Opinion
13-P-744
11-04-2014
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 2253 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
John Doe, Sex Offender Registry Board No. 2253, appeals from a judgment of the Superior Court affirming the decision of the Sex Offender Registry Board (board) classifying him as a level three sex offender. We affirm.
Background. On February 16, 2011, at the time of Doe's classification hearing, he was held at the Massachusetts Treatment Center, having been civilly committed as a sexually dangerous person (SDP) from one day to life, pursuant to G. L. c. 123, at the end of a prison sentence for his underlying offenses. At the time of the classification hearing, a hearing pursuant to G. L. c. 123A, § 9, was scheduled for May 23, 2011.
In 1985, at the age of sixteen, Doe had been adjudicated delinquent for two counts of aggravated rape of a child and for indecent assault and battery on a child under the age of fourteen; he also was adjudicated on related charges of assault and battery as well as two counts of assault and battery by means of a dangerous weapon (a knife), and two counts of assault by means of a dangerous weapon. The victims in this incident were seven and nine year old brothers who were strangers to Doe. In 1991, Doe was convicted of two counts of rape of a child and five counts of indecent assault and battery on a child under fourteen for a series of assaults over a ten-month period on eight and nine year old sisters, for whom he was babysitting.
Discussion. Ineffective assistance of counsel. Doe argues first that his Superior Court counsel was ineffective for failing to argue that his motion for a stay of the classification hearing was denied in error, because no release date had been set at the time of the hearing. In support, he cites Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 75 (2012), where this court interpreted G. L. c. 6, § 178L(1)(a), along with the relevant regulations, "as requiring that, consistent with the statutory purpose of classification according to current risk to reoffend, a final classification evidentiary hearing be held at a reasonable time prior to release from incarceration." In that case, the plaintiff was serving a prison sentence and his hearing was held four years prior to his eventual release. Under those circumstances, we concluded that the petitioner was entitled to a new hearing, one that reflected any "new evidence developed since the initial classification." Id. at 80.
Doe makes this argument for the first time on appeal. Although first presenting an ineffective assistance claim in a motion for new trial is preferred, here, the factual basis for the claim appears sufficiently on the trial record and provides sufficient evidence to address Doe's argument. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 610-620 (2012).
On the other hand, in Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 688 (2011), we confirmed the propriety of conducting a final classification hearing while a sex offender is incarcerated. "The statutory purposes are . . . promoted by allowing final classifications of sex offenders while they are incarcerated. The sex offender registry law is designed to protect the public from 'the danger of recidivism posed by sex offenders.' St. 1999, c. 74, § 1. The final identification and classification of such offenders before their release back into the community, and the dissemination, where their classification calls for such dissemination, of information regarding the offender's identity, offenses, and address, are necessary to accomplish the statutory purposes. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 759-760 (2006)." Ibid.
In this case, as noted, Doe was civilly committed under G. L. c. 123A at the time of the classification hearing and, as such, "theoretically could [have been] released at any time." Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 904, 905 (2012). Moreover, Doe's § 9 hearing was scheduled for only about 100 days later and, if that hearing resolved in his favor, he could have been released. As a result, we are persuaded that the reasoning of Doe No. 22351, supra, controls and Doe's motion for a stay was properly denied. Because there was no error, we cannot say that Doe's counsel was ineffective for failing to appeal the ruling. See Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010) ("[T]he [Commonwealth v.] Saferian, [366 Mass. 89, 96 (1974)] test is appropriate to apply to counsel's performance at a sex offender classification hearing").
Denial of the motion for expert funds. Doe also argues that his motion for expert funds was denied in error. We disagree. "[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." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008).
Here, the motion sought funds for an expert to rebut evidence offered by the board that, in the words of the examiner, "include[d] reports of three psychologists and Community Access Board (CAB) reports which are authored by five psychologists. . . . 'All the psychologists diagnose the Petitioner with a mental abnormality and/or a personality disorder.'" The examiner denied the motion because none of the reports had been prepared for the purpose of the classification hearing; nor had the board retained its own expert on the issue whether Doe suffered from a mental abnormality and/or a personality disorder. In addition, because the reports were old, she "decline[d] to apply the [relevant] Factor . . . or to conclude that he currently suffers from a mental abnormality or personality disorder, thus the need to refute it through expert evidence is unnecessary." We cannot say that, in so deciding, the examiner abused her discretion. Compare Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 623-624 (2010).
Doe also argues that expert testimony was needed to permit him to rebut the conclusion that he was an SDP, in light of the fact that the examiner stated that finding was "a substantial factor to be considered." As the board argues, however, the forum for challenging that determination was elsewhere, specifically in the then pending G. L. c. 123A, § 9, proceeding.
We have carefully considered all of Doe's arguments, and to the extent that we have not addressed specifically any particular argument, we have not overlooked it, but, rather, have found it not to be persuasive.
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Judgment affirmed.
By the Court (Cypher, Kafker & Hanlon, JJ.),
Clerk Entered: November 4, 2014.