Opinion
No. 11–P–829.
2013-02-6
John DOE, Sex Offender Registry Board No. 9417 v. SEX OFFENDER REGISTRY BOARD.
By the Court (KANTROWITZ, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 5, 2010, the plaintiff was classified as a level 3 sex offender by the Sex Offender Registry Board (SORB). On February 14, 2011, a judge of the Superior Court affirmed SORB's classification, and on November 17, 2011, the judge denied the plaintiff's postjudgment motion to remand pursuant to Mass.R.Civ.P. 60, 365 Mass. 828 (1974). The plaintiff now appeals from that judgment and order, arguing that (1) he was denied the effective assistance of counsel, and (2) the hearing examiner improperly concluded that he engaged in “compulsive behavior.” We affirm.
Discussion. In reviewing a decision of SORB, we “shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G.L. c. 30A, § 14(7), as appearing in St.1973, c. 1114, § 3. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006). “The decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Ibid. First, the plaintiff argues that he was denied effective assistance of counsel because his attorney did not provide any medical documentation of his three heart attacks to the hearing examiner, nor did his attorney make a motion for expert funds based on his medical condition.
To succeed on an ineffectiveness of counsel claim, the counsel's incompetency must be prejudicial. See Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010). Here, the absence of medical records of heart attacks does not show serious incompetency by counsel because it appears that even had the records been submitted, the end result would not have been any different. None of the medical documentation provided suggests that the plaintiff's physical condition substantially affected his risk of reoffense, nor does he argue that point beyond mere generalities in his brief.
His first two heart attacks did not render him incapable of sexual offenses, as they both occurred before his 2008 conviction.
The plaintiff's latest medical report dated December 20, 2010, states that “[h]e's not having any chest pain, shortness of breath or light headedness,” and that the “patient reports he is doing well, [and] not having any other symptoms. Medical reports on June 21, 2010, March 12, 2010, and February 24, 2010, make similar conclusions.
Regarding expert witness funds, the Supreme Judicial Court has held that SORB may provide such funds to an indigent sex offender. Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 771–772 (2008). “[I]n moving for expert witness funds, the burden will be 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.” Id. at 775.
Because the plaintiff's medical records do not allude to, nor provide, a practicing medical doctor's opinion that Doe has an illness or condition substantially minimizing his likelihood of reoffense and degree of dangerousness, any motion for expert funds would have amounted to a general motion, insufficient in satisfying his burden of establishing entitlement to funds. See 803 Code Mass. Regs. § 1.40(13) (2002). The determination that the inclusion of the records would not have changed the outcome of the proceeding was not erroneous. We cannot say that, “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Poe v. Sex Offender Registry Bd., 456 Mass. at 813, quoting from Commonwealth v. Mahar, 442 Mass. 11, 15 (2004).
Second, Doe argues that 803 Code Mass. Regs. § 1.40(2) (2002), a regulation promulgated by SORB, is ultra vires because it impermissibly authorizes SORB to diagnose “compulsive behavior” without independent testimony. He maintains therefore, that the hearing examiner's finding was arbitrary and capricious.
This argument has been waived because the plaintiff did not present it to the Superior Court judge or to the hearing examiner. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006); Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 814 (2006). Nevertheless, this court has already considered and rejected the point in an unpublished decision. See Doe, Sex Offender Registry Bd. No. 5668 v. Sex Offender Registry Bd., 79 Mass.App.Ct. 1107 (2011). While we do not give that decision precedential effect, we see no reason to deviate from its reasoning.
As the panel in Doe No. 5668 wrote:
“The plaintiff's argument is without merit. To begin with, ‘the regulations promulgated by the board are a proper delegation of power by the Legislature and have the force of law.’ Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 777 (2006). Thus, contrary to the defendant's contention, the regulation in question is not ‘ultra vires.’ Furthermore, expert testimony is not required in the classification process, and an examiner has the discretion to assess the factors enumerated in § 1.40 without the aid of any expert opinion. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. at 784–786. Considering that the plaintiff sexually abused two different children on two separate occasions, the examiner was justified in finding that the plaintiff had ‘repetitive[ly] and compulsive[ly]’ engaged in sexual misconduct as defined by § 1.40(2).” (Footnotes omitted.)
For these reasons, as well as for substantially those in SORB's brief, we affirm.
Judgment affirmed.
Order denying motion for remand affirmed.