John Doe, Sex Offender Registry Board No. 379549 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-842

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 379549

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 (board) as a level three sex offender. His

primary argument is that the hearing examiner erred in

considering factor 24, which addresses participation in sex

offender treatment. Doe further argues that the remaining

properly-applied factors do not support the classification, and

that the board's conclusion that his risk of dangerousness and

reoffense justifies Internet publication of his registry

information is not supported by substantial evidence. We

affirm.

Background. Doe's predicate offense occurred on May 17,

2012. At approximately midnight, he and three other men broke

into the victim's home. All four men were masked, and Doe was
carrying a gun. The men stole cash and jewelry, tied up and

beat the victim's brother, and attacked the victim's mother and

her companion. At one point during the criminal episode, Doe

went upstairs, forced open the victim's bedroom door, pushed the

victim to the floor, and sexually assaulted her. Based on the

police report, the hearing examiner stated: Doe "put his hands

all over her, pulled down her pants, and inserted what she

believed to be a pen into the Victim's vagina." Doe

subsequently pleaded guilty to aggravated rape, among other

offenses including armed robbery while masked and home invasion.

In addition to the predicate sexual offense described

above, Doe has a lengthy criminal history, which includes

convictions for assault and battery, for resisting arrest, and

multiple convictions for violating abuse prevention orders. The

victim of many of these offenses was Doe's then fifteen year old

girlfriend. While incarcerated, Doe continued to engage in

criminal conduct and received disciplinary reports for

threatening and harassing other inmates, for assault and

battery, and for assaulting a mentally disabled inmate. Doe

participated, to some limited extent, in sex offender counseling

while in prison but declined a transfer to the Massachusetts

Treatment Center to receive additional treatment.

The board notified Doe while he was still serving his

sentence of its recommendation that he be classified a level

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three offender. He challenged the board's decision and received

a de novo hearing. At that hearing, although Doe had pleaded

guilty to aggravated rape, he denied that he had committed a

sexual offense. He claimed that he was conducting a "body

cavity search" for drugs. The hearing examiner did not accept

Doe's characterization, and after considering the applicable

risk-aggravating, mitigating, and other regulatory factors, she

concluded that Doe presented a high risk of reoffense and high

degree of dangerousness, and that public dissemination of his

registry information would serve a valuable public safety

purpose.

In reaching her conclusions, the hearing examiner

"considered" the following risk-aggravating factors: factor 7

(extrafamilial victim); factor 8 (weapons and violence); factor

10 (contact with criminal justice system); factor 12 (behavior

while incarcerated); factor 15 (hostility toward women); and

factor 24 (less than satisfactory participation in sex offender

treatment). Additionally, she deemed factor 19 (high level of

physical contact) to indicate an "increased degree of

dangerousness." Further, the hearing examiner gave "minimal

weight" to factor 13 (noncompliance with community supervision).

The hearing examiner also found that various mitigating factors

applied. She gave "moderate weight" to factor 28 (supervision

by probation or parole), "consider[ed]" factor 33 (home

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situation and support systems), and gave "minimal weight" to

factor 34 (materials submitted to SORB regarding stability in

the community). Lastly, she found factor 37 (other information

relating to nature of sexual behavior, mostly scholarly

articles) "interesting" but of little utility. As noted, Doe

sought judicial review pursuant to G. L. c. 30A, § 14, and G. L.

c. 6, § 178M, and a judge of the Superior Court affirmed the

board's decision.

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). Our review of the board's decision is limited, and we

will not disturb the board's classification unless "we determine

that the decision is unsupported by substantial evidence or is

arbitrary or capricious, an abuse of discretion, or not in

accordance with law." Doe, Sex Offender Registry Bd. No. 10800

v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). In

reviewing the board's decision, "we 'give due weight to [its]

experience, technical competence, and specialized knowledge.'"

Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender

Registry Bd., 482 Mass. 643, 649 (2019), quoting Doe, Sex

Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,

466 Mass. 594, 602 (2013).

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 Doe first contends that the hearing examiner improperly

applied factor 24 (less than satisfactory performance in sex

offender treatment). As the board correctly notes in its brief,

Doe failed to raise this argument below and therefore it is

waived. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex

Offender Registry Bd., 457 Mass. 53, 56 (2010).

Next, Doe also argues that the decision to classify him as

a level three offender is not supported by substantial evidence

and was arbitrary and capricious. He claims that the hearing

examiner employed a mechanical, "checklist" approach, rather

than conducting a thorough analysis of the applicable regulatory

factors. To the contrary, our review of the record and the

detailed classification decision leads us to conclude that the

hearing examiner engaged in the required qualitative and

objective review that balanced all the relevant risk-aggravating

and mitigating factors. The evidence fully supported the

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application of the risk factors on which the hearing examiner

relied. It also supports Internet dissemination of Doe's

registration information.

Judgment affirmed.

By the Court (Vuono, Rubin &
Smyth, JJ.1),

Assistant Clerk.

Entered: February 15, 2024.

1 The panelists are listed in order of seniority.
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