Opinion
No. 11–P–2155.
2013-05-7
John DOE, Sex Offender Registry Board No. 22089 v. SEX OFFENDER REGISTRY BOARD.
By the Court (KANTROWITZ, MEADE & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
John Doe appeals from a Superior Court judgment that affirmed a final classification decision by the Sex Offender Registry Board (board) requiring him to register as a level two (moderate risk to reoffend) sex offender. Doe argues that (1) the board's determination that he posed a danger was not supported by substantial evidence, and the board's statutory and regulatory factors require a lower level of classification; (2) the board failed to meet its burden of proof because it offered no expert evidence that Doe is likely to reoffend or that he poses a risk to public safety; and (3) Doe's hearing counsel was ineffective in advising Doe to testify even though Doe denies committing the index crime. Doe also takes exception to some of the findings of the board's hearing examiner. We affirm.
Discussion. 1. Sufficiency of the evidence and application of the factors. When analyzing the validity of a decision by the board, a 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)( Doe, No. 10216). In making this determination, we must give due weight to the technical expertise of the agency. Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67, 79 (2012). At the time of the hearing, Doe was fifty-three years of age, unemployed, and apparently with no permanent place to live. In addition, he had been in the community for less than a year after release from incarceration for his convictions in 1989 on two counts of rape and abuse of a child, incest, and three counts of indecent assault and battery on a child under fourteen. The victim of those crimes was his then twelve year old daughter. The hearing examiner's findings relevant to Doe's degree of dangerousness also included the high level of physical (penetrative) contact with the victim; the repetitiveness and compulsive nature of the misconduct according to the victim; the fact that Doe's acts were in a “public” place (in view of the neighbors); Doe's failure to make any substantial progress in a sex offender treatment program; Doe's multiple disciplinary infractions during incarceration; and Doe's complete denial of responsibility for the index offenses (despite the observations of two eyewitnesses and the victim's account). This evidence supported a level two classification. Doe's argument that the board's statutory and regulatory factors “require[d]” a lower level of classification amounts to a claim that the hearing examiner improperly weighed the facts when applying the factors, and is likewise unavailing. See Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 809–813 (2006) (it is the prerogative of the board the weight to accord various factors). 2. The hearing examiner's findings. Doe takes exception to some of the hearing examiner's findings, most notably that his acts were repetitive and compulsive, committed in a public place, and that he never completed sex offender treatment. These findings are fully in accord with the evidence and existing law. See Doe, Sex Offender Registry Bd., No. 1211, 447 Mass. 750, 764–765 (2006) (multiple sexual acts properly characterized as repetitive and compulsive); Doe, No. 10216, supra at 789 (public place not limited to “truly public places, like parks or schools”); 803 Code Mass. Regs. § 1.40(9)(c)(1)(2002) (public place includes area open to scrutiny by others). Issues regarding Doe's sex offender treatment, sobriety, and present physical condition appear to be the subject of conflicting evidence and credibility determinations and, in this light, are not proper support to Doe's present complaints. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (“It is the province of the board, not this court, to weight the credibility of the witnesses and to resolve any factual disputes”). 3. Lack of expert testimony. Contrary to Doe's assertion, “[t]he board is not required to introduce expert testimony to support its position at a classification proceeding.” Id. at 637.
In addition, the hearing examiner found that according to Department of Social Services (DSS) reports dated on or about September 12, 1988, Doe's then six year old daughter accused him of sexually assaulting her. That daughter was examined by a doctor and was found to bear signs of sexual abuse and penetration (vaginal area was bleeding externally and internally); she also tested positive for gonorrhea. Doe's then four year old daughter was examined by a school nurse, who found that the four year old's vagina was infected and appeared to be stretched out. It appears that Doe was not formally charged for any of that misconduct. Doe offered evidence that he suffers from heart, liver, and other serious health conditions, starting with a heart attack in 1982; however, his weak heart did not impede his ability to commit the uncharged misconduct in or about 1988.
4. Ineffective assistance. Doe argues that he is entitled to a remand and a new hearing because his counsel was ineffective in advising him to testify even though he denied responsibility for the index offense. “[S]ex offenders are entitled to the effective assistance of counsel at classification hearings and ... the civil formulation of the Saferian standard governs claims of ineffectiveness.” Poe v. Sex Offender Registry Bd., 456 Mass. 801, 811 (2010). Doe advances his claim of ineffective assistance for the first time on direct appeal. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 610, 620 (2012) (“[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal. A claim of ineffective assistance of counsel should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record” [citations and quotation marks omitted] ). There is, however, no evidence in the record before us, not even an affidavit from his counsel or other pertinent evidence, that supports Doe's ineffective assistance claim. See Commonwealth v. Morales, 461 Mass. 765, 785 (2012), citing Commonwealth v. Linton, 456 Mass. 534, 555–556 (2010) (“failure of defendant to produce affidavit of expert fatal to ineffective assistance of counsel claim”).
See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgment affirmed.