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13-P-848 Appeals Court
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 203108 vs. SEX
OFFENDER REGISTRY BOARD.
No. 13-P-848.
Suffolk. November 5, 2014. - May 5, 2015.
Present: Cypher, Fecteau, & Massing, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Administrative Law, Hearing, Substantial
evidence. Practice, Civil, Waiver. Waiver.
Civil action commenced in the Superior Court Department on
July 24, 2009.
The case was heard by Heidi E. Brieger, J., on a motion for
judgment on the pleadings.
Inna Landsman for the plaintiff.
Patrick M. Grogan for the defendant.
CYPHER, J. In Doe, Sex Offender Registry Bd. No. 6904 v.
Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 75 (2012) (Doe
No. 6904), we held that for the Sex Offender Registry Board
(board) to carry out its statutory duty to classify incarcerated
2
sex offenders according to their "current risk to reoffend," the
board must conduct its classification proceedings "at a
reasonable time prior to release from incarceration." In this
appeal, Doe No. 203108 (Doe) claims that his classification
hearing, held some seven months before his earliest possible
release date (if parole were granted, December, 2009) and
approximately twenty months before his ultimate release (in
January, 2011) was unreasonably premature. In these
circumstances -- and because Doe did not raise this issue before
the board but rather raised the claim for the first time during
judicial review under G. L. c. 30A, § 14, of the final agency
determination, eight months after his release -- we conclude
that the board did not act unreasonably. Accordingly, we affirm
the Superior Court's judgment affirming the board's designation
of Doe as a level three sex offender.
Background. Doe's obligation to register as a sex offender
arises from two convictions of statutory rape, G. L. c. 265,
§ 23, involving a first victim, and from one conviction of
assault with intent to commit rape, G. L. c. 265, § 24,
involving a second victim. The statutory rape convictions are
based on two separate incidents with a thirteen year old girl
when Doe was eighteen. The assault with intent to rape
conviction arises out of an incident with a twenty-one year old
3
woman when Doe was nineteen. He pleaded guilty to all of the
above charges on January 18, 2008.1
Doe received concurrent State prison sentences of four to
six years with respect to the two statutory rape convictions and
a term of five years' probation, commencing upon his release
from prison, with respect to the assault with intent to rape
conviction. At the time the guilty pleas were entered and the
sentences imposed, Doe received 977 days of jail-time credit.
Accordingly, he was first eligible for parole in January, 2009,
but was denied parole in February, 2009, with the opportunity to
apply for reconsideration in ninety days.
Classification proceedings. On March 13, 2008, the board
notified Doe of his obligation to register as a sex offender,
his preliminary classification as a level three sex offender,
and his right to request a hearing to contest his preliminary
classification. On March 22, 2008, Doe requested a hearing and
the appointment of counsel to represent him.
On June 25, 2008, the board sent notice to Doe's newly
appointed counsel that the final classification hearing would be
held at the Massachusetts Correctional Institution at Concord on
1
He was later tried on charges of forcible rape of a child,
G. L. c. 265, § 22A, and assault and battery, G. L. c. 265,
§ 13A(a), involving a third victim, a fourteen year old girl,
during the same general time period. Although a jury acquitted
him of these charges, the hearing examiner took the
complainant's allegations into account in the final
classification decision.
4
November 17, 2008. For reasons that do not appear in the
record, the hearing was rescheduled for January 29, 2009, to be
held at the Massachusetts Treatment Center (Treatment Center).
Again, for reasons that do not appear on the record, the hearing
was rescheduled for May 8, 2009, via video conference at Old
Colony Correctional Center. The hearing was ultimately held on
that date, but at the Treatment Center.
At the hearing, and in his written submissions following
the hearing, Doe argued that he was young when he committed the
crimes that required him to register as a sex offender and that
he had matured in prison. As evidence tending to minimize his
risk to reoffend, Doe informed the hearing examiner that he had
requested to be transferred to the Treatment Center in July,
2008, so that he could participate in sex offender treatment.
At the time of the hearing he had completed the first three
levels of the four-level treatment program and was currently
enrolled in the fourth level. He submitted a report from a
treatment program instructor commenting favorably on his
participation in the program. Arguing that the board's evidence
did not support a level three sex offender classification, Doe
requested a designation no greater than a level one or level two
and that public dissemination of his registration information be
prohibited.
5
At the end of the hearing, Doe's counsel requested twenty-
one days to submit a request for findings of fact and rulings of
law. The hearing examiner asked when Doe would next be eligible
for a parole hearing. Doe stated that he had been denied parole
in February, 2009, but had been offered an opportunity to
request reconsideration ninety days later. Doe's counsel stated
that if Doe were granted parole, his earliest possible release
date would be December, 2009. His next regularly scheduled
parole hearing date was February, 2010. In the absence of
parole, the expected release date at the time of the hearing
examiner's decision was November, 2010.
In a written decision dated July 10, 2009, the hearing
examiner concluded that a level three designation was
appropriate. Doe timely filed a complaint in Superior Court,
under G. L. c. 30A, § 14, for judicial review of his
classification. He filed a motion for judgment on the pleadings
on September 29, 2011. In addition to challenging the
classification on the ground that the board did not submit
expert testimony in support of the classification, Doe argued
for the first time that scheduling his classification hearing
"in the middle of his incarceration, two years before his
anticipated release date while he was in the middle of sex
offender treatment was arbitrary and capricious." The Superior
6
Court summarily affirmed the board's classification decision on
January 2, 2013.
Sometime between the date of the board's final
classification decision and the date Doe filed his motion for
judgment on the pleadings in Superior Court, Doe was released
from prison. The record does not establish the exact date when
Doe was released. In his appellate brief, he contends that the
classification hearing was held "about a year and a half before
his release date." The board's brief states, "He was actually
released and began registering as a level three sex offender in
January 2011." For purposes of discussion in this opinion, we
will assume the release date to be the date represented by the
board, which places the hearing (May 8, 2009) approximately
twenty months before his actual release (January, 2011) --
which, for the purposes of Doe's claim on appeal, is more
advantageous to him than his conservative estimate of eighteen
months.
Discussion. In Doe No. 6904, 82 Mass. App. Ct. at 69-70,
73-75 & n.2, we described in detail the board's two-step
classification process. Pertinent to this appeal, we summarized
the provisions in the board's governing statutes that dictate
when classification proceedings must be initiated and when the
board must issue its final classification as follows:
7
"An offender's final classification before his release back
into the community is necessary to accomplish the statutory
purpose of protecting the public from recidivists. Doe,
[Sex Offender Registry Bd.] No. 1 [v. Sex Offender Registry
Bd.], 79 Mass. App. Ct. [683,] 688 [(2011)]. The board is
required to classify incarcerated offenders 'before they
are released. The board must begin classification
proceedings at least sixty days prior to the offender's
release, G. L. c. 6, § 178L(1)(a), and must classify the
offender at least ten days before the offender's earliest
possible release date, G. L. c. 6, § 178E(a).' Ibid.,
quoting from Doe, [Sex Offender Registry Bd.] No. 3974 [v.
Sex Offender Registry Bd.], 457 Mass. [53,] 60-61 [(2010)].
There are no statutory limitations on commencing
classification proceedings earlier than the sixty days
prior to release."
Doe No. 6904, supra at 73.
In Doe No. 6904, the offender's classification hearing was
conducted on July 22, 2008. Id. at 68. At the time, he was
scheduled for a parole hearing in March, 2009, and if granted
parole, he would have been eligible for release in August, 2009.
Ibid. Prior to the scheduled hearing date in that case, the
plaintiff made a written request for the board to reschedule his
classification hearing to a later date to be determined, a date
after parole had been granted but before his actual release.
Id. at 71-72. He reiterated this request at the hearing. Id.
at 72. He explained that his custodial status had prevented him
from participating in any sex offender treatment programs and
argued that postponement of the hearing would give him an
opportunity to enroll in a treatment program and demonstrate a
lower likelihood of reoffending. Id. at 72, 76. The hearing
8
examiner denied his request and proceeded to classify him as a
level three offender. Id. at 68, 72-73.
Considering the board's statutes and regulations, we
concluded that, "consistent 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" (emphasis
supplied). Id. at 75. Because "the board ha[d] provided no
administrative justification as to why the final classification
hearing could not be rescheduled until after the March, 2009,
parole hearing" eight months later, and the record established
that his earliest possible release date was thirteen months
later, we concluded that denying the motion to postpone the
hearing was not reasonable. Id. at 77.
The board is required by statute to classify incarcerated
offenders ten days before their earliest possible release date.
This procedure does not violate the substantive or procedural
due process rights of incarcerated offenders, even though it may
prevent them from establishing certain mitigating factors in the
board's regulations that relate only to released offenders.
Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry
Bd., 79 Mass. App. Ct. at 687-690. Further, the board is
required to begin classification proceedings at least sixty days
prior to the offender's release, id. at 688, and nothing in the
9
statute prevents the board from beginning classification
proceedings earlier, Doe No. 6904, 82 Mass. App. Ct. at 73.
Indeed, to comply with its statutory duty of classifying
offenders before they are released into the community, the board
must begin proceedings sufficiently in advance of the offender's
release date to ensure that the offender is afforded his due
process protections.
"[A] sex offender is . . . entitled by statute to request
an evidentiary hearing to challenge the board's recommended
classification, to be represented by counsel at that
hearing and to have counsel appointed if he is indigent,
and to put the board to its burden to prove the
appropriateness of its recommended classification by a
preponderance of the evidence."
Doe, Sex Offender Registry Bd. No. 941 v. Sex Offender Registry
Bd., 460 Mass. 336, 339 (2011) (Doe No. 941). See G. L. c. 6,
§ 178L. At the evidentiary hearing, the offender "has the right
to present evidence and cross-examine witnesses, . . . after
which the hearing examiner must make 'specific, written,
detailed, and individualized findings' supporting the board's
final classification." Doe No. 941, 460 Mass. at 338, quoting
from and citing Doe, Sex Offender Registry Bd. No. 972 v. Sex
Offender Registry Bd., 428 Mass. 90, 91, 98, 102-104 (1998).
To ensure that the offender's rights to notice, a hearing,
and representation by counsel are honored may require more than
sixty days, the minimum time required by statute for the board
to commence classification proceedings. In this case, for
10
example, the board first informed Doe of his obligation to
register, and its preliminary classification, on March 13, 2008.
Doe promptly requested representation by the Committee for
Public Counsel Services (CPCS). The record does not establish
exactly when counsel was appointed, but the board issued its
first notice to appointed counsel on June 25, 2008, slightly
more than three months after Doe's request, indicating
reasonably prompt action by CPCS and the board. After two
continuances, the hearing was ultimately held nearly fourteen
months after the initial notice of the obligation to register
and preliminary classification.
At the hearing before the examiner, unlike in Doe No. 6904,
Doe did not ask for a further continuance or argue that the
hearing was premature. Nor was he foreclosed from offering
evidence that he had been participating in sex offender
treatment. To the contrary, he argued that he had specifically
sought a transfer to a different facility so that he could
participate in sex offender treatment. He had progressed into
the last level of the four-level program, and one of his
instructors indicated he had achieved class goals "at an
exceptional level." When the subject of Doe's release date was
raised -- in the context of counsel's request for twenty-one
days to file requested findings of fact or rulings of law --
counsel represented that, if Doe were paroled, his earliest
11
possible release date would be December, 2009, just seven months
later.
In the Superior Court, Doe argued for the first time that
his hearing date, while he was still incarcerated, was scheduled
prematurely because it denied him an opportunity to further
rehabilitate himself by completing sex offender treatment. He
did not seek to offer any supplemental evidence of further
rehabilitation, as he was permitted to do under G. L. c. 30A,
§ 14(6). See Doe, Sex Offender Registry Board No. 15606 v. Sex
Offender Registry Board, 452 Mass. 784, 795 (2008) (Doe No.
15606). Under these circumstances, the Superior Court had no
basis to conclude that the hearing date was, as a matter of law,
unreasonably premature.
In Doe No. 6904, the petitioner made a clear record before
the hearing examiner why his hearing should be postponed, and
the board offered no administrative justification for denying
the request. Here, because Doe did not object or seek a
continuance, the board had no reason to offer any justification
for proceeding. In Doe No. 6904, the result of the board's
action was that the offender's classification was based on his
characteristics four years before his eventual release. Here,
the timing of Doe's hearing resulted in a classification based
on facts as they stood approximately twenty months before his
release, which we cannot say is unreasonable per se.
12
In support of his claim that he was prejudiced by an
unreasonably premature hearing, Doe notes that the hearing
examiner stated in her classification decision, "It is too soon
to tell whether he has sufficiently internalized treatment
concepts, in light of less than a year in treatment, such to
sufficiently avoid reoffense once released, especially when
balanced against his exhibition of violence and history of
lawlessness." Even if Doe had had additional time to create a
better record on this factor, however, it is not clear that it
would have affected his classification.
Here, the hearing examiner imposed a level three
classification based on three "high risk" factors and twelve2
risk-elevating factors. See G. L. c. 6, § 178K; 803 Code Mass.
Regs. § 1.40 (2002). She also gave Doe credit for three risk-
mitigating factors: his active participation in sex offender
treatment, his acceptance of responsibility for his behavior,
and the fact that he would be released to a term of probation.
"However, there is nothing in the statute or regulations that
requires the board to treat mitigating conditions of release as
superseding other aggravating factors." Doe, Sex Offender
Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass.
53, 62 (2010) (Doe No. 3974). The record strongly suggests that
2
Doe contests the continued validity of two of these twelve
factors. See infra.
13
the hearing examiner's conclusions would have been the same, and
would have been supported by "substantial evidence," G. L.
c. 30A, § 14(7)(e), as appearing in St. 1973, c. 1114, § 3, even
if Doe had had an opportunity to complete the treatment program
before the hearing. See ibid. See also Doe No. 15606, 452
Mass. at 795 (Superior Court judge did not abuse discretion in
denying motion to present supplemental evidence where "plaintiff
had not made a 'substantial showing' that further evidence of
the plaintiff's progress would have added anything to the
hearing examiner's conclusion").3
As the hearing examiner was operating under the possibility
that Doe's earliest possible release date might be only seven
months off, and as Doe did not ask for a postponement, we cannot
state, as a matter of law, that the board acted unreasonably.4
3
The Commonwealth points out in its brief that here, unlike
the situation of the offender in Doe No. 6904, because of a
recent revision in the regulations the plaintiff is now entitled
to request a reclassification and a new hearing at which he may
submit new and updated information. See 803 Code Mass. Regs.
§ 1.37 (2013) (permitting reclassification request three years
after final classification).
4
We reiterate, as we stated in Doe No. 6904, that
petitioners who believe that their classification hearing is
being held unreasonably long before their release date should
file a motion, accompanied by an affidavit and appropriate
supporting materials, in support of their request to continue
the hearing. Such a motion will alert the board to the issue
and provide the board an opportunity to postpone the hearing or
justify its decision to proceed with the final classification
proceedings. As pointed out in Doe No. 6904, 82 Mass. App. Ct.
at 78 & n.4, where significant delay has already occurred
14
Other issues. Doe also claims that the hearing examiner
improperly relied on hearsay contained in the police report
regarding the alleged rape of which Doe was acquitted.5 However,
Doe did not object to the consideration of this evidence either
at the hearing or before the Superior Court. Accordingly, the
argument is waived. Smith v. Sex Offender Registry Bd., 65
Mass. App. Ct. 803, 810 (2006).
In addition, Doe argues that two of the risk-elevating
factors in the board's regulations violate due process and are
arbitrary and capricious because they are based on outdated and
erroneous science. Again, he raised these arguments for the
first time on appeal. Because the plaintiff did not file an
action for declaratory relief in the Superior Court, insofar as
he argues that these parts of the regulations are invalid, we
are without jurisdiction to entertain the arguments. Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 630-631 (2011). Insofar as he argues that the
application of these factors in determining his classification
was arbitrary and capricious, the claims are waived because they
were not raised below. See Smith v. Sex Offender Registry Bd.,
between the final classification and the offender's scheduled
release, a hearing may also be reopened upon proper showing.
5
See note 1, supra.
15
65 Mass. App. Ct. at 810. See also Doe No. 3974, 457 Mass. at
57-58.
Judgment affirmed.