Opinion
No. 10–P–1213.
2013-08-9
John DOE, Sex Offender Registry Board No. 25273 v. SEX OFFENDER REGISTRY BOARD.
By the Court (VUONO, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Sex Offender Registry Board (board) classified the plaintiff, John Doe, as a level three sex offender. Doe requested an administrative review of his classification, following which a hearing examiner found that he posed a moderate risk for sex offense recidivism and a moderate degree of dangerousness. Accordingly, the examiner reduced the classification and ordered that Doe be classified as a level two sex offender. Doe then brought an action for Superior Court review of that determination pursuant to G.L. c. 6, § 178M, and G.L. c. 30A, § 14. A Superior Court judge, acting on Doe's motion for judgment on the pleadings, affirmed his classification. On appeal, Doe raises several claims regarding the validity of the level two classification. He also argues that he received ineffective assistance of counsel at the hearing.
We affirm. Background. The index offense occurred in February of 1988. The underlying facts, as related in the police report, indicate that Doe sexually assaulted his seven year old niece. The niece was sleeping when, at approximately 5 A. M., she awoke to find Doe in her bedroom with his hand under her nightgown and inside her underpants. The niece threw a stuffed animal at Doe and immediately told her parents about the assault. Doe had been living with the victim and her parents for about one month before the incident occurred.
After the appeal was docketed, Doe sought a stay and leave to proceed in the trial court on a motion to vacate on the ground that counsel who represented him before the board was ineffective. That motion was denied after a hearing. The copy of the docket with which we have been provided does not indicate a notice of appeal was filed from that order, nor has a copy of the notice of appeal been included in the appendix. However, because the parties argue the substantive issues and do not argue any issue as to the propriety of the appeal from the denial of the motion to vacate, we address the ineffective assistance of counsel claim.
Discussion. 1. Substantial evidence. Doe contends that the decision to classify him as a level two offender was not supported by substantial evidence. We disagree. Here, substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion” that Doe posed a moderate risk to reoffend and a moderate level of dangerousness. G.L. c. 30A, § 1(6), inserted by St.1954, c. 681, § 1. After carefully considering the evidence, the hearing examiner found that a number of factors indicating an elevated risk of reoffense were present. Those factors included: a thirty-year criminal history, three probation violations, inadequate participation in sex offender treatment, alcohol abuse, an extra-vulnerable victim, and a presence in the community offense-free for only three years. The examiner also considered risk-mitigating factors, such as the fact that the index offense was committed sixteen years earlier and the fact that the victim was not a stranger to Doe. After weighing these factors, the hearing examiner determined that the mitigating factors did not outweigh the aggravating factors and supported a level two classification. This conclusion was reasonable under the substantial evidence standard.
2. Negative inference. At the hearing, Doe testified and denied committing the index offense. His failure to accept responsibility was a factor considered by the examiner as enhancing his risk of reoffense. Doe argues that the regulation (803 Code Mass. Regs. § 1.40[9][c][13] [2002] ), which permits the board to draw a negative inference from an offender's denial of the offense, is not supported by the leading research, and, therefore, the board exceeded its authority in applying that regulation here. However, judicial review of a hearing examiner's decision is not the proper avenue for challenging the validity of a regulation. Rather, such a challenge must be brought in a separate action for declaratory relief. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629–631 (2011). As Doe has not brought such an action, this issue is not properly before us and, therefore, we do not address it.
3. Ineffective assistance of counsel. We now turn to Doe's claim of ineffective assistance of counsel. Doe claims that counsel was ineffective because he should have advised Doe not to testify at the hearing where he denied culpability for the index offense. Doe also faults counsel for not introducing additional letters of support. The test for such claims is a familiar one: we first 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.” Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If we find such poor performance, we then ask whether it was prejudicial: whether there is a reasonable probability that but for counsel's performance the result would have been different. Poe v. Sex Offender Registry Bd., supra at 813.
Applying this standard, the Superior Court judge rejected Doe's ineffective assistance claim. We agree with the judge's reasoning in all respects. As the judge noted, counsel was successful in reducing the classification from level three to level two, an indication that his representation was effective. As to counsel's decision concerning Doe's testimony, the judge observed that other than Doe's own affidavit, there was no support for his claim that he had been ill-advised to testify. The record contains no indication that Doe's counsel foresaw or permitted Doe's denial of responsibility for the index offense. Moreover, we agree with the judge that a review of Doe's testimony in its entirety supports counsel's decision to permit him to testify.
As to counsel's alleged failure to submit additional supportive letters at the hearing, the judge correctly observed that many of the letters were written long after the original hearing and that they were largely cumulative of Doe's testimony. Finally, we agree with the judge that even if counsel was ineffective in the ways claimed by Doe, he failed to show that better work might have resulted in a further reduction in his classification.
Judgment affirmed.
Order dated September 7, 2012, denying motion to vacate affirmed.