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-1376
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 250253
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming an order of the Sex Offender Registry Board
(the board) classifying him as a level three sex offender. On
appeal, Doe argues that he was deprived of the effective
assistance of counsel during his classification hearing before
the board, and upon judicial review of his classification at the
Superior Court. We affirm.
Background. Doe, who was incarcerated at the time of his
classification hearing, has a history of sex offenses that
served as the basis for his classification. In particular, on
September 12, 1995, Doe admitted to sufficient facts for
indecent assault and battery on a person under the age of fourteen and was given a continuance without a finding (CWOF).
According to the relevant police reports, Doe, then aged thirty-
five, sexually assaulted his twelve year old female neighbor
while she was at his home babysitting his infant child. The
terms of Doe's CWOF included three years of probation and no
unsupervised contact with girls between the ages of twelve and
sixteen.
Then, on May 1, 2009, a jury found Doe guilty of nine
counts of rape and sixteen counts of indecent assault and
battery of a person age fourteen or over. Doe, aged forty-nine
at the time, repeatedly sexually assaulted two sisters who were
his neighbors, aged eighteen and twenty, who he had hired to
assist with a remodeling project he was doing on a cottage
located on his property.1 These offenses included oral, vaginal
and digital penetration. For these convictions, Doe received,
inter alia, a six-to-eight-year prison sentence and twenty years
of probation.
In addition to these convictions, Doe also has history of
criminal conduct unrelated to his sexual offenses. For
instance, on January 1, 2000, Doe was arrested for, and
subsequently convicted of, the unlawful possession of a firearm,
1 Doe had convinced the girls' father to allow them to work for him.
2 based on evidence that he purchased it with plans to shoot his
exwife and both his and her lawyers.2
On September 20, 2022, following a classification hearing
before the board, Doe was ordered to register as a level three
sex offender.3 On August 22, 2023, a judge of the Superior Court
affirmed the Board's order.
Discussion. 1. Standard of review. A level three
classification is warranted where the hearing examiner "make[s]
explicit" findings, supported by clear and convincing evidence,
that the offender presents "a high risk of reoffense, a high
degree of dangerousness, and a public safety interest is served
by active dissemination of the offender's registry information."
Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry
Bd., 490 Mass. 759, 768 (2022) (Doe No. 6729). "A reviewing
court may set aside or modify [the board's] classification
decision where it determines that the decision is in excess of
[the board's] statutory authority or jurisdiction, violates
2 Doe was in the midst of a contentious child custody battle at this time.
3 In August 2013, the board notified Doe of his duty to register as a level three sex offender. Doe challenged that decision and received a de novo hearing in September 2019. Because Doe was still incarcerated, the hearing examiner put Doe on "provisional status" and a subsequent hearing was held on July 26, 2022 -- a date closer to Doe's release from incarceration.
3 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 Registry Board, 482
Mass. 643, 649 (2019), citing G. L. c. 30A, § 14 (7).
In assessing the offender's dangerousness and likelihood to
reoffend, the hearing examiner is "guided by [several] statutory
risk factors" and various "aggravating and mitigating
considerations." Doe, Sex Offender Registry Bd. No. 23656 v.
Sex Offender Registry Bd., 483 Mass. 131, 134 (2019). See G. L.
c. 6, § 178K (1) (a)-(l); 803 Code Mass. Regs. § 1.33 (2016). A
hearing examiner abuses the examiner's discretion when making a
"clear error of judgment in weighing the [relevant] factors"
such that the outcome falls outside "the range of reasonable
alternatives." Doe, Sex Offender Registry Bd. No. 356315 v. Sex
Offender Registry Bd., 99 Mass. App. Ct. 292, 299 (2021),
quoting L.L. v. Commonwealth, 471 Mass. 169, 185 n.27 (2014).
Ultimately, "[t]he final classification level is not based on a
cumulative analysis of the applicable factors, but rather a
qualitative analysis of the individual sex offender's history
and personal circumstances." 803 Code Mass. Regs. § 1.33.
2. Ineffective assistance. To support an ineffective
assistance of counsel claim in the sex offender registry
context, the offender must first show that "there has been
4 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). Second, the offender must
show "a 'reasonable probability' that 'but for counsel's
unprofessional errors, the result of the proceeding would have
been different.'" Poe, supra at 813, quoting Commonwealth v.
Mahar, 442 Mass. 11, 15 (2004).
Here, Doe asserts that his counsel was ineffective for
failing to (1) request that the board exercise its subpoena
power to obtain Doe's medical records from Boston Medical
Center; (2) challenge the board's assertion that Doe was
unwilling to engage in sex offender treatment; and (3) submit
scholarly articles documenting a reduction in the previously
thought degree of correlation between a sex offender's failure
to participate in sex offender treatment and their risk of
reoffense. Doe also argues that his counsel was ineffective on
judicial review at the Superior Court, as evidenced by his one-
page memorandum in support of his motion for judgment on the
pleadings, and by the fact that the memorandum failed to
challenge the board's application of the regulatory factors,
namely, the examiner's application of factor 24 -- Less than
5 Satisfactory Participation in Sex Offender Treatment. 803 Code
Mass. Regs. § 1.33 (24).
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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
23-P-1376
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 250253
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming an order of the Sex Offender Registry Board
(the board) classifying him as a level three sex offender. On
appeal, Doe argues that he was deprived of the effective
assistance of counsel during his classification hearing before
the board, and upon judicial review of his classification at the
Superior Court. We affirm.
Background. Doe, who was incarcerated at the time of his
classification hearing, has a history of sex offenses that
served as the basis for his classification. In particular, on
September 12, 1995, Doe admitted to sufficient facts for
indecent assault and battery on a person under the age of fourteen and was given a continuance without a finding (CWOF).
According to the relevant police reports, Doe, then aged thirty-
five, sexually assaulted his twelve year old female neighbor
while she was at his home babysitting his infant child. The
terms of Doe's CWOF included three years of probation and no
unsupervised contact with girls between the ages of twelve and
sixteen.
Then, on May 1, 2009, a jury found Doe guilty of nine
counts of rape and sixteen counts of indecent assault and
battery of a person age fourteen or over. Doe, aged forty-nine
at the time, repeatedly sexually assaulted two sisters who were
his neighbors, aged eighteen and twenty, who he had hired to
assist with a remodeling project he was doing on a cottage
located on his property.1 These offenses included oral, vaginal
and digital penetration. For these convictions, Doe received,
inter alia, a six-to-eight-year prison sentence and twenty years
of probation.
In addition to these convictions, Doe also has history of
criminal conduct unrelated to his sexual offenses. For
instance, on January 1, 2000, Doe was arrested for, and
subsequently convicted of, the unlawful possession of a firearm,
1 Doe had convinced the girls' father to allow them to work for him.
2 based on evidence that he purchased it with plans to shoot his
exwife and both his and her lawyers.2
On September 20, 2022, following a classification hearing
before the board, Doe was ordered to register as a level three
sex offender.3 On August 22, 2023, a judge of the Superior Court
affirmed the Board's order.
Discussion. 1. Standard of review. A level three
classification is warranted where the hearing examiner "make[s]
explicit" findings, supported by clear and convincing evidence,
that the offender presents "a high risk of reoffense, a high
degree of dangerousness, and a public safety interest is served
by active dissemination of the offender's registry information."
Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry
Bd., 490 Mass. 759, 768 (2022) (Doe No. 6729). "A reviewing
court may set aside or modify [the board's] classification
decision where it determines that the decision is in excess of
[the board's] statutory authority or jurisdiction, violates
2 Doe was in the midst of a contentious child custody battle at this time.
3 In August 2013, the board notified Doe of his duty to register as a level three sex offender. Doe challenged that decision and received a de novo hearing in September 2019. Because Doe was still incarcerated, the hearing examiner put Doe on "provisional status" and a subsequent hearing was held on July 26, 2022 -- a date closer to Doe's release from incarceration.
3 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 Registry Board, 482
Mass. 643, 649 (2019), citing G. L. c. 30A, § 14 (7).
In assessing the offender's dangerousness and likelihood to
reoffend, the hearing examiner is "guided by [several] statutory
risk factors" and various "aggravating and mitigating
considerations." Doe, Sex Offender Registry Bd. No. 23656 v.
Sex Offender Registry Bd., 483 Mass. 131, 134 (2019). See G. L.
c. 6, § 178K (1) (a)-(l); 803 Code Mass. Regs. § 1.33 (2016). A
hearing examiner abuses the examiner's discretion when making a
"clear error of judgment in weighing the [relevant] factors"
such that the outcome falls outside "the range of reasonable
alternatives." Doe, Sex Offender Registry Bd. No. 356315 v. Sex
Offender Registry Bd., 99 Mass. App. Ct. 292, 299 (2021),
quoting L.L. v. Commonwealth, 471 Mass. 169, 185 n.27 (2014).
Ultimately, "[t]he final classification level is not based on a
cumulative analysis of the applicable factors, but rather a
qualitative analysis of the individual sex offender's history
and personal circumstances." 803 Code Mass. Regs. § 1.33.
2. Ineffective assistance. To support an ineffective
assistance of counsel claim in the sex offender registry
context, the offender must first show that "there has been
4 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). Second, the offender must
show "a 'reasonable probability' that 'but for counsel's
unprofessional errors, the result of the proceeding would have
been different.'" Poe, supra at 813, quoting Commonwealth v.
Mahar, 442 Mass. 11, 15 (2004).
Here, Doe asserts that his counsel was ineffective for
failing to (1) request that the board exercise its subpoena
power to obtain Doe's medical records from Boston Medical
Center; (2) challenge the board's assertion that Doe was
unwilling to engage in sex offender treatment; and (3) submit
scholarly articles documenting a reduction in the previously
thought degree of correlation between a sex offender's failure
to participate in sex offender treatment and their risk of
reoffense. Doe also argues that his counsel was ineffective on
judicial review at the Superior Court, as evidenced by his one-
page memorandum in support of his motion for judgment on the
pleadings, and by the fact that the memorandum failed to
challenge the board's application of the regulatory factors,
namely, the examiner's application of factor 24 -- Less than
5 Satisfactory Participation in Sex Offender Treatment. 803 Code
Mass. Regs. § 1.33 (24). We affirm.
1. Medical records. Doe's argument that his counsel was
ineffective for failing to compel the board to obtain Doe's
medical records from Boston Medical Center is unavailing. To
begin, Doe has failed to provide the Superior Court or this
court with the medical records in question, and we therefore
cannot assess whether the absence of these records prejudiced
Doe.4 See Poe, 456 Mass. at 813. As such, this argument cannot
serve as the basis for an ineffective assistance claim.
2. Sex offender treatment. Doe further argues that his
counsel was ineffective for failing to challenge the board's
assertion that he was unwilling to engage in sex offender
treatment and, in turn, for not challenging the hearing
examiner's application of factor 24. Specifically, Doe argues
that counsel's failure to remind the hearing examiner in his
proposed findings of fact and conclusions of law to the board
that Doe's Inmate Web5 contained an entry, dated August 6, 2013,
At the classification hearing Doe's counsel introduced a 4
Massachusetts Department of Correction Health Services Sick Call Request form which detailed Doe's medical issues. Upon request, Doe's counsel was granted additional time to submit medical records from Boston Medical Center.
The Inmate Web system is used to collect and manage inmate 5
data such as demographics, criminal history, and program participation while incarcerated.
6 noting that Doe "is willing to attend sex offender treatment
when eligible"6 amounted to ineffective assistance. However,
there is evidence in the record that when Doe was subsequently
transferred to a prison that offered sex offender programming,
he continually refused to participate in treatment. For these
same reasons, the hearing examiner's application of factor 24,
which is applied if offender's participation in treatment is
"less than satisfactory," was also not improper.7 803 Code Mass.
Regs. § 1.33 (24). Therefore, Doe's arguments miss the mark.
3. Scholarly articles. Doe also grounds his claim in his
counsel's failure to submit scholarly articles that document a
reduction in the nexus between an offender's participation in
sex offender treatment and their risk of re-offense.
Specifically, Doe relies on an unpublished decision issued by a
panel of this court pursuant to Appeals Court rule 23.0 -- Doe,
Sex Offender Registry Bd. No. 239639 (Doe No. 239639) v. Sex
Offender Registry Bd., No. 21-P-928 (February 1, 2023) -- to
6 Doe was not eligible to participate in treatment at the time of this entry because he was incarcerated at a facility that did not offer sex offender treatment programming.
7 Factor 24 provides that "[s]ex offenders who refused to participate in, dropped out of, or were terminated by their treatment provider from sex offender treatment present an increased risk of re-offense and degree of dangerousness." 803 Code Mass. Regs. § 1.33 (24).
7 support his argument. However, Doe No. 239639 simply held that
a hearing examiner was required to consider two articles
introduced into evidence that contained information relevant to
the application of the board's factors, specifically factors 24
and 32, which information was not addressed by the board when
the factors were promulgated. See Doe No. 239639, No. 21-P-928,
slip op. at 11-15. The decision did not address whether counsel
could be deemed ineffective for failing to submit certain
scholarly or scientific articles for the board's consideration.
Furthermore, as the board asserts, the decision also "did not
state that the [scholarly] articles invalidated [f]actor 24, nor
did [the decision] consider the impact an offender's refusal to
participate in treatment had on his risk [to reoffend]."
Importantly, we note that Doe's counsel did submit a motion for
findings of fact and rulings of law which attached sixteen
scientific articles, one of which asserted that "there is no
difference in recidivism rates between [sex offender] treatment
participants and non-participants in sexual or violent crimes"
and another which stated that "the outcome predictive value for
those who undergo [sex offender] treatment and those who do not
is small." We therefore agree with the board that it is purely
speculative whether the admission of additional articles would
8 have resulted in the hearing examiner declining to apply factor
24.
4. Counsel's Superior Court representation. Doe further
asserts that his counsel's performance in the Superior Court
also fell "measurably below that which might be expected from an
ordinary fallible lawyer." Poe, 456 Mass. at 812, quoting
Saferian, 366 Mass. at 96. In support of this argument, Doe
points to the fact that counsel only submitted a one-page
memorandum to accompany his motion for judgment on the
pleadings, and to the fact that the memorandum failed to
challenge the board's application of the regulatory factors,
particularly the examiner's application of factor 24. We are
not persuaded. Counsel's decision to argue that Doe's current
physical illnesses and limitations lowered his risk to reoffend
was a reasonable strategic decision. See Commonwealth v.
Kolenovic, 471 Mass. 664, 674 (2015). Counsel properly
submitted documentary evidence both before and after the
classification hearing detailing Doe's medical ailments, and
Doe's testimony primarily focused on his failing physical health
and lack of mobility. Therefore, it was eminently reasonable
for counsel to focus on those conditions when arguing in the
Superior Court. Indeed, Doe recognizes that "his diminishing
physical condition" is his "best defense."
9 Finally, Doe's argument that his counsel should have
challenged the application of factor 2 (repetitive and
compulsive behavior) and factor 3 (adult offender with child
victim) because his 1995 offense is outdated and cannot be used
to assess his current risk of reoffense requires little
discussion. Doe cites no authority for the proposition that the
hearing examiner should not have considered his 1995 offense, as
to which he admitted to sufficient facts, in determining his
classification.
Accordingly, because Doe cannot demonstrate that his
counsel was ineffective at either his classification hearing or
before the Superior Court, the judgment on the pleadings is
affirmed.
So ordered.
By the Court (Desmond, Grant & Hodgens, JJ.8),
Clerk
Entered: July 28, 2025.
8 The panelists are listed in order of seniority.