John Doe, Sex Offender Registry Board No. 526776 v. Sex Offender Registry Board.

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-307

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526776

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 final classification by the Sex Offender

Registry Board (SORB) as a level three sex offender.1 We

conclude that the hearing examiner's application of factor 2,

see G. L. c. 6, § 178K (1) (a) (ii) (repetitive and compulsive

behavior), may have improperly affected the classification

decision, and therefore vacate the judgment and remand for

further proceedings.

When reviewing SORB's decisions, we "give due weight to the

experience, technical competence, and specialized knowledge of

the agency." Doe, Sex Offender Registry Bd. No. 205614 v. Sex

Offender Registry Bd., 466 Mass. 594, 602 (2013), quoting G. L.

1 In accordance with G. L. c. 6, § 178K (2) (c).
c. 30A, § 14 (7). A court may set aside or modify SORB's

classification decision only where "the decision is in excess of

SORB's statutory authority or jurisdiction, violates

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 Bd., 482 Mass.

643, 649 (2019). When an offender successfully challenges the

application of a regulatory factor, we "ask whether the error

may have affected the classification and, if so, [we] remand to

SORB." Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender

Registry Bd., 101 Mass. App. Ct. 797, 804 (2022).

Following Doe's level three classification, but before the

Superior Court judgment affirming that classification, a

Middlesex Superior Court judge invalidated the second and third

sentences of 803 Code Mass. Regs. § 1.33(2) (2016), finding that

there was insufficient scientific support for factor 2's

correlation between repetitive conduct and a higher risk of

reoffense, where the perpetrator has not been confronted between

offenses. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex

Offender Registry Bd., Mass. Sup. Ct., No. 2081CV1130B, slip op.

at 1, 20-22 (Middlesex County Apr. 16, 2021) (Wilkins, J.).

SORB did not appeal the Superior Court judge's decision, and has

conceded that it is bound by the ruling in that case. See Doe,

Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd.,

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490 Mass. 759, 765-767 (2022) (evidence of confrontation between

sexual offenses sufficient to show compulsive as well as

repetitive conduct).

Here, the hearing examiner considered that Doe had sexually

assaulted the victim multiple times and had frequently engaged

in sexually explicit communication with the victim over the

course of several months. However, no evidence was presented

that Doe was ever confronted, discovered, or investigated

between these incidents, so factor 2 was improperly considered

in the classification decision.

The hearing examiner properly considered other risk-

elevating factors in addition to factor 2, such as the ages and

extrafamilial relationship of Doe and victim, Doe's position of

trust as a coach at the victim's school, and the facts that the

offenses involved a high level of physical contact (in that Doe

vaginally penetrated the victim) and occurred in a public place.2

However, we are mindful that our role is not to "substitut[e]

our judgment for that of the SORB examiner." Doe No. 22188, 101

Mass. App. Ct. at 804. Because we cannot say that the evidence

supporting a level three classification is so overwhelming that

we are confident that the hearing examiner would reach the same

2 See 803 Code Mass. Regs. § 1.33(3) (adult offender with a child
victim), (7) (relationship between offender and victim), (16)
(public place), and (19) (level of physical contact).

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conclusion once factor 2 is excised from the analysis, we

consider it better for the hearing examiner, in the first

instance, to determine the appropriate classification level for

Doe based on application of all appropriate factors, but without

application of factor 2. See id. ("If we were to affirm a level

[three] classification simply because the examiner could have

concluded that, we would usurp the examiner's role and deprive

ourselves of the examiner's expertise and experience").3

The judgment of the Superior Court is vacated, and a new

judgment shall enter vacating the decision of SORB and remanding

the matter to SORB for further proceedings consistent with this

decision.

So ordered.

By the Court (Green, C.J.,
Shin & Hershfang, JJ.4),

Clerk

Entered: May 12, 2023.

3 Citing Doe No. 496501, 482 Mass. at 654, 656-657, Doe also
argues that the hearing examiner erred in finding that Internet
dissemination serves a public safety interest, and failed to
make the requisite explicit findings. In light of our decision
remanding the matter to the hearing examiner for further
consideration of Doe's classification level, the hearing
examiner shall also make explicit findings on whether Internet
dissemination serves a public safety interest.
4 The panelists are listed in order of seniority.

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