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-680
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 4738
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe No. 4738 (Doe), appeals from a
Superior Court judgment affirming his reclassification by the
Sex Offender Registry Board (SORB) as a level one sex offender.
On appeal, Doe claims that the reclassification decision was
arbitrary, capricious, and not based on substantial evidence
because the hearing examiner (examiner) mechanically applied
SORB's regulatory factors while failing to provide an
explanation for Doe's continued risk to reoffend. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011). In November 1996, Springfield police interviewed a seven
year old girl (victim) after she disclosed that Doe, her father,
had sexually assaulted her. The victim reported that when she
was five years old, on multiple occasions, Doe came into her
room at night and rubbed her vaginal area under her underwear.
The victim also reported to the police that Doe "was drinking
beer a lot" and "hit us a lot with his belt."
In May 1997, Doe admitted to sufficient facts and a finding
of guilt was entered on a single count of indecent assault and
battery on a child under fourteen. Doe was sentenced to two and
one-half years at the house of correction, with one year to
serve and the balance suspended with probationary conditions
until March 1999. Doe admitted to violating his probation in
1998 for failing to attend a rehabilitation program, and his
probation was extended until April 2002.
Doe also has several criminal convictions spanning before
and after his index sexual offense. Between 1989 and 2019, Doe
had been charged forty-two times in Massachusetts and Rhode
Island for various offenses. 1 His most recent conviction
1 As stated in the examiner's decision, the full list of charges includes: nine counts of assault and battery, five counts of larceny, four counts of disorderly conduct, three counts of a fugitive from justice, three counts of uttering a false check, two counts of forgery of a check, two abuse prevention act violations, two trespassing violations, two shoplifting charges, failure to appear on personal recognizance, threatening to commit a crime, possession of a class D
2 occurred in 2019, when he pleaded guilty for assault and battery
after punching a stranger in a car in the face and received a
one year incarceration sentence. At the time of
reclassification hearing, Doe was working to address his
sobriety.
On September 4, 2003, SORB classified Doe as a level two
sex offender. In February 2020, Doe moved for termination of
his sex offender registration obligation. SORB initially denied
this request. After a de novo hearing challenging the
recommendation, the examiner reclassified Doe as a level one sex
offender. A Superior Court judge affirmed SORB's ruling, and
Doe appealed.
Discussion. 1. Standard of review. A reviewing court may
set aside a decision of the board if it determines "that the
decision is unsupported by substantial evidence or is arbitrary
or capricious, an abuse of discretion, or not in accordance with
law" (citation omitted). Doe, Sex Offender Registry Bd. No.
22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801
(2022). The reviewing court shall "give due weight to the
experience, technical competence, and specialized knowledge of
substance, threat to commit murder, possession of a class B controlled substance, shoplifting second offense, passing counterfeit certifications/bills/notes, forgery and counterfeiting in general, obtaining money by false pretenses, and check kiting.
3 the agency, as well as to the discretionary authority conferred
upon it." Doe, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L.
c. 30A, § 14 (7). As a result, Doe "bears a heavy burden of
establishing that the [board]'s decision was incorrect"
(citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v.
Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).
2. Classification determination. Doe contends that the
examiner's decision was arbitrary and capricious, and not
supported by substantial evidence, because the examiner could
not "support a finding that Doe continued to present anything
but a speculative risk of reoffense or danger to the community"
and unduly emphasized "Doe's history of recent criminal conduct
and stay at a sober house." We disagree.
To support a level one classification, SORB must prove, by
clear and convincing evidence, that Doe's "risk of reoffense is
low and the degree of dangerousness posed to the public is not
such that a public safety interest is served by public
availability." Doe, Sex Offender Registry Bd. No. 496501 v. Sex
Offender Registry Bd., 482 Mass. 643, 646 (2019), quoting G. L.
c. 6, § 178K (2) (a). "[R]egistration can be required only
based on an assessment 'of the person's current level of
dangerousness and risk of reoffense'" (emphasis omitted). Doe,
Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry
4 Bd., 74 Mass. App. Ct. 383, 387 (2009) (Doe No. 24341), quoting
Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry
Bd., 450 Mass. 780, 787 (2008). "SORB's burden is to show that
Doe presents a 'cognizable risk of reoffense,' Doe, Sex Offender
Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass.
750, 762 (2006), not merely a hypothetical or speculative
potential risk." Doe No. 24341, 74 Mass. App. Ct. at 388.
Here, the hearing examiner properly applied and weighed
several regulatory factors that support a finding of a low risk
of reoffense. For instance, the examiner applied one high risk
factor at an increased weight, factor three, based on the pre-
pubescent age of the victim and Doe's adult age at the time of
the assault. See 803 Code Mass. Regs. § 1.33(3)(a) (2016). The
examiner also appropriately applied Doe's frequent contact with
the criminal justice system and violence unrelated to sexual
assaults at full weight given his extensive criminal record,
while assigning minimal weight to his noncompliance with
community supervision. See 803 Code Mass. Regs. § 1.33(10),
(11), (13) (2016).
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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-680
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 4738
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe No. 4738 (Doe), appeals from a
Superior Court judgment affirming his reclassification by the
Sex Offender Registry Board (SORB) as a level one sex offender.
On appeal, Doe claims that the reclassification decision was
arbitrary, capricious, and not based on substantial evidence
because the hearing examiner (examiner) mechanically applied
SORB's regulatory factors while failing to provide an
explanation for Doe's continued risk to reoffend. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011). In November 1996, Springfield police interviewed a seven
year old girl (victim) after she disclosed that Doe, her father,
had sexually assaulted her. The victim reported that when she
was five years old, on multiple occasions, Doe came into her
room at night and rubbed her vaginal area under her underwear.
The victim also reported to the police that Doe "was drinking
beer a lot" and "hit us a lot with his belt."
In May 1997, Doe admitted to sufficient facts and a finding
of guilt was entered on a single count of indecent assault and
battery on a child under fourteen. Doe was sentenced to two and
one-half years at the house of correction, with one year to
serve and the balance suspended with probationary conditions
until March 1999. Doe admitted to violating his probation in
1998 for failing to attend a rehabilitation program, and his
probation was extended until April 2002.
Doe also has several criminal convictions spanning before
and after his index sexual offense. Between 1989 and 2019, Doe
had been charged forty-two times in Massachusetts and Rhode
Island for various offenses. 1 His most recent conviction
1 As stated in the examiner's decision, the full list of charges includes: nine counts of assault and battery, five counts of larceny, four counts of disorderly conduct, three counts of a fugitive from justice, three counts of uttering a false check, two counts of forgery of a check, two abuse prevention act violations, two trespassing violations, two shoplifting charges, failure to appear on personal recognizance, threatening to commit a crime, possession of a class D
2 occurred in 2019, when he pleaded guilty for assault and battery
after punching a stranger in a car in the face and received a
one year incarceration sentence. At the time of
reclassification hearing, Doe was working to address his
sobriety.
On September 4, 2003, SORB classified Doe as a level two
sex offender. In February 2020, Doe moved for termination of
his sex offender registration obligation. SORB initially denied
this request. After a de novo hearing challenging the
recommendation, the examiner reclassified Doe as a level one sex
offender. A Superior Court judge affirmed SORB's ruling, and
Doe appealed.
Discussion. 1. Standard of review. A reviewing court may
set aside a decision of the board if it determines "that the
decision is unsupported by substantial evidence or is arbitrary
or capricious, an abuse of discretion, or not in accordance with
law" (citation omitted). Doe, Sex Offender Registry Bd. No.
22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801
(2022). The reviewing court shall "give due weight to the
experience, technical competence, and specialized knowledge of
substance, threat to commit murder, possession of a class B controlled substance, shoplifting second offense, passing counterfeit certifications/bills/notes, forgery and counterfeiting in general, obtaining money by false pretenses, and check kiting.
3 the agency, as well as to the discretionary authority conferred
upon it." Doe, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L.
c. 30A, § 14 (7). As a result, Doe "bears a heavy burden of
establishing that the [board]'s decision was incorrect"
(citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v.
Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).
2. Classification determination. Doe contends that the
examiner's decision was arbitrary and capricious, and not
supported by substantial evidence, because the examiner could
not "support a finding that Doe continued to present anything
but a speculative risk of reoffense or danger to the community"
and unduly emphasized "Doe's history of recent criminal conduct
and stay at a sober house." We disagree.
To support a level one classification, SORB must prove, by
clear and convincing evidence, that Doe's "risk of reoffense is
low and the degree of dangerousness posed to the public is not
such that a public safety interest is served by public
availability." Doe, Sex Offender Registry Bd. No. 496501 v. Sex
Offender Registry Bd., 482 Mass. 643, 646 (2019), quoting G. L.
c. 6, § 178K (2) (a). "[R]egistration can be required only
based on an assessment 'of the person's current level of
dangerousness and risk of reoffense'" (emphasis omitted). Doe,
Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry
4 Bd., 74 Mass. App. Ct. 383, 387 (2009) (Doe No. 24341), quoting
Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry
Bd., 450 Mass. 780, 787 (2008). "SORB's burden is to show that
Doe presents a 'cognizable risk of reoffense,' Doe, Sex Offender
Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass.
750, 762 (2006), not merely a hypothetical or speculative
potential risk." Doe No. 24341, 74 Mass. App. Ct. at 388.
Here, the hearing examiner properly applied and weighed
several regulatory factors that support a finding of a low risk
of reoffense. For instance, the examiner applied one high risk
factor at an increased weight, factor three, based on the pre-
pubescent age of the victim and Doe's adult age at the time of
the assault. See 803 Code Mass. Regs. § 1.33(3)(a) (2016). The
examiner also appropriately applied Doe's frequent contact with
the criminal justice system and violence unrelated to sexual
assaults at full weight given his extensive criminal record,
while assigning minimal weight to his noncompliance with
community supervision. See 803 Code Mass. Regs. § 1.33(10),
(11), (13) (2016). Moreover, the examiner moderately applied
Doe's substance use, properly balancing both Doe's long history
with drug and alcohol consumption and recent voluntary move to a
sober living facility. See 803 Code Mass. Regs. § 1.33(9)
(2016).
5 As a counterbalance to the listed aggravating factors, the
examiner applied five risk mitigating factors, taking into
account Doe's supervision by probation, offense-free time in the
community, advanced age, participation in sex offender
treatment, and stability in the community. See 803 Code Mass.
Regs. § 1.33(28), (29), (30), (32), (34) (2016). In
combination, these risk elevating and risk mitigating factors
provide robust and substantial evidentiary support for the
examiner's analysis of Doe's risk of reoffense, and we discern
no abuse of discretion.
We also are unpersuaded by Doe's argument that the examiner
"engaged in a cursory effort based on a tally sheet of
aggravating and mitigating factors" and failed to "provide any
explanation on how he balanced them" to result in a level one
classification. Our review of the hearing examiner's decision
in its totality satisfies us that the examiner properly
considered the facts of Doe's case and weighed them against the
required statutory and regulatory factors. The examiner
identified each factor applied and explained the reason for its
application; in several instances, the examiner also specified
the weight assigned to the factor based on the specifics of
Doe's case. The hearing examiner's "[analytical] path may
reasonably be discerned," NSTAR Elec. Co. v. Department of Pub.
Utils., 462 Mass. 381, 387 (2012), quoting Costello v.
6 Department of Pub. Utils., 391 Mass. 527, 535-536 (1984), from
the decision and it is clear that "the classification is based
on a sound exercise of informed discretion rather than the
mechanical application of a checklist or some other reflex."
Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender
Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). We discern no
abuse of discretion.
Judgment affirmed.
By the Court (Massing, Henry & Grant, JJ. 2),
Clerk
Entered: November 13, 2024.
2 The panelists are listed in order of seniority.