John Doe, Sex Offender Registry Board No. 527204 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
22-P-445
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527204
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Doe appeals from a Superior Court judgment upholding his
classification as a level two sex offender. Doe argues that (1)
the classification decision was arbitrary and capricious and an
abuse of discretion because the hearing examiner erroneously
applied risk mitigating factors 30 and 33, and (2) the Sex
Offender Registry Board (board) failed to prove by clear and
convincing evidence that Internet dissemination of Doe's
personal information would serve a public safety interest. We
conclude that the hearing examiner's decision was supported by
substantial evidence and reflects a correct application of the
relevant regulatory factors; accordingly, we affirm.
Discussion. 1. Standard of review. In conducting a de
novo review of the judge's consideration of the classification
decision, Doe, Sex Offender Registry Bd. No. 523391 v. Sex
Offender Registry Bd., 95 Mass. App. Ct. 85, 88-89 (2019), we
ask whether the classification is "unsupported by substantial
evidence or is arbitrary or capricious, an abuse of discretion,
or not in accordance with law [quotation omitted]." Doe, Sex
Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd.,
88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011). See G. L.
c. 6, § 178M; G. L. c. 30A, § 14 (7). In making this
determination, we must "give due weight to the experience,
technical competence, and specialized knowledge of the agency,
as well as to the discretionary authority conferred upon it."
Doe No. 356011, supra at 76, quoting Doe, Sex Offender Registry
Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787
(2006).
2. Examiner's application of regulatory factors. Doe
first contends that the classification was arbitrary and
capricious, an abuse of discretion, and not supported by
substantial evidence, because the hearing examiner misapplied
regulatory factors 30 and 33. See 803 Code Mass. Regs. § 1.33
(2016).
a. Factor 30. In her findings, the hearing examiner
noted, inter alia, that at the time of hearing Doe was "53 years
old, soon to be 54. Therefore, this factor applies with full
weight [footnote omitted]." Doe argues that the hearing
examiner erred by giving factor 30 (advanced age) "full"
2
mitigating weight, when in the circumstances, the language of
the regulation required the examiner to give this factor
"significant" mitigating weight. We do not agree that the
hearing examiner's weighing of factor 30 conflicted with the
requirements of the regulation.
The applicable regulation states that "the Board considers
advanced age to have a significant mitigating effect when the
offender is 50 years of age or older." 803 Code Mass. Regs.
§ 1.33(30)(a) (emphasis added). The regulation does not define
the term "significant" in this context. We apply settled rules
of statutory construction to our interpretation of the wording
of the regulations. See DeCosmo v. Blue Tarp Redev., LCC, 487
Mass. 690, 695-696 (2021). In common usage, "significant" means
"[o]f special importance; momentous, as distinguished from
insignificant." Black's Law Dictionary 1662 (11th ed. 2019).
Here, we agree that in classifying the fifty-three year old Doe,
the hearing examiner was bound to accord "significant"
mitigating weight to factor 30. After considering the usual
meanings of "significant" and "full," however, we conclude that
by giving Doe's advanced age "full" mitigating weight, the
hearing examiner gave this factor at least as much mitigating
weight as that to which Doe was entitled. See 803 Code Mass.
Regs. § 1.33(30)(a).
3
b. Factor 33. We are likewise unpersuaded that the
hearing examiner improperly gave factor 33 (home situation and
support systems) "moderate" mitigating weight, instead of "full"
mitigating weight. Factor 33 provides that it shall be "applied
to an offender who is currently residing in a positive and
supportive environment," and that "[t]he Board shall give
greater mitigating consideration to evidence of a support
network that is aware of the offender's sex offense history and
provides guidance, supervision, and support of rehabilitation."
803 Mass. Regs. § 1.33(33)(a). Recognizing that "[t]he hearing
examiner has discretion to determine how much weight to ascribe
to each factor under consideration," Doe, Sex Offender Registry
Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-
139 (2019) (Doe No. 23656), we find no abuse of that discretion
in the hearing examiner's decision in this case. The hearing
examiner in this case explained that she gave "moderate"
mitigating weight to factor 33 because, although Doe had "the
support of his fiancée" who was aware of his sex offense
conviction, the fiancée also believed that Doe "was falsely
accused" and "did not indicate how she will support him, [or]
provide him with guidance or supervision in order to prevent
reoffense." Where, as here, "the examiner's detailed written
decision was balanced and fair," Smith v. Sex Offender Registry
4
Bd., 65 Mass. App. Ct. 803, 813 (2006), we discern no abuse of
discretion or other error in the examiner's decision.
Given that the hearing examiner correctly applied both
regulatory factors, we conclude that the hearing examiner's
decision to classify Doe as a level two sex offender was
properly supported. See Smith, 65 Mass. App. Ct. at 813.
3. Internet dissemination. Doe also argues that his
classification as a level two sex offender was not supported by
substantial evidence because the board failed to prove by clear
and convincing evidence that a public safety interest would be
served by Internet dissemination of his personal information.
To classify an offender as a level two offender, "the board must
find by clear and convincing evidence that . . . a public safety
interest is served by Internet publication of the offender's
registry information." Doe, Sex Offender Registry Bd. No.
496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656 (2019)
(Doe No. 496501). See 803 Code Mass. Regs. § 1.20(2)(c) (2016).
In making this determination, the hearing examiner must "ask
whether, in light of the particular risks posed by the
particular offender, Internet access to that offender's
information might realistically serve to protect the public
against the risk of the offender's sexual reoffense." Doe No.
496501, supra at 655. Here, the hearing examiner detailed Doe's
offense history and made an explicit factual finding regarding
5
the likely efficacy of publishing Doe's information on the
Internet. The examiner detailed "the highly concerning pattern
of [Doe]'s violent behavior toward women," including (1) the
underlying offense, during which Doe violently raped his ex-
girlfriend at knifepoint, (2) the "disconcerting" fact that Doe
committed this crime while on probation for a "prior violent
attack against another woman where [Doe] assaulted her with a
belt," and (3) Doe's subsequent conviction for "stabb[ing]
another woman with a knife, nearly causing her death." Based on
this information and acknowledging the passage of time since the
underlying sex offense, the hearing examiner concluded that
"should [Doe] reoffend, he would most likely do so in a similar
vein, against a woman he is dating, had dated, or was acquainted
with." Therefore, she found that "women who become acquainted
with [Doe], should have public and Internet access to [his]
registry information for their own safety." Having evaluated
the hearing examiner's factual findings and analysis, we
conclude that her determination that clear and convincing
evidence supported Internet dissemination of Doe's registry
6
information was supported by substantial evidence. See Doe No.
23656, 483 Mass. at 145-146.
Judgment affirmed.
By the Court (Green, C.J.,
Hand & Hodgens, JJ. 1),
Clerk
Entered: October 18, 2023.
1 The panelists are listed in order of seniority.
7