Opinion
10-P-1432
11-12-2014
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 35547 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 a judgment of the Superior Court affirming a decision of the defendant Sex Offender Registry Board (board) classifying him as a level three offender. The essence of the plaintiff's challenge is the hearing examiner's denial of his request for funds for an expert to develop and present evidence concerning the effect of the plaintiff's age (fifty-three at the time of the hearing) on his likelihood to reoffend.
We note that the present appeal was remanded to the board at the board's request, for reconsideration in light of Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612 (2010) (Doe No. 151564 I). Upon reconsideration and after hearing, the hearing examiner again denied the plaintiff's request for funds (which previously had been denied without a hearing). Following the proceedings on remand, the plaintiff filed no additional brief (and no letter pursuant to Mass.R.Civ.P. 16[l], as amended, 386 Mass. 1247 [1982]) raising the potential effect of Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1 (2014) (Doe No. 151564 II), on his entitlement to funds, and the sole relief sought in the plaintiff's original brief was that he be furnished an evidentiary hearing on his request for funds. Though any reliance by the plaintiff on Doe No. 151564 II is therefore arguably waived, because such a waiver would give rise to a claim of ineffective assistance of appellate counsel, and in the interest of both justice and judicial economy, we consider the effect of Doe No. 151564 II on the plaintiff's circumstances sua sponte.
The plaintiff's request for funds for an expert on the effect of age on sexual recidivism is controlled in material respects by our decision in Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1 (2014) (Doe No. 151564 II). As observed in that case, in the absence of regulatory guidance, because research on aging and recidivism is sufficiently complex, and the number of variables is sufficiently great, expert opinion is necessary to understand fully and interpret the research, and to apply it to individual cases of offenders older than fifty. Id. at 11-12. As Doe No. 151564 II makes clear, a person in the plaintiff's circumstances is entitled to funds for such an expert. Ibid.
At oral argument, counsel for the board advised that the board's current practice, pending development and promulgation of regulations, is to allow all requests for expert funds made by offenders older than forty.
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The plaintiff's request for funds for a forensic medical expert to develop and present evidence counter to the victim's account of the assault stands on different footing. The evidence sought by the plaintiff would not bear on any of the statutorily prescribed factors used to assess the risk of recidivism. To the extent the plaintiff seeks by such evidence to challenge the factual premises on which his conviction of the predicate offense was based, his classification hearing before the board is not the proper occasion to do so. As the hearing examiner observed, "[i]f there is a problem or critique of the trial evidence then the argument should more appropriately be brought as a motion for new trial before the trial court."
The judgment is vacated and the matter is remanded for entry of a new judgment remanding the matter to the board for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Green, Rubin & Agnes, JJ.),
Clerk Entered: November 12, 2014.