John Doe, Sex Offender Registry Board No. 132084 v. Sex Offender Registry Board.
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Opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-381
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 132084
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, John Doe,1 appeals from a Superior Court
judgment affirming his final classification by the Sex Offender
Registry Board (SORB) as a level three sex offender. Concluding
that the hearing examiner acted within his discretion in denying
the petitioner's motion for expert funds, we affirm.
1. Standard of review. "[A] decision of SORB 'may only be
set aside if the court determines that the decision is
unsupported by substantial evidence or is arbitrary or
capricious, an abuse of discretion, or not in accordance with
law.'" Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender
1 A pseudonym. Registry Bd., 101 Mass. App. Ct. 797, 801 (2022), quoting Doe,
Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd.,
99 Mass. App. Ct. 533, 537 (2021). "We review a judge's
consideration of an agency decision de novo." Doe, Sex Offender
Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.
App. Ct. 85, 89 (2019).
2. Motion for expert funds. "[I]n moving for expert
witness funds, the burden [is] on the sex offender to identify
and articulate the reason or reasons, connected to a condition
or circumstance special to him, that he needs to retain a
particular type of expert." Doe, Sex Offender Registry Bd.
No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775
(2008) (Doe No. 89230). Accord 803 Code Mass. Regs.
§ 1.16(4)(a) (2016). "[T]he decision whether to grant an
individual sex offender funds for an expert is a discretionary
one, to be based on the facts presented in an individual case."
Doe No. 89230, supra.
Here, the petitioner requested funds for an expert because
he "suffers from pedophilia and pedophilia non-exclusive and he
has other medical conditions, including Eagle syndrome, unique
to him that could inhibit sexual recidivism [footnote omitted]."
As the hearing officer found, however, the petitioner did not
show that, at the time of the hearing, he had any condition that
could affect his risk to reoffend.
2 The petitioner had been diagnosed with pedophilia when the
Commonwealth unsuccessfully attempted to commit the petitioner
as a sexually dangerous person. The hearing examiner did not
consider this diagnosis, instead finding that "[t]here [is]
nothing to indicate that the Petitioner has a pedophilia
diagnosis currently." Because the hearing examiner did not
consider the diagnosis, he acted within his discretion in
denying the petitioner funds for an expert to contest the
diagnosis or its significance.
As to Eagle syndrome, the petitioner attached an article
explaining that "Eagle syndrome is a condition . . . typically
caused by an unusually long styloid process bone." It "causes
pain in the throat and face."2 As the hearing examiner found,
however, the petitioner showed "no connection between [his]
Eagle syndrome and his risk to reoffend." It is not intuitively
obvious why this condition would reduce a sex offender's risk to
offend, and the petitioner provided no persuasive explanation to
the examiner. Because the burden to establish a potential
2 According to the article, Eagle syndrome may also cause "swallowing difficulties[,] a feeling that there is something stuck in the throat[,] shooting pains from the throat to the ear or jaw[,] pain at the base of the tongue[,] pain when swallowing or turning the head to one side[,] a persisting ringing or buzzing in the ears[,] a headache[, and] throbbing in the jaw." The article also reports that the treatment for the condition usually provides complete relief from the symptoms.
3 connection between an illness and risk to reoffend rests with
the petitioner, the hearing examiner acted within his discretion
in denying the petitioner's motion for expert funds on this
record.
Judgment affirmed.
By the Court (Ditkoff, Englander & Smyth, JJ.3),
Clerk
Entered: August 13, 2024.
3 The panelists are listed in order of seniority.
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