John Doe, Sex Offender Registry Board No. 178282 v. Sex Offender Registry Board. ( 2024 )

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-847
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 178282
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,
capricious, and an abuse of discretion because the hearing
examiner erred by applying SORB's regulatory factor 34
(stability in the community) with moderate mitigating weight.
We affirm.
Background. 1. Doe's index sex offense. In 2006, Doe
raped a nineteen year old woman (victim one) who fell asleep at
his house following a card game. Doe pleaded guilty to one
count of rape and was sentenced to a four-year term of
probation. In 2010, after an evidentiary hearing, SORB
classified Doe as a level two sex offender.
2. Doe's subsequent sex offense. In December 2018, a
second victim (victim two), who was fourteen years old at the
time, reported that she was sexually assaulted by Doe during a
visit to his house with her parents who were friends of Doe.
Victim two reported that Doe entered the bedroom in which she
was watching videos and offered her beer before he rubbed her
neck, back, and buttocks beneath her underwear, and attempted to
kiss her.
Doe was found guilty of indecent assault and battery on a
person over fourteen as well as attempt to commit a crime and
failure to register as a sex offender. Doe received a sentence
of two and one-half years of incarceration, with eighteen months
to serve and the balance suspended for three years, for the
conviction of indecent assault and battery on a person over
fourteen. Doe also received a two-year probation term for the
other offenses.
As a result of these convictions, SORB initiated a
reclassification of Doe. On May 20, 2021, the hearing examiner
conducted a de novo reclassification hearing, after which he
issued a written decision classifying Doe as a level three sex
offender. On August 8, 2022, a judge of the Superior Court
denied Doe's motion for judgment on the pleadings and affirmed
SORB's decision.
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Discussion. "Our inquiry on appeal is similar to the
inquiry conducted by [the] Superior Court judge." Doe, Sex
Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 108 n.3 (2014) (Doe No. 68549). We may set aside
or modify SORB's decision only if we determine "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). We give due weight to
SORB's experience, technical competence, and specialized
knowledge, as well as to the discretionary authority conferred
on it, mindful that SORB hearing examiners have discretion "to
consider which statutory and regulatory factors are applicable
and how much weight to ascribe to each factor." Doe No. 68549,
supra at 109-110.
A level three classification is appropriate where SORB
determines that the offender's 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 information. See Doe, Sex
Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd.,
488 Mass. 15, 30 (2021). Three elements must be established by
clear and convincing evidence: "(1) the offender's risk of
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reoffense, (2) the offender's dangerousness as a function of the
severity and extent of harm the offender would present to the
public in the event of reoffense, and (3) the public safety
interest served by public access to the offender's information"
(citation omitted). Id.Doe argues that the hearing examiner erred by giving
moderate, rather than full, mitigating weight to factor 34
(stability in the community). He asserts the hearing examiner's
rationale that Doe's future stability was "speculative" unfairly
implies an incarcerated offender could never receive full
mitigating weight for factor 34. As a result of the hearing
examiner giving moderate mitigating weight to factor 34, Doe
contends SORB failed to meet its burden of showing, by clear and
convincing evidence, that Doe poses a high risk of reoffending.
We reject Doe's argument. The hearing examiner was
entitled to give only moderate weight to factor 34 because Doe
was still incarcerated at the time of the hearing; thus, the
level to which Doe could demonstrate future stability in the
community was limited. While Doe maintained he had a place to
live and employment on his release from incarceration, it was
well within the hearing examiner's discretion to conclude Doe's
future residential and employment plans were "speculative,"
thus, only entitled to moderate weight considering the evidence
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presented at the hearing. See Doe No. 68549, 470 Mass. at 109-
110.
In regard to Doe's proposed housing, Doe's mother's letter
did not provide explicit assurance that she would permit Doe to
live with her. Instead, she wrote that he could come to her
house to talk and watch television. In addition, Doe provided
nothing to support his averment that he would be gainfully
employed once he was released from jail. Finally, although Doe
submitted proof of his attendance at certain programs afforded
to inmates as indicative of his likelihood of stability once he
returned to the community, Doe did not provide any supplemental
reports as to his progress in these programs.
Even if it were error to give factor 34 moderate mitigating
weight, such error would be harmless due to the evidence of
Doe's high risk to reoffend sexually and the high degree of
danger he poses to the community. Specifically, the hearing
examiner found that Doe's 2018 commission of a sex offense,
which occurred after his rape conviction in 2008, supported the
application of statutory high-risk factor 2 (repetitive and
compulsive behavior) at full weight. The hearing examiner also
found that Doe's sex offense against a child supported
application of statutory high-risk factor 3 (adult offender and
child victim). In addition, Doe has a significant criminal
history that includes numerous violations of probation. Thus,
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when considering the petitioner's governing sex offenses and the
risk-elevating factors, affording Doe full mitigating weight for
factor 34 would not have changed the examiner's decision to
reclassify Doe as a level three sex offender.
Judgment affirmed.
By the Court (Vuono, Rubin &
Smyth, JJ.1),
Clerk
Entered: August 23, 2024.
1 The panelists are listed in order of seniority.
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