DOE 328535 v. SEX OFFENDER REGISTRY BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff pleaded guilty in 2011 to rape of a child with force and indecent assault and battery on a child under age fourteen. The convictions were based on evidence that the plaintiff, then age fifty, anally raped a twelve year old boy. The plaintiff was sentenced to imprisonment for not less than five and not greater than eight years followed by seven years of probation. In 2013, the Sex Offender Registry Board (board) notified the plaintiff of his obligation to register as a level three sex offender. The plaintiff objected to his registration obligation and requested a de novo hearing. The plaintiff was afforded an evidentiary hearing after which a board hearing examiner affirmed the level three classification. The plaintiff sought judicial review pursuant to G. L. c. 30A, § 14. His motion for judgment on the pleadings was denied by a Superior Court judge, who concluded that the hearing examiner's decision was supported by substantial evidence. The plaintiff challenges that conclusion on appeal. We affirm.

Discussion. In the first instance, the board has the burden of proving the offender's risk of reoffense by clear and convincing evidence, which is evidence “sufficient to convey a high degree of probability that the contested proposition is true” (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 309 (2015). “The burden is on the appealing party to demonstrate the invalidity of the board's decision[, and we defer to the board's] ‘experience, technical competence, and specialized knowledge’ ” in conducting our review. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632-633 (2011), quoting G. L. c. 30A, § 14 (7). “We reverse or modify the board's decision only if we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Id. at 633. Substantial evidence is that which “a reasonable mind might accept as adequate to support a conclusion.” Id. at 632, quoting G. L. c. 30A, § 1 (6).

1. Prehearing motions. On September 20, 2016, the plaintiff, who was indigent, filed a motion for funds in the amount of $4,000 for an expert and to continue the hearing date scheduled for October 6, 2016, to accommodate the expert consultation. The motion was supported by the affidavit of psychologist Eric Brown, who opined that the plaintiff's cognitive deficits complicated the assessment of his risk to reoffend and that his functional capabilities needed to be evaluated and applied to “a modified risk analysis of his capacity to learn from his mistakes and remediate his future behavior.” The hearing examiner denied the motion, reasoning that the plaintiff had failed to adequately explain how “cognitive limitations are related to a lower risk of reoffense.” On appeal, the plaintiff claims it was error to deny the motion for funds.

“[T]he decision whether to grant an individual sex offender funds for an expert is a discretionary one, to be based on the facts presented in an individual case.” Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008). “[T]he burden [is] on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstances special to him, that he needs to retain a particular type of expert.” Id. We discern no abuse of that discretion here, where the plaintiff's claim that his cognitive deficits warranted a “modified risk analysis” was unsupported by any explanation of the correlation between cognitive impairment and risk of recidivism. The plaintiff offered no scientific study, no article, and no expert opinion to explain how a cognitive limitation might affect the risk of reoffense. Simply put, we agree with the hearing examiner's conclusion that the motion for funds failed to adequately explain the need for a “modified risk analysis.”

The plaintiff also moved to continue his classification hearing before the board until after he was released from incarceration. According to the plaintiff, a classification hearing during his term of incarceration unfairly prejudiced his ability to present evidence of his stability in the community (risk mitigating factor 34, 803 Code Mass. Regs. § 1.33[34] [2016] ). However, G. L. c. 6, § 178E (a), mandates classification before release from incarceration and “[a]n offender's final classification before his release back into the community is necessary to accomplish the statutory purpose of protecting the public from recidivists.” Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 73 (2012). Accordingly, we discern no abuse of discretion in the hearing examiner's denial of the motion to continue the classification hearing until after the plaintiff's release.

2. Aggravating factors. The plaintiff contends that the hearing examiner arbitrarily and capriciously applied aggravating factors which artificially increased his risk of reoffense assessment. We disagree.

a. Factor 6: maximum term of incarceration. Whether a convicted sex offender served the maximum period of incarceration is a statutory factor that the board is to consider relative to the risk of reoffense. G. L. c. 6, § 178K (1) (a) (vi). “The offender who declines early release, specifically to avoid community supervision ․ present[s] an increased risk of reoffense.” 803 Code Mass. Regs. § 1.33(6) (2016). There was evidence before the hearing examiner that the plaintiff stated, during sex offender treatment, that he “plan[ned] to waive parole as he feels having parole, probation, DDS, and the [board] would be too much supervision for him.” In light of this direct evidence that the plaintiff declined parole to avoid supervision, the hearing examiner properly applied this factor.

b. Factor 9: alcohol and substance abuse. Whether a convicted sex offender has a history of alcohol and substance abuse is a statutory factor that the board is required to consider. G. L. c. 6, § 178K (1) (g). See 803 Code Mass. Regs. § 1.33(9) (2016). Here there was evidence that the plaintiff had been abusing alcohol since he was a teenager, that he used crack cocaine for seven years, and that he had overdosed on heroin. He admitted that he was struggling with addiction at the time of the governing offense. In these circumstances, the hearing examiner acted within his discretion in applying this factor.

c. Factor 10: contact with the criminal justice system. The number, date, and nature of prior offenses is a statutory factor that the board is to consider relative to the risk of reoffense. G. L. c. 6, § 178K (1) (b) (iii). See 803 Code Mass. Regs. § 1.33(10) (2016). The plaintiff's criminal record revealed that he was (1) placed on probation for larceny and forgery charges in 1996, (2) placed on pretrial probation for separate charges of assault and battery by means of a dangerous weapon in 2002 and 2003, and he was (3) the subject of an abuse prevention order issued in 2005, which remained in place for three years. Based on this record, we see no abuse of discretion in the hearing examiner's conclusion that “although the [plaintiff] does not have a large number of convictions ․ some weight is warranted on this risk-elevating factor.”

d. Factors 24 and 32: participation in sex offender treatment. Whether a convicted sex offender has participated in sex offender treatment and counselling while incarcerated is a statutory factor that the board is required to consider relative to the risk of reoffense. G. L. c. 6, § 178K (1) (h). While the plaintiff was incarcerated, he participated in sex offender treatment for several years and completed psycho-educational classes as part of the treatment. Consequently, with regard to factor 32, 803 Code Mass. Regs. § 1.33(32) (2016), the hearing examiner found that “his years of participation in [the sex offender treatment program are] positive and warrant[ ] some weight on this mitigating factor.” However, because the plaintiff was terminated from the program for failing to timely complete it, the hearing examiner also gave “some weight” to the risk elevating factor pertaining to “less than satisfactory participation in sex offender treatment.” 803 Code Mass. Regs. § 1.33(24) (2016). “[T]he board has considerable leeway in interpreting the statute and its regulations,” and such interpretation will be respected as long as it is rational. Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 813 (2006). Here, we discern nothing irrational in the hearing examiner's balancing of the aggravating and mitigating factors related to sex offender treatment.

3. Constitutional challenge. The plaintiff's final challenge, that registration and dissemination of his status as a sex offender violate his constitutional rights, requires little discussion. It is well settled that the public dissemination of sex offender status serves an important public purpose, is not punitive, and does not violate the Federal and State constitutional prohibitions on double jeopardy and ex post facto laws. Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 496 n.4 (2015). Registration and dissemination is regulatory and not penal and therefore does not violate the prohibition on cruel and unusual punishment. Opinion of the Justices, 423 Mass. 1201, 1237-1239 (1996). Simply put, we see no merit in the plaintiff's challenge to the constitutionality of the sex offender registration statute.

Judgment affirmed.