John Doe, Sex Offender Registry Board No. 22460 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

25-P-368

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22460

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 or board) as a level two sex offender. On

appeal, Doe raises two overarching issues. First, he argues

that the board's decision was arbitrary and capricious and not

supported by substantial evidence because the hearing examiner

failed to make detailed findings of Doe's risk of reoffense and

degree of dangerousness. Second, Doe argues that his Superior

Court counsel was ineffective for failing to challenge the
hearing examiner's application of factors 10, 24, 33, and 38.1

We affirm.

Discussion. 1. Standard of review. "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). "To determine the validity of an

agency's decision, the reviewing court must determine whether

the decision is supported by substantial evidence." Doe, Sex

Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,

447 Mass. 779, 787 (2006). Substantial evidence is "such

evidence as a reasonable mind might accept as adequate to

support a conclusion." G. L. c. 30A, § 1 (6). "[W]e give due

weight to the experience, technical competence, and specialized

knowledge of the agency" (citation omitted). Doe, Sex Offender

Registry Bd. No. 528042 v. Sex Offender Registry Bd., 496 Mass.

437, 441 (2025) (Doe No. 528042). A hearing examiner also has

discretion to consider which regulatory factors are applicable

in each case and how much weight to give to each factor. Id.

See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender

1 We refer to SORB's classification factors by number, or
name and number, it being understood that each of them appears
in the corresponding subpart of 803 Code Mass. Regs. § 1.33
(2016). SORB's regulations were updated in 2025, but the 2016
version of the regulations were in effect at the time of the
hearing examiner's decision in this case and therefore govern
our analysis.

2
Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). "Accordingly,

our review does not turn on whether, faced with the same set of

facts, we would have drawn the same conclusion as an agency or

local board, but only whether a contrary conclusion is not

merely a possible but a necessary inference" (quotation,

citation, alteration omitted). Doe, Sex Offender Registry Bd.

No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110

(2014).

2. Doe's level two classification. Doe argues his level

two classification was arbitrary and capricious, with the main

thrust of the argument being that the hearing examiner used a

"checklist approach." Perfunctory, checklist risk-

classification decisions are, of course, incompatible with the

reasoned analysis required of a SORB classification. See Doe,

Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry

Bd., 97 Mass. App. Ct. 564, 575-576 (2020) (Doe No. 11204).

Furthermore, hearing examiners are required "to make explicit

[their] findings regarding each of . . . three elements, [risk

of reoffense, degree of dangerousness, and Internet

publication,] and to make clear that each determination is

supported by clear and convincing evidence." Doe, Sex Offender

Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.

643, 657 (2019) (Doe No. 496501). Here, the hearing examiner's

3
analysis was detailed and specific to Doe's personal

circumstances and far from a "tally sheet of aggravating and

mitigating factors." Doe No. 11204, supra. Rather than a

simple determination that "the former outweighed the latter,"

id. at 576, the hearing examiner noted which factors contributed

to his analysis for each element and considered the relevant

research.

Doe also argues that the hearing examiner improperly

considered factors 10, 11, 12, and 15 as part of his assessment

of Doe's degree of dangerousness. Factor 10 relates to contact

with the criminal justice system; factor 11 to violence

unrelated to sex assaults; factor 12 to behavior while

incarcerated or civilly committed; and factor 15 to hostility

toward women. In evaluating an offender's degree of

dangerousness, "a hearing examiner must consider 'the severity

and extent of the harm the offender would present to the public

in the event of reoffense.'" Doe No. 496501, 482 Mass. at 659,

quoting 803 Code Mass. Regs. § 1.20(2)(b) (2016). This

consideration must include "the nature and type of offense the

offender would be likely to commit if he or she reoffended."

Doe No. 496501, supra. Doe argues that, because the above

factors do not bear directly on the "nature and type" of

4
potential reoffense, the hearing examiner's consideration of

these factors was erroneous. We disagree.

First, we note that the regulation specifies that the

presence of each of the above factors correlates to an increased

degree of dangerousness. See 803 Code Mass. Regs. § 1.33(10)-

(12), (15). Second, contrary to Doe's position, the holding in

Doe No. 496501 does not require that every factor relate to the

nature and type of a potential reoffense in determining the

degree of dangerousness. Rather, the holding provides that the

level of dangerousness a hearing examiner finds in each case

should logically relate to the level of harm an offender is

capable of causing. See Doe No. 496501, 482 Mass. at 659-660

(risk of reoffense relating only to noncontact offenses, where

victim not put in fear of bodily harm, unlikely to pose moderate

degree of dangerousness). Here, Doe was convicted of two counts

of aggravated rape, in violation of G. L. c. 265, § 22 (a),

stemming from an incident in which he orally and vaginally raped

the victim and threatened to kill her with a gun. Given Doe's

history of sexual violence, the hearing examiner's decision was

neither arbitrary and capricious nor unsupported by substantial

evidence.

The remainder of Doe's appellate argument amounts to a

challenge to the regulatory scheme itself, rather than any

5
particular failing of the hearing examiner. For example, Doe

takes issue with the fact that the various risk levels are not

defined in the relevant statutory and regulatory scheme. He did

not bring those challenges in a declaratory judgment action, and

thus we "are without jurisdiction to decide the

constitutionality of the classification scheme." Doe, Sex

Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,

459 Mass. 603, 631 (2011) (Doe No. 10800).

3. Ineffective assistance of counsel. Doe argues that his

counsel was ineffective in the Superior Court proceeding for

failing to challenge the hearing examiner's application of

factors 10, 24, 33, and 38.2 To support an ineffective

assistance of counsel claim in the sex offender registry

context, the offender must show that "there has been serious

incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer." Poe v. Sex Offender

Registry Bd., 456 Mass. 801, 812 (2010), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). In cases where counsel's

performance falls measurably below the standard of an ordinary,

fallible lawyer, we then consider whether counsel's performance

2 We note that Doe clarified at oral argument that he raises
his ineffective assistance argument solely for the purpose of
challenging the application of the factors.

6
prejudiced Doe. Poe, supra at 813. Furthermore, the burden is

on Doe to prove ineffective assistance of counsel. See

Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). Importantly,

"[j]udicial scrutiny of counsel's performance [is] highly

deferential, indulging in a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance" (quotation, citation, alteration omitted).

Commonwealth v. Florentino, 396 Mass. 689, 690 (1986). Doe

argues that the application of each of the above factors was

plainly erroneous such that any competent attorney would have

challenged them on appeal. Accordingly, we review the hearing

examiner's application of each factor looking not merely for

error, but rather for an error so grievous that counsel's

failure to challenge it on appeal fell measurably below that

which might be expected from an ordinary fallible lawyer. See

Poe, supra at 812.

a. Factor 10: Contact with the criminal justice system.

The hearing examiner applied factor 10 to Doe with moderate

weight due to Doe's lengthy criminal record in addition to the

governing sex offenses. He noted that Doe's contacts with the

criminal justice system all occurred prior to 1993, when Doe was

sentenced for the governing sex offenses. He further noted that

Doe was released from custody in July 2012 and was on probation

7
until 2016. Doe argues that this application was arbitrary and

capricious because his contacts with the criminal justice system

were remote in time, the hearing examiner's consideration of the

factor was inadequate, and because the application of factor 10

was incompatible with the hearing examiner's application of

factor 12, "behavior while incarcerated."

To the contrary, it is clear from the hearing examiner's

application of factor 10 that he considered "the number and type

of criminal charges, dispositions on the charges, [and] dates of

the criminal conduct." 803 Code Mass. Regs. § 1.33(10)(a). Doe

had numerous contacts with the criminal justice system over the

course of two decades, based on which the hearing examiner found

that Doe "engaged in an ongoing pattern of physically abusive

behavior towards women," in addition to his 1993 convictions of

aggravated rape. In this light, a "reflexive application" of

the factor would land on full weight, and the hearing examiner's

downward departure from full weight to moderate weight reflected

the hearing examiner's consideration of the change in Doe's

circumstances over time. And as for Doe's claim that the

discrepancy between the hearing examiner's applications of

factors 10 and 12 shows the decision was arbitrary, we note that

what weight to assign a given factor lies within the sound

discretion of the hearing examiner. Doe No. 528042, 496 Mass.

8
at 441. There are any number of legitimate reasons why a

hearing examiner might give moderate weight to an offender's

contacts with the criminal justice system while giving minimal

weight to the offender's disciplinary record while incarcerated.

After careful review, we conclude that challenging the hearing

examiner's application of factor 10 likely would have been

futile, and accordingly Doe's counsel's failure to challenge it

did not fall below the standard of an ordinary fallible lawyer.

See Commonwealth v. Collins, 470 Mass. 255, 261 (2014) ("defense

counsel was not ineffective for failing to make an objection

that would have been futile under the prevailing case law").

b. Factor 24: Less than satisfactory participation in sex

offender treatment. Doe refused to participate in sex offender

treatment altogether, and the hearing examiner applied with full

weight factor 24, which states that "[o]ffenders who refuse to

participate in . . . sex offender treatment present an increased

risk of re-offense." 803 Code Mass. Regs. § 1.33(24)(a). Doe

claims this was erroneous because the hearing examiner ignored

expert testimony from Doe's 2012 classification hearing, opining

that there is no link between an offender's refusing treatment

and risk of reoffense. Doe also claims that a research article,

submitted for the first time on appeal, so refutes the research

underlying factor 24 that Doe's prior counsel was ineffective

9
for not offering it in evidence at the reclassification hearing.

We disagree. The hearing examiner dealt squarely with the

expert testimony, giving it little weight due in part to the

expert's disregard of collateral reports the hearing examiner

found credible. The hearing examiner was not required to accept

the expert's testimony and gave a reasoned analysis for why he

discounted it. See Doe No. 10800, 459 Mass. at 638-639.

Furthermore, the research offered by Doe on appeal is not

dispositive, as it discusses only the recidivism effect of sex

offender treatment on participants who began but did not

complete treatment, and did not measure recidivism on those,

such as Doe, who refused treatment altogether. Doe's counsel's

failure to challenge the application of factor 24 or introduce

evidence at the hearing did not fall below the standard of an

ordinary fallible lawyer.

c. Factor 33: Home situation and support systems. Factor

33 provides that an adult offender presents a reduced risk of

reoffense when supported by "family, friends, and

acquaintances." 803 Code Mass. Regs. § 1.33(33)(a). The

hearing examiner must give greater weight to evidence of a

"support network that is aware of the offender's sex offense

history and provides guidance, supervision, and support of

rehabilitation." Id. The hearing examiner applied factor 33

10
with minimal weight, which Doe argues was erroneous because the

record showed Doe's supporters were aware of his sex offenses.

We are unpersuaded. As evidence of his community support, Doe

offered his own affidavit, an affidavit from his neighbor, and

four letters of support. The hearing examiner discounted much

of this evidence because it failed to show Doe's supporters were

aware of his sex offenses and did not describe what support they

gave Doe to assist him in remaining offense-free. While Doe's

neighbor was aware of his convictions for sex offenses, she made

clear that she believed he was innocent of them. The hearing

examiner was accordingly not required to apply factor 33 with

increased mitigating weight and was within his discretion to

afford minimal weight to this factor. See Doe No. 10800, 459

Mass. at 638-639. Any failure by Doe's counsel to challenge the

application of factor 33 did not fall below the standard of an

ordinary fallible lawyer.

d. Factor 38: Victim impact statements. Finally, Doe

argues the hearing examiner committed error in considering the

victim impact statements. He argues the hearing examiner did

not explain how the effect of the rapes on Doe's victim relate

to Doe's degree of dangerousness, and that such an application

is contrary to SORB's regulations. We disagree.

11
Pursuant to G. L. c. 6, § 178K (1) (k), hearing examiners

are mandated to "review any victim impact statement." Also,

factor 38 "recognizes the substantial impact sex offenses have

on victims." 803 Code Mass. Regs. § 1.33(38)(a). Nothing in

the statutory or regulatory language precludes a hearing

examiner from considering how an offender's past conduct

effected the victim, and how that might bear on the likely

consequences for potential future victims. Furthermore, it was

appropriate for the hearing examiner to "recognize[] the

substantial impact the sex offenses have had on the [v]ictim,"

and the hearing examiner did not assign the victim impact

statements any weight or categorize them as a risk-elevating

factor. Acknowledging the victim's physical and psychological

injuries is important to the consideration of the harm Doe is

capable of causing should he reoffend. We discern nothing in

the hearing examiner's application of factor 38 to support the

claim that failure to challenge it fell below the standard of an

ordinary fallible lawyer.

In conclusion, the record does not support Doe's claim of

12
ineffective assistance of counsel because there was no error in

the hearing examiner's application of the above factors. See

Poe, 456 Mass. at 813.

Judgment affirmed.

By the Court (Grant, Walsh &
Brennan, JJ.3),

Clerk

Entered: June 5, 2026.

3 The panelists are listed in order of seniority.

13