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Doe v. Sex offender Registry Board

Appeals Court of Massachusetts, Suffolk

May 5, 2015

John Doe, Sex Offender Registry Board No. 203108
v.
Sex Offender Registry Board

Argued: November 5, 2014.

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.

Judgment affirmed.

Inna Landsman for the plaintiff.

Patrick M. Grogan for the defendant.

Present: Cypher, Fecteau, & Massing, JJ.

OPINION

Cypher, J.

In Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67, 75, 970 N.E.2d 345 (2012) ( Doe No. 6904 ), we held that for the Sex Offender Registry Board (board) to carry out its statutory duty to classify incarcerated 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 ulti-

Page 314

mate 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 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 ...


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