Opinion
No. 11–P–176.
2012-06-6
John DOE, Sex Offender Registry Board No. 97297, v. SEX OFFENDER REGISTRY BOARD.
By the Court (RUBIN, BROWN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff had been classified as a level 2 sex offender at the time he committed the statutory rape that led to his reclassification. We see no error in the finding that the victim was extravulnerable; but even if the victim was not extravulnerable, there is substantial evidence that the plaintiff was more likely to reoffend than previously had been thought. The plaintiff was not a teenager; he was twenty years old, and his victim was five years younger than he. The hearing officer stated, in part, that because the plaintiff was aware of his victim's vulnerabilities, he should have known better than to commit this offense. Even if the subsidiary finding that the plaintiff was aware of his victim's vulnerabilities is not adequately supported, we do not read that statement to be an essential part of the hearing officer's determination.
The plaintiff's next argument, that the defendant's operations policy number 006 must bind the hearing examiner, was not raised below and has been waived.
Finally, we turn to the plaintiff's ineffective assistance of counsel claim. Nothing prevented counsel in this case from providing a more concrete reason than she did for seeking funds for an expert. Her lack of knowledge of Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764 (2008), is irrelevant. In the absence of evidence that provision of a more concrete reason might have affected the outcome here—and to us the plaintiff presents only speculation—there is no basis for a finding of ineffective assistance of counsel.
Judgment affirmed.