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
25-P-368
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22460
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his reclassification by the Sex Offender
Registry Board (SORB or board) as a level two sex offender. On
appeal, Doe raises two overarching issues. First, he argues
that the board's decision was arbitrary and capricious and not
supported by substantial evidence because the hearing examiner
failed to make detailed findings of Doe's risk of reoffense and
degree of dangerousness. Second, Doe argues that his Superior
Court counsel was ineffective for failing to challenge the hearing examiner's application of factors 10, 24, 33, and 38.1
We affirm.
Discussion. 1. Standard of review. "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). "To determine the validity of an
agency's decision, the reviewing court must determine whether
the decision is supported by substantial evidence." Doe, Sex
Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,
447 Mass. 779, 787 (2006). Substantial evidence is "such
evidence as a reasonable mind might accept as adequate to
support a conclusion." G. L. c. 30A, § 1 (6). "[W]e give due
weight to the experience, technical competence, and specialized
knowledge of the agency" (citation omitted). Doe, Sex Offender
Registry Bd. No. 528042 v. Sex Offender Registry Bd., 496 Mass.
437, 441 (2025) (Doe No. 528042). A hearing examiner also has
discretion to consider which regulatory factors are applicable
in each case and how much weight to give to each factor. Id.
See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender
1 We refer to SORB's classification factors by number, or name and number, it being understood that each of them appears in the corresponding subpart of 803 Code Mass. Regs. § 1.33 (2016). SORB's regulations were updated in 2025, but the 2016 version of the regulations were in effect at the time of the hearing examiner's decision in this case and therefore govern our analysis.
2 Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). "Accordingly,
our 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" (quotation,
citation, alteration omitted). Doe, Sex Offender Registry Bd.
No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110
(2014).
2. Doe's level two classification. Doe argues his level
two classification was arbitrary and capricious, with the main
thrust of the argument being that the hearing examiner used a
"checklist approach." Perfunctory, checklist risk-
classification decisions are, of course, incompatible with the
reasoned analysis required of a SORB classification. See Doe,
Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry
Bd., 97 Mass. App. Ct. 564, 575-576 (2020) (Doe No. 11204).
Furthermore, hearing examiners are required "to make explicit
[their] findings regarding each of . . . three elements, [risk
of reoffense, degree of dangerousness, and Internet
publication,] and to make clear that each determination is
supported by clear and convincing evidence." Doe, Sex Offender
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 657 (2019) (Doe No. 496501). Here, the hearing examiner's
3 analysis was detailed and specific to Doe's personal
circumstances and far from a "tally sheet of aggravating and
mitigating factors." Doe No. 11204, supra. Rather than a
simple determination that "the former outweighed the latter,"
id. at 576, the hearing examiner noted which factors contributed
to his analysis for each element and considered the relevant
research.
Doe also argues that the hearing examiner improperly
considered factors 10, 11, 12, and 15 as part of his assessment
of Doe's degree of dangerousness. Factor 10 relates to contact
with the criminal justice system; factor 11 to violence
unrelated to sex assaults; factor 12 to behavior while
incarcerated or civilly committed; and factor 15 to hostility
toward women. In evaluating an offender's degree of
dangerousness, "a hearing examiner must consider 'the severity
and extent of the harm the offender would present to the public
in the event of reoffense.'" Doe No. 496501, 482 Mass. at 659,
quoting 803 Code Mass. Regs. § 1.20(2)(b) (2016). This
consideration must include "the nature and type of offense the
offender would be likely to commit if he or she reoffended."
Doe No. 496501, supra. Doe argues that, because the above
factors do not bear directly on the "nature and type" of
4 potential reoffense, the hearing examiner's consideration of
these factors was erroneous. We disagree.
First, we note that the regulation specifies that the
presence of each of the above factors correlates to an increased
degree of dangerousness. See 803 Code Mass. Regs. § 1.33(10)-
(12), (15). Second, contrary to Doe's position, the holding in
Doe No. 496501 does not require that every factor relate to the
nature and type of a potential reoffense in determining the
degree of dangerousness. Rather, the holding provides that the
level of dangerousness a hearing examiner finds in each case
should logically relate to the level of harm an offender is
capable of causing. See Doe No. 496501, 482 Mass. at 659-660
(risk of reoffense relating only to noncontact offenses, where
victim not put in fear of bodily harm, unlikely to pose moderate
degree of dangerousness). Here, Doe was convicted of two counts
of aggravated rape, in violation of G. L. c. 265, § 22 (a),
stemming from an incident in which he orally and vaginally raped
the victim and threatened to kill her with a gun. Given Doe's
history of sexual violence, the hearing examiner's decision was
neither arbitrary and capricious nor unsupported by substantial
evidence.
The remainder of Doe's appellate argument amounts to a
challenge to the regulatory scheme itself, rather than any
5 particular failing of the hearing examiner. For example, Doe
takes issue with the fact that the various risk levels are not
defined in the relevant statutory and regulatory scheme. He did
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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
25-P-368
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22460
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his reclassification by the Sex Offender
Registry Board (SORB or board) as a level two sex offender. On
appeal, Doe raises two overarching issues. First, he argues
that the board's decision was arbitrary and capricious and not
supported by substantial evidence because the hearing examiner
failed to make detailed findings of Doe's risk of reoffense and
degree of dangerousness. Second, Doe argues that his Superior
Court counsel was ineffective for failing to challenge the hearing examiner's application of factors 10, 24, 33, and 38.1
We affirm.
Discussion. 1. Standard of review. "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). "To determine the validity of an
agency's decision, the reviewing court must determine whether
the decision is supported by substantial evidence." Doe, Sex
Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,
447 Mass. 779, 787 (2006). Substantial evidence is "such
evidence as a reasonable mind might accept as adequate to
support a conclusion." G. L. c. 30A, § 1 (6). "[W]e give due
weight to the experience, technical competence, and specialized
knowledge of the agency" (citation omitted). Doe, Sex Offender
Registry Bd. No. 528042 v. Sex Offender Registry Bd., 496 Mass.
437, 441 (2025) (Doe No. 528042). A hearing examiner also has
discretion to consider which regulatory factors are applicable
in each case and how much weight to give to each factor. Id.
See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender
1 We refer to SORB's classification factors by number, or name and number, it being understood that each of them appears in the corresponding subpart of 803 Code Mass. Regs. § 1.33 (2016). SORB's regulations were updated in 2025, but the 2016 version of the regulations were in effect at the time of the hearing examiner's decision in this case and therefore govern our analysis.
2 Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). "Accordingly,
our 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" (quotation,
citation, alteration omitted). Doe, Sex Offender Registry Bd.
No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110
(2014).
2. Doe's level two classification. Doe argues his level
two classification was arbitrary and capricious, with the main
thrust of the argument being that the hearing examiner used a
"checklist approach." Perfunctory, checklist risk-
classification decisions are, of course, incompatible with the
reasoned analysis required of a SORB classification. See Doe,
Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry
Bd., 97 Mass. App. Ct. 564, 575-576 (2020) (Doe No. 11204).
Furthermore, hearing examiners are required "to make explicit
[their] findings regarding each of . . . three elements, [risk
of reoffense, degree of dangerousness, and Internet
publication,] and to make clear that each determination is
supported by clear and convincing evidence." Doe, Sex Offender
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 657 (2019) (Doe No. 496501). Here, the hearing examiner's
3 analysis was detailed and specific to Doe's personal
circumstances and far from a "tally sheet of aggravating and
mitigating factors." Doe No. 11204, supra. Rather than a
simple determination that "the former outweighed the latter,"
id. at 576, the hearing examiner noted which factors contributed
to his analysis for each element and considered the relevant
research.
Doe also argues that the hearing examiner improperly
considered factors 10, 11, 12, and 15 as part of his assessment
of Doe's degree of dangerousness. Factor 10 relates to contact
with the criminal justice system; factor 11 to violence
unrelated to sex assaults; factor 12 to behavior while
incarcerated or civilly committed; and factor 15 to hostility
toward women. In evaluating an offender's degree of
dangerousness, "a hearing examiner must consider 'the severity
and extent of the harm the offender would present to the public
in the event of reoffense.'" Doe No. 496501, 482 Mass. at 659,
quoting 803 Code Mass. Regs. § 1.20(2)(b) (2016). This
consideration must include "the nature and type of offense the
offender would be likely to commit if he or she reoffended."
Doe No. 496501, supra. Doe argues that, because the above
factors do not bear directly on the "nature and type" of
4 potential reoffense, the hearing examiner's consideration of
these factors was erroneous. We disagree.
First, we note that the regulation specifies that the
presence of each of the above factors correlates to an increased
degree of dangerousness. See 803 Code Mass. Regs. § 1.33(10)-
(12), (15). Second, contrary to Doe's position, the holding in
Doe No. 496501 does not require that every factor relate to the
nature and type of a potential reoffense in determining the
degree of dangerousness. Rather, the holding provides that the
level of dangerousness a hearing examiner finds in each case
should logically relate to the level of harm an offender is
capable of causing. See Doe No. 496501, 482 Mass. at 659-660
(risk of reoffense relating only to noncontact offenses, where
victim not put in fear of bodily harm, unlikely to pose moderate
degree of dangerousness). Here, Doe was convicted of two counts
of aggravated rape, in violation of G. L. c. 265, § 22 (a),
stemming from an incident in which he orally and vaginally raped
the victim and threatened to kill her with a gun. Given Doe's
history of sexual violence, the hearing examiner's decision was
neither arbitrary and capricious nor unsupported by substantial
evidence.
The remainder of Doe's appellate argument amounts to a
challenge to the regulatory scheme itself, rather than any
5 particular failing of the hearing examiner. For example, Doe
takes issue with the fact that the various risk levels are not
defined in the relevant statutory and regulatory scheme. He did
not bring those challenges in a declaratory judgment action, and
thus we "are without jurisdiction to decide the
constitutionality of the classification scheme." Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 631 (2011) (Doe No. 10800).
3. Ineffective assistance of counsel. Doe argues that his
counsel was ineffective in the Superior Court proceeding for
failing to challenge the hearing examiner's application of
factors 10, 24, 33, and 38.2 To support an ineffective
assistance of counsel claim in the sex offender registry
context, the offender must show that "there has been serious
incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinary fallible lawyer." Poe v. Sex Offender
Registry Bd., 456 Mass. 801, 812 (2010), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). In cases where counsel's
performance falls measurably below the standard of an ordinary,
fallible lawyer, we then consider whether counsel's performance
2 We note that Doe clarified at oral argument that he raises his ineffective assistance argument solely for the purpose of challenging the application of the factors.
6 prejudiced Doe. Poe, supra at 813. Furthermore, the burden is
on Doe to prove ineffective assistance of counsel. See
Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). Importantly,
"[j]udicial scrutiny of counsel's performance [is] highly
deferential, indulging in a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance" (quotation, citation, alteration omitted).
Commonwealth v. Florentino, 396 Mass. 689, 690 (1986). Doe
argues that the application of each of the above factors was
plainly erroneous such that any competent attorney would have
challenged them on appeal. Accordingly, we review the hearing
examiner's application of each factor looking not merely for
error, but rather for an error so grievous that counsel's
failure to challenge it on appeal fell measurably below that
which might be expected from an ordinary fallible lawyer. See
Poe, supra at 812.
a. Factor 10: Contact with the criminal justice system.
The hearing examiner applied factor 10 to Doe with moderate
weight due to Doe's lengthy criminal record in addition to the
governing sex offenses. He noted that Doe's contacts with the
criminal justice system all occurred prior to 1993, when Doe was
sentenced for the governing sex offenses. He further noted that
Doe was released from custody in July 2012 and was on probation
7 until 2016. Doe argues that this application was arbitrary and
capricious because his contacts with the criminal justice system
were remote in time, the hearing examiner's consideration of the
factor was inadequate, and because the application of factor 10
was incompatible with the hearing examiner's application of
factor 12, "behavior while incarcerated."
To the contrary, it is clear from the hearing examiner's
application of factor 10 that he considered "the number and type
of criminal charges, dispositions on the charges, [and] dates of
the criminal conduct." 803 Code Mass. Regs. § 1.33(10)(a). Doe
had numerous contacts with the criminal justice system over the
course of two decades, based on which the hearing examiner found
that Doe "engaged in an ongoing pattern of physically abusive
behavior towards women," in addition to his 1993 convictions of
aggravated rape. In this light, a "reflexive application" of
the factor would land on full weight, and the hearing examiner's
downward departure from full weight to moderate weight reflected
the hearing examiner's consideration of the change in Doe's
circumstances over time. And as for Doe's claim that the
discrepancy between the hearing examiner's applications of
factors 10 and 12 shows the decision was arbitrary, we note that
what weight to assign a given factor lies within the sound
discretion of the hearing examiner. Doe No. 528042, 496 Mass.
8 at 441. There are any number of legitimate reasons why a
hearing examiner might give moderate weight to an offender's
contacts with the criminal justice system while giving minimal
weight to the offender's disciplinary record while incarcerated.
After careful review, we conclude that challenging the hearing
examiner's application of factor 10 likely would have been
futile, and accordingly Doe's counsel's failure to challenge it
did not fall below the standard of an ordinary fallible lawyer.
See Commonwealth v. Collins, 470 Mass. 255, 261 (2014) ("defense
counsel was not ineffective for failing to make an objection
that would have been futile under the prevailing case law").
b. Factor 24: Less than satisfactory participation in sex
offender treatment. Doe refused to participate in sex offender
treatment altogether, and the hearing examiner applied with full
weight factor 24, which states that "[o]ffenders who refuse to
participate in . . . sex offender treatment present an increased
risk of re-offense." 803 Code Mass. Regs. § 1.33(24)(a). Doe
claims this was erroneous because the hearing examiner ignored
expert testimony from Doe's 2012 classification hearing, opining
that there is no link between an offender's refusing treatment
and risk of reoffense. Doe also claims that a research article,
submitted for the first time on appeal, so refutes the research
underlying factor 24 that Doe's prior counsel was ineffective
9 for not offering it in evidence at the reclassification hearing.
We disagree. The hearing examiner dealt squarely with the
expert testimony, giving it little weight due in part to the
expert's disregard of collateral reports the hearing examiner
found credible. The hearing examiner was not required to accept
the expert's testimony and gave a reasoned analysis for why he
discounted it. See Doe No. 10800, 459 Mass. at 638-639.
Furthermore, the research offered by Doe on appeal is not
dispositive, as it discusses only the recidivism effect of sex
offender treatment on participants who began but did not
complete treatment, and did not measure recidivism on those,
such as Doe, who refused treatment altogether. Doe's counsel's
failure to challenge the application of factor 24 or introduce
evidence at the hearing did not fall below the standard of an
ordinary fallible lawyer.
c. Factor 33: Home situation and support systems. Factor
33 provides that an adult offender presents a reduced risk of
reoffense when supported by "family, friends, and
acquaintances." 803 Code Mass. Regs. § 1.33(33)(a). The
hearing examiner must give greater weight to evidence of a
"support network that is aware of the offender's sex offense
history and provides guidance, supervision, and support of
rehabilitation." Id. The hearing examiner applied factor 33
10 with minimal weight, which Doe argues was erroneous because the
record showed Doe's supporters were aware of his sex offenses.
We are unpersuaded. As evidence of his community support, Doe
offered his own affidavit, an affidavit from his neighbor, and
four letters of support. The hearing examiner discounted much
of this evidence because it failed to show Doe's supporters were
aware of his sex offenses and did not describe what support they
gave Doe to assist him in remaining offense-free. While Doe's
neighbor was aware of his convictions for sex offenses, she made
clear that she believed he was innocent of them. The hearing
examiner was accordingly not required to apply factor 33 with
increased mitigating weight and was within his discretion to
afford minimal weight to this factor. See Doe No. 10800, 459
Mass. at 638-639. Any failure by Doe's counsel to challenge the
application of factor 33 did not fall below the standard of an
d. Factor 38: Victim impact statements. Finally, Doe
argues the hearing examiner committed error in considering the
victim impact statements. He argues the hearing examiner did
not explain how the effect of the rapes on Doe's victim relate
to Doe's degree of dangerousness, and that such an application
is contrary to SORB's regulations. We disagree.
11 Pursuant to G. L. c. 6, § 178K (1) (k), hearing examiners
are mandated to "review any victim impact statement." Also,
factor 38 "recognizes the substantial impact sex offenses have
on victims." 803 Code Mass. Regs. § 1.33(38)(a). Nothing in
the statutory or regulatory language precludes a hearing
examiner from considering how an offender's past conduct
effected the victim, and how that might bear on the likely
consequences for potential future victims. Furthermore, it was
appropriate for the hearing examiner to "recognize[] the
substantial impact the sex offenses have had on the [v]ictim,"
and the hearing examiner did not assign the victim impact
statements any weight or categorize them as a risk-elevating
factor. Acknowledging the victim's physical and psychological
injuries is important to the consideration of the harm Doe is
capable of causing should he reoffend. We discern nothing in
the hearing examiner's application of factor 38 to support the
claim that failure to challenge it fell below the standard of an
In conclusion, the record does not support Doe's claim of
12 ineffective assistance of counsel because there was no error in
the hearing examiner's application of the above factors. See
Poe, 456 Mass. at 813.
Judgment affirmed.
By the Court (Grant, Walsh & Brennan, JJ.3),
Clerk
Entered: June 5, 2026.
3 The panelists are listed in order of seniority.