Opinion
20-P-1096
03-25-2022
John DOE, Sex Offender Registry Board No. 526710 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (SORB) decision to classify him as a level three sex offender in accordance with G. L. c. 6, § 178K (2) (b ). On appeal, Doe contends that (1) the hearing examiner (the examiner) gave inadequate weight to mitigating regulatory factors 32 and 34; (2) there was insufficient evidence to support the examiner's level three classification; and (3) active public dissemination of his registration information violates his State and Federal constitutional, statutory, and common law rights. We affirm.
Unless otherwise indicated, all references to regulatory factors will be to those several factors enumerated in 803 Code Mass. Regs. § 1.33 (2016).
Background. We recite the uncontested facts, reserving certain facts for later discussion. In the early morning of July 21, 2016, Doe, who was then forty-five years old, saw the victim, a thirteen year old girl, walking alone down the street. Doe approached her and told her that he knew her and that she looked very familiar, and the victim responded that she did not know him. The victim borrowed Doe's cell phone to call her mother, but the victim's mother did not answer. Doe then offered the victim money for a cab, and she went with him to the exterior of his apartment building, where he asked her to "come upstairs ... to get the money." She attempted to get away, but he grabbed her by the arm and dragged her inside the building and then up to his apartment, causing her to fall and scrape her knee.
Doe then barricaded the door and told the victim that he would not let her leave or call her mother unless she "snorted cocaine" with him. The victim snorted the cocaine and used Doe's phone to text Doe's phone number to her mother. The victim's mother called Doe's phone, and Doe told the victim to give her mother her location and tell her mother she was fine. Doe then asked the victim sexual questions, including whether she was "a virgin" and whether she "had ever been pleasured." He then pinned the victim down, lifted her shirt and bra, and kissed and sucked on her bare breast. The victim's mother then called Doe's cell phone a second time. Doe spoke to her, telling her the victim was "fine," and providing his location. When the victim's mother told Doe that she had called the police, he let the victim leave the apartment.
Doe pleaded guilty to one charge of indecent assault and battery on a child under fourteen, pursuant to G. L. c. 265, § 13B, and enticement of a child under sixteen, pursuant to G. L. c. 265, § 26C (b ). SORB preliminarily classified Doe as a level three sex offender, and after an administrative hearing on August 7, 2019, the examiner issued a final decision classifying Doe as a level three sex offender. Doe then filed a complaint for judicial review, pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14, at the Superior Court. After a hearing, the judge denied Doe's motion for judgment on the pleadings and entered an order affirming SORB's decision, from which Doe now appeals.
The parties have treated the Superior Court judge's decisional memorandum and order, entered May 27, 2020, as a final judgment; we do likewise.
Standard of review. "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), citing G. L. c. 30A, § 14 (7). "Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6). "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" (quotations omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019).
Discussion. 1. Mitigating factors. The gravamen of Doe's complaint about mitigating factors 32 and 34 is that the examiner inappropriately allowed them only "moderate" weight. This weighting was within the examiner's discretion and was allowable under the circumstances of this case. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (hearing examiner has discretion to consider weight and applicability of statutory and regulatory factors).
In concluding that factor 32, sex offender treatment, applied, the examiner considered that Doe "takes responsibility for his sex offenses," "is remorseful," and "is presently involved in [sex offender treatment] and began while incarcerated." The examiner also noted that Doe continued with treatment after his release the prior month. However, because "his treatment is incomplete and his progress at this time is short-lived," the examiner gave this factor "moderate weight." Doe was not in prison long enough to complete the treatment program, and he maintains that the examiner should have given this factor full weight because there is no evidence that Doe voluntarily terminated or refused treatment. But moderate weight is not inappropriate when the treatment at issue is short-lived, new, or incomplete. See 803 Code Mass. Regs. § 1.33(32)(a) (2016) (incomplete treatment may receive less weight under this factor based on: [1] "Completion of Treatment;" [2] "Currently Participating in Treatment;" [3] "Past Participation in Treatment;" and [4] "Denial") (emphasis omitted). This was no slight to Doe, but rather a careful application of the relevant regulatory framework.
The regulation explicitly states that, "Participation in treatment through the end of a term of incarceration or community supervision is not considered ‘completion of treatment’ unless there is documentation that the offender met all the goals of the program," and Doe presented no such documentation. 803 Code Mass. Regs. § 1.33(32)(a).
Doe's contention as to factor 34 is similar -- that the examiner erred by discounting his stability in the community based on its recency. There was no abuse of discretion. Factor 34 states that "the Board shall give mitigating consideration to materials submitted by the offender that demonstrate stability in the community" (emphasis added). 803 Code Mass. Regs. § 1.33(34)(a). The examiner did this. It is evident from the decision that she considered Doe's submissions; she had the authority to "draw all reasonable inferences" from those materials. 803 Code Mass. Regs. § 1.19(1)(h) (2016). The concept of stability obviously incorporates a time element. The examiner concluded that "although it is fairly recent, [Doe] also enjoys residential, employment, and community stability. Because this stability is new found, I give this factor moderate weight as it relates to his risk of re-offense."
The examiner considered how Doe was "living with his mother," who was "providing him with financial assistance," and that he was "employed at a restaurant where he works up to 40 hours per week." The examiner also noted that Doe "explored his religious beliefs while incarcerated and will continue to seek guidance from the same Rabbi," completed several academic classes while incarcerated, and, at some point, was volunteering with Men's Health League and promoting men's health through fitness. She observed that the Men's Health League program manager's letter regarding Doe's volunteering was dated December 27, 2016, and she inferred that the same letter "was submitted for sentencing or some other post arrest, but pre-conviction, considerations."
2. Substantial evidence to support level three classification. Doe contends that his level three classification was not supported by clear and convincing evidence. To classify an offender as level three, an examiner must determine "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 ). Doe asserts that the examiner did not describe how he poses a high degree of danger or risk of reoffense, and so her conclusion was unsupported by substantial evidence and failed to meet the burden of proof. Concluding that the examiner carefully considered the evidence presented, properly applied and balanced the risk elevating and mitigating factors, and adequately described how Doe poses a high degree of danger and risk of reoffense, we disagree.
The examiner found that Doe sexually offended against a thirteen year old girl (factor 3), and Doe and the victim were strangers (factor 7). She considered Doe's history of substance abuse, and that drugs and alcohol contributed to his governing sex offense (factor 9). When applying factor 9, the examiner also considered that Doe completed substance abuse programs and appeared to be committed to sobriety, but because he had been in the community for only a short time, she gave this factor "moderate weight." The examiner considered Doe's legal history, which included "convictions spanning from 1992 to 2009" (factor 10) and numerous other charges that were either dismissed, filed, or continued without a finding, including operating under the influence, possession with intent to distribute cocaine, indecent exposure, and assault and battery. In 2008, Doe's girlfriend and her daughter obtained two restraining orders because Doe threatened his girlfriend at her workplace, claiming that he was going to hurt her (factor 11). Lastly, Doe violated probation three times (factor 13).
These convictions include attempt to commit a crime; two counts of possession of a firearm; distribution of a class B controlled substance; possession with intent to distribute class D and B controlled substances; and possession of a controlled substance within a school zone.
Specifically, the threat was "I am going to kick your ass. I will be waiting for you at your house. You will never leave me because I will get you."
In mitigation, the examiner considered that Doe was still subject to three years of probation (factor 28), was forty-eight years old at the time of hearing (factor 30), and he was in sex offender treatment (factor 32). The examiner also found that Doe "enjoys the full support of his family and friends who are all aware of his sex offense history [factor 33]." Finally, the examiner considered how Doe "enjoys residential, employment, and community stability [factor 34]."
Balancing the risk elevating and mitigating factors, the examiner found "by clear and convincing evidence" that Doe "poses a high risk to re-offend [and] a high degree of dangerousness such that a public safety interest is served by active dissemination and Internet publication of his sex offender registry information." Substantial evidence supports the examiner's classification of Doe as a level three offender.
3. Constitutional arguments. Doe asserts that active public dissemination of his registration information "violates his state and federal constitutional, statutory and common law rights against double jeopardy, ex post facto laws, cruel and unusual punishment, and infringes upon his state and federal constitutionally protected rights to family integrity and interest in liberty and privacy." Because we conclude that Doe's level three classification was supported by substantial evidence, his arguments fail. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762 (2006) (where "substantial evidence" supported decision, as applied constitutional challenge to sex offender registration statute failed); Commonwealth v. Olaf O., 57 Mass. App. Ct. 918, 919 (2003) ("community notification is deemed not to be punishment for ex post facto or for cruel and unusual punishment analysis, but rather to be a collateral, regulatory measure"). See also Seling v. Young, 531 U.S. 250, 267 (2001) (civil regulatory scheme cannot be deemed punitive as applied and does not violate double jeopardy or ex post facto clauses).
Judgment affirmed.