psychological or psychiatric profiles, noting that evaluations

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of Doe from October 2017 indicated he was at an "average" and "moderate" risk to reoffend, and by August 2018, those scores had not changed.

Doe then sought judicial review of the board's decision in the Superior Court and filed a motion for judgment on the pleadings. The judge denied Doe's motion and, as we previously noted, affirmed the board's decision.

Discussion.

"We review a judge's consideration of an agency decision de novo." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 89 (2019). Our review of the board's decision is limited, and we will not disturb the board's classification unless "we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of...