DOE 3904 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Doe, challenges his classification as a level two sex offender by the Sex Offender Registry Board (SORB). Doe argues that the hearing examiner (examiner) abused his discretion in denying Doe's motion for funds for a medical expert, the level two classification was not supported by substantial evidence, and the examiner failed to make specific findings regarding the degree of public access determination. We affirm.

Background. The parties do not dispute the facts found by the examiner. In 1994, Doe, who was thirty-seven years old and an acquaintance of the fifteen year old victim's family, offered to take the victim to his apartment on Cape Cod. The victim asked Doe if her boyfriend could join them. The three traveled to Doe's apartment. The next day, Doe drove the victim's boyfriend to a laundromat, left him there, and returned to the apartment. There, he asked the victim to enter his bedroom, removed her clothes, and told her to “relax and enjoy it.” Doe then vaginally raped the victim, and told her that if she told anyone, he would kill her. Doe pleaded guilty in 1995 to rape of a child and indecent assault and battery on a person over fourteen.

In addition to the 1995 “governing offense,” Doe “has a lengthy criminal history dating back to 1972.” As a juvenile, he was found delinquent on various charges, and he was committed to the Department of Youth Services for armed robbery, breaking and entering, possession of a controlled substance, and use without authority. As an adult, beginning in 1974, he was convicted of myriad crimes including possession of burglarious tools, breaking and entering, multiple counts of assault and battery by means of a dangerous weapon, multiple counts of assault by means of a dangerous weapon, larceny of a motor vehicle, assault and battery on a police officer, receiving stolen property, assault and battery, larceny by check, and armed robbery. In 2009, a Federal judge sentenced him to serve a seven and one-half year prison sentence for bank robbery. He was released from incarceration in 2014.

In addition to his decades of criminal activity, Doe violated the terms of his probation on the governing offense, due to a new arrest and charges of failing to register as a sex offender, larceny by check, larceny from a building, and receiving stolen property.² During his incarceration for the governing offense, he refused to participate in sex offender treatment.³ Doe also has a history of drug and alcohol abuse, as evidenced by his use of crack cocaine and OxyContin, and drug-related convictions.

In November of 2004, SORB notified Doe of his obligation to register as a level three sex offender. Doe did not respond to the notice, and was classified as a level three offender. In 2016, Doe filed an action in the Superior Court seeking to vacate his final classification and reinstate his de novo hearing rights. SORB agreed to conduct a new classification hearing, and did so on February 15, 2018. Following that de novo hearing, the examiner issued a detailed decision in which he found, by clear and convincing evidence, that Doe presents a moderate risk of reoffense, and moderate degree of dangerousness. Accordingly, the examiner ordered him to register as a level two sex offender.

Doe sought judicial review of the examiner's decision in the Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. On December 21, 2018, a Superior Court judge denied Doe's motion for judgment on the pleadings and entered a judgment affirming the examiner's decision.

Discussion. 1. Expert funds. Doe contends that the examiner erred in denying his motion for expert funds. Doe specifies, inter alia, that through his “well-pleaded motion for funds” he sustained his burden “to 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.” Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) (Doe No. 89230). The standard of review is abuse of discretion. See id. at 775 n.17 (“of course it will be up to the [SORB] in the first instance to determine how best to exercise its discretion with respect to ruling on motions by indigent sex offenders for funds to retain experts”). See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the examiner denied the motion because the request for funds and supporting documentation did not satisfy Doe's threshold burden. We agree. Doe proffered that an expert was needed to assist the examiner to understand the effects of Doe's medical conditions -- e.g., degenerative arthritis, degenerative knee, degenerative spine, high cholesterol, high blood pressure -- and the relationship of such conditions to his risk of reoffense and dangerousness. The motion failed to specify how Doe's physical condition impacted his risk and danger. See 803 Code Mass. Regs. § 1.16(4)(a)(1) (2016) (requiring motion for expert funds to not only “[i]dentify a condition or circumstance special to the sex offender,” but also requiring that the motion “explain how that condition is connected to his or her risk of reoffense or level of dangerousness”). A general motion for funds to retain an expert to opine as to a sex offender's risk of reoffense is usually insufficient. See Doe No. 89230, 452 Mass. at 775. In essence, such a motion was before the examiner in the present case. On the record before us, we discern no abuse of discretion in the examiner's denial of the motion for expert funds.

2. Risk of reoffense and dangerousness. There is no merit to Doe's claim that the examiner failed to make the required individualized findings regarding Doe's current risk to reoffend and level of dangerousness. The examiner's detailed subsidiary findings, none of which are disputed on appeal, supported Doe's level two classification by clear and convincing evidence. Indeed, the examiner properly addressed the statutorily mandated risk-elevating and risk-mitigating factors. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014) (“SORB is required to consider a list of statutory factors in making its classification determinations”). The examiner's decision reflects a thoughtful and careful balancing of the relevant statutory and regulatory considerations. For the reasons detailed by the examiner, upheld by the judge in her order denying Doe's motion for judgment on the pleadings, we hold that the examiner's decision was supported by substantial evidence, and demonstrated the necessary link between the facts and the level two classification.⁴ This is particularly so in view of the aggravating factors detailed in the examiner's findings.

3. Public dissemination. Finally, we disagree with Doe's contention that the examiner's failure to make a “degree of public access determination” requires reversal. Doe essentially argues that because he has reached sixty years of age and has only one conviction for a sex offense, public access to his registry information is not warranted. In Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501), the Supreme Judicial Court held that with respect to level two and three classifications in SORB cases, hearing examiners must make certain explicit findings, including, relevant here, that “a public safety interest is served by Internet publication of the offender's registry information.” Id. at 656. However, the court further held that the requirement is to be applied “prospectively only,” and that “where an appeal is pending before the Superior Court or an appellate court, the court, in its discretion, may order that the classification decision be remanded to the hearing examiner.” Id. at 657.

We have reviewed the entire record and conclude that this case does not warrant the exercise of our discretion to order a remand. Doe violently raped a fifteen year old girl, telling her to “relax and enjoy it.” Upon completion of the crime, he told her that if she told anyone, he would kill her. After committing the rape, Doe committed numerous new crimes, many involving force, violence, and dangerous behavior. He has violated terms of probation. His criminal career has proceeded unabated, with exceptions stemming from periods of incarceration. In addition, Doe did not challenge his level three classification between 2004 and 2016, and thus has been subject to a higher level of public dissemination of his information between 2004 and the present. Finally, Doe received the level two classification he sought at his SORB hearing. In view of the nature of his governing offense, his continued violent criminal conduct and behavior, the totality of aggravating factors delineated by the examiner, and the myriad reasons described herein, we decline to exercise our discretion to remand the case to the hearing examiner. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 145 (2019); Doe No. 496501, 482 Mass. at 657 n.4.

Judgment affirmed.

FOOTNOTES

2.   The examiner gave the probation violation minimal weight.

3.   The examiner gave minimal weight to this factor.

4.   At the classification hearing, Doe's counsel advocated for Doe to be classified as a level two offender. Doe's request before the examiner does not control our legal analysis but is an issue of fact that we may consider in reviewing the fairness of the administrative process.