DOE 28270 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

John Doe appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (board's) decision classifying him as a level three sex offender. On appeal, the central issue is whether the board prematurely decided Doe's classification in light of the fact that he was civilly committed, subject to annual evaluation, and members of Doe's treatment team did not foresee his release “anytime soon.” We affirm.

Background. Doe is obligated to register as a sex offender based on a 1984 conviction of assault with intent to rape a child under sixteen. In 1996 he was indicted on charges of rape and incest. Pending the resolution of these charges, Doe was held under supervision at Bridgewater State Hospital (Bridgewater). On April 7, 1999, he was found not guilty by reason of mental illness or mental defect and was involuntarily committed to Bridgewater. On May 9, 2013, he was transferred to Worcester Recovery Center and Hospital (WRCH), where he has remained since, subject to annual review. See G. L. c. 123, § 16 (c).

On October 30, 2013, the board preliminarily concluded that Doe posed a high risk of reoffending and recommended that he be classified as a level three sex offender. Doe timely petitioned the board for a hearing to determine his final classification. See G. L. c. 6, § 178L. The board scheduled Doe's classification hearing for April 7, 2014. Doe moved to continue the hearing “from year to year, to a future date to be determined,” on the ground that he was subject to yearly commitments, his current civil commitment had not expired, and WRCH was prepared to petition for another one-year commitment. Citing Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67 (2012), Doe contended it would be premature to hold his final classification hearing. The hearing officer denied the motion to continue “until [Doe] sends the new [one] year commitment order.”

At the April 7, 2014, hearing, Doe renewed his motion, again citing Doe No. 6904. The hearing officer began the evidentiary portion of the hearing and allowed the board's counsel to offer documentary evidence. After the board's counsel had completed his presentation, Doe moved to suspend the hearing until May, when he would have a copy of his commitment decision from the Department of Mental Health. The hearing officer allowed Doe's motion and suspended the hearing.

The second day of the hearing was not held until one year later, on May 22, 2015. Doe did not object to the hearing going forward. He introduced documentary evidence and presented testimony of an expert witness. The hearing officer then continued the hearing for a third day. After the Supreme Judicial Court issued Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), holding that “a sex offender's risk level [must be proved] by clear and convincing evidence” in final classification determinations, a different hearing officer convened a de novo hearing on October 17, 2016. Doe did not request a continuance. On December 22, 2016, the hearing officer issued his decision determining that Doe should be classified as a level three sex offender.

Doe filed a complaint for judicial review in the Superior Court. See G. L. c. 30A, § 14; G. L. c. 6, § 178M. Doe argued that the board was obligated to base its classification determination on his current risk to the community, and as it was uncertain when, if ever, he would be released, the classification was premature.² The judge affirmed the board's classification recommendation.

Discussion. Although Doe asserted in the Superior Court that his hearing was held prematurely, because he did not raise this claim before the board in the first instance, it is waived. See Vaspourakan, Ltd. v. Alcoholic Beverages Control Comm'n, 401 Mass. 347, 354 (1987); Albert v. Municipal Court of Boston, 388 Mass. 491, 493 (1983) (“A party is not entitled to raise arguments on appeal that he could have raised, but did not raise, before the administrative agency”).

Even if his claim had been properly preserved, we would discern no error in the hearing officer's decision to go forward. Under G. L. c. 6, § 178L (1) (a), a sex offender is entitled to an individualized hearing as to his current risk of reoffending and degree of dangerousness before registration and notification requirements may be imposed. The board is required to hold the hearing at least sixty days prior to the individual's release back into the community, but there is no statutory prohibition to commencing classification proceedings earlier. See Doe No. 6904, 82 Mass. App. Ct. at 73. However, the final classification must be based on current circumstances at the time of release, and therefore the board must make its final classification determination “at a time reasonably close to [the] actual release date.” Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 489 (2015).

Unlike at the first hearing date, Doe did not seek a continuance of his October 17, 2016, hearing or argue to the hearing officer that holding the hearing would be premature. To the contrary, Doe prepared for the hearing and argued that he should be classified as a level two offender. He had a tactical reason for going forward: if he was classified as a level two offender, he would be eligible for a more desirable placement on discharge from WRCH. Given Doe's desire to move ahead with the hearing, the hearing officer acted reasonably in holding the hearing and determining his final classification. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 318-319 (2015), S.C., 89 Mass. App. Ct. 901 (2016).

Furthermore, Doe's status is different from a sentenced inmate or a sexually dangerous person committed to the Massachusetts Treatment Center. Because of the nature of Doe's civil commitment, he will be released when his one-year commitment expires unless the facility petitions the court to renew his commitment for another year. See G. L. c. 123, § 16 (c), (e). Doe can also be released if the facility director finds that he is no longer in need of care and treatment. See G. L. c. 123, § 16 (e). By contrast, incarcerated individuals have defined release and parole dates, and individuals committed as sexually dangerous persons must first petition the Superior Court and have a trial to obtain a discharge. The release date of individuals who have been civilly committed under G. L. c. 123, § 16, cannot be determined with a similar degree of certainty, and their potential release date is always less than one year away.³ Because of the indeterminate nature of Doe's release date, and because he did not ask for the hearing to be continued or postponed, the board did not violate Doe's due process rights by holding his classification hearing when it did.

Judgment affirmed.

FOOTNOTES

2.   Doe also argued that his classification must be set aside because it was not supported by substantial evidence, because the hearing officer misapplied factor 2, and because the decision was arbitrary and capricious. Doe does not advance these arguments in this appeal.

3.   If the facility director does not intend to petition for further commitment or seeks early discharge, the relevant district attorney must be given thirty days' prior notice. See G. L. c. 123, § 16 (e). The board does not have a similar right to be notified.