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-591
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 525957
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 defendant Sex
Offender Registry Board (SORB) as a level one sex offender. Doe
argues that SORB's decision was arbitrary and capricious and an
abuse of discretion because the hearing examiner incorrectly
interpreted regulatory factor 29 (offense-free time in the
community) and the decision is unsupported by substantial
evidence. We affirm.
Background. In 2007, Doe pleaded guilty in Connecticut
Superior Court to risk of injury to a child by subjecting a
child under sixteen to contact with intimate parts in violation
of Conn. Gen. Stat. § 53-21(a)(2), which the hearing examiner found was a like offense to G. L. c. 265, § 13B, indecent
assault and battery on a child under fourteen. On at least a
monthly basis over two years while he was babysitting a girl
then aged nine to eleven, Doe subjected her to illegal sexual
contact, including touching the victim's bare chest, thigh, and
crotch; rubbing his penis against her vagina; and forcing her to
masturbate him to ejaculation. Doe was sentenced to ten years
in prison with two to serve and the rest suspended, followed by
ten years' probation. On October 30, 2009, Doe was released
from prison and began his probationary period, during which he
was required to register as a sex offender in Connecticut and
comply with registration conditions.
On February 4, 2014, Enfield, Connecticut police received
information that Doe had been living in Massachusetts for four
months, without having reported his change of address to the
Connecticut Sex Offender Registry. On April 28, 2015, a
Connecticut Superior Court judge revoked Doe's probation and
sentenced him to serve eighteen months in prison, followed by
two years' probation. After his release, Doe began his
probation on August 30, 2016. 1 Doe's probation was transferred
to Massachusetts, and he completed it in 2018.
1 Both Connecticut probation records and an affidavit of Doe document that he was released from prison and began his probation on August 30, 2016. In contrast, the hearing examiner found that Doe was released from prison in August 2017, but that
2 After Doe moved to Massachusetts, SORB notified him that he
was required to register as a level two sex offender, which Doe
challenged. Following an evidentiary hearing, SORB issued a
decision on October 31, 2018, classifying Doe as a level one sex
offender pursuant to G. L. c. 6, § 178K (2) (a). Doe promptly
submitted a motion requesting reclassification to a lower sex
offender status and relief from registration pursuant to 803
Code Mass. Regs. § 1.31 (2016).
On February 9, 2022, SORB held another classification
hearing at which the hearing examiner considered documentary
evidence as well as the testimony of Doe's wife. On May 26,
2022, SORB again classified Doe as a level one sex offender. In
her decision, the hearing examiner applied with increased weight
high-risk factor 3 (adult offender with child victim) and
applied risk-elevating factors 7 (relationship between offender
and victim) and 13 (noncompliance with community supervision).
The hearing examiner also applied risk-mitigating factors 30
(advanced age), 32 (sex offender treatment), 33 (home situation
seems to be a typographical error because the hearing examiner also found that as of his February 2022 reclassification hearing Doe had "accrued 5 years offense-free in the community." We need not resolve that discrepancy, because as the judge noted the hearing examiner applied mitigating weight based on the determination that Doe reached the five-year mark, which is the minimum length of time after which the risk of reoffense decreases according to 803 Code Mass. Regs. § 1.33(29)(a) (2016).
3 and support systems), 34 (stability in the community), and 37
(other useful information). As to risk-mitigating factor 29
(offense-free time in the community), the hearing examiner
applied it with "minimal weight," based on her finding that Doe
had accrued at least five years of offense-free time as of the
hearing on February 9, 2022
On June 7, 2022, Doe appealed from SORB's reclassification
by filing a complaint for judicial review pursuant to G. L.
c. 30A, § 14. He moved for judgment on the pleadings six months
later. A Superior Court judge denied Doe's motion and affirmed
SORB's decision. Doe appealed from that judgment.
Discussion. "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) (Doe No. 523391).
"A reviewing court will not disturb SORB's decision unless that decision was (a) in violation of constitutional provisions; (b) in excess of SORB's authority; (c) based upon an error of law; (d) made upon unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts found by the court, where the court is constitutionally required to make independent findings of fact; or (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law."
Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe No. 68549).
See G. L. c. 30A, § 14 (7). Review is "confined to the
administrative record" and we "give due weight to the
4 experience, technical competence, and specialized knowledge of
[SORB], as well as to the discretionary authority conferred upon
it." Doe No. 523391, supra at 88, quoting Doe, Sex Offender
Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass.
App. Ct. 73, 76 (2015).
In classifying a person as a level one sex offender, SORB
bears the burden of establishing, by clear and convincing
evidence, that "the 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" of
information. G. L. c. 6, § 178K (2) (a). Doe argues that he
does not meet even the standard for a level one sex offender,
and should be relieved from registering altogether. Put
differently, Doe argues that any risk of reoffense that he poses
does not even amount to the "low" risk of a level one offender.
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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-591
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 525957
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 defendant Sex
Offender Registry Board (SORB) as a level one sex offender. Doe
argues that SORB's decision was arbitrary and capricious and an
abuse of discretion because the hearing examiner incorrectly
interpreted regulatory factor 29 (offense-free time in the
community) and the decision is unsupported by substantial
evidence. We affirm.
Background. In 2007, Doe pleaded guilty in Connecticut
Superior Court to risk of injury to a child by subjecting a
child under sixteen to contact with intimate parts in violation
of Conn. Gen. Stat. § 53-21(a)(2), which the hearing examiner found was a like offense to G. L. c. 265, § 13B, indecent
assault and battery on a child under fourteen. On at least a
monthly basis over two years while he was babysitting a girl
then aged nine to eleven, Doe subjected her to illegal sexual
contact, including touching the victim's bare chest, thigh, and
crotch; rubbing his penis against her vagina; and forcing her to
masturbate him to ejaculation. Doe was sentenced to ten years
in prison with two to serve and the rest suspended, followed by
ten years' probation. On October 30, 2009, Doe was released
from prison and began his probationary period, during which he
was required to register as a sex offender in Connecticut and
comply with registration conditions.
On February 4, 2014, Enfield, Connecticut police received
information that Doe had been living in Massachusetts for four
months, without having reported his change of address to the
Connecticut Sex Offender Registry. On April 28, 2015, a
Connecticut Superior Court judge revoked Doe's probation and
sentenced him to serve eighteen months in prison, followed by
two years' probation. After his release, Doe began his
probation on August 30, 2016. 1 Doe's probation was transferred
to Massachusetts, and he completed it in 2018.
1 Both Connecticut probation records and an affidavit of Doe document that he was released from prison and began his probation on August 30, 2016. In contrast, the hearing examiner found that Doe was released from prison in August 2017, but that
2 After Doe moved to Massachusetts, SORB notified him that he
was required to register as a level two sex offender, which Doe
challenged. Following an evidentiary hearing, SORB issued a
decision on October 31, 2018, classifying Doe as a level one sex
offender pursuant to G. L. c. 6, § 178K (2) (a). Doe promptly
submitted a motion requesting reclassification to a lower sex
offender status and relief from registration pursuant to 803
Code Mass. Regs. § 1.31 (2016).
On February 9, 2022, SORB held another classification
hearing at which the hearing examiner considered documentary
evidence as well as the testimony of Doe's wife. On May 26,
2022, SORB again classified Doe as a level one sex offender. In
her decision, the hearing examiner applied with increased weight
high-risk factor 3 (adult offender with child victim) and
applied risk-elevating factors 7 (relationship between offender
and victim) and 13 (noncompliance with community supervision).
The hearing examiner also applied risk-mitigating factors 30
(advanced age), 32 (sex offender treatment), 33 (home situation
seems to be a typographical error because the hearing examiner also found that as of his February 2022 reclassification hearing Doe had "accrued 5 years offense-free in the community." We need not resolve that discrepancy, because as the judge noted the hearing examiner applied mitigating weight based on the determination that Doe reached the five-year mark, which is the minimum length of time after which the risk of reoffense decreases according to 803 Code Mass. Regs. § 1.33(29)(a) (2016).
3 and support systems), 34 (stability in the community), and 37
(other useful information). As to risk-mitigating factor 29
(offense-free time in the community), the hearing examiner
applied it with "minimal weight," based on her finding that Doe
had accrued at least five years of offense-free time as of the
hearing on February 9, 2022
On June 7, 2022, Doe appealed from SORB's reclassification
by filing a complaint for judicial review pursuant to G. L.
c. 30A, § 14. He moved for judgment on the pleadings six months
later. A Superior Court judge denied Doe's motion and affirmed
SORB's decision. Doe appealed from that judgment.
Discussion. "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) (Doe No. 523391).
"A reviewing court will not disturb SORB's decision unless that decision was (a) in violation of constitutional provisions; (b) in excess of SORB's authority; (c) based upon an error of law; (d) made upon unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts found by the court, where the court is constitutionally required to make independent findings of fact; or (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law."
Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe No. 68549).
See G. L. c. 30A, § 14 (7). Review is "confined to the
administrative record" and we "give due weight to the
4 experience, technical competence, and specialized knowledge of
[SORB], as well as to the discretionary authority conferred upon
it." Doe No. 523391, supra at 88, quoting Doe, Sex Offender
Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass.
App. Ct. 73, 76 (2015).
In classifying a person as a level one sex offender, SORB
bears the burden of establishing, by clear and convincing
evidence, that "the 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" of
information. G. L. c. 6, § 178K (2) (a). Doe argues that he
does not meet even the standard for a level one sex offender,
and should be relieved from registering altogether. Put
differently, Doe argues that any risk of reoffense that he poses
does not even amount to the "low" risk of a level one offender.
"[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 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). See Doe, Sex Offender Registry Bd. No. 1211 v. Sex
Offender Registry Bd., 447 Mass. 750, 755, 762 (2006) (Doe No.
1211) (upholding classification as level one sex offender
5 because "substantial evidence" supported determination that
petitioner's overall risk of reoffense and degree of
dangerousness was low but not "close to nil"). "SORB's burden
is to show that Doe presents a 'cognizable risk of reoffense,'
not merely a hypothetical or speculative potential risk." Doe
No. 24341, supra at 388, quoting Doe No. 1211, supra at 762.
The hearing examiner was required to consider twelve
statutory factors, see G. L. c. 6, § 178K (1) (a)-(l), as well
as any other "information useful in assessing the risk of
reoffense and the degree of dangerousness posed to the public by
the sex offender." G. L. c. 6, § 178L (1). SORB has
promulgated guidelines for applying the statutory factors,
identifying thirty-eight relevant aggravating and mitigating
considerations. See Doe, Sex Offender Registry Bd. No. 23656 v.
Sex Offender Registry Bd., 483 Mass. 131, 134 (2019) (Doe No.
23656), citing 803 Code Mass. Regs. § 1.33 (2016). The hearing
examiner's decision must be supported by "substantial evidence,"
which is "such evidence as a reasonable mind might accept as
adequate to support a conclusion." G. L. c. 30A, § 1 (6). See
Doe No. 68549, 470 Mass. at 109.
On appeal, Doe argues that the hearing examiner "erred in
applying only minimal weight to factor 29," offense-free time in
the community. This error, Doe contends, is "the result of an
incorrect interpretation of the regulation," 803 Code Mass.
6 Regs. § 1.33(29). Doe contends that his offense-free time in
the community began when he was released from the initial
committed portion of his sentence on October 30, 2009, rather
than when he was released from the additional eighteen-month
sentence he received as a result of his probation violation. We
are not persuaded.
The regulation defining factor 29 specifies that "the
offense-free time begins on the date of an offender's most
recent release from custody for a sex offense or non-sexual
violent offense." 803 Code Mass. Regs. § 1.33(29)(a). As the
Superior Court judge noted, Doe's return to custody was "a
disposition consistent with more than a technical violation of
probation." We agree that Doe's eighteen-month incarceration
constituted "custody for a sex offense" within the meaning of
803 Code Mass. Regs. § 1.33(29)(a). "A defendant who violates
probation is not being punished for violating a condition of
probation, but rather 'the defendant is essentially being
sentenced anew on his [or her] underlying conviction.'"
Commonwealth v. Eldred, 480 Mass. 90, 97 (2018), quoting
Commonwealth v. Goodwin, 458 Mass. 11, 17 (2010). Doe's return
to custody was further punishment for his underlying sex offense
conviction. See Eldred, supra. Thus, the hearing examiner
correctly interpreted and applied factor 29.
7 Doe also argues that the hearing examiner's analysis was
"sparse" and her classification decision is unsupported by
"substantial evidence" as required by G. L. c. 30A,
§ 14 (7) (e). The SORB hearing examiner had discretion in
determining how much weight to ascribe to each factor under
consideration. See Doe No. 23656, 483 Mass. at 139. Here, the
hearing examiner properly applied and analyzed the regulatory
factors. She considered Doe's underlying sex offense as well as
his violation of probation. Even if an underlying offense
occurred many years ago, a hearing examiner may consider the
facts and circumstances of that crime. See Doe No. 68549, 470
Mass. at 109 (ruling that hearing examiner did not err by
considering sex offenses that plaintiff committed "more than
twenty years ago"). The hearing examiner also considered
mitigating factors, giving full weight to the "significant
support system" of Doe's family and friends and his stable
employment and lifestyle. The evidence here sufficiently
supported a level one classification. See Doe No. 1211, 447
8 Mass. at 755, 762. We affirm the Superior Court judgment
upholding Doe's reclassification as a level one sex offender.
Judgment affirmed.
By the Court (Sacks, Englander & Grant, JJ. 2),
Clerk
Entered: December 11, 2024.
2 The panelists are listed in order of seniority.