Opinion
11-P-387
12-19-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 185145 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
Doe appeals from a judgment of the Superior Court dismissing his challenge, under G. L. c. 30A, to the Sex Offender Registry Board's (board) determination that he register as a level three (high risk) sex offender. Doe argues that the hearing examiner's decision was arbitrary and capricious, unsupported by substantial evidence, and that the board did not adhere to its own regulations in classifying Doe as a level three sex offender. After review of the record, it appears to us that there was substantial evidence supporting the determination of the hearing examiner that Doe was appropriately classified as a level three offender. Additionally, the board did not misapply its regulations. See the board's brief at pages ten through thirteen. Doe also argues that his counsel was ineffective because counsel advised him to testify and did not adhere to the requirements of the Committee for Public Counsel's (CPCS) performance standards. We conclude that the defendant has not met the first prong of the standard for ineffective assistance of counsel that has been developed for Sex Offender Registry Board proceedings. See Poe v. Sex Offender Registry Bd., 456 Mass. 801, 815 (2010). See pages fifteen through seventeen of the board's brief concerning the defendant's claim that counsel should not have advised him to testify.
Doe points out that the Superior Court judge misstated two facts that were correctly set forth by the hearing examiner: Doe was twenty-two years old (not twenty-eight) at the time of the offense, and the offense took place in Virginia (not Pennsylvania). These discrepancies have no effect on the analysis or outcome.
This claim is made for the first time on appeal. Doe notes that the claim was not made at the c. 30A appeal because he was represented at that appeal by the same counsel who represented him at the hearing.
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With regard to Doe's claim that counsel failed to adhere to the CPCS performance standards, we note that they do not render counsel's performance automatically ineffective if they are not followed and that, in any event, the defendant has failed to demonstrate prejudice.
Judgment affirmed.
By the Court (Cypher, Green & Hanlon, JJ.),