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
22-P-546
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526500
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment
affirming his classification by the Sex Offender Registry Board
(SORB) as a level two sex offender. On appeal, the plaintiff
claims that the hearing examiner abused her discretion by (1)
classifying him as a level two sex offender, and (2) denying his
motion for expert funds. We affirm.
Discussion. 1. Classification. "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, is based on an error of law, is not
supported by substantial evidence, or is an arbitrary and
capricious abuse of discretion." Doe, Sex Offender Registry Bd.
No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 754 (2021)
(Doe No. 3177). See G. L. c. 30A, § 14 (7). We give "due weight to [SORB's] experience, technical competence, and
specialized knowledge," id., and the burden is on the plaintiff,
as the appealing party, to demonstrate that the decision was
invalid. See Doe No. 3177, supra at 757.
"Where [SORB] determines that the risk of reoffense is
moderate and the degree of dangerousness posed to the public is
such that a public safety interest is served by public
availability of registration information, it shall give a level
2 designation to the sex offender." G. L. c. 6, § 178K (2) (b).
See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 656 (2019) (Doe No. 496501)
(requiring SORB to make three findings by clear and convincing
evidence to issue level two classification).
Here, the plaintiff pleaded guilty to five counts of rape
of a child with force, in violation of G. L. c. 265, § 22A.
Thereafter, SORB notified the plaintiff of his duty to register
as a level three sex offender, pursuant to G. L. c. 6, § 178K
(2) (c). After a de novo hearing in which the plaintiff
challenged SORB's recommendation, the hearing examiner
determined that the plaintiff presents a moderate risk of
reoffense and a moderate degree of dangerousness such that a
public safety interest is served by public access to his sex
offender registry information and Internet dissemination. As a
result, the plaintiff was ordered to register as a level two sex
2 offender, which is a less severe classification than SORB's
recommendation.
The plaintiff claims that the hearing examiner erred by
concluding that the risk of reoffense is moderate and that a
public safety interest is served by public availability of his
registration information. Specifically, he maintains that SORB
failed to prove that the plaintiff should be classified as a
level two sex offender by clear and convincing evidence. We
disagree.
The hearing examiner found that the plaintiff was eighteen
years old when he and his friend forcefully raped two extra-
vulnerable fourteen year old girls by way of vaginal, anal, and
oral penetration, causing bodily injuries to both victims that
required medical care. The hearing examiner concluded, in an
abundance of caution, that the relationship between the
plaintiff and one of the victims was extrafamilial and that the
other victim was a stranger to the plaintiff. The plaintiff has
a history of substance abuse, and substance use contributed to
the rapes. Additionally, the plaintiff had prior contact with
the criminal justice system, violated probation on two separate
occasions, and received four disciplinary reports while
incarcerated.
Considering the above facts, the hearing examiner properly
applied high-risk factor 3 and risk-elevating factors 7, 8, 9,
3 10, 12, 13, 18, 19, and 22 to the governing sex offenses. She
assigned varying weights to each of these factors after
thoroughly and deliberately analyzing the nature of the relevant
facts in her decision.
The plaintiff erroneously argues that the hearing examiner
"underweighted certain mitigating evidence" in applying risk-
mitigating factors 28, 32, 33, and 34. Under 803 Code Mass.
Regs. § 1.33(28) (2016), "Factor 28 may be given less weight if
there is a history of probation violations." Thus, while the
hearing examiner considered that the plaintiff will be on
probation with special conditions for five years after his
incarceration sentence, she was entitled to give this factor
only moderate weight because the plaintiff had two prior
probation violations, regardless of the underlying nature of
these violations. The hearing examiner was also entitled to
give minimal weight to factor 32 because the plaintiff was
ordered to complete a sex offender evaluation with treatment as
a condition of probation and, at the time of the hearing, had
only completed a sex offender treatment introduction class and a
violence reduction class.
Moreover, the hearing examiner properly gave only moderate
weight to factor 33. Although she found that the plaintiff has
supports in his life, the hearing examiner was appropriately
concerned with the authenticity of his romantic relationship,
4 his mother's attempts to rationalize what happened, and the fact
that his girlfriend does not believe he committed any sex
offenses. These facts speak directly to the plaintiff's support
system's ability to provide "guidance, supervision, and support
of rehabilitation." 803 Code Mass. Regs. § 1.33(33). Finally,
the hearing examiner was entitled to give only minimal weight to
factor 34 because the plaintiff was still incarcerated at the
time of the hearing; thus, the level to which he could
demonstrate stability in the community was limited.
The plaintiff particularly takes issue with the weight the
hearing examiner gave the psychological evaluation written by
Dr. Jill G. Durand, which the hearing examiner considered under
additional factor 35. As SORB correctly points out, the
plaintiff did not raise this issue below, so his argument is
waived on appeal. See Smith v. Sex Offender Registry Bd., 65
Mass. App. Ct. 803, 810 (2006). But even if we were to consider
this issue not waived, we would conclude that the hearing
examiner did not abuse her discretion in limiting the weight
given to this report to the extent the tests and tools Dr.
Durand used were correctly applied to the facts and the extent
each may be seen as a general indicator of risk of reoffense as
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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
22-P-546
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526500
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment
affirming his classification by the Sex Offender Registry Board
(SORB) as a level two sex offender. On appeal, the plaintiff
claims that the hearing examiner abused her discretion by (1)
classifying him as a level two sex offender, and (2) denying his
motion for expert funds. We affirm.
Discussion. 1. Classification. "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, is based on an error of law, is not
supported by substantial evidence, or is an arbitrary and
capricious abuse of discretion." Doe, Sex Offender Registry Bd.
No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 754 (2021)
(Doe No. 3177). See G. L. c. 30A, § 14 (7). We give "due weight to [SORB's] experience, technical competence, and
specialized knowledge," id., and the burden is on the plaintiff,
as the appealing party, to demonstrate that the decision was
invalid. See Doe No. 3177, supra at 757.
"Where [SORB] determines that the risk of reoffense is
moderate and the degree of dangerousness posed to the public is
such that a public safety interest is served by public
availability of registration information, it shall give a level
2 designation to the sex offender." G. L. c. 6, § 178K (2) (b).
See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 656 (2019) (Doe No. 496501)
(requiring SORB to make three findings by clear and convincing
evidence to issue level two classification).
Here, the plaintiff pleaded guilty to five counts of rape
of a child with force, in violation of G. L. c. 265, § 22A.
Thereafter, SORB notified the plaintiff of his duty to register
as a level three sex offender, pursuant to G. L. c. 6, § 178K
(2) (c). After a de novo hearing in which the plaintiff
challenged SORB's recommendation, the hearing examiner
determined that the plaintiff presents a moderate risk of
reoffense and a moderate degree of dangerousness such that a
public safety interest is served by public access to his sex
offender registry information and Internet dissemination. As a
result, the plaintiff was ordered to register as a level two sex
2 offender, which is a less severe classification than SORB's
recommendation.
The plaintiff claims that the hearing examiner erred by
concluding that the risk of reoffense is moderate and that a
public safety interest is served by public availability of his
registration information. Specifically, he maintains that SORB
failed to prove that the plaintiff should be classified as a
level two sex offender by clear and convincing evidence. We
disagree.
The hearing examiner found that the plaintiff was eighteen
years old when he and his friend forcefully raped two extra-
vulnerable fourteen year old girls by way of vaginal, anal, and
oral penetration, causing bodily injuries to both victims that
required medical care. The hearing examiner concluded, in an
abundance of caution, that the relationship between the
plaintiff and one of the victims was extrafamilial and that the
other victim was a stranger to the plaintiff. The plaintiff has
a history of substance abuse, and substance use contributed to
the rapes. Additionally, the plaintiff had prior contact with
the criminal justice system, violated probation on two separate
occasions, and received four disciplinary reports while
incarcerated.
Considering the above facts, the hearing examiner properly
applied high-risk factor 3 and risk-elevating factors 7, 8, 9,
3 10, 12, 13, 18, 19, and 22 to the governing sex offenses. She
assigned varying weights to each of these factors after
thoroughly and deliberately analyzing the nature of the relevant
facts in her decision.
The plaintiff erroneously argues that the hearing examiner
"underweighted certain mitigating evidence" in applying risk-
mitigating factors 28, 32, 33, and 34. Under 803 Code Mass.
Regs. § 1.33(28) (2016), "Factor 28 may be given less weight if
there is a history of probation violations." Thus, while the
hearing examiner considered that the plaintiff will be on
probation with special conditions for five years after his
incarceration sentence, she was entitled to give this factor
only moderate weight because the plaintiff had two prior
probation violations, regardless of the underlying nature of
these violations. The hearing examiner was also entitled to
give minimal weight to factor 32 because the plaintiff was
ordered to complete a sex offender evaluation with treatment as
a condition of probation and, at the time of the hearing, had
only completed a sex offender treatment introduction class and a
violence reduction class.
Moreover, the hearing examiner properly gave only moderate
weight to factor 33. Although she found that the plaintiff has
supports in his life, the hearing examiner was appropriately
concerned with the authenticity of his romantic relationship,
4 his mother's attempts to rationalize what happened, and the fact
that his girlfriend does not believe he committed any sex
offenses. These facts speak directly to the plaintiff's support
system's ability to provide "guidance, supervision, and support
of rehabilitation." 803 Code Mass. Regs. § 1.33(33). Finally,
the hearing examiner was entitled to give only minimal weight to
factor 34 because the plaintiff was still incarcerated at the
time of the hearing; thus, the level to which he could
demonstrate stability in the community was limited.
The plaintiff particularly takes issue with the weight the
hearing examiner gave the psychological evaluation written by
Dr. Jill G. Durand, which the hearing examiner considered under
additional factor 35. As SORB correctly points out, the
plaintiff did not raise this issue below, so his argument is
waived on appeal. See Smith v. Sex Offender Registry Bd., 65
Mass. App. Ct. 803, 810 (2006). But even if we were to consider
this issue not waived, we would conclude that the hearing
examiner did not abuse her discretion in limiting the weight
given to this report to the extent the tests and tools Dr.
Durand used were correctly applied to the facts and the extent
each may be seen as a general indicator of risk of reoffense as
an adult offender.
Finally, the plaintiff claims that the hearing examiner's
"core error was to have concluded that public safety is served
5 by classifying [the plaintiff] as a moderate-risk offender,
thereby requiring Internet dissemination" and that she failed to
make specific findings supporting this conclusion. The
plaintiff relies on this court's unpublished decision in Doe,
Sex Offender Registry No. 523617 v. Sex Offender Registry Bd.,
97 Mass. App. Ct. 1107 (2020) (Doe No. 523617) to support his
argument. While unpublished decisions may be cited for their
persuasive value, they are not binding on this court. See Chace
v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
But even if we were bound by the decision in Doe No.
523617, the plaintiff's reliance is misplaced. In that case,
the hearing examiner failed to make any reference to a public
safety interest that would be served by Internet publication of
the plaintiff's registry information in his findings -- he
simply stated that "dissemination of [the plaintiff's] personal
information [was] appropriate." Doe No. 523617, 97 Mass. App.
Ct. at 1107. Moreover, the underlying facts of that case did
not "'clearly dictate' that [I]nternet publication serve[d] a
public safety interest" such that a remand for explicit findings
would be unnecessary. See id.
By contrast, the hearing examiner here described in detail
the relevant public safety interest that would be served by
public availability of the plaintiff's registration information
based on the facts presented:
6 "I find by clear and convincing evidence that the aforementioned risk factors are evidence of an increased risk to re-offend and dangerousness and warrant Internet access to the [plaintiff]’s registry information in the interest of public safety to prevent female Victims, such as the Victims here, from becoming Victims of sex offenses. . . . Should [the plaintiff] reoffend, it will likely be against an unsuspecting female that he is or is not acquainted with and possibly with another male cohort. Also, like in this case, the [plaintiff] may be under the influence of drugs or alcohol as well as the potential victim, thereby rendering her (extra)vulnerable. Therefore, teenage girls, their caretakers, and other potential [victim]s who become acquainted with or are in the company of [the plaintiff] should have access to his registry information in order to protect themselves and their child(ren)."
The plaintiff argues that this "speculative and caveat-
filled language" fails to clearly dictate that Internet
publication serves a public safety interest. This argument,
however, conflates the requirement for the hearing examiner to
make explicit their findings regarding the elements supporting
the sex offender's classification level with the standard for
whether a remand for explicit findings is necessary when this
requirement is not met. See Doe No. 496501, 482 Mass. at 657
n.4.
In addition to the language quoted above, the hearing
examiner explicitly noted how the relevant factors affect the
public safety throughout her analysis. Moreover, the underlying
facts, on which the plaintiff was convicted of five counts of
rape of a child, so clearly dictate the appropriate
classification level that a remand for explicit findings would
7 not be necessary in any case. Therefore, the hearing examiner
did not err in classifying the plaintiff as a level two sex
offender.
2. Expert funds. The plaintiff also claims that the
hearing examiner abused her discretion by denying his motion for
expert funds. We disagree.
"[T]he decision whether to grant an individual sex offender
funds for an expert is a discretionary one, to be based on the
facts presented in an individual case." Doe, Sex Offender
Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.
764, 775 (2008). "[I]n moving for expert witness funds, the
burden [is] on the sex offender to identify and articulate the
reason or reasons, connected to a condition or circumstance
special to him, that he needs to retain a particular type of
expert. A general motion for funds to retain an expert to
provide an opinion on the sex offender's risk of reoffense,
without more, would appear to be insufficient." Id. The
plaintiff's motion for funds failed to meet this burden.
The plaintiff requested funds for an expert to testify
about adolescent brain development and neurobiological maturity
to demonstrate that the plaintiff's risk of reoffense would be
low because "he was a juvenile in development and maturity."
However, the plaintiff was eighteen years old at the time of the
sex offenses, and thus, he was not a juvenile. See 803 Code
8 Mass. Regs. § 1.03 (2016) (defining "juvenile"). Therefore, the
expert would not have assisted the hearing examiner in
determining the appropriate classification level for the
plaintiff, and the hearing examiner properly denied the motion
for funds. See Doe, Sex Offender Registry Bd. No. 15606 v. Sex
Offender Registry Bd., 452 Mass. 784, 794 (2008).
Moreover, even if we were to agree with the plaintiff's
purported distinction between a "juvenile" and an "adolescent,"
we fail to see how the plaintiff's status as an adolescent is a
condition or circumstance special to him that would justify the
granting of expert funds. Accordingly, the hearing examiner did
not abuse her discretion in denying the plaintiff's motion for
expert funds.
Judgment affirmed.
By the Court (Meade, Hershfang & D'Angelo, JJ.1),
Clerk
Entered: September 28, 2023.
1 The panelists are listed in order of seniority.