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Doe v. Sex Offender Registry Board

Appeals Court of Massachusetts, Essex

December 20, 2019

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22188
v.
SEX OFFENDER REGISTRY BOARD.

          Heard: October 2, 2019.

          Civil action commenced in the Superior Court Department on January 3, 2017. The case was heard by Richard T. Tucker, J., on a motion for judgment on the pleadings.

          Brandon L. Campbell for the plaintiff.

          John P. Bosse for Sex Offender Registry Board.

          Present: Milkey, Sullivan, & Ditkoff, JJ.

          SULLIVAN, J.

         The plaintiff, John Doe, appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (SORB) classification of Doe as a level three sex offender. See G. L. c. 6, § 178K (2) (c0 . Doe contends, among other things, that the SORB hearing examiner incorrectly applied the agency's risk factor regulations, which define repetitive and compulsive behavior, and improperly excluded expert evidence that challenged the regulation. See G. L. c. 6, § 178K (1) (a.) (ii); 803 Code Mass. Regs. § 1.33(2) (2016).[1] We conclude that the hearing examiner erred by applying full aggravating weight to factor 2, repetitive and compulsive behavior, in a situation where the repetitive behavior occurred without an intervening indictment or conviction, because granting full aggravating weight in these circumstances was inconsistent with SORB regulations. We also conclude that it was error to exclude expert testimony regarding the research on which the regulations describing repetitive and compulsive behavior are based. Accordingly, we vacate the judgment and remand the case for further proceedings.

         Background.

         After an evidentiary hearing, the SORB hearing examiner found the following: On July 30, 1989, around 4:30 A.M., Doe, then age twenty-five, broke into and entered the apartment of a thirty-two year old woman. He held her at knifepoint, robbed her of $900, and raped her. Doe then fled from the apartment.

         Eight days later on August 7, 1989, Doe entered a second building at around 2:15 A.M. Doe found his second victim, a thirty-seven year old woman, asleep on the second floor of her in-law's house. Doe placed a knife at her throat and told her not to speak. He then robbed her of $400, led her downstairs to the kitchen, raped her, and fled. Doe was under the influence of crack cocaine during both attacks.

         Doe was subsequently indicted. On June 7, 1990, a Superior Court jury found Doe guilty of aggravated rape, G. L. c. 265, § 22 (a.), in connection with the second incident on August 7, 1989.[2] He was sentenced to a term of from twelve to thirty years in State prison. On March 12, 1991, Doe pleaded guilty to aggravated rape for his actions in the first incident on July 30, 1989.[3] He was sentenced to a term of from fifteen to thirty years in State prison, to be served concurrently with the sentences imposed for the second incident. As his release date neared, SORB classified him as a level three offender, and Doe challenged the classification.

         A hearing was held on July 19, 2016, at which time Doe was fifty-two years old. Only one statutory high risk factor was present in the case, that is, factor 2, repetitive and compulsive behavior. See G. L. c. 6, § 178K (1) (a.) (i)-(vi) . See also 803 Code Mass. Regs. § 1.33(1)-(6) . The hearing examiner found that because the two offenses were committed eight days apart, Doe "had ample opportunity to reflect on the wrongfulness of his conduct." The hearing examiner gave this factor full aggravating weight, the highest weight under the applicable guidelines. See 803 Code Mass. Regs. § 1.33(2) .

         In rendering his decision, the hearing examiner also considered a number of risk-elevating factors, as described in the guidelines, including the fact that there were two stranger victims, threats, the use of a weapon and violence, the high level of physical contact (i.e., forcible penile penetration), and Doe's history of alcohol and drug abuse. See 803 Code Mass. Regs. § 1.33(7)-(27). The examiner gave full aggravating weight to these risk-elevating factors.[4] In addition, the hearing examiner considered the fact that Doe had dropped out of sex offender treatment for several years while he pursued a college degree in prison, but acknowledged that he had actively participated since his return to treatment in 2014. The examiner gave Doe's treatment history only "minimal" weight. In a similar vein, Doe had had disciplinary reports in prison at one time, but had had none in the previous eight years.

         The hearing examiner also weighed several risk-mitigating factors. See 803 Code Mass. Regs. § 1.33(28)-(34). He gave full weight to Doe's advanced age, to Doe's educational attainments, religious conversion, and regular participation in religious services as a Jehovah's Witness. He gave some mitigating weight to Doe's family and community support systems, [5]but ultimately concluded that the mitigating factors were "far outweighed" by the aggravating factors, thus resulting in the level three classification.[6]

         Discussion.

         "In reviewing SORB's decisions, we 'give due weight to the experience, technical competence, and specialized knowledge of the agency.'" Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013) (Doe No. 205614), quoting G. L. c. 30A, § 14 (7). However, "[a] reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019), citing G. L. c. 30A, § 14 (7).

         1. Repetitive and compulsive behavior.

         Doe contends that the hearing examiner erred by applying full aggravating weight to the second statutory risk factor, repetitive and compulsive behavior. As is more fully discussed below, the regulation permits SORB to give highest weight to this factor only when the sex offender reoffends after being "charged with or convicted of a sex offense." 803 Code Mass. Regs. § 1.33(2) .[7] See G. L. c. 6, ยง 178K (1) (a.) (ii) . Because Doe committed his second offense before being charged with or convicted of his ...


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