Opinion
13-P-1977
03-19-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 300813 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
John Doe appeals from the dismissal of his complaint in the Superior Court seeking review of the order of the Sex Offender Registry Board (board) requiring him to register as a level one sex offender. The Superior Court judge, ruling on Doe's motion for judgment on the pleadings, opined without elaboration that there was substantial support for the board's findings for Doe's classification as an offender presenting a low degree of dangerousness and a low risk to sexually reoffend. Because Doe disputes that classification, we independently review the board's decision.
Background. With acute cardiac symptoms and difficulty walking, Doe, aged about fifty-four years, was admitted to a hospital in Taunton on April 1, 2010, and there began to experience severe symptoms of alcohol withdrawal. He was monitored in the intensive care unit (ICU) for three days, and medicated with Librium and Ativan. After transfer from the ICU, he was placed on bed rest, and had one-on-one monitoring with an observational assistant (OA). When his cardiac and mental status improved, it was recommended that he enter a formal detoxification program, but he refused a direct transfer, and was to be discharged from the hospital on April 12, 2010.
On that day, however, Doe allegedly assaulted a female OA who reported the assault to the police. Subsequently, the plaintiff pleaded guilty in District Court to a charge of indecent assault and battery, G. L. c. 265, § 13H, on August, 23, 2010, and received a six-month jail term. Because the indecent assault and battery charge also is a sex offense under G. L. c. 6, § 178C, Doe was notified that upon conviction he must register as a sex offender. The board, pursuant to G. L. c. 6, § 178L, as in effect prior to St. 2013, c. 38, § 11, prepared a recommended classification of Doe, who sought to challenge the classification and filed a request for administrative review. A de novo hearing was held on May 3, 2011, after the disposition of several of his prehearing motions. On November 4, 2011, a hearing examiner issued a decision ordering that Doe register as a level one sex offender in accordance with G. L. c. 6, § 178K(2)(a).
In this appeal, Doe argues that (1) his counsel was ineffective for not raising the mitigating factor of age at his classification hearing; (2) the hearing examiner improperly denied his request for funds to obtain an expert witness; and (3) the hearing examiner erred in classifying him as a level one sex offender.
Discussion. 1. Evidence at the hearing. We turn to a review of the record of the hearing on Doe's classification by the board.
Doe's classification as a sex offender is based on a single incident, described by the examiner, relying on reports of the Taunton police, as follows:
"The [v]ictim [an observational assistant (OA)] disclosed that at about 2:15 p.m. she was 'safely sitting' two patients in a room. [Doe] was there being treated for cardiac issues and alcohol withdrawal. When [Doe] was coming out of the bathroom and using a cane (because he had difficulty walking), the [v]ictim attempted to help him by grabbing his belt loop from behind and assisted him as he walked. As the [OA] was assisting him, [Doe] reached back with his left hand and grabbed her vagina and held his hand there.
"The [v]ictim immediately told [Doe] to remove his hand and told him his behavior was very inappropriate. When she told him to sit down and wait for his daughter, he called her a 'fucking bitch.'"
Following this statement of the incident, the examiner then summarized the petitioner's criminal incidents, incarceration, and probation history.
Under the heading of mental health issues, the examiner referred to a letter dated July 29, 2010, from Dr. Paul A. Spiers, a forensic neuropsychologist, to Doe's prehearing attorney, which was submitted as an exhibit by Doe.
The examiner stated that Dr. Spiers wrote:
Dr. Spiers concluded,"Considering the allegations as you . . . related them to me, it would seem that the OA who was the alleged victim in this case was not providing [Doe] with proper support as he was ambulating back to his bed from the bathroom. He was using a cane, but if she was trying to support him by holding up his belt from behind, she may have exacerbated his unsteadiness. Certainly he would not have felt as secure as he would if his free arm were over her shoulder. Under those circumstances, and reaching back to find some kind of handhold, it is perhaps not surprising where his hand ended up. That he may not have removed it immediately or not have been appropriately apologetic, would not, in my professional opinion, be inconsistent with the [disinhibited] and impulsive behavior he had already displayed over the preceding days. Of course, this raises the question of intent and whether [Doe] could ultimately be found criminally responsible for this act."
"My impression is, of course, largely speculative, until the incident report and hospital records documenting what happened are provided for my review. It is also my understanding that you will be furnishing me with police reports related to this matter after the status hearing in this case tomorrow."
Dr. Spiers also stated that nowhere in the records he examined was there a progress note or incident report describing the assault on the OA. There is no indication that any of the materials referred to were later provided to Dr. Spiers, or that he continued to be involved in Doe's case.
2. Analysis. First we briefly address the matters of Doe's criminal, incarceration, and probation history. The most significant of these were convictions in 1995 and 2010 of operating a motor vehicle while under the influence of intoxicating liquor; and convictions of assault and battery in 2003 and 2009, both domestic disputes occurring while Doe was intoxicated. There was no evidence of any prior sexual offense.
Next, we consider that in a series of footnotes, the hearing examiner cited eight factors enumerated in 803 Code Mass. Regs. § 1.40 (2004), which have been developed by the board to assist in determining an offender's classification level and risk of reoffending. The examiner, however, made no explicit findings on the applicability of these factors to Doe. Also, contrary to the board's assertion in its brief at 17, there is no indication that the examiner explicitly weighed the risk-elevating and risk-mitigating factors.
We now turn to the questions raised by Dr. Spiers about Doe's intent and the circumstances of his alleged assault. These questions were not addressed by the examiner. She concluded, without commenting on Dr. Spiers's report or citing any specific findings, that after her review of all the evidence she found the petitioner's "risk to reoffend and degree of dangerousness are low at this time."
Doe argues that the hearing examiner erred in finding that there was substantial evidence to support his level one classification. We agree. We are unable to determine that the fact finder made "particularized, specific, and detailed findings, guided by the factors set forth in [G. L. c. 6,] § 178K, to demonstrate that close attention has been given to the evidence as to [the] offender and that the classification . . . is appropriate." Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 102 (1998).
Doe was required to register solely because he pleaded guilty to the crime of indecent assault and battery. Because there is no evidence of the specific set of facts he pleaded guilty to, that conviction need not foreclose our inquiry into whether his conduct in the assault of the OA constituted a sexual offense requiring him to register as an offender.
Without a history of sexual offenses, Doe recognized the necessity for a determination of the reasons underlying what Dr. Spiers termed his "disinhibited and impulsive behavior he had already displayed in the preceding days," and the effect of the medicines administered to him on his behavior. Accordingly, Doe moved for expert witness funds to determine the effect of the medicine administered to him on his behavior, and to determine whether he is a danger to the public and is a risk for reoffending.
Nevertheless, the examiner denied the motion stating that Doe's claim that use of the medicines contributed to his sexual offending was "unconvincing." Also, the examiner may have mistakenly assumed that Doe had already met with Dr. Spiers. Dr. Spiers's letter was a "preliminary impression" addressed to Doe's prehearing counsel, and he was not later asked to render an opinion on Doe's degree of dangerousness or his risk of sexually reoffending. We think it was error to deny Doe's request and will remand this case for an award of expert witness funds.
Other issues. We do not consider Doe's claim that his counsel was ineffective for not raising the mitigating factor of age on his likelihood to reoffend or his level of dangerousness. This claim was not raised in the classification hearing, nor was it addressed in the Superior Court. "[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Moreover, the record does not show a factual basis sufficient to support considering the claim on direct appeal. Compare Doe, Sex Offender Registry Board No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 620-621 (2012), and cases cited. Doe may raise the issue at a new hearing.
Conclusion. The judgment of dismissal in the Superior Court of September 10, 2013, is vacated. The November 4, 2011, order of the board that Doe register as a level one sex offender is vacated, and the case is remanded for the award of expert witness funds and a new hearing.
So ordered.
By the Court (Cypher, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 19, 2015.