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
24-P-776
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 216728
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from his classification as a level
three sex offender, challenging what he characterizes as a
"checklist" approach by the Sex Offender Registry Board (SORB)
hearing examiner (examiner), maintaining that the examiner
arbitrarily and capriciously applied three regulatory risk-
elevating factors, and asserting that Internet publication was
not warranted. We affirm.
Background. The plaintiff sexually assaulted five stranger
victims over a period of approximately two weeks. The most
violent and penetrative assault was the oral rape of a twenty-
two-year-old woman (victim 1) whom the plaintiff approached from
behind as she walked down a public street. The plaintiff held a knife to the woman's throat and directed her to keep walking,
bringing her to a dark driveway. There, the plaintiff forced
victim 1 to kneel, threatened to cut her, and told her to do
what he wanted and he would let her go. The plaintiff then
orally raped the woman, ejaculating in her mouth. He then
walked her, again at knifepoint, to a car, where he pushed her
into the passenger seat and ripped open her coat, removed her
shirt and bra, licked and touched her breasts, and told her to
hold his penis like a "lollipop." During this second oral rape,
the plaintiff again ejaculated in the victim's mouth,
instructing her to swallow.
Just six days later the plaintiff grabbed his second victim
(victim 2) from behind as she waited for a bus. Pushing her
face against a fence, he said, "be quiet. Walk with me." He
grabbed her breast and her buttocks and poked her in the ribs
with what she believed to be a knife. Victim 2 hit the
plaintiff with her left elbow and fled to an approaching bus.
After being questioned about the assaults on victims 1 and
2, the plaintiff admitted to them along with three other
indecent assaults on women strangers within the same month as
the assaults on victims 1 and 2. He grabbed his third and
fourth victims (victims 3 and 4) by the buttocks on public
streets in separate incidents on the same day. Approximately
2 ten days later, also on a public street, he grabbed his fifth
victim (victim 5) by the buttocks and then, when she turned to
look at him, he pulled her headphones off and threw them at her.
With respect to the assaults on victims 1 and 2, the
plaintiff pleaded guilty to two counts of aggravated rape, one
count of kidnapping, one count of assault with intent to rape,
two counts of assault with a dangerous weapon, and one count of
indecent assault and battery on a person age fourteen or over.
With respect to the assaults on victims 3, 4, and 5, the
plaintiff pled guilty to three counts of indecent assault and
battery on a person age fourteen or over. He received a
sentence of incarceration followed by a period of forty years of
supervised probation. While he was incarcerated, the plaintiff
undertook sex offender treatment at the North Central
Correctional Institution in Gardner in 2015 and also spent
approximately three years receiving sex offender treatment at
the Massachusetts Treatment Center.
Discussion. "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
3 Registry Bd., 482 Mass. 643, 649 (2019), citing G. L. c. 30A,
§ 14 (7). "Substantial evidence is 'such evidence as a
reasonable mind might accept as adequate to support a
conclusion.'" Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L.
c. 30A, § 1 (6). "We give due weight to the experience,
technical competence, and specialized knowledge of the agency,
as well as to the discretionary authority conferred upon it"
(quotation and citation omitted). Doe, Sex Offender Registry
Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.
85, 88 (2019).
"A hearing examiner has discretion . . . to consider which
statutory and regulatory factors are applicable and how much
weight to ascribe to each factor . . . ." Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 109-110 (2014) (Doe No. 68549). "[O]ur review does not
turn on whether, faced with the same set of facts, we would have
drawn the same conclusion as an [examiner] . . . , but only
whether a contrary conclusion is not merely a possible but a
necessary inference" (quotation and citation omitted). Id. at
110.
To classify an offender as level three an examiner must
determine "that the risk of reoffense is high and the degree of
4 dangerousness posed to the public is such that a substantial
public safety interest is served by active
dissemination . . . ." G. L. c. 6, § 178K (2) (c). See Doe,
Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry
Bd., 447 Mass. 779, 788 (2006) (presence of "high-risk" factors
lends support to examiner's decision to classify plaintiff as
level three offender).
1. "Checklist approach." Before us, the plaintiff asserts
for the first time that the examiner improperly followed a
"checklist approach" in analyzing the plaintiff's history and
characteristics rather than employing the reasoned analysis
required by law. See Doe, Sex Offender Registry Bd. No. 11204
v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020).
Because the plaintiff failed to raise this argument before the
instant appeal, it is waived. Doe, Sex Offender Registry Bd.
No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 57-58
(2010). We follow the rule that "[i]n the absence of a
statutory directive to the contrary, the administrative remedies
should be exhausted before resort to the courts" (quotation
omitted), id. at 57-58, because "when a party neglects to raise
an issue during agency proceedings, the reviewing court lacks a
record on which to evaluate questions of statutory authority or
jurisdiction." Id. at 58.
5 To the extent it can be considered a separate argument, the
plaintiff's related claim that the examiner erred in weighing
the high-risk and risk-elevating factors against the risk-
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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
24-P-776
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 216728
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from his classification as a level
three sex offender, challenging what he characterizes as a
"checklist" approach by the Sex Offender Registry Board (SORB)
hearing examiner (examiner), maintaining that the examiner
arbitrarily and capriciously applied three regulatory risk-
elevating factors, and asserting that Internet publication was
not warranted. We affirm.
Background. The plaintiff sexually assaulted five stranger
victims over a period of approximately two weeks. The most
violent and penetrative assault was the oral rape of a twenty-
two-year-old woman (victim 1) whom the plaintiff approached from
behind as she walked down a public street. The plaintiff held a knife to the woman's throat and directed her to keep walking,
bringing her to a dark driveway. There, the plaintiff forced
victim 1 to kneel, threatened to cut her, and told her to do
what he wanted and he would let her go. The plaintiff then
orally raped the woman, ejaculating in her mouth. He then
walked her, again at knifepoint, to a car, where he pushed her
into the passenger seat and ripped open her coat, removed her
shirt and bra, licked and touched her breasts, and told her to
hold his penis like a "lollipop." During this second oral rape,
the plaintiff again ejaculated in the victim's mouth,
instructing her to swallow.
Just six days later the plaintiff grabbed his second victim
(victim 2) from behind as she waited for a bus. Pushing her
face against a fence, he said, "be quiet. Walk with me." He
grabbed her breast and her buttocks and poked her in the ribs
with what she believed to be a knife. Victim 2 hit the
plaintiff with her left elbow and fled to an approaching bus.
After being questioned about the assaults on victims 1 and
2, the plaintiff admitted to them along with three other
indecent assaults on women strangers within the same month as
the assaults on victims 1 and 2. He grabbed his third and
fourth victims (victims 3 and 4) by the buttocks on public
streets in separate incidents on the same day. Approximately
2 ten days later, also on a public street, he grabbed his fifth
victim (victim 5) by the buttocks and then, when she turned to
look at him, he pulled her headphones off and threw them at her.
With respect to the assaults on victims 1 and 2, the
plaintiff pleaded guilty to two counts of aggravated rape, one
count of kidnapping, one count of assault with intent to rape,
two counts of assault with a dangerous weapon, and one count of
indecent assault and battery on a person age fourteen or over.
With respect to the assaults on victims 3, 4, and 5, the
plaintiff pled guilty to three counts of indecent assault and
battery on a person age fourteen or over. He received a
sentence of incarceration followed by a period of forty years of
supervised probation. While he was incarcerated, the plaintiff
undertook sex offender treatment at the North Central
Correctional Institution in Gardner in 2015 and also spent
approximately three years receiving sex offender treatment at
the Massachusetts Treatment Center.
Discussion. "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
3 Registry Bd., 482 Mass. 643, 649 (2019), citing G. L. c. 30A,
§ 14 (7). "Substantial evidence is 'such evidence as a
reasonable mind might accept as adequate to support a
conclusion.'" Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L.
c. 30A, § 1 (6). "We give due weight to the experience,
technical competence, and specialized knowledge of the agency,
as well as to the discretionary authority conferred upon it"
(quotation and citation omitted). Doe, Sex Offender Registry
Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.
85, 88 (2019).
"A hearing examiner has discretion . . . to consider which
statutory and regulatory factors are applicable and how much
weight to ascribe to each factor . . . ." Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 109-110 (2014) (Doe No. 68549). "[O]ur review does not
turn on whether, faced with the same set of facts, we would have
drawn the same conclusion as an [examiner] . . . , but only
whether a contrary conclusion is not merely a possible but a
necessary inference" (quotation and citation omitted). Id. at
110.
To classify an offender as level three an examiner must
determine "that the risk of reoffense is high and the degree of
4 dangerousness posed to the public is such that a substantial
public safety interest is served by active
dissemination . . . ." G. L. c. 6, § 178K (2) (c). See Doe,
Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry
Bd., 447 Mass. 779, 788 (2006) (presence of "high-risk" factors
lends support to examiner's decision to classify plaintiff as
level three offender).
1. "Checklist approach." Before us, the plaintiff asserts
for the first time that the examiner improperly followed a
"checklist approach" in analyzing the plaintiff's history and
characteristics rather than employing the reasoned analysis
required by law. See Doe, Sex Offender Registry Bd. No. 11204
v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020).
Because the plaintiff failed to raise this argument before the
instant appeal, it is waived. Doe, Sex Offender Registry Bd.
No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 57-58
(2010). We follow the rule that "[i]n the absence of a
statutory directive to the contrary, the administrative remedies
should be exhausted before resort to the courts" (quotation
omitted), id. at 57-58, because "when a party neglects to raise
an issue during agency proceedings, the reviewing court lacks a
record on which to evaluate questions of statutory authority or
jurisdiction." Id. at 58.
5 To the extent it can be considered a separate argument, the
plaintiff's related claim that the examiner erred in weighing
the high-risk and risk-elevating factors against the risk-
mitigating factors is also unavailing. A hearing examiner "has
discretion . . . to consider which statutory and regulatory
factors are applicable and how much weight to ascribe to each
factor . . . ." Doe, Sex Offender Registry Bd. No. 22188 v. Sex
Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019) (Doe
No. 22188), quoting Doe No. 68549, 470 Mass. at 109-110. In
assessing the degree of danger the plaintiff posed as high, the
examiner noted that the plaintiff sexually assaulted five women
strangers in public locations over a few-week period, and that
the assault of victim 1 involved two oral rapes at knifepoint.
The examiner analyzed the risk of reoffense by noting that the
victims were strangers to the plaintiff (factor 7), that the
plaintiff threatened victim 1 with a knife during the sexual
assaults (factor 8), and that all five sexual assaults occurred
in public locations (factor 16). He also noted the number of
victims (factor 22) and that the plaintiff had a history of rule
violations while incarcerated (factor 12). Finally, the
examiner considered the test results and articles submitted by
the plaintiff (factors 35 and 37). We are mindful that
determining which factors to apply "and how much weight to
6 ascribe to each factor," are matters within the hearing
examiner's discretion, and, "a reviewing court is required to
'give due weight to [the examiner's] experience, technical
competence, and specialized knowledge'" (citation omitted). Doe
No. 68549, supra at 109-110. We will not disturb this
discretionary weighing in these circumstances.
2. Application of risk-elevating factors 9, 19, and 35.
The plaintiff maintains that the hearing examiner's application
of three risk-elevating factors was arbitrary and capricious.
We disagree and conclude that the hearing examiner acted within
his considerable discretion in applying each of these factors.
The plaintiff contends that the examiner could not apply
factor 9 (alcohol and substance use) at all because his
"purported decades old use of alcohol or drugs" was too remote
in time and the plaintiff had experienced "[fifteen] years of
admittedly forced sobriety" since. The examiner acted within
his discretion in applying this factor, to which he assigned
minimal weight because "[d]rugs and alcohol are behavioral
disinhibitors," 803 Code Mass. Regs § 1.33(9)(a) (2016), and the
plaintiff had admitted to weekly alcohol use, and use of
marijuana up to four times weekly, beginning at age thirteen.
The hearing examiner noted the plaintiff's plan to discontinue
alcohol and marijuana use, and also acknowledged that substance
7 use was "not a factor in his sexual offending." But the
regulations permit consideration of this evidence and the
examiner was not obligated to acknowledge the plaintiff's
"forced sobriety" in custody, nor to explain how he weighed
either the passage of time or the plaintiff's future plans. See
Doe No. 22188, 96 Mass. App. Ct. at 742.
The plaintiff's argument about factor 19 is no more
persuasive. He orally raped victim 1 twice, so the examiner
applied factor 19 (level of physical contact) with increased
weight, concluding that "[p]enile penetration implicates this
factor with increased weight as to dangerousness." It was not
arbitrary and capricious for the examiner to conclude this
without explicitly weighing the 1998 Hanson and Bussière article
submitted by the plaintiff. SORB's 2002 regulations "state that
they are based on the 'available literature' regarding the risk
factors enumerated in the statute," including this article, Doe,
Sex Offender Registry Board No. 151564 v. Sex Offender Registry
Bd., 456 Mass. 612, 620 (2010), citing 803 Code Mass. Regs.
§ 1.40(7) (2002), and the applicable 2016 regulations also
expressly considered this article. See 803 Code Mass. Regs.
§§ 1.33 (2016). Accordingly, the plaintiff's submitted article
was adequately accounted for by the regulations and the examiner
need not have separately explained how he considered it.
8 The examiner similarly committed no error in his
consideration of factor 35. This factor requires the examiner
to "consider evaluative reports, empirically-based risk
assessment instruments, or testimony from a licensed mental
health professional" about "psychological and psychiatric issues
. . . as they relate to the offender's risk of reoffense." 803
Code Mass. Regs. § 1.33(35)(a) (2016). The plaintiff maintains
that (1) the examiner was unqualified to "interpret," and thus
should not have considered, the plaintiff's Static-99R and
STABLE-2007 risk assessment test results, and (2) the risk
assessments were administered four years before the hearing,
rendering their results stale. We are skeptical that either of
these arguments rises to the level of appellate argument, see
Mass. R. App. P. 16 (a) (9), as appearing in 481 Mass. 1628
(2019), but consider them to the extent possible.
The examiner afforded "some weight" to the tests, "to the
extent each was correctly applied to the facts, and . . . only
to the extent they may be seen as a general indicator of risk of
re-offense." Consideration of the tests was within the hearing
examiner's authority, as the language of factor 35 makes plain,
and he properly limited the weight given to these tests. And,
even if it was improper for the examiner to consider these
tests, we are confident that the error did not affect the
9 classification. See Sex Offender Registry Bd. No. 22188 v. Sex
Offender Registry Bd., 101 Mass. App. Ct. 797, 804-805 (2022).
3. Internet publication. The plaintiff focuses on the
hardships and restrictions sex offenders face when they are
required to register. While we do not question that these
challenges exist, they do not provide the plaintiff with an
argument for reversing the order of Internet publication.
Neither are we persuaded by the plaintiff's reiterated arguments
about the age of his offenses, his otherwise clean criminal
record, and his largely successful prison stay. As we noted
earlier, these assertions amount to a disagreement with the
hearing examiner's weighing of the evidence, a matter that is
squarely within an examiner's discretion. Doe No. 68549, 470
Mass. at 109-110.
10 The evidence supported the hearing examiner's level three
classification of the plaintiff, and the examiner appropriately
considered the nature and severity of the plaintiff's offenses
in assessing whether Internet publication was warranted. See,
e.g., Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender
Registry Bd., 483 Mass. 131, 144-147 (2019).
Judgment affirmed.
By the Court (Hershfang, Hodgens & Smyth, JJ.1),
Clerk
Entered: January 20, 2026.
1 The panelists are listed in order of seniority.