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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.
