Opinion
19-P-692
06-08-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 4963 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment upholding his classification as a level three sex offender. On appeal, Doe asserts (1) the hearing examiner abused her discretion when she denied funds for an expert witness; (2) his counsel provided ineffective assistance; and (3) the level three classification was not supported by substantial evidence.
Background. In February 1993, Doe repeatedly raped his mother at knifepoint. Doe was twenty-three years old at the time. He had been drinking whiskey all day, smoked at least fifteen bags of cocaine, and ingested two hits of acid. When he arrived at his mother's residence, he was intoxicated and became verbally abusive. He tore off his mother's pants, and when she resisted he punched a hole in the wall, retrieved a knife, and warned that "things would get worse if she did not cooperate." He then forcibly performed cunnilingus on her before he raped (penile/vaginal) her. Doe threatened to harm her if she contacted the police. Doe again forced his mother to the ground. When she resisted, Doe punched another hole in the wall and threatened to kill her. Doe raped his mother again. His mother eventually was able to flee when Doe fell asleep.
He was arrested and eventually admitted that he had raped his mother. He pleaded guilty to aggravated rape, G. L. c. 265, § 22 (a). While incarcerated Doe received 288 disciplinary reports, including several that led to additional convictions for assaulting correction officers. Throughout his more than twenty-year incarceration, Doe was not able to stay on his prescribed medications.
He was sentenced to a term of fifteen to twenty years, four years to serve with the balance suspended, and a ten-year term of probation from and after.
Doe's offenses while incarcerated are further detailed infra.
The Sexual Offender Registry Board (board or SORB) notified Doe that it had designated Doe as a level three classification, pursuant to G. L. c. 6, § 178 K (2) (c). After a de novo hearing in September 2017, the hearing examiner agreed. Pursuant to G. L. c. 6, § 178 M, and G. L. c. 30A, § 14, Doe appealed to the Superior Court, which affirmed. This appeal followed.
Discussion. 1. Expert funds. On appeal, Doe maintains that the hearing examiner abused her discretion in denying his request for funds to retain an expert witness. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 774 (2008) (Doe No. 89203 ) ("[T]he board has discretion to grant funds to an indigent sex offender for an expert witness or report . . ."). "[I]n moving for expert witness funds, the burden [is] on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert. A general motion for funds to retain an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient." Id. at 775.
Prior to the hearing, Doe argued that an expert was required to determine "the effect of his mental illness on his risk of re-offense and level of dangerousness." Doe also submitted several documents in support of the motion, including a December 2016 psychiatry progress note from Dr. Van Nguyen, who reported that Doe had been stable "for months." In the document, Nguyen indicated that incarceration was a source of stress for Doe, and Doe was transferred to a residential treatment unit (RTU).
Doe's diagnoses included bipolar type II, antisocial personality, and borderline personality disorders. He was prescribed Lithium, Benadryl, and Elavil.
The hearing examiner granted the request for funds initially, but then denied it. She acknowledged that the record reflected Doe's lengthy mental health history and noted that, when medicated, Doe appeared to do better. She noted, however, that despite being in a controlled and supervised environment for over two decades, Doe had not been able consistently to take his prescribed medications and had 288 disciplinary reports. As to Nguyen's assessment that incarceration was the source of stress for Doe, the examiner noted that even in the RTU, Doe had not done well. In particular, although Nguyen's assessment was dated December 2016, just a few months later in March 2017, Doe was on a "mental health watch" for eating his television; in May 2017, he was again on a "mental health watch" for "bizarre behavior," and by the end of May, he assaulted an inmate and was returned to segregated confinement. The totality of Doe's behaviors as shown in the record, the hearing examiner reasoned, did not suggest an ability to take prescribed medications and reduce the risk or danger he posed. Thus, she found Doe had not met his burden to show that an expert would assist in showing that Doe's classification should be reduced.
Doe contends that the examiner's decision was an abuse of discretion because Doe's mental health issues "if properly treated now will significantly impact any assessment of his risk of reoffense and dangerousness." We disagree. As set forth supra, the examiner considered that while Doe was treated and taking his medications, he improved. However, he was not taking his medications consistently, even in the highly supervised, controlled prison environment. Cf. Doe No. 89203 , 452 Mass. at 775-776 (noting importance of expert opinion regarding examiner's use of sex offender's bipolar disorder as basis for increasing classification level where offender was treated over several years during which time he was offense free). Thus, the examiner reasoned that, as a matter of fact, any expert opinion based on the premise that Doe would take his medications would be without any basis in Doe's actual experience. On the record before the examiner, she did not abuse her discretion in concluding that Doe did not meet his burden to articulate a need for a particular expert; he could not demonstrate that his current mental health treatment may have reduced the risks or danger he posed.
Doe next argues that the examiner abused her discretion because incarceration itself was a stressor for Doe, and that an expert might show that it is "very possibl[e] once released, he will be compliant [with his medications]." Again this is belied by Doe's actual experience. Even when placed in the RTU, Doe was not able to maintain his medication protocol. He was twice put on mental health watch and ultimately attacked an inmate. On this record, Doe did not demonstrate that, outside the confines of incarceration, he would maintain a treatment protocol such that his risk and dangerousness was reduced. Accordingly, the examiner's decision not to approve funds for an expert was not "'a clear error of judgment in weighing' the factors relevant to the decision." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
Doe also contends that the expert would have provided an analysis of the impact of age. The board revised its guidelines to account specifically for the age of the sex offender; and indeed, the examiner considered and gave weight to Doe's age at the time of the hearing. Contrast Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 610 (2013) (Doe No. 205614 ) (abuse of discretion not to allow expert regarding female recidivism where SORB factors designed for male offenders and examiner "would not otherwise have competent evidence before him to assess fully Doe's risk of reoffense").
2. Ineffective assistance of hearing counsel. Doe next maintains that his hearing counsel was ineffective because she did not comply with 803 Code Mass. Regs. § 1.16(4)(a)(1)(2) (2017), which provided that a written motion for expert funds must "identify a condition or circumstance special to the sex offender and explain how that condition is connected to his or her risk of reoffense or level of dangerousness." When considering a claim of ineffectiveness, we 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 ordinary fallible lawyer." Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 620 (2012) (Doe No. 27914 ), quoting Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010). If so, then we consider "whether the effect of counsel's serious incompetency was prejudicial" -- that is, whether there is a reasonable probability that his classification would have been lower if he had competent counsel. Doe No. 27914 , supra.
Unlike in Poe, where the factual basis for the claimed ineffective assistance of counsel appeared on the record, see 456 Mass. at 814-817, here Doe's argument is based on a claimed failure to provide additional evidence regarding Doe's mental health. Specifically, Doe faults counsel for not further investigating his mental health history as detailed in Commonwealth v. W.M.M., 69 Mass. App. Ct. 1113 (2007), and not obtaining various documents. With regard to any additional materials that Doe might have submitted in support of his motion for expert funds, they are not in the record, and so we are left to guess at the effect of such evidence on the likelihood that the motion would have been allowed. Thus we are precluded from analyzing whether "there was a reasonable probability that his classification would have been lower" than level three if the hearing examiner was provided the additional materials. Poe, 456 Mass. at 815. Accordingly, on this record, Doe's ineffective assistance of counsel claim cannot succeed.
These include hospital records of Doe's mental health history, affidavits from three doctors who were involved in prior proceedings regarding his competency during his plea hearing, an affidavit from Doe as to whether he was on medications at the time of the index offense, and scientific studies concerning the difficulties in assessing the connection between mental health and risk of reoffense and the need for expert input. .
Contrary to Doe's contention, the absence of any high-risk statutory factors "does not reduce an offender's risk of re-offense or lower his degree of dangerousness." 803 Code Mass. Regs. § 1.33 (2016).
3. Sufficiency. Doe's contention that his level three classification is not supported by substantial evidence fares no better. An agency decision should be set aside only if a court determines that the decision is "unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391 ), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011 ). We "give due weight to the experience, technical competence, and specialized knowledge of the agency." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013) (Doe No. 205614 ). "When analyzing the validity of a board classification decision, a reviewing court must determine whether the decision is supported by substantial evidence." Doe No. 27914 , 81 Mass. App. Ct. at 618. "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id., quoting G. L. c. 30A, § 1 (6).
Doe incorrectly maintains that the only evidence regarding his risk of reoffense and level of dangerousness was his one conviction of the index sex offense, which was twenty-four years ago. Many factors under 803 Code Mass. Regs. § 1.33 (2016) require the examiner to consider various characteristics of the offender's past sexual offense, and others require examination of the offender's current conditions. Here, the facts of the index offense, together with more recent behaviors triggered the examiner's finding applicable factors eight (weapon, violence or infliction of bodily injury), nine (alcohol and substance abuse), and nineteen (level of physical contact).
"Pragmatically, because past is prologue, a hearing examiner would make [the degree of dangerousness] determination based on the sexual crime or crimes that the offender committed in the past." Doe No. 496501 , 482 Mass. at 651.
While under the intoxicating influence of alcohol, cocaine, and acid, Doe violently and repeatedly raped his mother orally and vaginally.
In addition to his self-described usage of cocaine and heroin beginning in 1989, the use of substances in connection with the index offense, Doe also used cocaine and "hoard[ed] and snort[ed]" his medications while incarcerated.
The examiner then turned to additional risk-elevating factors. Factor ten (contact with criminal justice system) was given full weight, particularly in view of Doe's crimes occurring within the highly structured and supervised environment of correctional facilities. Factor eleven (violence unrelated to sexual assaults) applied, the examiner explained, in light of Doe's convictions for, inter alia, assault and battery against police and correctional institution officers. See note 10, supra. The examiner found Doe's inability to conform his conduct in the institutional setting "extremely concerning" and gave factor twelve (behavior while incarcerated or civilly committed) full weight. Doe spent the majority of his incarceration in seclusion or in the department disciplinary unit. The examiner applied factor thirteen (noncompliance with community supervision) for Doe's three probation violations in 1985, 1993, and 1997.
In addition to the index offense, Doe had a long criminal history dating back to 1985. His convictions included four counts of malicious destruction of property (April 1992), four counts of assault and battery on a police officer (April 1992), three counts of assault and battery on a correctional institution guard (December 1996), threatening murder (March 1997), two counts of assault and battery by means of a dangerous weapon (November 2000), and two counts of assault and battery on a correctional institution guard (March 2008).
From 1996 to May 2017, Doe incurred 288 disciplinary reports including: assaulting inmates and staff, threatening to spread HIV to others via blood and contamination, aggravated assault on a staff member, eating feces, smearing feces on himself and the walls of his cell, possession of weapons, hoarding and snorting medications, burning his bed, shouting racist and homosexual slurs, refusing housing, destruction of property, and creating a makeshift squirting device to dispense feces, urine, semen, and blood on inmates. As indicated supra, Doe was placed on mental health watches twice in 2017 while at RTU. After returning to RTU, Doe fought with an inmate.
The examiner then turned to risk mitigating factors. She applied factor thirty (advanced age) based on Doe's age; Doe was forty-nine years old. She also applied minimal mitigating consideration to factor thirty-four (materials submitted by the sex offender regarding stability in the community) because, although Doe had a September 2017 release plan in which he described familial support upon release, none of his expected supports submitted corroborating letters.
The examiner also considered factor thirty-seven (other information related to the nature of the sexual behavior). In particular, as set forth supra, she considered Nguyen's psychiatry progress report, as well as Doe's inability to be compliant with his medications for any significant period of time. Finally, the examiner also considered factor thirty-eight (victim impact statement), recognizing the "substantial impact" Doe's rape left on the victim. Together, this was substantial evidence that "a reasonable mind might accept as adequate to support" a level three classification. Doe No. 523391 , 95 Mass. App. Ct. at 93-94.
The hearing examiner expressly found that "a substantial public safety interest" would be served by active dissemination of Doe's information. See Doe No. 496501 , 482 Mass. at 647. Doe raises no arguments on appeal that would otherwise render public dissemination improper.
Judgment affirmed.
By the Court (Sacks, Singh & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 8, 2020.