Opinion
11-P-1590
12-08-2014
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 11966 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the Superior Court judgment following G. L. c. 30A review affirming the plaintiff's level three sex offender classification. The plaintiff argues that: (1) his counsel rendered ineffective representation at the plaintiff's reclassification hearing by failing to request a stay until he was released from imprisonment or until a time closer to his possible release date, and (2) the Superior Court judge wrongfully denied a motion to reopen the classification hearing or, in the alternative, for a new hearing. We affirm.
1. Background. On May 7, 2001, the plaintiff was found guilty of indecent assault and battery on a child under the age of fourteen years. As a result of his conviction, the Sex Offender Registry Board (board), after hearing, classified the plaintiff as a level two sex offender on December 27, 2002.
In February, 2009, the plaintiff pleaded guilty to other sex crimes, i.e., one count of rape of a child and four counts of indecent assault and battery on a person age fourteen years or older. Prior to that plea, however, on or about June 5, 2008, the board sent notice to the plaintiff of its preliminary recommendation that he be reclassified as a level three sex offender. On October 6, 2009, while the plaintiff was being held at the Massachusetts Treatment Center, the board held a reclassification hearing via videoconference. The plaintiff was reclassified as a level three sex offender on April 9, 2010.
2. Ineffective assistance of counsel. "[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), citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The plaintiff's principal claim, taken to its essentials, is that his hearing counsel should have foreseen the future case of Doe, Sex Offender Registry Board No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67 (2012), decided three years after the plaintiff's reclassification hearing. In Doe, Sex Offender Registry Board No. 6904, this court held that it was unreasonable for the board to hold a final classification hearing four years prior to an imprisonment release date, where the plaintiff had filed a motion to continue the hearing to a time closer to his potential release date. Id. at 77-78.
Obviously, at the time of the plaintiff's October, 2009, reclassification hearing, the decision in Doe, Sex Offender Register Board No. 6904 did not exist. Despite the plaintiff's contentions, we are not persuaded that the plaintiff's hearing counsel was ineffective in not predicting the future 2012 ruling. "To meet the constitutional requirements of effectiveness, an attorney need not be clairvoyant as to . . . future shifts in the legal landscape." Commonwealth v. Baran, 74 Mass. App. Ct. 256, 272 n.23 (2009).
For much of the same reasoning regarding future legal developments not existing at the time of proceedings, the plaintiff's contention that the board exceeded its statutory authority by initiating reclassification proceedings before the plaintiff's 2009 conviction is without merit. The plaintiff relies on Doe, Sex Offender Registry Bd. No. 16748 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 152 (2011), wherein this court held that the board may not begin the process of reclassification prior to an individual's conviction of on one of the enumerated sex offenses requiring classification. Id. at 161. However, Doe, Sex Offender Registry Bd. No. 16748 was decided three years after the board began the plaintiff's reclassification process, and at the time of the board's decision, there was no regulation that required the board to wait for a conviction before initiating reclassification proceedings. See 803 Code Mass. Regs. § 1.37C(3)(a) (2004).
Even if we assume that counsel's behavior fell measurably below that which may be expected of an ordinary fallible lawyer, the plaintiff has not demonstrated that, but for counsel's failure to move for a continuance, there is a reasonable probability that the result of the board's hearing would have been different. When reviewing a claim of ineffective assistance of counsel in this context, "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 ordinarily fallible lawyer.'" Poe, 456 Mass. at 812, quoting from Commonwealth v. Saferian, 366 Mass. at 96. If we find such poor performance, we then ask whether it was prejudicial: whether there is "a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Poe, supra at 813, quoting from Commonwealth v. Mahar, 442 Mass. 11, 15 (2004). See Care & Protection of Georgette, 439 Mass. 28, 33 n.7 (2003) (modifying second prong of Saferian test in civil cases to include term "prejudice").
The plaintiff contends that: (a) if his counsel had moved for a continuance, and (b) if that continuance had been granted, then the plaintiff theoretically would have been able to present mitigating evidence of his progress in sex offender treatment, which may have led to a lower classification. The record does not support that contention, and does not establish that hearing counsel made "unprofessional errors [such that] the result of the proceeding would have been different." Poe, supra, quoting from Mahar, supra. To the contrary, the record indicates that the hearing examiner took into consideration the fact that the plaintiff had begun a new cycle of sex offender treatment while incarcerated and that he would continue to undergo treatment throughout the remainder of his incarceration and even after his release. However, she specifically noted that "even assuming ongoing and active participation in treatment over the next several years, [she] would give this factor little mitigating weight," in large part because the plaintiff already had undergone sex offender treatment and had reoffended.
3. Motion to reopen. The plaintiff further argues that the Superior Court judge abused his discretion in denying the plaintiff's motion to reopen his reclassification hearing or to grant a new hearing. For the reasons stated supra, we see no abuse of discretion.
Judgment affirmed.
Order denying motion to reopen classification hearing affirmed.
By the Court (Berry, Kafker & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 8, 2014.