John Doe, Sex Offender Registry Board No. 178282 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-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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