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-1001
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 56967
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 Sex Offender
Registry Board (SORB) as a level three sex offender. On appeal,
Doe argues that the reclassification decision was arbitrary and
capricious and an abuse of discretion because the hearing
examiner erred in applying two of SORB's regulatory factors,
factor 33 (home situation and support systems) and factor 29
(offense-free time in the community). We affirm.
Background. In 2003, a Superior Court jury convicted Doe
of the rape of an adult woman (victim one). As a result of this
conviction, Doe served a committed sentence, from which he was
released in March 2008. In 2009, after an evidentiary hearing,
SORB classified Doe as a level two sex offender.
In October 2018, a second victim (victim two) disclosed
that between 2012 and 2014, Doe raped her repeatedly. In a
forensic interview, victim two reported that when Doe babysat
her when she was between six and eight years old, he took her
into a basement, locked the door, inserted his penis into her
vagina, and put his hand over her mouth to keep her quiet.
Based on his conduct toward victim two, Doe was indicted and
arraigned in 2019 in Superior Court on charges of rape of a
child aggravated by age difference, rape of a child, and
indecent assault and battery on a child under fourteen. The
hearing examiner found there to be "substantial credible and
reliable evidence to conclude that [Doe] did in fact
repetitively sexually assault [victim two]."
In December 2018, Doe's then seven year old daughter
(victim three) disclosed that between March 2014 and November
2018, Doe raped her repeatedly. She reported in a forensic
interview that beginning when she was about five years old Doe
would penetrate her vagina and anus with his penis and that, on
at least one occasion, he showed her images of what he said was
a girl having sex with her father. Based on his conduct toward
victim three, Doe was indicted and arraigned in 2019 in Superior
Court on charges of rape of a child aggravated by age difference
(three counts), rape of a child as a repeat offender (three
counts), indecent assault and battery on a child under age
2
fourteen as a repeat offender, and dissemination of obscene
matter to a minor. The hearing examiner found there to be
"substantial reliable and credible evidence to find as fact that
[Doe] sexually assaulted [victim three] as alleged."
In January 2020, after learning of Doe's new sexual offense
charges, SORB notified Doe of his duty to register as a level
three sex offender. Doe challenged the reclassification, and an
evidentiary hearing was held on January 20, 2021. The hearing
examiner considered documentary evidence, as well as the
testimony of Doe's current girlfriend and two friends.
In assessing the evidence, the hearing examiner applied
with "increased weight" both high-risk factor 2 (repetitive and
compulsive behavior) and high-risk factor 3 (adult offender with
a child victim). The hearing examiner considered nine risk-
elevating factors1 and three risk-mitigating factors, factor 29
(offense-free time in the community), factor 30 (advanced age),
and factor 33 (home situation and support systems).
After analyzing all relevant factors, the hearing examiner
found by clear and convincing evidence that Doe presents a high
1 Factor 7 (relationship between offender and victim), factor 10
(contact with criminal justice system), factor 11 (violence
unrelated to sexual assaults), factor 13 (noncompliance with
community supervision), factor 15 (hostility toward women),
factor 18 (extravulnerable victim), factor 19 (level of physical
contact), factor 21 (diverse victim type), and factor 22 (number
of victims).
3
risk to reoffend as well as a high degree of dangerousness.
Further finding that a substantial public safety interest is
served by Internet publication of his registry information, the
hearing examiner ordered Doe to register as a level three sex
offender. A judge of the Superior Court upheld the
classification, and 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 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. 6729 v. Sex
Offender Registry Bd., 490 Mass. 759, 762 (2022) (Doe No. 6729),
quoting Doe, Sex Offender Registry Bd. No. 339940 v. Sex
Offender Registry Bd., 488 Mass. 15, 30 (2021). See G. L.
c. 30A, § 14 (7). Review is "confined to the administrative
record" and we "give due weight to the 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).
4
When making a level three classification, SORB bears the
burden of establishing, by clear and convincing evidence, "that
the risk of reoffense is high and the degree of dangerousness
posed to the public is such that a substantial public safety
interest is served by active dissemination" of the offender's
registration information. G. L. c. 6, § 178K (2) (c). See Doe
No. 6729, 490 Mass. at 768. The hearing examiner must make
explicit findings as to the three required elements, Doe, Sex
Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd.,
482 Mass. 643, 657 (2019), and must 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." Doe, Sex Offender Registry Bd. No. 68549 v. Sex
Offender Registry Bd., 470 Mass. 102, 105 (2014), quoting G. L.
c. 6, § 178L (1). SORB's regulations for applying the statutory
factors set out 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).
Doe argues that the hearing examiner erred in applying
factor 33 (home situation and support systems) because the
examiner did not ascribe it a specific weight. However, SORB's
regulations "do not prescribe the weights" that must be given to
5
factor 33. Doe No. 6729, 490 Mass. at 767-768. See 803 Code
Mass. Regs. § 1.33(33) (2016). According to the regulations,
factor 33 receives "greater mitigating consideration" when there
is "evidence of a support network that is aware of the
offender's sex offense history and provides guidance,
supervision, and support of rehabilitation." Id. The hearing
examiner applied factor 33 according to its terms and had
discretion "to determine how much weight to ascribe" to it. Doe
No. 23656, 483 Mass. at 138-139. Given that Doe's new sexual
offenses occurred despite his support network, there was no
error in the hearing examiner's consideration of this factor2 and
implicit determination that it does little to mitigate Doe's
high risk of reoffense.
Doe also argues that the hearing examiner erred by not
giving factor 29 (offense-free time in the community) full risk-
mitigating weight. According to the regulation pertaining to
factor 29, the risk of reoffense "lowers substantially after ten
years of offense-free time in the community." 803 Code Mass.
Regs. § 1.33(29) (2016). Although, as of the January 2021
reclassification hearing, Doe had not been convicted of a new
sex offense since his March 2008 release from custody, the
2 When assessing factor 33, the hearing examiner wrote: "I
consider that [Doe] has support of his girlfriend and friends,
though I also note that his supportive relationships with them
did not prevent his new sexual misconduct."
6
hearing examiner found "substantial evidence that he was
committing sex offenses through much of that time." While
factor 29 defines when offense-free time begins,3 it does not
define when offense-free time ends. Id. There is nothing in
the regulation's terms which states that offense-free time ends
only with a conviction. Therefore, based on the evidence, we
see no error in the hearing examiner's decision to give no
weight to factor 29.
We conclude that the hearing examiner did not err in
applying factors 33 and 29, and affirm the Superior Court
judgment upholding Doe's reclassification as a level three sex
offender.
Judgment affirmed.
By the Court (Rubin,
Ditkoff & Grant, JJ.4),
Assistant Clerk
Entered: February 22, 2024.
3 "For purposes of factor 29, 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. In the case of an
offender who was not committed, the offense-free time begins on
the most recent date of conviction or adjudication of a sex
offense or non-sexual violent offense." 803 Code Mass. Regs.
§ 1.33(29).
4 The panelists are listed in order of seniority.
7
John Doe, Sex Offender Registry Board No. 56967 v. Sex Offender Registry Board.
Combined Opinion