John Doe, Sex Offender Registry Board No. 119114 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-169

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 119114

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe (Doe), appeals from a judgment of

the Superior Court affirming his classification by the Sex

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

appeal, Doe claims that (1) the hearing examiner's decision was

not supported by substantial evidence and (2) Doe's counsel at

the classification hearing before SORB was ineffective for

failing to introduce a research article and a medical letter in

evidence. We affirm.

1. Level one classification. Doe argues that the decision

of SORB ordering Doe to register as a level one sex offender is
not supported by substantial evidence,1 specifically alleging

that three regulatory factors were improperly applied to Doe.2

We disagree.

"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). A

hearing examiner also has discretion to consider which

regulatory factors are applicable in a given case and how much

1 In the alternative, Doe requests a new classification
hearing. Doe has not provided sufficient reason for this
request nor citation to legal authority.

2 The remainder of Doe's arguments related to the decision
of the hearing examiner are waived for failure to properly raise
them in the Superior Court. See Boss v. Leverett, 484 Mass.
553, 562-563 (2020). See also Doe, Sex Offender Registry Bd.
No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 63 (2010).

2
weight to give to each factor. See id. See also Doe, Sex

Offender Registry Bd. No. 136652 v. Sex Offender 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" (quotations, citation, and

alteration omitted). Doe, Sex Offender Registry Bd. No. 68549

v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014) (Doe No.

68549).

First, Doe claims that the hearing examiner erred in the

application of the risk mitigating factor offense-free time in

the community (factor 29), by not giving this factor more

weight. We disagree, because the hearing examiner did, in fact,

give "full weight," the maximum allowed, to this factor.

Next, Doe claims that the hearing examiner erred in

applying the risk mitigating factor of advanced age (factor 30),

by giving this factor moderate weight, rather than full weight.

Again, we disagree. Factor 30 reflects the notion that

recidivism rates decline as sex offenders get older and

therefore advanced age can have a mitigating effect on the risk

of reoffense. The regulation states that SORB will consider

advanced age to have a significant mitigating effect when, "for

3
those with child victims, . . . the offender is 60 years of age

or older." 803 Code Mass. Regs. § 1.33(30)(a) (2016). In

addition, SORB is obligated by the text of the regulation to

consider the offender's age at the time of the classification

hearing. See id. Here, the victim of Doe's index offense was a

child, and Doe was fifty-nine years old at the time of the

classification hearing. Therefore, the hearing examiner

properly applied moderate weight to this factor, rather than a

more significant mitigating weight. Doe argues that the

examiner's application of this factor was arbitrary and

capricious because Doe was nearly sixty at the time of the

hearing. However, the hearing examiner is obligated to apply

SORB's factors as written. See 803 Code Mass. Regs. § 1.33

(2016) ("the Board shall use the following factors to determine

a sex offender's level of risk of reoffense" [emphasis added]).

Lastly, Doe claims that the hearing examiner erred in

applying the mitigating factor of home situation and support

systems (factor 33) with minimal weight. Again, we disagree.

The hearing examiner applied this factor with minimal weight in

consideration of the fact that some of Doe's support system

protest his innocence. The language of the regulation allows

the hearing examiner to consider such facts in deciding what

weight to give this factor. See 803 Code Mass. Regs.

4
§ 1.33(33)(a) (2016) ("The Board shall give greater mitigating

consideration to evidence of a support network that is aware of

the offender's sex offense history and provides guidance,

supervision, and support of rehabilitation" [emphasis added]).

Doe's arguments that amount to a dispute over the weight given

to certain evidence are without merit, as we are not free to

disturb such determinations on appeal. See Doe, Sex Offender

Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass.

131, 138-139 (2019). Doe further argues that research reflects

the notion that "there is no evidence to support a correlation

between denial with sexual recidivism"; however, as

aforementioned, the hearing examiner was not free to disregard

the text of the regulation for factor 33 in favor of Doe's

scientific research. See 803 Code Mass. Regs. § 1.33.3

As there was no error in the hearing examiner's application

of these regulatory factors, we conclude that the classification

decision was supported by substantial evidence and not arbitrary

or capricious.

3 Doe also alleges that the hearing examiner used this
factor to conclude that Doe is at a higher risk to reoffend,
rather than solely addressing what mitigating weight to give
this factor. On review of the hearing examiner's decision, we
disagree with Doe's characterization of the hearing examiner's
analysis.

5
2. Effective assistance of counsel. Doe claims that he

was deprived of his right to effective assistance of counsel

when his counsel at the hearing before SORB failed to introduce

two pieces of evidence: a research article relevant to the

mitigating factor of offense-free time in the community, and a

medical letter relevant to the mitigating factor of physical

condition. We disagree.

We review a judge's conclusion that counsel did not render

ineffective assistance for an abuse of discretion or other error

of law. See Commonwealth v. Hudson, 446 Mass. 709, 714 (2006).

Sex offenders are entitled to effective assistance of counsel at

classification hearings. See Poe v. Sex Offender Registry Bd.,

456 Mass. 801, 811 (2010). "[T]he civil formulation of the

Saferian standard governs claims of ineffectiveness." Id.

Under that standard, we first consider "whether 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" (citation omitted).

Id. at 812. If we find that counsel's performance fell

measurably below that which might be expected from an ordinary

fallible lawyer, then we ask whether counsel's conduct

prejudiced Doe, or in other words, whether there is a reasonable

probability that but for the errors, the result of the

6
proceeding would have been different. See id. at 813. Here,

the burden is on Doe to prove ineffective assistance of counsel.

See Hudson, supra at 715. 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, and alteration omitted). Commonwealth v. Florentino,

396 Mass. 689, 690 (1986). We discern no abuse of discretion or

otherwise error of law in the Superior Court's decision

dismissing the matter and effectively finding that hearing

counsel did not render ineffective assistance of counsel.4

Doe's argument with regard to the research article relevant

to the factor of offense-free time in the community is without

merit because regardless of whether the failure to introduce

this article fell measurably below the standard of an ordinary

fallible lawyer, Doe failed to articulate how the omission of

this article prejudiced him. The mitigating factor of offense-

free time in the community was already applied with its full

weight even without the consideration of this article.

4 The Superior Court judge did not address the issue of
ineffective assistance of counsel in his decision dismissing the
matter, likely because Doe did not explicitly articulate this
issue in his pleadings to the Superior Court. However, we can
affirm a judge's decision based on any basis apparent in the
record. See Gabbidon v. King, 414 Mass. 685, 686 (1993).

7
Therefore, the omission of this piece of evidence did not

prejudice Doe.

Doe's argument with regard to the medical letter relevant

to the factor of physical condition is also without merit. We

are not convinced that the behavior of hearing counsel, in

failing to obtain and produce the medical letter, fell

measurably below that which might be expected from an ordinary

fallible lawyer. The medical letter did not exist at the time

of the classification hearing, and the majority of information

in the medical letter was provided in other documents before the

hearing examiner.

However, even if Doe had met the initial part of the

Saferian test, Doe still has failed to show prejudice. Doe

claims that the medical letter provided two pieces of

information that were not already in the record before the

hearing examiner: his limitations and prognoses. Doe is

correct that part of the hearing examiner's reasoning for

applying moderate weight to the factor of physical condition was

due to the lack of limitations and prognoses listed on the

medical forms. However, Doe has failed to prove that the result

of the proceeding would have been different with this

information, where the mitigating factor of physical condition

was still given moderate weight, and in addition, two high risk

8
factors and six risk elevating factors supported the level one

classification. See Doe, Sex Offender Registry Bd. No. 22164 v.

Sex Offender Registry Bd., 103 Mass. App. Ct. 431, 434-435

(2023) (Doe failed to demonstrate reasonable probability that

but for counsel's errors, result of proceeding would have been

different where several other factors weighed in favor of

classification). In addition, Doe has failed to establish that

the hearing examiner would have been obligated to credit the new

information in the medical letter. See Doe No. 68549, 470 Mass.

at 112 ("[t]he opinion of a witness testifying on behalf of a

sex offender need not be accepted by the hearing examiner even

where the board does not present any contrary expert testimony"

[citation omitted]). Without more, we cannot conclude that Doe

was prejudiced by the performance of counsel. Therefore, the

Superior Court judgment affirming SORB's decision to classify

Doe as a level one sex offender is affirmed.

Judgment affirmed.

By the Court (Meade,
Hodgens & Allen, JJ.5),

Clerk

Entered: April 30, 2026.

5 The panelists are listed in order of seniority.

9