John Doe, Sex Offender Registry Board No. 21986 v. Sex Offender Registry Board.

• Court: Massachusetts Appeals Court
• Decided: May 12, 2025
• Docket: 24-P-0014
• Status: Unpublished

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

24-P-14

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 21986

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a judgment affirming

his final classification by the Sex Offender Registry Board

(SORB) as a level two sex offender. In 2004, SORB classified

Doe as a level three sex offender pursuant to G. L. c. 6,

§ 178K (2) (c). In 2018, Doe requested relief from registration

or, in the alternative, reclassification as a level one offender

pursuant to 803 Code Mass. Regs. § 1.31 (2016). By decision

dated December 30, 2021, SORB ordered that Doe register as a

level two sex offender. After Doe sought judicial review, a

judge of the Superior Court affirmed SORB's decision. On

appeal, Doe contends that the SORB hearing examiner erred by

(1) giving inadequate consideration to certain scholarly articles that suggest that offense-free time in the community is

a substantial factor in lowering an offender's risk of

recidivism, and (2) failing to adequately explain how he

balanced the risk-aggravating factors and the more recent risk-

mitigating factors in determining that Doe was a moderate risk

offender. We affirm.

Discussion. 1. Consideration of scholarly articles. We

may only "set aside or modify a classification decision if it 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'" (citations

omitted). Doe, Sex Offender Registry Bd. No. 23656 v. Sex

Offender Registry Bd., 483 Mass. 131, 134 (2019) (Doe No.

23656). We "give due weight to [SORB's] experience, technical

competence, and specialized knowledge . . . as well as to the

discretionary authority conferred upon it." Doe, Sex Offender

Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.

102, 109 (2014) (Doe No. 68549), quoting G. L. c. 30A, § 14 (7).

As such, "[o]ur review does not turn on whether, faced with the

same set of facts, we would have drawn the same conclusion as an

agency or local board, but only 'whether a contrary conclusion

is not merely a possible but a necessary inference.'" Goldberg

v. Board of Health of Granby, 444 Mass. 627, 638 (2005), quoting

2 Commissioner of Revenue v. Houghton Mifflin Co., 423 Mass. 42,

43 (1996).

In his request for reclassification, Doe submitted three

scholarly articles from 2017, 2018, and 2019 that discuss the

impact of offense-free time in the community on the risk of

reoffense. Doe asserts that the hearing examiner should have

given greater consideration to these articles in determining

Doe's risk of reoffense because Doe had been offense free in the

community for five years and eighteen years had passed since his

last index offense. "Where an offender presents evidence

relevant to an offender's risk of recidivism, the hearing

examiner must at least consider the evidence." Doe, Sex

Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd.,

99 Mass. App. Ct. 292, 298 (2021) (Doe No. 356315), citing Doe,

Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry

Bd., 456 Mass. 612, 622-623 (2010). That duty includes

consideration of scientific research that speaks to the concerns

underlying the statutory and regulatory considerations

underpinning SORB's classification system. See Doe No. 68549,

470 Mass. at 105. Here, the hearing examiner "fully

consider[ed]" the articles submitted by Doe, but ultimately gave

them little weight in his overall analysis. The hearing

examiner also considered the articles under factor 29,

3 acknowledged that Doe had five years of offense-free time in the

community, and gave that factor minimal weight. As Doe

acknowledges, this court has found a hearing examiner's similar

consideration of scholarly articles to be consistent with

applicable law, since it is "for the hearing examiner to weigh

the evidence presented." Doe No. 356315, supra. We discern no

error in the hearing examiner's consideration of the articles

submitted by Doe here.

2. Weighing of factors. In addition, Doe claims that the

hearing examiner abused his discretion by failing to explain how

his weighing of the factors led to his conclusion that Doe

presented as a moderate risk offender. "An abuse of discretion

occurs where the hearing examiner makes 'a clear error of

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives' (quotation and citation omitted)." Doe No.

356315, 99 Mass. App. Ct. at 299, citing L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014). "SORB's ultimate determination

is comprised of three elements that, pursuant to 803 Code Mass.

Regs. § 1.20 (2), require separate findings." Doe, Sex Offender

Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.

643, 656 (2019). To classify an offender as a level two

offender, a hearing examiner must make explicit findings,

4 supported by clear and convincing evidence, "(1) that the risk

of reoffense is moderate; (2) that the offender's dangerousness,

as measured by the severity and extent of harm the offender

would present to the public in the event of reoffense, is

moderate; and (3) that a public safety interest is served by

Internet publication of the offender's registry information."

Id. at 644.

There was no abuse of discretion here. The hearing

examiner, in analyzing both Doe's risk of reoffense and degree

of dangerousness, properly discussed the various factors that

applied to Doe's case, the weight he applied to each factor, and

why he applied such weight. See Doe No. 23656, 483 Mass. at

143. Although the hearing examiner was not always explicit in

how he weighed particular factors against one another, we are

satisfied that the hearing examiner conducted a proper

assessment of the evidence and that his analysis "may reasonably

be discerned" from his decision. See NSTAR Elec. Co. v.

Department of Pub. Utils., 462 Mass. 381, 387 (2012), quoting

Costello v. Department of Pub. Utils., 391 Mass. 527, 535-536

(1984). Accordingly, we conclude that the hearing examiner's

finding that Doe presented a moderate risk of reoffense and

moderate degree of dangerousness was "based on a sound exercise

of informed discretion." See Doe, Sex Offender Registry Bd. No.

5 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651

(2012).

Judgment affirmed.

By the Court (Meade, Hodgens & Toone, JJ.1),

Clerk

Entered: May 12, 2025.

1 The panelists are listed in order of seniority.