DOE 321579 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2011, Doe pleaded guilty to one count of assault with intent to rape, three counts of assault and battery, and one count of kidnapping. The charges arose from his attack on an adult woman unknown to him jogging along a trail during the morning of August 16, 2009. He was sentenced to five and onehalf to six years in State prison with eight years of probation after release. He was released in 2015, his probation was revoked in 2016 after a global positioning system (GPS) violation and lack of sufficient proof of residency, and he was returned to jail until approximately January 2018.

Following a classification hearing before a hearing examiner at the Sex Offender Registry Board (board), Doe was finally classified as a level 3 sex offender. He now appeals. Doe's primary argument is that the hearing examiner failed to justify adequately the classification.

To the extent Doe argues that because the hearing examiner found that no statutory high-risk factors applied, Doe cannot be classified a level 3 sex offender, we disagree. Those high-risk factors are: mental abnormality, repetitive and compulsive behavior, adult offender with a child victim, age at first offense, adjudicated sexually dangerous person or released from civil commitment, and maximum term of incarceration. See 803 Code Mass. Regs. § 1.33(1)-(6) (2016). The classification process is not a matter of determining what boxes have been checked, but of examining all the facts and circumstances through the lens of the risk factors. Indeed the relevant regulation states that “[t]he absence of Factors 1 through 6 does not reduce an offender's risk of reoffense or lower his degree of dangerousness.” 803 Code Mass. Regs. § 1.33.

The hearing examiner did find the presence of five risk-elevating factors: that the victim was a stranger (factor seven) was given increased weight; that the offense involved an infliction of bodily injury because Doe physically assaulted the victim several times by hitting her (factor eight) was considered; that Doe had prior convictions for nonsexual offenses, specifically breaking and entering in the nighttime, arson, larceny, and trespassing in July 1986 and again in 2006 (factor ten) was given moderate weight; that Doe had a history of noncompliance with community supervision, specifically parole revocation in 1987 for breaking and entering in the nighttime and larceny, parole revocation in 1992 for domestic assault and battery, and probation violation in 2016 for a GPS violation, and lack of sufficient proof of residency (factor thirteen) was considered; and that the offense occurred in a public place (factor sixteen) was considered.

The hearing examiner also found several mitigating factors: supervision by probation or parole (factor twenty-eight) was given moderate weight; advanced age (factor thirty) was considered; sex offender treatment (factor thirty-two) was given limited weight; and other useful information in the form of articles submitted by Doe's counsel (factor thirty-seven) was not given much weight.

We think that the facts and circumstances here supported the findings of risk-elevating factors by the hearing examiner, and that, notwithstanding the findings regarding the presence of certain mitigating factors, those findings are sufficient to support a conclusion by clear and convincing evidence that the defendant is a level 3 sex offender. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015) (“a sex offender's risk level [must] be proved by clear and convincing evidence”).

At the same time, we do not think the facts and circumstances can be said to compel such a conclusion as a matter of law. Having read with some care the hearing examiner's report, we agree with Doe's contention that, although the hearing examiner made clear the basis for his findings with respect to each factor, he did not adequately explain how the presence of those factors in the context of the facts and circumstances of this case support by clear and convincing evidence the conclusion that Doe is properly classified a level 3 sex offender rather than a sex offender of some other level. The hearing examiner's primary contention is that the crime warranted the classification, but regardless of the seriousness of the crime, hearing examiners need to make their analysis explicit with respect to the basis for their conclusion that an offender poses a particular degree of risk of reoffense and a particular degree of risk of dangerousness. And indeed, although the board states that the hearing examiner's opinion does adequately explain his conclusion, it says only “[a]s to plaintiff's complaint that the examiner failed to explain how [he] balanced or weighed the factors, ‘the weight that [he] afforded each of those factors was [his] to determine, and fell within the bounds of [his] discretion,’ ” citing Doe, Sex Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 214 (2015). Of course, we agree that the weight to be given each factor is within the hearing examiner's discretion, but the authority to decide how much weight to give each factor does not eliminate the requirement that the examiner explain his determination that these factors in the circumstances of a particular case lead to a conclusion that the defendant presents a high, moderate, or low risk of dangerousness and reoffense. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 657 (2019) (hearing examiner is required to “make explicit his or her findings” regarding risk of dangerousness and reoffense, and “make clear that each determination is supported by clear and convincing evidence”). See also Doe No. 291554, 87 Mass. App. Ct. at 216 (Wolohojian, J., dissenting), quoting L.L. v. Commonwealth, 470 Mass. 169, 179 (2014) (“To avoid arbitrary and capricious application of the law, one ‘must be able to [articulate] and [describe] based on affirmative evidence,’ why and how a person presents a particular risk of reoffense [whether low, moderate, or high] as opposed to any other”). The board also said that in his finding, “the examiner clearly state[d] he found plaintiff a high risk to reoffend and a high degree of dangerousness utilizing the clear and convincing standard twice within the decision.” But that was his conclusion, not an explanation of the reasoning that led him to it.

Consequently, and while expressing no opinion about the proper level of Doe's classification, we shall vacate the judgment below and remand the matter for reconsideration and further findings explaining the reasoning behind whatever classification is made.

The judgment is vacated, and a new judgment shall enter vacating the decision of SORB and remanding the matter to SORB for further proceedings consistent with this memorandum and order.²

So ordered.

Vacated

FOOTNOTES

2.   In light of this disposition, we need not address Doe's second argument, that a remand is necessary under Doe No. 496501, 482 Mass. at 655-657, for a particularized finding with respect to Internet dissemination, as the hearing examiner will be able to consider that issue and include his conclusion in his decision on remand.