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-247
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524184
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 classification by the Sex Offender
Registry Board (SORB) as a level two sex offender Doe argues
that in applying the factors set forth in 803 Code Mass. Regs.
§ 1.33 (2016), the hearing examiner abused his discretion by
failing to explain adequately how the risk-aggravating factors
outweighed the risk-mitigating factors. We affirm.
Background. Doe committed the governing sex offenses
between 2013 and 2016. On multiple occasions, Doe vaginally and
orally raped his half-sister's stepdaughter (victim), who was
between the ages of thirteen and sixteen at the time. Based on this conduct, Doe was convicted of two counts of rape and abuse
of a child in violation of G. L. c. 265, § 23.
In 2019, SORB notified Doe of his duty to register as a
level two sex offender in Massachusetts. After Doe challenged
his classification, SORB held an evidentiary hearing, after
which Doe was classified as a level two sex offender. Doe
appealed his classification to the Superior Court pursuant to
G. L. c. 30A, § 14, which affirmed the classification. On
appeal from that judgment, a panel of this court concluded that
SORB erred in applying factor 2 (repetitive and compulsive
behavior), and its application of factor 16 (public place)
"deserve[d] further scrutiny." Doe, Sex Offender Registry Bd.
No. 524184 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 1124
(2022). The panel vacated the judgment and remanded the matter
to SORB for further proceedings.
On remand, SORB held a de novo evidentiary hearing pursuant
to G. L. c. 6, § 178L, at which Doe testified. In addition to
Doe's testimony, the hearing examiner considered documentary
evidence including Doe's criminal record, letters of support for
Doe, and records pertaining to Doe's participation in sex
offender treatment. In assessing the evidence, the hearing
examiner applied high-risk factor 3 (adult offender with child
victim) and risk-elevating factors 7 (extrafamilial relationship
2 between the offender and victim), 16 (public place), and 19
(level of physical contact). The hearing examiner considered
risk-mitigating factors 28 (supervision by probation or parole),
30 (advanced age), 32 (sex offender treatment), 33 (home
situation and support system), and 34 (materials submitted by
sex offender regarding stability in community). The hearing
examiner also considered factors 37 (other useful information)
and 38 (victim impact statement). The hearing examiner found by
clear and convincing evidence that Doe presents a moderate risk
to reoffend as well as a moderate degree of dangerousness, and
that a public safety interest is served by Internet publication
of his registry information. Accordingly, the hearing examiner
ordered Doe to register as a level two sex offender.
In March 2023, Doe challenged SORB's reclassification by
filing an amended complaint for judicial review pursuant to
G. L. c. 30A, § 14. Doe and SORB filed cross motions for
judgment on the pleadings. A Superior Court judge denied Doe's
motion and affirmed SORB's decision. Doe appeals from that
judgment.
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
3 error of law, or is not supported by substantial evidence."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501). See
G. L. c. 30A, § 14 (7). "In reviewing SORB's decisions, we give
due weight to the experience, technical competence, and
specialized knowledge of the agency" (quotation and citation
omitted). Doe No. 496501, supra.
Doe argues that the hearing examiner abused his discretion
because he did not adequately explain how the applied risk-
elevating factors outweighed the risk-mitigating factors. In
particular, Doe asserts that the hearing examiner "gave very
short shrift" to Doe's participation in sex offender treatment
and his stability in the community. We are not persuaded.
"[T]o find that an offender warrants a level two
classification, [SORB] must find by clear and convincing
evidence that (1) the offender's risk of reoffense is moderate;
(2) the offender's dangerousness is moderate; and (3) a public
safety interest is served by Internet publication of the
offender's registry information." Doe No. 496501, 482 Mass. at
656. Here, "the hearing examiner considered a wide range of
factors that bore on Doe's risk of reoffense and degree of
dangerousness, as well as the utility of public availability of
Doe's information." Doe, Sex Offender Registry Board No. 23656
4 v. Sex Offender Registry Bd., 483 Mass. 131, 139 (2019) (Doe No.
23656). The hearing examiner then made explicit determinations
as to each of those three elements, supporting those
determinations by specific findings tailored to Doe's case. See
Doe No. 496501, supra at 657. We discern no error.
Also, "[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 Board No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 109-110 (2014) (Doe No. 68549). Substantial
evidence supported the hearing examiner's finding that on
multiple occasions, Doe vaginally and orally raped an
extrafamilial victim beginning when she was thirteen years old,
and that at least one of those rapes occurred in a public place,
in a car while Doe was driving the victim to a restaurant. See
Doe No. 23656, 483 Mass. at 141 n.13. The hearing examiner's
application of high-risk factor 3 and risk-elevating factors 7,
16, and 19 was thus proper.
As to the risk-mitigating factors, the hearing examiner
adequately considered the countervailing evidence before him,
including Doe's participation in sex offender treatment, factor
32. Doe testified that he found sex offender treatment to be
"very self-enlightening," and it helped him identify "some
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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-247
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524184
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 classification by the Sex Offender
Registry Board (SORB) as a level two sex offender Doe argues
that in applying the factors set forth in 803 Code Mass. Regs.
§ 1.33 (2016), the hearing examiner abused his discretion by
failing to explain adequately how the risk-aggravating factors
outweighed the risk-mitigating factors. We affirm.
Background. Doe committed the governing sex offenses
between 2013 and 2016. On multiple occasions, Doe vaginally and
orally raped his half-sister's stepdaughter (victim), who was
between the ages of thirteen and sixteen at the time. Based on this conduct, Doe was convicted of two counts of rape and abuse
of a child in violation of G. L. c. 265, § 23.
In 2019, SORB notified Doe of his duty to register as a
level two sex offender in Massachusetts. After Doe challenged
his classification, SORB held an evidentiary hearing, after
which Doe was classified as a level two sex offender. Doe
appealed his classification to the Superior Court pursuant to
G. L. c. 30A, § 14, which affirmed the classification. On
appeal from that judgment, a panel of this court concluded that
SORB erred in applying factor 2 (repetitive and compulsive
behavior), and its application of factor 16 (public place)
"deserve[d] further scrutiny." Doe, Sex Offender Registry Bd.
No. 524184 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 1124
(2022). The panel vacated the judgment and remanded the matter
to SORB for further proceedings.
On remand, SORB held a de novo evidentiary hearing pursuant
to G. L. c. 6, § 178L, at which Doe testified. In addition to
Doe's testimony, the hearing examiner considered documentary
evidence including Doe's criminal record, letters of support for
Doe, and records pertaining to Doe's participation in sex
offender treatment. In assessing the evidence, the hearing
examiner applied high-risk factor 3 (adult offender with child
victim) and risk-elevating factors 7 (extrafamilial relationship
2 between the offender and victim), 16 (public place), and 19
(level of physical contact). The hearing examiner considered
risk-mitigating factors 28 (supervision by probation or parole),
30 (advanced age), 32 (sex offender treatment), 33 (home
situation and support system), and 34 (materials submitted by
sex offender regarding stability in community). The hearing
examiner also considered factors 37 (other useful information)
and 38 (victim impact statement). The hearing examiner found by
clear and convincing evidence that Doe presents a moderate risk
to reoffend as well as a moderate degree of dangerousness, and
that a public safety interest is served by Internet publication
of his registry information. Accordingly, the hearing examiner
ordered Doe to register as a level two sex offender.
In March 2023, Doe challenged SORB's reclassification by
filing an amended complaint for judicial review pursuant to
G. L. c. 30A, § 14. Doe and SORB filed cross motions for
judgment on the pleadings. A Superior Court judge denied Doe's
motion and affirmed SORB's decision. Doe appeals from that
judgment.
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
3 error of law, or is not supported by substantial evidence."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501). See
G. L. c. 30A, § 14 (7). "In reviewing SORB's decisions, we give
due weight to the experience, technical competence, and
specialized knowledge of the agency" (quotation and citation
omitted). Doe No. 496501, supra.
Doe argues that the hearing examiner abused his discretion
because he did not adequately explain how the applied risk-
elevating factors outweighed the risk-mitigating factors. In
particular, Doe asserts that the hearing examiner "gave very
short shrift" to Doe's participation in sex offender treatment
and his stability in the community. We are not persuaded.
"[T]o find that an offender warrants a level two
classification, [SORB] must find by clear and convincing
evidence that (1) the offender's risk of reoffense is moderate;
(2) the offender's dangerousness is moderate; and (3) a public
safety interest is served by Internet publication of the
offender's registry information." Doe No. 496501, 482 Mass. at
656. Here, "the hearing examiner considered a wide range of
factors that bore on Doe's risk of reoffense and degree of
dangerousness, as well as the utility of public availability of
Doe's information." Doe, Sex Offender Registry Board No. 23656
4 v. Sex Offender Registry Bd., 483 Mass. 131, 139 (2019) (Doe No.
23656). The hearing examiner then made explicit determinations
as to each of those three elements, supporting those
determinations by specific findings tailored to Doe's case. See
Doe No. 496501, supra at 657. We discern no error.
Also, "[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 Board No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 109-110 (2014) (Doe No. 68549). Substantial
evidence supported the hearing examiner's finding that on
multiple occasions, Doe vaginally and orally raped an
extrafamilial victim beginning when she was thirteen years old,
and that at least one of those rapes occurred in a public place,
in a car while Doe was driving the victim to a restaurant. See
Doe No. 23656, 483 Mass. at 141 n.13. The hearing examiner's
application of high-risk factor 3 and risk-elevating factors 7,
16, and 19 was thus proper.
As to the risk-mitigating factors, the hearing examiner
adequately considered the countervailing evidence before him,
including Doe's participation in sex offender treatment, factor
32. Doe testified that he found sex offender treatment to be
"very self-enlightening," and it helped him identify "some
5 thinking errors that I have had, my personal being," but denied
having committed a sex offense. Contrary to Doe's contention
that the hearing examiner "blatantly ignore[d]" that testimony,
the hearing examiner did consider it, and found, "[a]lthough
[Doe] denies having committed a sexual offense, he finds the
group helpful with dealing with other aspects of his life."
Given that SORB's regulations state that an offender's "lack of
responsibility or degree of minimization for their behaviors may
diminish the weight assigned to factor 32," 803 Code Mass. Regs.
§ 1.33(32)(a)(4) (2016), it was within the hearing examiner's
discretion to give minimal weight to factor 32. See Doe No.
68549, 470 Mass. at 109-110.
Based on a letter of support submitted by Doe's employer,
the hearing examiner found that Doe "established stability in
the community." Accordingly, the hearing examiner applied
factor 34 and weighed it against the high-risk and risk-
elevating factors in determining Doe's risk of reoffense. The
weight to be assigned to those factors was within the hearing
examiner's discretion and is entitled to deference. See Doe No.
68549, 470 Mass. at 109-110. Contrast Doe, Sex Offender
Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass.
App. Ct. 564, 575-576 (2020) (hearing examiner engaged in
"perfunctory effort" of weighing factors).
6 There was substantial evidence to support each element by
clear and convincing evidence, and so we conclude there was no
error in the hearing examiner's classification of Doe as a level
two sex offender. See Doe No. 23656, 483 Mass. at 146.
Judgment affirmed.
By the Court (Hand, Grant & Wood, JJ.1),
Clerk
Entered: May 14, 2025.
1 The panelists are listed in order of seniority.