John Doe, Sex Offender Registry Board No. 525957 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

23-P-591

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 525957

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 defendant Sex

Offender Registry Board (SORB) as a level one sex offender. Doe

argues that SORB's decision was arbitrary and capricious and an

abuse of discretion because the hearing examiner incorrectly

interpreted regulatory factor 29 (offense-free time in the

community) and the decision is unsupported by substantial

evidence. We affirm.

Background. In 2007, Doe pleaded guilty in Connecticut

Superior Court to risk of injury to a child by subjecting a

child under sixteen to contact with intimate parts in violation

of Conn. Gen. Stat. § 53-21(a)(2), which the hearing examiner
found was a like offense to G. L. c. 265, § 13B, indecent

assault and battery on a child under fourteen. On at least a

monthly basis over two years while he was babysitting a girl

then aged nine to eleven, Doe subjected her to illegal sexual

contact, including touching the victim's bare chest, thigh, and

crotch; rubbing his penis against her vagina; and forcing her to

masturbate him to ejaculation. Doe was sentenced to ten years

in prison with two to serve and the rest suspended, followed by

ten years' probation. On October 30, 2009, Doe was released

from prison and began his probationary period, during which he

was required to register as a sex offender in Connecticut and

comply with registration conditions.

On February 4, 2014, Enfield, Connecticut police received

information that Doe had been living in Massachusetts for four

months, without having reported his change of address to the

Connecticut Sex Offender Registry. On April 28, 2015, a

Connecticut Superior Court judge revoked Doe's probation and

sentenced him to serve eighteen months in prison, followed by

two years' probation. After his release, Doe began his

probation on August 30, 2016. 1 Doe's probation was transferred

to Massachusetts, and he completed it in 2018.

1 Both Connecticut probation records and an affidavit of Doe
document that he was released from prison and began his
probation on August 30, 2016. In contrast, the hearing examiner
found that Doe was released from prison in August 2017, but that

2
After Doe moved to Massachusetts, SORB notified him that he

was required to register as a level two sex offender, which Doe

challenged. Following an evidentiary hearing, SORB issued a

decision on October 31, 2018, classifying Doe as a level one sex

offender pursuant to G. L. c. 6, § 178K (2) (a). Doe promptly

submitted a motion requesting reclassification to a lower sex

offender status and relief from registration pursuant to 803

Code Mass. Regs. § 1.31 (2016).

On February 9, 2022, SORB held another classification

hearing at which the hearing examiner considered documentary

evidence as well as the testimony of Doe's wife. On May 26,

2022, SORB again classified Doe as a level one sex offender. In

her decision, the hearing examiner applied with increased weight

high-risk factor 3 (adult offender with child victim) and

applied risk-elevating factors 7 (relationship between offender

and victim) and 13 (noncompliance with community supervision).

The hearing examiner also applied risk-mitigating factors 30

(advanced age), 32 (sex offender treatment), 33 (home situation

seems to be a typographical error because the hearing examiner
also found that as of his February 2022 reclassification hearing
Doe had "accrued 5 years offense-free in the community." We
need not resolve that discrepancy, because as the judge noted
the hearing examiner applied mitigating weight based on the
determination that Doe reached the five-year mark, which is the
minimum length of time after which the risk of reoffense
decreases according to 803 Code Mass. Regs. § 1.33(29)(a)
(2016).

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and support systems), 34 (stability in the community), and 37

(other useful information). As to risk-mitigating factor 29

(offense-free time in the community), the hearing examiner

applied it with "minimal weight," based on her finding that Doe

had accrued at least five years of offense-free time as of the

hearing on February 9, 2022

On June 7, 2022, Doe appealed from SORB's reclassification

by filing a complaint for judicial review pursuant to G. L.

c. 30A, § 14. He moved for judgment on the pleadings six months

later. A Superior Court judge denied Doe's motion and affirmed

SORB's decision. Doe appealed from that judgment.

Discussion. "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) (Doe No. 523391).

"A reviewing court will not disturb SORB's decision unless
that decision was (a) in violation of constitutional
provisions; (b) in excess of SORB's authority; (c) based
upon an error of law; (d) made upon unlawful procedure; (e)
unsupported by substantial evidence; (f) unwarranted by
facts found by the court, where the court is
constitutionally required to make independent findings of
fact; or (g) arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with law."

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

Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe No. 68549).

See G. L. c. 30A, § 14 (7). Review is "confined to the

administrative record" and we "give due weight to the

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experience, technical competence, and specialized knowledge of

[SORB], as well as to the discretionary authority conferred upon

it." Doe No. 523391, supra at 88, quoting Doe, Sex Offender

Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass.

App. Ct. 73, 76 (2015).

In classifying a person as a level one sex offender, SORB

bears the burden of establishing, by clear and convincing

evidence, that "the risk of reoffense is low and the degree of

dangerousness posed to the public is not such that a public

safety interest is served by public availability" of

information. G. L. c. 6, § 178K (2) (a). Doe argues that he

does not meet even the standard for a level one sex offender,

and should be relieved from registering altogether. Put

differently, Doe argues that any risk of reoffense that he poses

does not even amount to the "low" risk of a level one offender.

"[R]egistration can be required only based on an assessment

'of the person's current level of dangerousness and risk of

reoffense'" (emphasis omitted). Doe, Sex Offender Registry Bd.

No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383,

387 (2009) (Doe No. 24341), quoting Doe, Sex Offender Registry

Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787

(2008). See Doe, Sex Offender Registry Bd. No. 1211 v. Sex

Offender Registry Bd., 447 Mass. 750, 755, 762 (2006) (Doe No.

1211) (upholding classification as level one sex offender

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because "substantial evidence" supported determination that

petitioner's overall risk of reoffense and degree of

dangerousness was low but not "close to nil"). "SORB's burden

is to show that Doe presents a 'cognizable risk of reoffense,'

not merely a hypothetical or speculative potential risk." Doe

No. 24341, supra at 388, quoting Doe No. 1211, supra at 762.

The hearing examiner was required to consider twelve

statutory factors, see G. L. c. 6, § 178K (1) (a)-(l), as well

as any other "information useful in assessing the risk of

reoffense and the degree of dangerousness posed to the public by

the sex offender." G. L. c. 6, § 178L (1). SORB has

promulgated guidelines for applying the statutory factors,

identifying 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). The hearing

examiner's decision must be supported by "substantial evidence,"

which is "such evidence as a reasonable mind might accept as

adequate to support a conclusion." G. L. c. 30A, § 1 (6). See

Doe No. 68549, 470 Mass. at 109.

On appeal, Doe argues that the hearing examiner "erred in

applying only minimal weight to factor 29," offense-free time in

the community. This error, Doe contends, is "the result of an

incorrect interpretation of the regulation," 803 Code Mass.

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Regs. § 1.33(29). Doe contends that his offense-free time in

the community began when he was released from the initial

committed portion of his sentence on October 30, 2009, rather

than when he was released from the additional eighteen-month

sentence he received as a result of his probation violation. We

are not persuaded.

The regulation defining factor 29 specifies that "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." 803 Code Mass. Regs. § 1.33(29)(a). As the

Superior Court judge noted, Doe's return to custody was "a

disposition consistent with more than a technical violation of

probation." We agree that Doe's eighteen-month incarceration

constituted "custody for a sex offense" within the meaning of

803 Code Mass. Regs. § 1.33(29)(a). "A defendant who violates

probation is not being punished for violating a condition of

probation, but rather 'the defendant is essentially being

sentenced anew on his [or her] underlying conviction.'"

Commonwealth v. Eldred, 480 Mass. 90, 97 (2018), quoting

Commonwealth v. Goodwin, 458 Mass. 11, 17 (2010). Doe's return

to custody was further punishment for his underlying sex offense

conviction. See Eldred, supra. Thus, the hearing examiner

correctly interpreted and applied factor 29.

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Doe also argues that the hearing examiner's analysis was

"sparse" and her classification decision is unsupported by

"substantial evidence" as required by G. L. c. 30A,

§ 14 (7) (e). The SORB hearing examiner had discretion in

determining how much weight to ascribe to each factor under

consideration. See Doe No. 23656, 483 Mass. at 139. Here, the

hearing examiner properly applied and analyzed the regulatory

factors. She considered Doe's underlying sex offense as well as

his violation of probation. Even if an underlying offense

occurred many years ago, a hearing examiner may consider the

facts and circumstances of that crime. See Doe No. 68549, 470

Mass. at 109 (ruling that hearing examiner did not err by

considering sex offenses that plaintiff committed "more than

twenty years ago"). The hearing examiner also considered

mitigating factors, giving full weight to the "significant

support system" of Doe's family and friends and his stable

employment and lifestyle. The evidence here sufficiently

supported a level one classification. See Doe No. 1211, 447

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Mass. at 755, 762. We affirm the Superior Court judgment

upholding Doe's reclassification as a level one sex offender.

Judgment affirmed.

By the Court (Sacks,
Englander & Grant, JJ. 2),

Clerk

Entered: December 11, 2024.

2 The panelists are listed in order of seniority.

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