DOE 61890 v. SEX OFFENDER REGISTRY BOARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level three sex offender. He appeals, contending that the classification hearing was premature. We affirm.

1. Governing offenses. In 2003, Doe was adjudicated delinquent and received a suspended commitment to the Department of Youth Services (DYS) until September 28, 2005, for an indecent assault and battery on a fourteen year old female classmate. In 2006, Doe was found to be a youthful offender on a charge of assault with intent to rape, for an attack in 2004 on an adult woman while she was waiting for a bus. He was committed to DYS until 2008, when he turned age twenty-one.

2. The classification proceedings.² At the time of the classification hearing on May 9, 2017, Doe was being held pretrial on a bail of $50,000 for an assault against an adult woman in her apartment building that occurred in June 2016. As a result of this assault, Doe was indicted and arraigned on charges of among other things, open and gross lewdness and lascivious behavior, and indecent assault and battery. Because Doe was held on bail on these charges, he moved to continue the classification hearing, arguing that because he was unlikely “to be released in the near future,” and because he required “additional time ․ to investigate and develop [his] defense,” the hearing was premature. The hearing examiner denied Doe's motion, reasoning that because “no conviction has entered” on the new charges and “there remains the possibility [that Doe] may be released to the public (i.e. bail, nolle prosequi) ․ public safety concerns” required the hearing to go forward as scheduled. Doe offered no evidence at the hearing and did not ask the hearing examiner to enter a preliminary classification. SORB classified Doe as a level three sex offender. Doe filed a complaint for judicial review in the Superior Court. On cross motions for judgment on the pleadings, a judge affirmed the classification. This appeal followed.

3. Discussion. Doe does not challenge the hearing examiner's findings or the application of the regulatory factors to his circumstances. Instead, Doe argues that the hearing examiner abused his discretion in denying Doe's motion to continue. We are not persuaded. “[C]onsistent with the statutory purpose of classification according to current risk to reoffend, a final classification evidentiary hearing [must] be held at a reasonable time prior to release from incarceration.”³ Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 75 (2012) (Doe No. 6904). This serves to ensure “that a sex offender's final classification reflects a level of risk and dangerousness that is current at a time when the offender's release is imminent,” thereby “protecting vulnerable members of the community through reliable notification of an offender's risk of reoffense and degree of dangerousness.” See Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 488 (2015) (Doe No. 7083). Holding the evidentiary hearing within a reasonable time of the offender's actual release protects the offender's “liberty interest in receiving a classification that reflects consideration of current, rather than stale, risk factors.” Id.

Where an offender is facing unresolved sex offenses or other criminal charges at the time of the hearing, the hearing examiner must exercise “sound discretion in balancing the public safety interest in promptly obtaining a final classification ․ with the potential harm to the sex offender.” Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 391 (2013) (Soe No. 252997). We review the hearing examiner's decision for abuse of discretion. Id.

Here, the hearing examiner undertook a particularized inquiry and balanced the potential harm to Doe and the public safety interest in obtaining a final classification decision. As amplified by the Superior Court judge, as “a pretrial detainee, there was no guarantee that [Doe] would remain incarcerated. Rather, there was a serious possibility that he could post bail, bail could be lowered, or the pending sexual offense could be dismissed by the Commonwealth.” While Doe speculated that he might be civilly committed as an SDP, the Commonwealth had not sought his commitment as an SDP, and he had not been so committed.⁴ Contrast Doe No. 7083, 472 Mass. at 480 (Doe civilly committed as SDP at time of classification hearing and petition for discharge would not be heard for at least eighteen months).

The hearing examiner “reasonably recognized that postponement of the classification hearing until the resolution of [Doe's] criminal case might adversely affect a substantial public safety interest if [Doe] ultimately was determined to be a level three sex offender and active dissemination [of his registry information] had been postponed.” Soe No. 252997, 466 Mass. at 392. Moreover, Doe failed to seek a preliminary classification that would have prevented the classification decision from becoming final and would have entitled him to a continuation of the classification hearing at a time reasonably close to his actual release date. See Doe No. 7083, 472 Mass. at 489.

Finally, even if the hearing examiner abused his discretion, something we do not conclude, Doe has failed to establish prejudice. The governing offenses support Doe's classification as a level three sex offender; he does not argue otherwise. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131 (2019). And, the hearing examiner could properly consider that in prison, Doe would not have the opportunity to commit sexual offenses against women. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 651 (2019).

Judgment affirmed.

FOOTNOTES

2.   In October 2008, SORB notified Doe that he would be classified as a level three sex offender. On Doe's challenge, a de novo evidentiary hearing was held; SORB classified Doe as a level three sex offender. He was granted a second hearing after the Supreme Judicial Court changed the burden of proof in SORB proceedings from a preponderance of the evidence to clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015).

3.   By statute, SORB must commence classification proceedings “not less than [sixty] days prior to the release or parole of a sex offender from custody or incarceration,” G. L. c. 6, § 178L (1) (a), and it must “classify ․ a sex offender at least [ten] days before the offender's earliest possible release date,” G. L. c. 6, § 178E (a).

4.   The status of the SDP proceeding was not before the hearing examiner and is not part of the record on appeal. Accordingly, we do not consider it. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630 (2011) (“judicial review is confined to the administrative record, see G. L. c. 30A, § 14 [5]”).