MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender and from the Superior Courts denial of his motion for relief from judgment. We vacate the judgment. A new judgment shall enter remanding the case to SORB.
Background. The hearing examiner found the following facts. On or about May 8, 2011, Doe met two teenage girls -- the first age fifteen and the second age sixteen. He instructed them in “the business of prostitution” and took photographs of each. Both girls thereafter engaged in prostitution with multiple customers and turned over the proceeds of these activities to Doe. On May 11, 2011, Doe committed statutory rape of the first victim and took photographs of her that constitute child pornography and sent them to his cell phone and to an email address. The second victim freed herself from Doe on May 12, 2011. The first victim prostituted for Doe until she escaped on May 19, 2011. Doe was arrested and pleaded guilty to four counts of rape and abuse of a child, G. L. c. 265, § 23; seven counts of accessory before the fact, to wit statutory rape, G. L. c. 274, § 2; and nine counts of deriving support from a minor prostitute, G. L. c. 272, § 4B.
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The hearing examiner applied several high-risk and risk-elevating factors, giving “moderate weight” to factor 2 (repetitive and compulsive behavior) and factor 3 (adult offender with child victim); applying factor 7 (extrafamilial victims) and factor 22 (number of victims); and giving “full weight” to factor 19 (level of physical contact involved in sexual assaults). The hearing examiner applied additional risk-elevating factors, giving “minimal weight” to factor 9 (alcohol and substance abuse); “moderate weight” to factor 10 (contact with the criminal justice system); and applying factor 11 (violence unrelated to sexual assaults), factor 12 (behavior while incarcerated), and factor 13 (noncompliance with community supervision). The hearing examiner “deemed either not controlling or inapplicable to the facts of this case” those factors not specifically enumerated. The hearing examiner found “there are no risk mitigating factors to consider in this case.”
The hearing examiner classified Doe as a level three sex offender. Doe then filed a complaint in the Superior Court for judicial review of the hearing examiners decision. The Superior Court judge entered an order denying Does motion for judgment on the pleadings and affirming his classification. Thereafter, Doe filed a motion for relief from judgment based on ineffective assistance of counsel. A Superior Court judge denied this motion. Doe appeals from both decisions.
Discussion. Doe argues that the Superior Court judge erred by denying his motion for judgment on the pleadings because the hearing examiners decision was arbitrary and capricious and not supported by substantial evidence and the hearing examiner did not make specific findings about publication of Does registry information. He further argues that the judge erred by denying his motion for relief from judgment because Does counsel at the SORB hearing was constitutionally ineffective.
1. Repetitive and compulsive behavior (factor 2). This court has rebuffed a facial constitutional challenge to factor 2. See Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292 (2021). Since then, a judge of the Superior Court has declared the repetitive and compulsive factor, 803 Code Mass. Regs. § 1.33(2) (factor 2), to be invalid. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., Docket No. 20-1130-B (April 16, 2021) (Wilkins, J.). SORB has not appealed that decision and has acknowledged to this court in other cases that the Superior Court memorandum and order in that case is binding on it and represented that it no longer relies on factor 2.
Like other panels to have considered the issue, we treat that decision as binding on this case, such that Does classification should be reviewed without application of factor 2. See Doe, Sex Offender Registry Bd. No. 2453 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 1132 (2021). See also Doe, Sex Offender Registry Bd. No. 526277 v. Sex Offender Registry Bd., 20-P-466 (July 16, 2021); Doe, Sex Offender Registry Bd. No. 524065 v. Sex Offender Registry Bd., 20-P-480 (July 15, 2021).
2. Substantial evidence. “Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6). The substantial evidence standard requires that the offenders classification be established “by clear and convincing evidence.” Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015). The weight given to the regulatory factors is within the hearing examiners discretion and we do not substitute our judgment on the weight of the evidence for that of an agency. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 775 (2006).
Doe argues that without applying factor 2, his level three classification is not supported by substantial evidence. SORB argues that even without the application of factor 2, the hearing examiner would have reached the same conclusion. Given the hearing examiners reliance on factor 2 and its heft as a high-risk factor, we cannot be confident that factor 2 did not materially influence the hearing examiners level three classification. There was one other high-risk factor at issue in the case, factor 3, adult offender with child victim, 830 Code Mass. Regs. § 1.33(3), to which the hearing examiner assigned moderate weight. As mentioned supra, the hearing examiner applied several risk-elevating factors as well. See 803 Code Mass. Regs. § 1.33. However, there was no past or subsequent history of sexual offense.
The statutory scheme contemplates that we defer to the agencys expertise in these matters. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 108-109 (2014); G. L. c. 30A, § 14 (7). Upon reconsideration on remand, the hearing examiner may well reach the same classification, but we cannot say that the evidence supporting a level 3 designation was so overwhelming that application of factor 2 did not materially affect the outcome where SORB has the burden to establish a classification by clear and convincing evidence. See John Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 657 & n.4 (2019) (Doe No. 496501). Therefore, SORB should have the first opportunity to reassess Does classification in light of developments since the case was first heard.
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As a result, we remand to the hearing examiner to reclassify Doe without consideration of factor 2. Because the hearing examiner will consider the issue anew, we need not determine whether the classification was an abuse of discretion.
3. Internet dissemination. The hearing examiners decision precedes Doe No. 496501, in which the Supreme Judicial Court held that, prospectively, SORB would be required to make an explicit finding as to Internet dissemination. See 482 Mass. at 655-658. Given that the case is being remanded for reconsideration, on remand the hearing officer shall make explicit findings about whether Internet dissemination serves a public safety interest.
Conclusion. The judgment is vacated, and a new judgment shall enter remanding the case to SORB for further proceedings consistent with this memorandum and order.
So ordered.
vacated and remanded
FOOTNOTES
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. The hearing examiner incorrectly stated that Doe pleaded guilty to eleven counts of deriving support from a minor prostitute. Both parties agree, and the record reflects, that Doe pleaded guilty to nine counts.
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. Given our disposition of this claim, we do not address Does ineffective assistance of counsel claim.