Opinion
19-P-1726
12-30-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 264045 v. SEX OFFENDER REGISTRY BOARD.
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 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment affirming his classification as a level 3 sex offender by the Sex Offender Registry Board (board or SORB). We affirm.
Background. In light of the limited nature of the plaintiff's appellate arguments, we recite the factual background only in summary form, reserving some additional detail for later discussion.
In 2006, the plaintiff solicited sex through an Internet chat room from a police officer in New Hampshire who was posing as a fourteen year old boy. The plaintiff was apprehended when he traveled to New Hampshire to meet the boy. Based on these facts, the plaintiff pleaded guilty to two New Hampshire sex crimes.
The board's hearing officer deemed the New Hampshire offenses as equivalent to those for the Massachusetts crimes of attempted rape of a child and of enticement. The plaintiff does not challenge such conclusions.
In the course of his electronic communications with the New Hampshire officer, the plaintiff admitted to sexual contact with a boy in Massachusetts. After this information was passed along to police officers in Massachusetts, an investigation revealed that the plaintiff committed a number of sexual offenses on a ten year old boy -- whom the plaintiff babysat -- over the previous three years. Based on this conduct, the plaintiff pleaded guilty in Massachusetts to nine separate indictments charging him with various sex offenses. He completed the incarceration portion of his New Hampshire and Massachusetts sentences in 2019 (shortly after SORB issued its classification decision).
After reviewing how the high-risk, risk-elevating, and risk-mitigating factors applied to the largely uncontested facts, the hearing examiner found, "by the clear and convincing evidence standard, that the [plaintiff] presents as a high risk of re-offense and degree of dangerousness to the public such that a substantial public safety interest is served by active dissemination of his sex offender registry information." In discussing one particular regulatory factor, the hearing examiner, inter alia, referenced three actuarial risk assessments that had been done of the plaintiff: a Static-99 assessment done in 2006, a Static-99R assessment done in 2016, and a Stable-2007 assessment, also done in 2016. These assessments classified the plaintiff's reoffense risk as "high," "moderate-high," and "high," respectively. The hearing examiner classified the assessment results only as "[a]dditional [f]actors," not -- as with every other factor she considered -- risk-elevating or risk-mitigating factors.
The hearing examiner erroneously referenced the 2007 risk assessment as a Static-99R assessment (the updated version of the same assessment). In the context of the current case, that error is not material.
Discussion. 1. Denial of funds for an expert. Prior to the administrative hearing, the plaintiff requested funds for an expert to "evaluate [him] and make recommendations as to his likelihood to re-offend and his level of dangerousness (if any) using the actuarial science from the Static 99R." The plaintiff now challenges the denial of that request.
The plaintiff failed to raise this claim in Superior Court, but the board has not argued that the issue is waived. See Rivas v. Chelsea Hous. Auth., 464 Mass. 329, 336 (2013) ("defense of waiver is itself waivable"). We therefore address the claim's merits, and have no occasion to address his alternative argument that his counsel was ineffective for failing to preserve the issue.
"[T]he decision whether to grant an individual sex offender funds for an expert is a discretionary one, to be based on the facts presented in an individual case." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) (Doe No. 89230). The plaintiff bore the burden before the hearing examiner "to identify and articulate the reason or reasons, connected to a condition or circumstances special to him, that he needs to retain a particular type of expert." Id. Now on appeal, the plaintiff bears the burden of demonstrating that the hearing examiner abused her discretion in denying the requested funds. See Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 609-610 (2013).
We are not persuaded by the plaintiff's claim that the hearing examiner erred in denying his request for expert funds. In his request for funds, the plaintiff did not articulate -- based on "a condition or circumstances special to him" -- how having his own expert perform an additional Static-99R risk assessment mattered. Doe No. 89230 , 452 Mass. at 775. Doing so would have been difficult, as the Static-99R generally "estimates only the relative risk of sexual recidivism based on commonly available demographic and criminal history information," rather than "the likelihood of sexual recidivism for a specific individual" (quotation and citation omitted). Commonwealth v. George, 477 Mass. 331, 340 (2017). In our view, the plaintiff has not demonstrated that the hearing examiner abused her discretion in denying his request for expert funds.
2. Ineffective assistance. The plaintiff argues that his counsel was ineffective in two respects: (a) by failing to challenge the "risk category labels" employed by the Static-99, Static-99R, and Stable-2007 risk assessments, and (b) by failing to marshal certain evidence with respect to whether the petitioner's behavior was "compulsive." To prove a claim of ineffective assistance in this context, the plaintiff must show that: (1) "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"; and (2) there is "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different" (quotations and citations omitted). Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812-813 (2010). The plaintiff is unable to make such showings as to either claim of ineffective assistance.
The plaintiff's arguments regarding the "risk category labels" used by the three actuarial risk assessments is based on the George case, 477 Mass. 331. That case involved a petition to commit a sex offender as a sexually dangerous person. Id. at 331-332. In that context, the court held that while evidence could be admitted regarding how a sex offender "scored" on a Static-99R risk assessment, the ultimate label that the assessment placed on the relative level of risk that he would reoffend (that is, "low," "moderate-low," "moderate-high," or "high") could not be admitted, because it "is itself a limited tool," it would not aid the jury's decision, and it had the potential to be unfairly prejudicial. Id. at 339-341. Although the claim of error in George was preserved, the court ultimately found insufficient prejudice to warrant reversal. See id. at 341-342.
The plaintiff argues that his counsel was constitutionally ineffective for not arguing, based on George, that the hearing examiner should exclude the labels or afford them minimal weight. However, the extent to which the rationale set forth in George should be imported into the SORB context is hardly clear. Much of the court's concern in George appears to have been driven by the potential that the use of the risk category labels from the Static-99R risk assessment could interfere with the jury's fact finding role, e.g., by confusing or misleading lay jurors about the import of the model's classifying the defendant in the "high" category of risk to reoffend. See id. at 340-341. Such concerns seem less acute where the fact finder is not a lay jury but a professional hearing examiner who presumably is familiar with the limitations incumbent in the commonly-used actuarial models in this specialized area. Indeed, the hearing examiner here characterized the risk assessments' results noncommittally.
We need not resolve such issues in this case. For present purposes, two observations suffice. First, that counsel's failure to make the referenced arguments based on George was not behavior falling "measurably below that which might be expected from an ordinary fallible lawyer." Poe, 456 Mass. at 812, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Second, that where reliance on the labels used in the three risk assessments appears to have played such a small role in the hearing examiner's decision, the plaintiff has not demonstrated "a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Poe, supra at 813, quoting Commonwealth v. Mahar, 442 Mass. 11, 15 (2004).
The plaintiff's argument with respect to whether his behavior was "compulsive" is even weaker. Those arguments are based on a concurring opinion of this court. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 745-747 (2019) (Milkey, J., concurring). By definition, that concurring opinion does not reflect established law. Moreover, the concurring opinion was published over a year after the administrative proceedings in the case before us had concluded. Plaintiff's counsel hardly can be described as seriously incompetent, inefficient, or inattentive for failing to anticipate the issues raised in the concurring opinion.
Having found the plaintiff's arguments unpersuasive, we affirm the judgment of the Superior Court.
So ordered.
By the Court (Vuono, Milkey & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 30, 2020.