John Doe, Sex Offender Registry Board No. 250253 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-1376

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 250253

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming an order of the Sex Offender Registry Board

(the board) classifying him as a level three sex offender. On

appeal, Doe argues that he was deprived of the effective

assistance of counsel during his classification hearing before

the board, and upon judicial review of his classification at the

Superior Court. We affirm.

Background. Doe, who was incarcerated at the time of his

classification hearing, has a history of sex offenses that

served as the basis for his classification. In particular, on

September 12, 1995, Doe admitted to sufficient facts for

indecent assault and battery on a person under the age of
fourteen and was given a continuance without a finding (CWOF).

According to the relevant police reports, Doe, then aged thirty-

five, sexually assaulted his twelve year old female neighbor

while she was at his home babysitting his infant child. The

terms of Doe's CWOF included three years of probation and no

unsupervised contact with girls between the ages of twelve and

sixteen.

Then, on May 1, 2009, a jury found Doe guilty of nine

counts of rape and sixteen counts of indecent assault and

battery of a person age fourteen or over. Doe, aged forty-nine

at the time, repeatedly sexually assaulted two sisters who were

his neighbors, aged eighteen and twenty, who he had hired to

assist with a remodeling project he was doing on a cottage

located on his property.1 These offenses included oral, vaginal

and digital penetration. For these convictions, Doe received,

inter alia, a six-to-eight-year prison sentence and twenty years

of probation.

In addition to these convictions, Doe also has history of

criminal conduct unrelated to his sexual offenses. For

instance, on January 1, 2000, Doe was arrested for, and

subsequently convicted of, the unlawful possession of a firearm,

1 Doe had convinced the girls' father to allow them to work
for him.

2
based on evidence that he purchased it with plans to shoot his

exwife and both his and her lawyers.2

On September 20, 2022, following a classification hearing

before the board, Doe was ordered to register as a level three

sex offender.3 On August 22, 2023, a judge of the Superior Court

affirmed the Board's order.

Discussion. 1. Standard of review. A level three

classification is warranted where the hearing examiner "make[s]

explicit" findings, supported by clear and convincing evidence,

that the offender presents "a high risk of reoffense, a high

degree of dangerousness, and a public safety interest is served

by active dissemination of the offender's registry information."

Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry

Bd., 490 Mass. 759, 768 (2022) (Doe No. 6729). "A reviewing

court may set aside or modify [the board's] classification

decision where it determines that the decision is in excess of

[the board's] statutory authority or jurisdiction, violates

2 Doe was in the midst of a contentious child custody battle
at this time.

3 In August 2013, the board notified Doe of his duty to
register as a level three sex offender. Doe challenged that
decision and received a de novo hearing in September 2019.
Because Doe was still incarcerated, the hearing examiner put Doe
on "provisional status" and a subsequent hearing was held on
July 26, 2022 -- a date closer to Doe's release from
incarceration.

3
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 Board, 482

Mass. 643, 649 (2019), citing G. L. c. 30A, § 14 (7).

In assessing the offender's dangerousness and likelihood to

reoffend, the hearing examiner is "guided by [several] statutory

risk factors" and various "aggravating and mitigating

considerations." Doe, Sex Offender Registry Bd. No. 23656 v.

Sex Offender Registry Bd., 483 Mass. 131, 134 (2019). See G. L.

c. 6, § 178K (1) (a)-(l); 803 Code Mass. Regs. § 1.33 (2016). A

hearing examiner abuses the examiner's discretion when making a

"clear error of judgment in weighing the [relevant] factors"

such that the outcome falls outside "the range of reasonable

alternatives." Doe, Sex Offender Registry Bd. No. 356315 v. Sex

Offender Registry Bd., 99 Mass. App. Ct. 292, 299 (2021),

quoting L.L. v. Commonwealth, 471 Mass. 169, 185 n.27 (2014).

Ultimately, "[t]he final classification level is not based on a

cumulative analysis of the applicable factors, but rather a

qualitative analysis of the individual sex offender's history

and personal circumstances." 803 Code Mass. Regs. § 1.33.

2. Ineffective assistance. To support an ineffective

assistance of counsel claim in the sex offender registry

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

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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). Second, the offender must

show "a 'reasonable probability' that 'but for counsel's

unprofessional errors, the result of the proceeding would have

been different.'" Poe, supra at 813, quoting Commonwealth v.

Mahar, 442 Mass. 11, 15 (2004).

Here, Doe asserts that his counsel was ineffective for

failing to (1) request that the board exercise its subpoena

power to obtain Doe's medical records from Boston Medical

Center; (2) challenge the board's assertion that Doe was

unwilling to engage in sex offender treatment; and (3) submit

scholarly articles documenting a reduction in the previously

thought degree of correlation between a sex offender's failure

to participate in sex offender treatment and their risk of

reoffense. Doe also argues that his counsel was ineffective on

judicial review at the Superior Court, as evidenced by his one-

page memorandum in support of his motion for judgment on the

pleadings, and by the fact that the memorandum failed to

challenge the board's application of the regulatory factors,

namely, the examiner's application of factor 24 -- Less than

5
Satisfactory Participation in Sex Offender Treatment. 803 Code

Mass. Regs. § 1.33 (24). We affirm.

1. Medical records. Doe's argument that his counsel was

ineffective for failing to compel the board to obtain Doe's

medical records from Boston Medical Center is unavailing. To

begin, Doe has failed to provide the Superior Court or this

court with the medical records in question, and we therefore

cannot assess whether the absence of these records prejudiced

Doe.4 See Poe, 456 Mass. at 813. As such, this argument cannot

serve as the basis for an ineffective assistance claim.

2. Sex offender treatment. Doe further argues that his

counsel was ineffective for failing to challenge the board's

assertion that he was unwilling to engage in sex offender

treatment and, in turn, for not challenging the hearing

examiner's application of factor 24. Specifically, Doe argues

that counsel's failure to remind the hearing examiner in his

proposed findings of fact and conclusions of law to the board

that Doe's Inmate Web5 contained an entry, dated August 6, 2013,

At the classification hearing Doe's counsel introduced a
4

Massachusetts Department of Correction Health Services Sick Call
Request form which detailed Doe's medical issues. Upon request,
Doe's counsel was granted additional time to submit medical
records from Boston Medical Center.

The Inmate Web system is used to collect and manage inmate
5

data such as demographics, criminal history, and program
participation while incarcerated.

6
noting that Doe "is willing to attend sex offender treatment

when eligible"6 amounted to ineffective assistance. However,

there is evidence in the record that when Doe was subsequently

transferred to a prison that offered sex offender programming,

he continually refused to participate in treatment. For these

same reasons, the hearing examiner's application of factor 24,

which is applied if offender's participation in treatment is

"less than satisfactory," was also not improper.7 803 Code Mass.

Regs. § 1.33 (24). Therefore, Doe's arguments miss the mark.

3. Scholarly articles. Doe also grounds his claim in his

counsel's failure to submit scholarly articles that document a

reduction in the nexus between an offender's participation in

sex offender treatment and their risk of re-offense.

Specifically, Doe relies on an unpublished decision issued by a

panel of this court pursuant to Appeals Court rule 23.0 -- Doe,

Sex Offender Registry Bd. No. 239639 (Doe No. 239639) v. Sex

Offender Registry Bd., No. 21-P-928 (February 1, 2023) -- to

6 Doe was not eligible to participate in treatment at the
time of this entry because he was incarcerated at a facility
that did not offer sex offender treatment programming.

7 Factor 24 provides that "[s]ex offenders who refused to
participate in, dropped out of, or were terminated by their
treatment provider from sex offender treatment present an
increased risk of re-offense and degree of dangerousness." 803
Code Mass. Regs. § 1.33 (24).

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support his argument. However, Doe No. 239639 simply held that

a hearing examiner was required to consider two articles

introduced into evidence that contained information relevant to

the application of the board's factors, specifically factors 24

and 32, which information was not addressed by the board when

the factors were promulgated. See Doe No. 239639, No. 21-P-928,

slip op. at 11-15. The decision did not address whether counsel

could be deemed ineffective for failing to submit certain

scholarly or scientific articles for the board's consideration.

Furthermore, as the board asserts, the decision also "did not

state that the [scholarly] articles invalidated [f]actor 24, nor

did [the decision] consider the impact an offender's refusal to

participate in treatment had on his risk [to reoffend]."

Importantly, we note that Doe's counsel did submit a motion for

findings of fact and rulings of law which attached sixteen

scientific articles, one of which asserted that "there is no

difference in recidivism rates between [sex offender] treatment

participants and non-participants in sexual or violent crimes"

and another which stated that "the outcome predictive value for

those who undergo [sex offender] treatment and those who do not

is small." We therefore agree with the board that it is purely

speculative whether the admission of additional articles would

8
have resulted in the hearing examiner declining to apply factor

24.

4. Counsel's Superior Court representation. Doe further

asserts that his counsel's performance in the Superior Court

also fell "measurably below that which might be expected from an

ordinary fallible lawyer." Poe, 456 Mass. at 812, quoting

Saferian, 366 Mass. at 96. In support of this argument, Doe

points to the fact that counsel only submitted a one-page

memorandum to accompany his motion for judgment on the

pleadings, and to the fact that the memorandum failed to

challenge the board's application of the regulatory factors,

particularly the examiner's application of factor 24. We are

not persuaded. Counsel's decision to argue that Doe's current

physical illnesses and limitations lowered his risk to reoffend

was a reasonable strategic decision. See Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015). Counsel properly

submitted documentary evidence both before and after the

classification hearing detailing Doe's medical ailments, and

Doe's testimony primarily focused on his failing physical health

and lack of mobility. Therefore, it was eminently reasonable

for counsel to focus on those conditions when arguing in the

Superior Court. Indeed, Doe recognizes that "his diminishing

physical condition" is his "best defense."

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Finally, Doe's argument that his counsel should have

challenged the application of factor 2 (repetitive and

compulsive behavior) and factor 3 (adult offender with child

victim) because his 1995 offense is outdated and cannot be used

to assess his current risk of reoffense requires little

discussion. Doe cites no authority for the proposition that the

hearing examiner should not have considered his 1995 offense, as

to which he admitted to sufficient facts, in determining his

classification.

Accordingly, because Doe cannot demonstrate that his

counsel was ineffective at either his classification hearing or

before the Superior Court, the judgment on the pleadings is

affirmed.

So ordered.

By the Court (Desmond,
Grant & Hodgens, JJ.8),

Clerk

Entered: July 28, 2025.

8 The panelists are listed in order of seniority.

10