DOE 352065 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, John Doe, Sex Offender Registry Board No. 352065 (Doe), pleaded guilty in 2011 to rape of a child by force. Based on that offense, the Sex Offender Registry Board (board) notified Doe of his obligation to register as a level three (high risk) sex offender pursuant to G. L. c. 6, § 178K (2) (c). Doe requested a hearing to challenge the classification. A board hearing examiner found by clear and convincing evidence that Doe posed a moderate risk to reoffend and a moderate degree of dangerousness, and classified Doe as a level two sex offender, rather than the level three classification recommended by the board. See G. L. c. 6, § 178K (2) (b).

Doe sought judicial review of the hearing examiner's decision pursuant to G. L. c. 30A, § 14, arguing that the hearing examiner misapplied regulatory risk elevating factor 10 (contact with the criminal justice system), 803 Code Mass. Regs. § 1.33(10) (2016), and risk elevating factor 11 (violence unrelated to sexual assaults), 803 Code Mass. Regs. § 1.33(11) (2016). A Superior Court judge concluded that the hearing examiner abused her discretion in applying those risk elevating factors, but nevertheless affirmed the level two classification, reasoning that the examiner's decision was supported by substantial evidence even without application of those factors. Doe challenges that conclusion on appeal. We affirm.

Background. We summarize the governing offense, which Doe does not dispute. On January 21, 2010, the victim, then fourteen years old, left a gathering with forty-seven year old Doe to buy cigarettes. Instead, they went to Doe's rooming house and Doe gave the victim vodka. “As the victim sat on the bed, [Doe] pushed him down, pulled off [the victim's] pants and underwear, and placed a pillow over [the victim's] mouth. Next, after turning the victim over onto his stomach, [Doe] penetrated the victim's anus with his penis until he ejaculated.” Based on that conduct, Doe pleaded guilty to rape of a child under sixteen by force and was sentenced to seven to eight and one-half years in State prison.

Discussion. Before classifying an individual as a level two sex offender, the board must prove three elements by clear and convincing evidence, and hearing examiners must make separate and explicit findings regarding all three elements. Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019) (Doe No. 496501). The three elements are that “(1) the offender's risk of reoffense is moderate; (2) the offender's dangerousness [to the public] is moderate; and (3) a public safety interest is served by Internet publication [on SORB's website] of the offender's registration information.” Id. at 656.²

Our review of the judge's decision is de novo. Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). We review the administrative record to determine whether the hearing examiner's decision is “unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe No. 10800). See G. L. c. 30A, § 14 (7). Doe has the burden to show that one of these conditions has been met in his case. Doe No. 10800, supra at 632. “A hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor, and, ․ a reviewing court is required to give ‘due weight to [the examiner's] experience, technical competence, and specialized knowledge.’ ” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014), quoting G. L. c. 30A, § 14 (7).

Doe's sole contention on appeal is that remand to the hearing examiner is required for reconsideration of Doe's risk of reoffense and dangerousness in light of the judge's conclusion that risk elevating factors 10 and 11 did not apply. The Commonwealth responds that factors 10 and 11 were properly applied by the hearing examiner and that the evidence supported the hearing examiner's conclusion. We agree that Doe's level two classification was supported by substantial evidence even without consideration of his criminal history and violence unrelated to sexual assaults.³

Doe does not dispute that he anally raped a child victim (high risk factor 3); that the relationship between Doe and the victim was extra-familial (risk elevating factor 7); that he had a history of alcohol and marijuana abuse and that he committed the governing offense while under the influence of alcohol (risk elevating factor 9); that the governing offense was committed by a male offender against a male victim (risk elevating factor 17); or that the level of physical contact involved penile penetration (risk elevating factor 19). Nor does Doe challenge the way in which the hearing examiner applied risk mitigating factors for his advanced age (risk mitigating factor 30); his participation in sex offender treatment (risk mitigating factor 32); his home situation and support system (risk mitigating factor 33); and his stability in the community (risk mitigating factor 34).⁴ The hearing examiner relied on these risk mitigating factors in concluding that Doe presented only a moderate risk of reoffense rather than the high risk of reoffense advocated by the board.

We are not persuaded by Doe's argument that, other than the governing offense, “the basis of the decision was largely application of factors 10 and 11.” The hearing examiner did not refer to factor 10 (Doe's criminal history) or factor 11 (his nonsexual violence) in the concluding paragraph in which the examiner weighed the risk aggravating and risk mitigating factors. Rather, the hearing examiner concluded that “because of the serious sexual assault that included penile/anal penetration, his male child victim, his limited support, incomplete treatment, and only brief sobriety, the risk of reoffense is still concerning.” Thus, although the hearing examiner considered and applied factors 10 and 11, it does not appear that he afforded those factors the weight that Doe suggests.

Moreover, Doe offers no authority for the proposition that we must remand the case to the hearing examiner for reconsideration of Doe's risk of reoffense and risk of dangerousness without factors 10 and 11. Our review of the judge's decision is de novo, Doe No. 523391, 95 Mass. App. Ct. at 89, and we are free to excise any inapplicable risk elevating factors and review what remains for substantial evidence supporting the level two classification. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 142 (2019). Here, there was substantial evidence in the administrative record supporting the conclusion that Doe posed a moderate risk to reoffend and a moderate degree of dangerousness.

Judgment affirmed.

FOOTNOTES

2.   Doe No. 496501, which added the requirement of explicit findings regarding a public security interest being served by Internet publication, was decided by the Supreme Judicial Court while this appeal was pending. We therefore have discretion to remand the case to the hearing officer for express findings on Internet publication. Doe No. 496501, 482 Mass. at 657. However, Doe does not seek remand for that purpose and, based upon the seriousness of the governing offense, we decline to do so on our own. See id. at 657 n.4 (remand may be unnecessary where underlying facts clearly dictate appropriate classification).

3.   The judge declined to consider risk elevating factors 10 and 11 primarily because no convictions resulted from the allegations referenced in the hearing examiner's analysis of those factors. However, this court has held that an examiner is free to consider uncharged conduct, the facts underlying pending charges, and even facts underlying charges resulting in an acquittal. Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015). Deciding the case as we do, we need not address whether the judge improperly substituted his own judgment for that of the hearing examiner regarding factors 10 and 11. See Medi-Cab of Mass. Bay, Inc. v. Rate Setting Comm'n, 401 Mass. 357, 369 (1987) (judge should not displace board's choice between conflicting views with his own).

4.   See 803 Code Mass. Regs. § 1.33(3), (7), (9), (17), (19), (30), (32)-(34) (2016).