Appeals Court hears challenge to Level 3 offender classification in 23P1440

Attorney Humana Hernandez, counsel for the plaintiff-appellant, asked the Massachusetts Appeals Court during oral argument to lower her client's registry classification from Level 3 to Level 2 or to remand the case to the Offender Registry Board for a new classification hearing. "I'm here today requesting this court lower my client's classification level from a level 3 to a level 2 or to remand the case back to the board for another classification hearing," Hernandez told the three-judge panel.

The issue before the court is whether the hearing examiner erred by relying on what defense counsel described as unreliable hearsay in the police report and the Commonwealth's statement of the case, and whether the examiner improperly applied two risk-elevating factors (identified in the record as factor 19, level of physical contact, and factor 20, diverse sexual behavior). The appellant also argued the examiner gave only moderate weight, rather than full mitigating weight, to several risk-mitigating factors (including stability in the community and completion of treatment) and that the board failed to prove a high risk of reoffending by clear and convincing evidence.

Hernandez emphasized gaps in the police report and the absence of physical evidence or corroborating witnesses for the alleged rape, and noted her client was found not guilty at criminal trial. She told the court the police report contains "a lot of details regarding the prostitution itself, but there's not a lot of details regarding the [rape] itself," and that the victim's statements in the police report are inconsistent about date and specific circumstances. Hernandez also pointed to risk-mitigating factors identified in the registry record: stable employment and program participation while incarcerated, letters of support from family and community, completion of offender treatment, and the appellant's age (recorded as 40 at the classification hearing), arguing those factors warranted a lower classification.

David Shanae, counsel for the Offender Registry Board, defended the hearing examiner's reliance on the victim's statements and on the Commonwealth's written statement of the case. Shanae argued the examiner permissibly drew inferences from the totality of the victim's statements and the broader record, and stressed the appellant's pattern of conduct: forcible control of women over time, use of drugs and confinement to compel prostitution, and prior convictions. "I think it stands because, again, taking the [rape] out of the equation, you still have an individual who twice forced women into prostitution," Shanae told the court, adding that the overall record supports a Level 3 classification.

The panel pressed both sides on legal and factual limits of the hearing examiner's sources. The judges questioned whether it is reasonable to treat a Commonwealth pleading as if it were a direct report of a victim's statements, and whether the specific risk factor for physical contact (factor 19) requires direct contact by the offender or could extend to forced sexual activity involving other perpetrators. Counsel disagreed about whether forcing a victim to have sex with others establishes factor 19 or is addressed elsewhere in the classification scheme.

No formal ruling was made from the bench. After both sides rested, the court took the matter under submission. The oral argument record shows the court engaged substantively on reliability of hearsay, the application of multiple numeric risk factors used in the registry classification process, and whether the cumulative evidence supports Level 3 rather than Level 2.

Votes at a glance: none (case submitted for decision).