Opinion
18-P-440
04-13-2020
T.G. v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, T.G., appeals from a Superior Court judgment upholding his classification as a level three sex offender. The plaintiff argues (1) that the hearing examiner should have allowed his motion for funds for an expert witness who could address the plaintiff's likelihood of recidivism, in light of his age at the time of his classification hearing (fifty-three), and his age at the time of his sole sex offense (thirty-four), and (2) that the evidence was insufficient to support his level three classification. Perceiving no error, we affirm.
Background. The plaintiff was fifty-three years old at the time of his hearing before the Sex Offender Registry Board (SORB or the board) in 2016. His prior criminal history, in addition to his one sex offense, was significant. In 1980, at age seventeen, he killed a man by stabbing him in the stomach. Thereafter, and prior to his sex offense, he was convicted of malicious destruction of property, discharging a firearm, violating an abuse prevention order, and threatening to kill.
In 1997, while on probation for violating the abuse prevention order, the plaintiff forced entry to his former girlfriend's apartment. Once inside, over the course of a several hour ordeal, the plaintiff threatened the victim with a knife and chisel, grabbed the victim around her throat and choked her until she was unable to breathe, and raped the victim multiple times, while holding a knife to her throat. The plaintiff was thirty-four years old at the time of these offenses.
In 1999 the plaintiff was sentenced to an aggregate twelve to eighteen year prison term after being found guilty of, among other charges, aggravated rape. While serving his prison term the plaintiff was involved in numerous incidents with other inmates; these include at least seven physical altercations, including one in 2014 where the other inmate had to be removed from the institution to receive medical treatment. The plaintiff also was cited twice for sexual misconduct with other prisoners, in 2005 and 2014.
In 2011, the board notified the plaintiff of his duty to register as a level three sex offender, which recommendation the plaintiff challenged. In 2016, after a de novo hearing, a hearing examiner confirmed the plaintiff's classification. A Superior Court judge affirmed the hearing examiner's classification decision. This appeal followed.
Discussion. The plaintiff's principal argument is that the hearing examiner erred in denying his motion for expert witness funds. Prior to the hearing the plaintiff argued that an expert was required to evaluate his likelihood of recidivism in light of his "advanced age, his age at release (over 53), the nature of the offense, [and] his single incident of sexual offending in his thirties." The hearing examiner denied the plaintiff's motion, on the grounds that the plaintiff had not shown particularized need, and accordingly was merely seeking to obtain an expert's "general opinion of risk to reoffend and degree of dangerousness." See 803 Code Mass. Regs. § 1.16(4)(b) (2016). We review the hearing examiner's decision for abuse of discretion. Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 794 (2008).
A hearing examiner has the authority -- that is, the discretion -- to provide funds for an indigent sex offender to retain an expert, even when the board has not proffered an expert of its own. The Supreme Judicial Court recognized this authority in Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764 (2008). In that case the plaintiff sought funds for an expert on manic-depressive disorder, from which he suffered. The court held that the examiner had the authority to award such funds, in his discretion, provided that the offender can "identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert." Id. at 775. The court cautioned, however, that "[a] general motion for funds to retain an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient." Id.
Subsequent decisions have relied upon Doe No. 89230 , and have held that in particular circumstances an order denying expert funds was an abuse of discretion. The cases where our courts have found an abuse of discretion, however, have involved very different circumstances than those here -- circumstances where applicable data showed that a particular characteristic (gender or age) correlated to reduced recidivism, yet there was a lack of regulatory guidance addressing the characteristic. See Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 609-610 (2013) ; Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1, 11 (2014) (Doe No. 151564 II ). Thus, in Doe No. 151564 II we held that the hearing examiner erroneously denied an offender's request for expert funds to address the effect of age on recidivism risk, where the offender had committed his initial index offense in his fifties and was, at the time of initial hearing, in his sixties. Doe No. 151564 II , supra at 2, 11. In holding that funds for an expert should have been awarded, we took special note of the then lack of specific regulatory guidance concerning age-related issues, and the complexity of the scientific literature. We observed that under the circumstances the "importance of expert assistance and guidance for the proper interpretation and understanding of these studies and their application to individual [offenders] ... is readily apparent. The expert witness will inform both the [offender's] presentation and the hearing examiner's analysis." Id. at 10-11.
In earlier proceedings the Supreme Judicial Court held that a hearing examiner "erred in reaching a classification determination ... without having considered the effect of [the offender's] age [sixty-one at the time of hearing] on his dangerousness and likelihood to reoffend," remanding the matter back to the board for further proceedings. Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 621 (2010) (Doe No. 151654 I ).
Responding to Doe No. 151564 II , the board amended its regulations, effective January 29, 2016, to include so-called factor 30. See 803 Code Mass. Regs. § 1.33(30) (2016). Factor 30 directly addresses the relationship between age and recidivism, stating that an offender's risk of sexual recidivism and dangerousness is deemed to decline significantly after age fifty (subject to certain additional considerations). Id. Factor 30 became effective before the plaintiff's de novo hearing and the hearing examiner applied it, affording the plaintiff "some" mitigating weight on account of his advanced age.
Relevant here, factor 30 provides that recidivism "rates incrementally decline as sex offenders get older .... Although risk of reoffense gradually declines when an offender is in his forties, the Board considers advanced age to have a significant mitigating effect when the offender is 50 years of age or older .... Factor 30 should be given less weight when an offender continues to demonstrate an active sex drive or general criminality."
Despite the existence of factor 30 and its application by the hearing examiner, the plaintiff nevertheless urges that in his case an expert was required on the issue of age. In an attempt to show particularized need, the plaintiff focuses on the facts that he only committed one sex offense, and that it was at age thirty-four -— which he states was "after rates of recidivism decline." We are not persuaded that these facts required the examiner to grant the plaintiff funds to obtain an expert. The plaintiff's argument centers on his age, and the plaintiff does not suggest any reason to believe that his age when he first committed an offense presents an issue different in kind than the considerations addressed by the board in adopting factor 30. The plaintiff does not point to any particular study that has been overlooked or misapplied. Rather, the plaintiff merely seeks to have an expert opine on his particular facts -- what amounts to a "general motion for funds." Doe No. 89230 , 452 Mass. at 775. Contrast Doe No. 151564 II , 85 Mass. App. Ct. at 11.
The plaintiff does not challenge factor 30 on the ground that it does not reflect the scientific consensus. Nor does the plaintiff contend that factor 30 is impermissibly vague under the circumstances. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 774-775 (2006). See also Doe, Sex Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 215 (2015) (noting board's "considerable discretion in the specific application of [the regulatory] factors to individual sex offenders" and that "[g]reater quantification of specific risk [than is provided], even if possible to imagine, is not required").
We also reject the plaintiff's assertion that the facts did not support his level three classification. As to the plaintiff's age, the hearing examiner explained that while his age could be afforded "some" mitigating weight, the plaintiff could not receive full weight because he continued to "engage[ ] in rule violating and violent behavior ... as recently as 2014." The hearing examiner's conclusion is well supported, particularly in light of the two 2014 incidents in prison in which the plaintiff seriously injured one inmate, and engaged in "sexual acts" with a different inmate. These incidents took place when the plaintiff was approximately fifty years old, and took place long after the plaintiff was on notice of his obligation to register as a high risk offender. These more recent incidents at a minimum indicate that at the time of hearing the plaintiff continued to exhibit a lack of impulse control, and a disregard of institutional and societal constraints. Moreover, as factor 30 specifies, from this evidence the hearing examiner properly could conclude, as she did, that the plaintiff's age "should be given less [mitigating] weight" insofar as the plaintiff, despite advancing age, continued "to demonstrate an active sex drive [and] general criminality." 803 Code Mass. Regs. § 1.33(30).
The plaintiff's remaining arguments are similar to those raised by the offender in Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131 (2019). As in that case, here the plaintiff in effect argues that "the hearing examiner did not properly balance the aggravating factors against the mitigating factors. He argues that the aggravating factors largely were present ‘decades ago,’ and merited little weight, whereas the mitigating factors played a greater role in his life at the time of classification." Id. at 143. As in Doe No. 23656 , the argument is without merit.
Our review under G. L. c. 30A, § 14 (7), is both sharply limited, Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019), and highly deferential. Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015). A "hearing examiner has discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). Otherwise put, and provided the decision is supported by substantial evidence, we will not substitute our judgment for that of the board. Id. See Doe, Sex Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 214 (2015).
In this case the hearing examiner's decision is well supported. Among other things, the hearing examiner found and considered: the facts surrounding the plaintiff's 1997 index offenses; the plaintiff's other extensive, violent criminal history; the plaintiff's disciplinary problems while incarcerated, including incidents that were both close in time to the plaintiff's de novo hearing and that involved violence or sexual misconduct; and the plaintiff's less than successful participation in sex offender counselling. The plaintiff disputes none of the hearing examiner's findings. At the same time, the hearing examiner also took into account those facts and factors that might be deemed to mitigate the plaintiff's current risk, including, among other things, his participation in and completion of numerous self-betterment programs; his statements of remorse concerning the events involved in his 1997 index offenses; the reports and conclusions of the expert retained for the plaintiff's earlier sexually dangerous person proceedings; the plaintiff's potential employment upon release; and the plaintiff's familial and community support.
After considering these matters the hearing examiner concluded that, on balance and upon application of the relevant regulatory factors, the plaintiff continued to present as a high risk offender. We are unable to say, on the record before us, that the hearing examiner's decision constitutes an abuse of discretion or otherwise is arbitrary or capricious. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See Doe No. 23656 , 483 Mass. at 143-144.
Judgment affirmed.