Doe v. Sex Offender Registry Board., 21-P-105

CourtAppeals Court of Massachusetts
PartiesJOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523722 v. SEX OFFENDER REGISTRY BOARD.
Decision Date17 June 2022
Docket Number21-P-105

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523722
v.

SEX OFFENDER REGISTRY BOARD.

No. 21-P-105

Appeals Court of Massachusetts

June 17, 2022


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).

MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0

Doe appeals from a Superior Court judgment affirming a Sex Offender Registry Board (board) decision to classify him as a level two sex offender. He argues that the board's decision is not supported by substantial evidence and violated his right to due process because the hearing examiner improperly applied the regulatory risk factors. We affirm.

Background.

We summarize the facts found by the hearing examiner, supplemented where necessary with undisputed facts from the record. Doe was arrested and charged with several offenses, as a juvenile and then as an adult, while living in New Jersey. In June 1987, Doe, then seventeen years old, approached two nine year old boys and convinced them to follow him to a stairwell in a nearby school. When they got to the stairwell, Doe ordered one of the boys (victim one) to undress.

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Doe fled the scene when he heard someone approaching. Doe was later arrested and charged with criminal restraint, aggravated sexual assault, sexual assault, and assault. He was ultimately adjudicated delinquent on the criminal restraint charge and sentenced to one year of probation and psychiatric counselling.

Doe committed his governing offense after he turned eighteen and while he was still on probation for assaulting victim one. On March 1, 1988, Doe approached two boys, aged ten and eleven years old (victims two and three), who were out riding their bicycles. Doe told the boys that he knew of a better place to ride and led the boys to a dead-end street, over some railroad tracks, and down to an area near a railroad trestle. Once there, Doe pulled out a knife and ordered the boys to remove their clothes and lie face down on top of each other. Doe then fondled one of the boy's genitals and inserted something into the other boy's anus.

Doe was arrested shortly thereafter, and on July 15, 1988, he pleaded guilty to the following offenses: two counts of criminal restraint, one count of aggravated sexual assault, one count of sexual assault, two counts of terroristic threats, one count of possession of a weapon for unlawful purposes, and two counts of endangering the welfare of a child. Doe was sentenced to an aggregate term of forty years in prison.

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Doe was released from prison in December 2008 and moved to Massachusetts in 2015. On May 25, 2016, the board notified Doe that he was required to register as a level three sex offender. Doe challenged the level three classification and received a de novo evidentiary hearing on July 11, 2017. Following the hearing, Doe's classification level was reduced to level two. Doe sought judicial review of the board's decision pursuant to G. L. c. 30A, § 14. A Superior Court judge remanded the case for a new de novo hearing, concluding that the hearing examiner failed to make explicit findings about Doe's current risk of reoffending and dangerousness.

Following a new de novo hearing on July 24, 2019, the board issued a decision once again classifying Doe as a level two offender. In his decision, the hearing examiner applied two high risk and nine risk elevating factors under 803 Code Mass. Regs. § 1.33 (2016): factor 2, repetitive and compulsive behavior; factor 3, adult offender with child victim; factor 7, extrafamilial victim; factor 8, use of weapon; factor 12, behavior while incarcerated; factor 13, noncompliance with community supervision; factor 16, public place; factor 17, male offender against male victim; factor 19, level of physical contact; factor 22, number of victims; and factor 27, child victim.

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The hearing examiner also considered the following mitigating factors: factor 29, offense free time in the community; factor 30, advanced age; factor 32, sex offender treatment; factor 33, home situation and support systems; factor 34, stability in the community; and factor 35, psychological profile. In the end, the hearing examiner found that Doe continued to present a moderate risk to reoffend, and a moderate degree of dangerousness. He further concluded that "offending against multiple stranger prepubescent boys on different occasions justifies disclosure of [Doe's] presence in the community via Internet publication and will help protect minors and other vulnerable persons from becoming victims of sex crimes."

Doe again sought judicial review of the board's decision in the Superior Court and filed a motion for judgment on the pleadings. A judge denied Doe's motion and affirmed his level two classification. This appeal followed.

Discussion.

1. Standard.

"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) . Our review of the board's decision is limited, and we will not disturb the board's classification unless "we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of

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discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). In reviewing the board's decision, "we give due weight to [its] experience, technical competence, and specialized knowledge." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013).

2. Substantial evidence.

Doe argues that the hearing examiner's decision was not supported by substantial evidence because the hearing examiner did not consider the entirety of Doe's history and personal circumstances when applying each high risk and risk elevating regulatory factor. Although the board's regulations require that an offender's final...

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