J.W., Sex Offender Registry Board No. 25324 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

24-P-1104

J.W., SEX OFFENDER REGISTRY BOARD NO. 25324

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, J.W., appeals from a Superior Court judgment

affirming his classification by the Sex Offender Registry Board

(board) as a level two sex offender. J.W. makes three

arguments: (1) procedural due process requires the board to use

expert evidence in support of its classifications, which the

board failed to do here; (2) the hearing examiner (examiner),

despite applying board classification factor 29 (offense-free

time in the community),1 gave insufficient consideration to

1See 803 Code Mass. Regs. § 1.33(29) (2016). Hereafter we
refer to the board's classification factors by number, or name
and number, it being understood that each of them appears in the
corresponding subpart of § 1.33. The regulations were amended
in 2025, but neither party argues that the amendments affected
this case.
J.W.'s offense-free time; and (3) the examiner failed to explain

sufficiently the weight she gave to various classification

factors, rendering her decision arbitrary and capricious. We

affirm the judgment.

Background. We recite the background facts found by the

examiner. In 1980, when J.W. was thirteen years old, he was

adjudicated delinquent by reason of committing assault with

intent to rape, the victim being a fifteen year old girl who was

delivering newspapers in J.W.'s neighborhood (victim 1). J.W.

was committed to the custody of the Department of Youth

Services, from which he was discharged in mid-1983.

In 1993, when J.W. was twenty-five, he was convicted in

Superior Court of rape, indecent assault and battery, and

numerous other offenses against a twenty-seven year old woman

(victim 2). J.W. was sentenced to an aggregate of from eight to

twelve years committed, with three to five years suspended until

2010 while he was on probation. In 2004, J.W. was released from

incarceration, but in 2005 he was civilly committed as a

sexually dangerous person (SDP) to the Massachusetts Treatment

Center, where he remained for two years.

In 2007, J.W. was released from his SDP commitment and was

notified of his duty to register as a level three sex offender.

That classification became final when he failed to appear at the

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hearing he had requested on the matter. In 2008, J.W. committed

armed robbery, for which he was convicted in 2009 and was

incarcerated until 2016.

In 2020, J.W. requested reclassification, and he received a

board hearing in 2023, when he was fifty-six years old. At the

hearing, J.W. asserted a change in circumstances based, among

other things, on his advanced age and his offense-free time in

the community. The examiner reclassified J.W. as a level two

offender. She applied three high-risk factors (factors 2, 4,

and 5), ten risk-elevating factors (factors 7, 8, 9, 10, 11, 13,

19, 20, 21, 22), four risk-mitigating factors (factors 29, 30,

32, 34), and one additional factor (factor 35). She found by

clear and convincing evidence that J.W. had a moderate risk of

reoffense and a moderate degree of dangerousness and that public

safety would be served by Internet publication of his registry

information.

Discussion. 1. Need for expert evidence. J.W. argues

that procedural due process requires the board, whenever it

classifies an offender, to support its classification with

expert evidence.2 J.W. bases his argument on the procedural due

2 It is settled that the board's statute and regulations do
not themselves require it to offer expert evidence. See Doe,
Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry
Bd., 459 Mass. 603, 637 (2011); Doe, Sex Offender Registry Bd.
No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 786

3
process balancing test set forth in Mathews v. Eldridge, 424

U.S. 319 (1976), under which we balance "the private interests

affected by an agency decision; the risk of an erroneous

deprivation of those interests; the probable value, if any, of

additional or substitute procedural safeguards; and the

governmental interests involved." Doe, Sex Offender Registry

Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 303

(2015). Those governmental interests include not only

protecting public safety while avoiding overclassification, id.

at 313-314, but also "the fiscal and administrative burdens"

entailed by the proposed additional procedural safeguard. Doe,

Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd.,

447 Mass. 768, 775 (2006), quoting Mathews, 424 U.S. at 335.

With the exception of the private interests affected, J.W.

has failed to provide adequate evidence or argument to assess

these factors. He assumes but does not demonstrate with any

specificity the probable value of expert evidence in avoiding

erroneous deprivations while maintaining public safety. He does

not address at all the fiscal and administrative burdens of

imposing the new requirement he argues is required. He

therefore has not shown that the board's failure to offer expert

(2006). Those decisions do not, however, resolve J.W.'s
constitutional argument.

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evidence in support of its classification, in his case let alone

as a general matter, violates procedural due process

requirements.

2. Offense-free time in community. J.W. argues that the

examiner, despite applying factor 29, gave insufficient

consideration to what J.W. asserts is the proper measure of his

offense-free time in the community, or to the time since his

last sex offense. We are unpersuaded.

Under factor 29, as applied to an adult male such as J.W.,

"[t]he risk of reoffense decreases for most offenders after

living in the community offense-free for five to ten years," and

it "lowers substantially after ten years of offense-free time in

the community." Factor 29(a). For an offender such as J.W. who

was in custody for his offenses, "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."3 Factor

3 We quote the 2016 version of factor 29. Under the 2025
version, "[o]ffense-free time in the community begins on the
date of the sex offender's most recent release from custody for
a sex offense," but the factor "may be given less mitigating
weight" where, among other things, the offender was "removed
from the community for some portion of time since last
committing a sex offense or sexual misconduct for any reason,
including . . . any incarceration." 803 Code Mass. Regs.
§ 1.33(29) (2025). In such cases, "the decrease in mitigation,
if any, should be commensurate with the amount of time removed
from the community." Id.

5
29(a). Factor 29(a) cites various research articles as showing

that these considerations are relevant to the risk of reoffense.

Applying factor 29 here, the examiner determined that,

because J.W. had been offense-free since his 2016 release from

custody on his armed robbery sentence, he had accumulated seven

years offense-free in the community.4 She therefore gave factor

29 "moderate" risk-mitigating weight.

J.W. argues that this was insufficient, for two reasons.

First, he contends that his offense-free time should be

calculated from his release from custody for his last sex

offense, i.e., his 2007 release from his SDP commitment, sixteen

years before the board hearing.5 But he cites no research in

support of this position. He offers no basis on which we could

substitute our judgment on the issue for the judgment embodied

in the board's duly-adopted regulation.

Second, J.W. argues that factor 29, and the regulations as

a whole, "do not accurately assess risk or dangerousness because

they do not require hearing examiners to consider the length of

time since an individual's last sex offense, here over [thirty]

4 Like the examiner, we refer to the offense-free time
calculated as of 2023, when J.W.'s hearing occurred.

5 Despite J.W.'s assertion, his 2007 release occurred
sixteen (not fifteen) years before his 2023 board hearing. The
discrepancy is not material to our analysis.

6
years, when applying the remaining factors."6 Again, however,

J.W. cites no research articles or other evidence concluding

that the raw amount of time since an offender's last sex offense

is relevant in assessing risk of reoffense, without regard for

whether the offender spent any of the intervening time in

custody. J.W. himself, after his 1993 sex offense convictions,

was in custody for fourteen years on account of those

convictions and his SDP commitment (1993-2007), and was in

custody for another seven years on account of his armed robbery

conviction (2009-2016). This totaled twenty-one years in which

J.W. had no access to the community, and it is not intuitively

obvious that his not having committed any sex offense during

those years is a reliable indicator of a lowered risk of sexual

recidivism once released into the community.

Moreover, J.W. offers no research articles or other

evidence supporting his argument that the amount of time since

his last sex offense must be considered "when applying the

remaining factors."7 J.W. appears to assume that the passage of

time since a sex offense is an overarching consideration that

6 J.W. committed his sex offenses against victim 2 in late
1992 and was convicted of these offenses in mid-1993.
7 J.W. acknowledges that the examiner gave reduced weight to

factor 13 (noncompliance with community supervision) based on
the passage of time since he committed a sex offense while on
probation.

7
necessarily affects the weight to be given every other factor.

Each of those factors is supported by research cited in the

board's regulations, but J.W. makes no effort to demonstrate

that giving each such factor less (or more) weight based on the

time since the last sex offense is required by, or even

consistent with, that research. There is thus no basis for us

to require an examiner to adopt J.W.'s approach, or to depart

from the principle that "[a] hearing examiner has discretion

. . . to consider . . . how much weight to ascribe to each

factor." Doe, Sex Offender Registry Bd. No. 68549 v. Sex

Offender Registry Bd., 470 Mass. 102, 109-110 (2014).

We therefore reject J.W.'s argument that the examiner

failed to give sufficient consideration to J.W.'s offense-free

time in the community or the time since his last sex offense.

3. Examiner's explanations. J.W. argues that the examiner

failed to explain sufficiently both (a) the weight she gave to

certain classification factors, and (b) on what issue(s) she

considered those factors, rendering her decision arbitrary and

capricious.8 Addressing the arguments in that order, we see only

8 J.W. also asserts that the claimed lack of explanation
renders the decision unsupported by substantial evidence, an
abuse of discretion, and undeserving of the deference typically
afforded agency decisions by reviewing courts. These assertions
require no further discussion, as they are unsupported by any
developed argument and appear to add nothing to J.W.'s claim
that the decision was arbitrary and capricious.

8
one arguable error, which did not result in sufficient prejudice

to entitle J.W. to relief.

a. Amount of weight. J.W.'s first contention is that the

examiner failed to explain what weight she gave to seven

different factors (factors 4, 5, 10, 19, 20, 21, and 22),

instead saying only that they "applied." But, as to factor 4

(age at first offense), factor 5 (adjudicated SDP or released

from civil commitment), factor 21 (diverse victim type), and

factor 22 (number of victims), their language contains no

reference to varying weights. It was therefore not arbitrary or

capricious for the examiner here not to specify the amount of

weight she gave them.9

As to factor 10 (contact with criminal justice system) and

factor 19 (level of physical contact), their language does refer

to weighting. But J.W. overlooks that the examiner did specify

the weight given to each of those factors here. In the

decision's "discussion" section, the examiner gave factor 10

"full weight," and gave factor 19 "increased weight."

9 Factor 22 (number of victims) might naturally lend itself
to being given additional weight when an offender has sexually
offended against more than two victims, with the degree of added
weight depending on the number in excess of two. Here, that the
examiner noted that J.W. had offended against two victims and on
that basis merely "applie[d]" factor 22 suggests that the
examiner gave it no such additional weight. J.W. does not argue
otherwise.

9
Finally, as to factor 20 (diverse sexual behavior), its

language does call for weighting. "In determining the weight

applied to factor 20, the [b]oard shall consider the number,

types, and frequency of the diverse sexual behaviors." Factor

20(a). The examiner should have specified how much weight she

gave this factor as applied to J.W. That said, the examiner did

state that J.W. "committed contact sexual assaults, stole

[v]ictim 2's belongings for sexual arousal, cross-dressed in

order to get aroused, and committed sadistic sexual acts all in

the commission of his sexual offending episodes." We may infer

from these characterizations that the examiner gave factor 20 at

least moderate weight. This would be consistent with the

examiner's overall conclusion that J.W.'s risk of reoffense and

degree of dangerousness were moderate. Any error in failing to

give a more detailed explanation did not prejudice J.W.'s

substantial rights. See Doe, Sex Offender Registry Bd. No.

22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 804

(2022).

b. Issue(s) on which factors were considered. J.W.'s

second contention is that the examiner failed to explain whether

she considered certain factors as relevant to J.W's risk of

reoffense, his degree of dangerousness, or both. J.W. points to

the examiner's treatment of five factors discussed above

10
(factors 10, 19, 20, 21, and 22), and also to factor 13 (non-

compliance with community supervision).

J.W. again overlooks that the examiner specified, in the

discussion decision of her decision, the issue(s) to which each

factor related. On the issue of risk of reoffense, the examiner

expressly considered (among others) factors 10, 13, 20, 21, and

22. On the issue of degree of dangerousness, the examiner

expressly considered (among others) factors 10, 19, and 22.

4. Other issues. J.W.'s brief includes broad-based

challenges to the board's classification system. He asserts

that "[d]espite the relatively low rates of [sex offender]

recidivism, the [b]oard's entire regulatory scheme is calculated

to find more individuals 'high risk' and 'highly dangerous'

resulting in hearing examiners over-designating offenders, as

happened in this case." He further contends that the board's

classification regulations "overemphasize[] the application of

risk-elevating factors," by including "six high-risk and twenty

risk-elevating factors, but only seven risk-mitigating factors

and four undesignated additional factors."

The basis of these claims is unclear. To the extent that

J.W. seeks to invalidate any of the governing statutes or board

regulations, such claims cannot be resolved in this case brought

solely under G. L. c. 30A, § 14, but must be raised through a

11
claim for declaratory judgment. Doe, Sex Offender Registry Bd.

No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630-631

(2011). Just as "a hearing examiner is obligated to apply the

risk factors set forth in [the board's regulations] irrespective

of the examiner's opinion as to their constitutionality," so

must the examiner follow them irrespective of her (or our)

opinion of their wisdom or efficacy as a policy matter. See id.

at 630. Even if we were to agree with J.W.'s systemic policy

critiques, a remand so that the hearing examiner could act upon

them would be futile. See id. at 631.

To the extent J.W. contends that, even accepting the

validity of the statutes and regulations, the hearing examiner

failed to consider relevant evidence bearing on J.W.'s own

classification or how the statutes and regulations should be

applied to J.W., such a claim could be raised in this action

under chapter 30A. See Doe No. 205614 v. Sex Offender Registry

Bd., 466 Mass. 594, 602-610 (2013). Nevertheless, J.W. has not

identified with specificity what evidence the examiner failed to

consider, or how any statute or regulation was misapplied to

him. Moreover, we see nothing in the Superior Court record

12
suggesting that J.W. raised such claims there. We therefore do

not address such claims further.

Judgment affirmed.

By the Court (Rubin, Sacks &
Smyth, JJ.10),

Clerk

Entered: May 4, 2026.

10 The panelists are listed in order of seniority.

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