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 full y 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
22

- P

- 802
JOHN DOE , SEX OFFENDER REGISTRY BOARD NO. 345593

vs . SEX OFFENDER REGISTRY BOARD
. MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The p laintiff , John Doe , appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board ( board ) as a level two sex offender. He argues
that the hearing examiner erred by applying f actor 2 (repetitive and compulsive behavior) , the cla ssification decision was arbitrary and capricious and not supported by substantial evidence , and given his age and physical condition no public safety interest was served by public access to his sex offender registry information. Doe also claims that the hearing examiner abused her discretion in denying his motion to continue the classification hearing to a date closer to his anticipated
release date which , in turn , led to a premature final classification in violation of his right to procedural due
process. We vacate the judgment.2 Background . We summarize the facts found by the hearing examiner , supplemented where necessary with undisputed facts
from the record. On August 23 , 2011 , a jury convicted Doe of
four counts of rape and abuse of a child under G. L. c. 265
§ 23 , and two counts of indecent assault and battery on a child
under G. L. c. 265 § 13 B
. Doe was sentenced to serve two term s of ten to fifteen year s in prison , to run concurrently , followed by two ten

- year term s of probation , to run concurrently

. The
offenses occurred o ver a five

- year period between February 2004 and April 2009 . Doe was between forty

- three and forty

- eight years old at the time , and the victim was between five and ten years old. Doe was friendly with the victim ' s mother and often babysat the victim and regularly visited the family

. The sexual misconduct includ ed fondling of the girl ' s breasts and vagina and performing oral sex on her. When the victim disclosed the
abuse , Doe admitted to some of the incidents , but maintained that the victim either acquiesced or asked him to engage in
sexual conduct with her

. In January 2018 , the board notified D oe that it was recommending a lev el three classification. Doe challenged that recommendation and requested a de novo hearing , pursuant to
G. L. c. 6 , § 178L , which was held on March 13 , 2019

. At or before the hearing , Doe requested a continuance to a date closer
to his release date , which was scheduled to occur in 2023.3 Alternatively , he requested that the classification deci si on be made provisionally. The hearing examiner denied t hat request on the ground that Doe was scheduled to appear before the parole
board in August 2019 and , if granted parole , Doe would have been
released at that time

. 1

A final decision was issued on May 31 , 2019 . The hearing examiner concluded that Doe presented a moderate risk of reoffending and a moderate degree of dangerousness and ordered him to regis ter as a level two sex offender. She further
concluded that the degree of dangerousness posed to the public

was such that public access to Doe ' s sex offender registry information was warranted. In reaching her conclusion , the hearing examiner found six

r isk elevating factors applicable , see 803 Code Mass. Regs

. § 1.33 (2016) , including f actor 2 , repetitive and compulsive behavior ; f actor 3 , adult offender with child victim , to which
she accorded greater weight; f actor 7 , extrafamilial victim;
f actor 12 , behavior while incarcerated , which was accorded minimal weight on the ground that the disciplinary reports Doe received were limited in number (seven) and severity ; f actor 18 , extra vulnerable victim; and f actor 19 , level o f physical

1 At oral argument counsel informed the panel that Doe was denied parole in 2019 , 2020 , and 2021. Doe was released in September 2022.4 contact
. The hearing examiner also considered the following six risk mitigating factors , all of which she found applied : f actor
28 , supervision by probation; f actor 30 , advanced age , Doe was fifty

- eight at the time of the hearing ; f actor 31 , physical condition , Doe ' s medical records from the Massachusetts
Treatment Center (treatment center) indicate d that he was diagnosed with hypertension , skin allergies , stomach problems , knee and back problems , and issues with his prostate (h oweve r , given the absence of documentation by a physician that addressed
Doe ' s prognosis or limitations , the hearing examiner gave this factor minimal weight ) ; f actor 32 , sex offender treatment , to which the hearing examiner accorded minimal weight on the groun d
that Doe ' s participation in treatment tapered off after he was transferred to the treatment center in April 2017 and by the
fall of 2018 , his participation vacillated between acceptable , fair , and unacceptable ; f actor 33 , home situation and support systems , Doe was not married and had no children and while h e has three siblings , he is close to only one sister who wrote to the board stating that she and her husband would support Doe
upon h is release ; and f actor 34 , stability in the community , which was given minimal weight because Doe provided no evidence
that he would have residential or employment stability upon his
release

. The hearing examiner also considered factor 35 , psychological or psychiatric profiles , noting that evaluations5 of Doe from October 2017 indicated he was at an " average " and

" moderate " risk to reoffend , and by August 2018 , those scores had not changed. Doe then sought judicial review of the board ' s decision in the Superior Court and filed a motion for judgment on the pleadings. The judge denied Doe ' s motion and , a s we previously
noted , affirmed the board ' s decision. Discussion

. " We review a judge ' s consideration of an agency decision de novo. " Doe , Sex Offender Registry Bd. No.
52 3391 v. Sex Offender Registry Bd

. , 95 Mass. App. Ct. 85 , 89 (2019). Our review of the b oard ' s decision is limited , and we will not disturb the b oard ' s classification unless " we determine that the decision is un supported by substantial evidence or is arbitrary or capricious , an abuse of 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 b oard ' 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) , quoting Doe , Sex Offender Registry Bd. No. 205614 v. Se x Offender Registry Bd

. , 466 Mass. 594 , 602 (2013).
1. Application of f actor 2 . Doe argues , correctly , that the hearing examiner misapplied f actor 2 because he did not6 reoffend after being confronted , discovered , charged , or convicted of a sexual offense. See Doe , Sex Offender Registry
Bd. No. 22188 v. Sex Offender Registry Bd

. , 101 Mass. App. Ct.
797 , 799 (2022) ( Doe No. 22188 )

. The board concede s that f actor 2 does not apply in the circumstances presented

. When an offender successfully challenges the application of a regulatory
factor , we must determine whether " the underlying facts of the

case . . . clearly dictate the appropriate classification level " (citation omitted). Id . at 804. If they do not , we then " ask whether the error may have affected the classification and , if

so , [we] remand to [the board]

. " Id

. We conclude that , despite the error , the underlying facts
of the case " clearly dictate " that a level two classification is appropriate (citation omitted ). Doe No. 22188 , 101 Mass. App.
Ct. at 804. Doe sexually assaulted and raped a young girl who was not a member of his family " more times than [the victim]
could count " over a five

- year period. In addition , Doe was not fully participating in sex offender treatment at the time of the hearing , and there was no evidence that Doe would have residential or employment stability upon his release. Given
these facts , among others , that support the risk elevating
fac tors applied by the hearing examiner , we are confident that without considering f actor 2 , Doe was appropriate ly classified
as a level two sex offender.7 2. Substantial evidence

. Next , Doe argues that the decision to classify him as a level two offender i s not supported by substantial evidence and was arbitrary and capricious. He claims that t he hearing examiner employed a mechanical , " checklist " approach , rather than conducting a thorough analysis of the applicable regulatory factors. To the contrary , o ur review of the record and the detailed classification decision leads us to conclude that the hearing examiner engaged in the required qualitative and objective review that balance d all the relevant risk and mitigating
factors

. As noted above , t he evid ence fully supported the application of the risk factors on which the hearing examiner relied. The age of the victim , the relationship between Doe , the victim , and her family , Doe ' s level of contact with the victim , Doe ' s conduct while incarcerated , and h is minimal participation in sex offender treatment were established by clear and convincing evidence. The hearing examiner further
not ed that Doe underwent a comprehensive evaluation on October
4 , 2017 , and was deemed to be " a moderate risk " to reoffend a nd
that " his risk to reoffend sexually has never been deemed 'l ow ' at any time during his participation in sex offender treatment. " Additionally , the hearing examiner properly gave minimal weight to the mitigating factor of Doe ' s physical condition in the absence of relevant documentation of his alleged limitations.8 Further , Doe also had fai led to secure housing or employment at the time of the final classification hearing. Consequently , the classification decision was not arbitrary and c apricious and was supported by substantial evidence.
3. Public access to Doe ' s registration information

. Doe
also argues that his sex offender registration information
should not be made public because the hearing examiner failed to make a specific find ing that he posed a danger to the public
and , further that public access of his information is not warranted in light of his age ( then fifty

- eight ) and current physical condition

. T he b oard ' s decision was issued about two months prior to
the Supreme Judicial Court ' s decision in Doe , Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd

. , 482 Mass. 643 (2019) ( Doe No. 496501 )

. In that case , the Supreme Judicial
Court held , in relevant part , that a hearing examiner must explicitly de termine by clear and convincing evidence that a public safety interest is served by Internet publication of the
sex offender ' s registration. Id

. at 656

. However , the court has since noted that where "' the underlying facts of the case

. . . so clearly dictate the appropriate classification level ,' [the court] [does] not exercise [its] discretion to remand

. . . on this element. " Doe , Sex Offender Registry Bd. No. 23656 , 483
Mass. 131 , 145 (2019) ( Doe No . 23656 ) , quoting Doe No
. 496501 ,9 supra at 657 n.4. Here , as in D oe No
. 23656 , although the hearing examiner did not make separate and explicit findings that the public availability of Doe ' s personal information would serve the public interest , we conclude that the facts of the case so clearly support a level two classification that it is not necessary to remand for further findings. See Doe No.
23656 , supra at 145

- 146. As previously discussed , t he hearing examiner found that Doe committed mul tiple sexual offenses against a prepubescent girl , who was not a member of his family. These facts placed Doe in a high category for risk and danger because they are indicative of having a deviant sexual interest. Accordingly , the record supports the con clusion that publication of Doe ' s personal information would serve the interest of public safety.
4. D u e process violation

. Doe also claims that the denial of his motion to continue the de novo hearing was an abuse of discretion and because he was not released until three and one

half years later , the level two classification was based on stale information in violation of the board ' s regulations and his right to procedural due process. As noted , Doe ' s de novo hearing was held on March 13 , 2019 , the final classification decision was issued on May 31 , 2019 , a parole hearing was
scheduled for August 2019 , and Doe was released from the treatment center on September 16 , 2022.10 We turn first to the question w hether the denial of Doe ' s motion to continue was an abuse of discretion. It was not. While there is no question , as Doe asserts , that a final classification hearing must " be held at a reasonable time prior
to release from incarceration ," Doe , Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd

. , 82 M ass . A pp . Ct. 67 , 75 , (2012) ( Doe No. 6904 ) , there is no dispute Doe could have been
released as early as August 2019

. Thus , Doe ' s de novo hearing preceded his potential release date by only five months

. Compare , for example , Doe No. 6904 , where we held that holding a classification hearing eight months before the sex offender ' s appearance before the parole board was a n abuse of discretion.

I d . at 77
. Notwithstanding our conclusion that the hearing examiner acted within her discretion in denying Doe ' s motion , the fact remains that Doe was not released until three and one

- half years later. In Doe , Sex Offender Registry Bd. No. 7083 v. Sex Offender Regis try B d

. , 472 M ass . 475 , 478 (2015) ( Doe No. 7083 ) , the Supreme Judicial C ourt concluded that holding a classification hearing ten months before the plaintiff ' s earliest parole eligibility date and eighteen months before their earliest possible release date from the treatment center violated the plaintiff ' s right to procedural due process because of the risk that the classification decision was based on11 " stale " information. In reliance on Doe No. 7083 , Doe contends
that the cl assification decision must be vacated , and the matter remanded to the board for a new hearing. We acknowledge , as Doe
asserts , that a final classification must be based on an evaluation of the offender ' s risk of reoffense at a time reasonably close to the actual date of release. See Doe No.
6904 , 82 M ass . A pp . Ct. at 75. This did not happen here and , consequently , Doe ' s due process rights were not protected.
The board concedes that Doe ' s procedural due process rights

were violated but argues that the classification decision should not be vacated because Doe is currently eligible to petition the board for reclassification. 2 Although in such a proceeding , Doe
would bear the burden of producing evidence that circumstances had changed , " the bar for showing changed circumstances is ' very low ' and

. . . the mere passage of time generally qualifies. "
Doe , Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry
Bd

. , 99 Mass. App. Ct. 533 , 541 n.7 (2021)

. " Once Doe has met his burden , the board would bear the burden of persuasion

- - based on ' clear and convincing evidence '

– - ' that the classification is current and correct '" (citation omitted).

2 In 2016 , one year after the court ' s decision in Doe No. 7083 , was issued , the board promulgated 803 Code Mass. Regs. § 1.31 (2016) , which gives offenders who have been finally classified as a leve l t wo or three sex offender the right to petition the board for reclassification three years after the initial classification as long as certain conditions are met

.12 Doe , Sex Offender Registry Bd. No. 22164 v. Sex Offender Registry Bd

. , 103 Mass. App . Ct. 431 , 433 (2023). Thus , as the
board observes , Doe has a remedy nearly equal to the one he seeks through this appeal. The problem is that Doe does not want this remedy. In response to the panel ' s q uestions at oral argument , counsel made clear that " [vacating] is our preferable

course. " We are not in a position to force Doe to choose one remedy over the other

. Accordingly , the judgment is vacated , and a new judgment shall enter vacating the decision of the board and remanding the matter to the boar d for further proceedings consistent with this memorandum and order.
So ordered

. By the Court (Vuono , Singh & Englander , JJ. 3 ) ,

Clerk

Entered: December 20 , 2023.

3 The panelists are listed in order of seniority.