Opinion
18-P-891
11-19-2019
John DOE, Sex Offender Registry Board No. 275880 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment of the Superior Court, which affirmed a final decision of the Sex Offender Registry Board (board) classifying the plaintiff as a level three sex offender. The plaintiff also appeals from an order denying his "motion for relief from judgment and for reconsideration of motion for judgment on the pleadings." We affirm.
Expert funds. The plaintiff argues that the hearing examiner abused her discretion by denying the plaintiff's motions for expert funds. The board, through the hearing examiner, has the discretion to grant an indigent petitioner's motion for expert witness funds. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 774 (2008). "[T]he 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." Id. at 775.
We discern no abuse of discretion in the denial of the plaintiff's motion and renewed motion for funds. The plaintiff did not support his prehearing request for funds with the reports of his two proposed experts. The hearing examiner could reasonably have concluded that the plaintiff offered no compelling argument for an award of funds and furthermore, that one low risk opinion was not sufficiently particular to the plaintiff's condition or circumstances as to warrant the retention of an expert. Id. Although the plaintiff's posthearing motion was supported with the expert reports, the motion identified no new reasons or information demonstrating the need for expert testimony.
In his motions for funds, the plaintiff asserted that two experts had determined that he was at a low risk to reoffend. However, as the hearing examiner noted, one of the experts specifically indicated in his letter that he was not evaluating the plaintiff's risk of reoffense.
Even if the plaintiff met his burden of articulating specific reasons to retain the experts, the denial of expert funds did not prejudice him. See Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 458-459 (2017). The plaintiff was allowed to admit the reports from the proposed experts containing opinions favorable to him, and the hearing examiner considered the reports. By presenting the experts' favorable opinions in that manner, the plaintiff was also able to avoid the cross-examination of the experts, which would have allowed the board an opportunity to challenge their opinions.
The plaintiff also argues that the admitted expert reports were "stale" and that he was prejudiced by not being able to present "up-to-date" expert opinions. However, given that the plaintiff did not clearly express an intention to obtain new and updated testing and evaluations, it was not an abuse of discretion for the hearing examiner to allow the expert reports as proxies for expert testimony. We also agree with the motion judge that by failing to make his intentions clear to the hearing examiner, the plaintiff waived any claim of possible prejudice. See New England Survey Sys., Inc. v. Department of Indus. Accs., 89 Mass. App. Ct. 631, 641 n.20 (2016).
Ineffective assistance of counsel. We discern no abuse of discretion in the order denying the plaintiff's postjudgment motion predicated on his constitutionally deficient legal representation. See Mass. Civ. P. Civ. 60 (b) (6), 365 Mass. 828 (1974). To establish a claim of ineffective assistance of counsel, the moving party bears the burden of showing that there has been "serious incompetency, inefficiency, or inattention of counsel ... falling measurably below that which might be expected from an ordinary fallible lawyer" and that counsel's poor performance "likely deprived the [party] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Poe v. Sex Offender Registry Bd., 456 Mass. 801, 811-814 (2010) (extending Saferian standard to board proceedings).
The plaintiff argues that his previous counsel was ineffective by failing to challenge the application of factor two ("repetitive and compulsive behavior"), a statutory factor used to determine a sex offender's risk of reoffense. G. L. c. 6, § 178K (1) (a) (ii). See 803 Code Mass. Regs. § 1.33(2)(a) (2016) (board guidelines explaining application of factor). Specifically, the plaintiff asserts that factor two may only be applied if a sex offender continues to reoffend after being confronted about his offending behavior, and thus, it should not have been applied in his case.
Based on the clear language of the regulation, this argument is without merit. "Factor 2 is applied when a sex offender engages in two or more separate episodes of sexual misconduct. To be considered separate episodes there must be time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct." 803 Code Mass. Regs. § 1.33(2)(a). Factor two may be given "increased weight" if the offender was confronted between offenses, id., but the lack of a confrontation certainly does not bar the application of the factor outright. The hearing examiner applied factor two here because the plaintiff "committed sex offenses against three Victims on separate occasions" over the course of a year. The ineffective assistance of counsel claim fails because a challenge to the application of factor two would have been unsuccessful, and therefore the failure to challenge it was not prejudicial to the plaintiff. Moreover, even if a competent attorney would have successfully challenged the factor, given the presence of a second high risk factor, the multitude of aggravating factors, and other information applied by the hearing examiner, the plaintiff cannot satisfy the second part of the Saferian test. See Poe, 456 Mass. at 813 (defining prejudice as "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different" [quotation and citations omitted] ).
Refusal of treatment. The plaintiff next argues that the hearing examiner should not have considered the plaintiff's refusal of sex offender treatment in accordance with the rule set out in Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131 (2019). In Doe No. 23656 , the court held that a sex offender's refusal of nonconfidential treatment cannot be considered as an aggravating factor in determining risk of reoffense "where that treatment involved admitting to unlawful behavior." Doe No. 23656 , 483 Mass. at 139. The purpose of this rule is to avoid a dilemma whereby sex offenders are forced to choose between self-incrimination (if they participate in treatment) or obtaining an elevated risk factor (if they decline treatment). See id. at 139-140. However, the present case posed no such dilemma, as the plaintiff had already begun the sex offender treatment program and even admitted his "intention to complete any and all remaining available classes" in the program while he was incarcerated. At no point did the plaintiff express his reluctance to participate in treatment in order to avoid the need to make incriminating admissions. Doe No. 23656 accordingly provides no grounds to disturb the judgment.
The plaintiff raised this argument at oral argument, since Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131 (2019) was published after briefing was complete.
The plaintiff also argued, at oral argument, that remand is appropriate because the hearing examiner did not explicitly find how public dissemination of the plaintiff's information would serve a public safety interest, as now required by Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019). However, this requirement applies only prospectively. Id. at 657. For pending cases, the reviewing court retains the discretion to remand. Id. Here, the hearing examiner's findings are "sufficiently explicit to enable proper review," so a remand for an explicit finding on the public safety prong is not warranted. Id. at 657 n.4.
Judgment affirmed.