John Doe, Sex Offender Registry Board No. 22288 v. Sex Offender Registry Board. ( 2023 )

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
21-P-1121
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22288
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Doe appeals from a Superior Court judgment affirming his
classification by the Sex Offender Registry Board (the board or
SORB) as a level three sex offender.1 On appeal, Doe argues that
the SORB hearing examiner improperly concluded that he posed a
high risk of reoffense, a high degree of dangerousness, and that
a substantial public safety interest was served by Internet
publication of his registry information. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
1 A sex offender is classified as level three where SORB
"determines 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
registration information. Doe, Sex Offender Registry Bd. No.
76819 v. Sex Offender Registry Bd., 480 Mass. 212, 214 (2018),
quoting G. L. c. 6, § 178K (2) (c).
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).
1. The index offense. On July 23, 1990, around 2 A.M.,
Doe broke into a home in Boston. Upon encountering a female
resident, Doe told her that he needed money to buy drugs. Doe
then held a gun to her head, threatened to shoot her, and
proceeded to rape her vaginally with his penis. While Doe raped
the victim, her husband was asleep in the same room. In 1991,
Doe pleaded guilty to aggravated rape, the index offense, and a
Superior Court judge sentenced Doe to incarceration for eighteen
to twenty-five years.2
2. SORB process. In 2010, SORB classified Doe as a level
three sex offender. Doe challenged the classification and, on
May 5, 2020, a de novo hearing was held before a board hearing
examiner. In support of its recommended classification, SORB
relied upon documentary evidence including police reports from
the index offense, Doe's criminal history, and disciplinary
reports from the Massachusetts Department of Corrections. Doe
introduced a letter of support from his parents, medical
2 Doe was also convicted of, and imprisoned for, crimes
associated with the aggravated rape offense, including assault
by means of a dangerous weapon; assault and battery by means of
a dangerous weapon; armed assault in a dwelling; armed robbery;
and breaking and entering in the nighttime with the intent to
commit a felony.
2
records, sex offender treatment program records, and scholarly
articles on aging and sexual recidivism.
On June 23, 2020, the hearing examiner issued a written
decision classifying Doe as a level three sex offender. Doe
sought review in the Superior Court pursuant to G. L. c. 30A,
§ 14. See G. L. c. 6, § 178M. A judge denied Doe's motion for
judgment on the pleadings and allowed SORB's cross motion for
the same, affirming Doe's level three classification. Doe
appealed.
Discussion. Doe does not dispute the facts underlying the
hearing examiner's findings. Instead, Doe claims SORB's
classification decision was arbitrary, capricious, and
unsupported by substantial evidence because the hearing examiner
used a "checklist approach" and failed to make reasoned
determinations concerning Doe's risk to reoffend and the danger
he presented to the public.
1. Standard of review. "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), giving "due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as
to the discretionary authority conferred upon it." Id. at 88,
quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex
Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015). "A
3
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, 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) (Doe No. 496501). See G. L. c. 30A, § 14 (7).
The hearing examiner is required to make express findings
as to each of the required elements, see Doe No. 496501, 482
Mass. at 656-657, and is required to consider a nonexhaustive
list of twelve statutory factors, see G. L. c. 6,
§ 178K (1) (a)-(l), as well as any other information "useful" to
the examiner's determinations of risk and dangerousness. G. L.
c. 6, § 178L (1). See Doe, Sex Offender Registry Bd. No. 68549
v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014). SORB's
guidelines govern the application of each statutory factor,
setting 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).
2. Adequacy of the hearing examiner's process and
findings. Doe contends that the hearing examiner erred by
engaging in a perfunctory "checklist" approach in determining
Doe's level three classification, thus rendering the
4
classification arbitrary and unsupported by substantial
evidence. We disagree, as our review convinces us that the
hearing examiner's reasoned analysis led to a classification
conclusion based on substantial evidence.
In determining Doe's risk of reoffense and degree of future
dangerousness, the hearing examiner applied the following risk
elevating factors: factor seven (extrafamilial victim)3; factor
eight (weapon, violence); factor nine (alcohol and substance
use); factor ten (contact with criminal justice system)4; factor
eleven (violence unrelated to sexual assault); factor twelve
(behavior while incarcerated)5; factor sixteen (public place);
and factor nineteen (level of physical contact). The examiner
assigned increased weight to factors seven, eight, eleven,
twelve, and nineteen; and full weight to factor sixteen.6
The examiner also considered the following five risk
mitigating factors before concluding that their cumulative
impact was insufficient to "offset the number of applicable
Risk-Elevating Factors": factor thirty (advanced age)7; factor
thirty-one (physical condition); factor thirty-two (sex offender
3 The victim was a stranger to Doe.
4 Doe's adult criminal history contains more than fifty charges
for violent, nonsexual, felony offenses.
5 Doe incurred 238 disciplinary reports from the Department of
Corrections from 2002 through 2018, for predominantly "major"
violations.
6 See 803 Code Mass. Regs. § 1.33 (2016).
7 Doe was fifty-one years old at the time of the hearing.
5
treatment); factor thirty-three (home situation); and factor
thirty-seven (other information related to the nature of sexual
behavior). In support of this conclusion, the examiner reasoned
that, first, Doe's significant disciplinary history, in addition
to incurring new criminal charges and convictions for violent
offenses while incarcerated, demonstrated that advancing age had
not affected his "ongoing general criminality." Accordingly,
the examiner gave only minimal weight to factor thirty.
Second, the examiner found that the evidence Doe submitted
as relevant to his physical condition8 (factor thirty-one) was
inconsequential as a risk mitigating factor because it failed to
identify a physical condition, diagnosis, or limitation
necessary to meet the threshold for consideration.
Third, the examiner found Doe's submissions concerning his
agreement to participate in sex offender treatment (factor
thirty-two) were entitled to only minimal weight since he
provided no verification of his actual participation in a
suitable program.
Fourth, the examiner assigned moderate weight to Doe's home
situation and support system (factor thirty-three), after
8 Doe bore the burden to provide SORB with medical documentation
that identified the condition along with a detailed description
of the limitations related to that condition. See 803 Code
Mass. Regs. § 1.33(31)(a) (2016). Here, Doe submitted a patient
profile summary from a correctional institution.
6
finding that Doe's sponsors (his parents) had failed to express
their knowledge of his sex offense history and had not proposed
a suitable plan that included sufficient guidance and
supervision for Doe.
Finally, the examiner gave no additional weight to factor
thirty-seven (other information related to the nature of the
sexual behavior) based on the articles Doe submitted related to
offender recidivism because the same articles were previously
cited in SORB's regulations. In other words, Doe's submission
was redundant of materials the examiner would consider,
independent of Doe's submission, in determining Doe's
classification.
After consideration of the index sex offense and the
application of the risk factors, the hearing examiner found
clear and convincing evidence that Doe presented a high risk to
sexually reoffend and a high degree of dangerousness. He
further found that active dissemination of Doe's registry
information was "in the interest of public safety to prevent
women who are not acquainted with him from becoming victims of
sex offenses."
Contrary to Doe's claim that the hearing examiner performed
a perfunctory review to arrive at this classification, the
record reflects the hearing examiner conducted a thorough and
reasoned analysis of the statutory risk elevating and mitigating
7
factors before he concluded a level three classification was
warranted. Doe's reliance on Doe, Sex Offender Registry Bd. No.
11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564(2020), is misplaced. In that case, id. at 574, this Court
found the hearing examiner abused his discretion by failing to
afford proper attention to information central to Doe's risk to
reoffend. By contrast, the hearing examiner in this case acted
within his discretionary authority by carefully reviewing the
appropriate risk mitigating factors and Doe's submissions in
support thereof before assigning the evidence appropriate weight
in his classification determination. "It is apparent from the
hearing examiner's careful weighing of the factors, as set forth
above, including his decision not to give full weight to some
aggravating factors, that 'the classification is based on a
sound exercise of informed discretion rather than the mechanical
application of a checklist or some other reflex.'" Doe, Sex
Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd.,
99 Mass. App. Ct. 292, 299 (2021), quoting Doe, Sex Offender
Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass.
App. Ct. 639, 651 (2012) (Doe No. 136652). That the hearing
examiner attributed little weight to Doe's documentary evidence,
as described above, speaks to the substance and applicability
pursuant to G. L. c. 6, § 178K of each submission, not the
manner of his review. See Doe No. 136652, supra (hearing
8
examiner has broad discretion in applying SORB's regulations).
In reviewing the hearing examiner's analysis of the risk
elevating and mitigating factors, we cannot say his approach
amounted to error.
Furthermore, the hearing examiner's conclusions that Doe
presented a high risk to reoffend sexually and a high degree of
dangerousness, are amply supported by clear and convincing
evidence such as the nature of the index offense9 -- raping a
stranger victim while holding a gun to her head -- as viewed
through the lens of risk factors to include Doe's criminal
history, his inability to control his behavior while
incarcerated, and the lack of supportive environment proposed
upon his release. See Doe No. 496501, 482 Mass. at 651("Pragmatically, because past is prologue, a hearing examiner
would make this [degree of dangerousness] determination based on
the sexual crime or crimes that the offender committed in the
past").
Finally, the hearing examiner's analysis of the record
evidence and applicable risk factors supported his finding that
public and internet access to, and publication of, Doe's sex
9 While Doe's index offense dates to 1990, the nature of the
offense was "relevant to a holistic assessment of the offender's
current degree of dangerousness" because Doe had "not had recent
opportunity to commit sexual offenses." Doe No. 496501, 482
Mass. at 651.
9
offender registry information was necessary for the protection
of the public despite the consequences to Doe. See Doe No.
23656, 483 Mass. at 145-146. Publication of Doe's registry
information would enable members of the public to take
precautions to avoid encountering Doe in potentially vulnerable
situations. Id.Conclusion. Reviewing the hearing examiner's analysis of
the record before him and giving due weight to the board's
expertise and specialized knowledge, we conclude that the
classification decision is supported by substantial evidence.
See G. L. c. 30A, § 14; Doe, Sex Offender Registry Bd. No. 3177
v. Sex Offender Registry Bd., 486 Mass. 749, 759 (2021).
Judgment affirmed.
By the Court (Blake, Grant &
Smyth, JJ.10),
Clerk
Entered: June 30, 2023.
10 The panelists are listed in order of seniority.
10