Opinion
21-P-903
11-02-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526675 v. SEX OFFENDER REGISTRY BOARD.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. On appeal, he argues that (1) the hearing examiner erred in denying his motion to continue the classification hearing during the COVID-19 pandemic (the pandemic), (2) the hearing examiner erred in failing to specify the weight given to nine regulatory factors, and (3) Doe received ineffective assistance of counsel because his attorney did not meet with him at any time prior to his hearing or submit his medical records as evidence. We affirm.
Background. We summarize the relevant facts as set forth in the decisions below, "supplemented by undisputed facts from the record." Doe, Sex Offender Registry Bd. No. 10800 v.Sex Offender Registry Bd., 459 Mass. 603, 606 (2011). On February 1, 2018, a fifteen year old girl (Victim l) met with police and disclosed that, when she was younger, she had been repeatedly raped over the course of seven or eight years by Doe, her adoptive grandfather. She informed them that while her mother was away at work, he would touch her vagina with his fingers and mouth. She further stated that he attempted to rape her with his penis but was unsuccessful because it would not fit. The abuse began when she was three or four years old and lasted until she was eleven; at that time Doe was between the ages of fifty-eight and sixty-seven years old. Police investigated these claims and arrested Doe shortly thereafter. On November 13, 2018, Doe pleaded guilty to three counts of rape and abuse of a child, G. L. c. 265, § 23, and one count of indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B. He was sentenced to concurrent three-year terms in prison for the rape convictions and a five-year probation term for the indecent assault and battery conviction, to be served from and after the committed sentences.
In addition to Victim 1, a second victim, discussed infra, had accused Doe of rape in 2009.
As a result, Doe was incarcerated and was scheduled for release in June 2020. In January 2020, he was notified of his requirement to register as a level three sex offender under G. L. c. 6, § 178K (2) (c0 . He appealed this classification and was granted a hearing before an examiner on June 15, 2020. On June 9, Doe's counsel moved for a continuance, arguing that she had not had the opportunity to meet with her client or obtain his medical records due to the recent onset of the pandemic. She renewed this motion at the hearing itself, which was held remotely by means of web-based video conferencing software. The hearing examiner denied the motion but provided counsel with the opportunity to meet with Doe via video conference immediately prior to the hearing; she declined this opportunity, citing uncertainty about the privacy afforded by web-based video conferencing software.
Upon being reassured by the hearing examiner regarding privacy, Doe's counsel stated "at this stage I'm not going to get that much information from him that I don't already have from the two letters that I received from him. So I'm going to decline that opportunity at this stage."
The hearing proceeded, and on June 23, the hearing examiner, applying the clear and convincing evidence standard, issued findings that upheld the board's initial classification requiring Doe to register as a level three sex offender. In addition to the rapes for which Doe was convicted, the hearing examiner also credited the reports of a second victim (Victim 2) who, in 2009, reported to police that approximately twenty years earlier, Doe had repeatedly raped her when she was between the ages of three and four years old. In March of 2010, police informed Doe of Victim 2's allegations. Doe elected not to speak with police regarding the claims, and charges were never brought as a result of those accusations.
In reaching her decision, the hearing examiner applied the following factors, among others: factor 2 (repetitive and compulsive behavior), factor 3 (adult offender with child victim), factor 7 (relationship between the offender and victim), factor 18 (extravulnerable victim), and factor 19 (level of physical contact). The hearing examiner also applied risk-mitigating factor 30 (advanced age) because Doe was seventy-three years old at the time of the hearing, but gave it minimal weight because Doe had offended as recently as when he was sixty-seven years old. The examiner declined to apply factor 31 (physical condition) because Doe had offended while suffering from many of the medical conditions he cited as justifying its application and because he did not submit medical records supporting his claims.
The Legislature has described the behaviors underlying factors 2 and 3 as "indicative of a high risk of reoffense and degree of dangerousness." See G. L. c. 6, § 178K (1) (a.) . The board's regulations state that the behaviors associated with factors 7, 18, and 19, are "risk elevating." See 803 Code Mass. Regs. § 1.33 (2016).
Doe wrote a letter to his attorney in 2020 that the hearing examiner relied upon in considering this factor. All the ailments referenced in that letter predated the end of Doe's abuse of Victim 1 in 2014.
In concluding that Doe met the level three standards, the examiner emphasized that Doe's "offending was repetitive and compulsive" and that "being investigated by the police did not deter him from repeatedly sexually re-offending." A Superior Court judge affirmed the examiner's decision.
Discussion. 1. Motion to continue. Doe argues that the hearing examiner improperly denied his motion to continue the hearing because the pandemic had prevented him from obtaining his medical records and meeting with his attorney.
"Our review of the Superior Court judge's decision is de novo, but our review of the underlying agency decision is more limited." Doe, Sex Offender Registry Bd. No. 390261 v.Sex Offender Registry Bd., 98 Mass.App.Ct. 219, 224 (2020). "An agency decision should be set aside only if a 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." Id., quoting Doe, Sex Offender Registry Bd. No. 523391 v.Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 88 (2019). See G. L. c. 30A, § 14 (7).
The party seeking a continuance or a stay of proceedings "bears the burden of establishing its need." Singh v. Capuano, 468 Mass. 328, 332 (2014), quoting Soe, Sex Offender Registry Bd. No. 252997 v.Sex Offender Registry Bd., 466 Mass. 381, 391 (2013). "The decision whether to grant the continuance or stay 'ultimately requires and must rest upon a particularized inquiry into the circumstances of, and the competing interest in, the case.'" Soe No. 252997 , supra at 392, quoting Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 99-100 (2d Cir. 2012). Cf. Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1976) (recognizing the "interest of the judicial system in avoiding delays which would not measurably contribute to the resolution of a particular controversy").
SORB has a statutory duty to begin classification proceedings at least sixty days prior to a sex offender's release and to issue a final classification decision at least ten days prior to the earliest possible release date. See Doe, Sex Offender Registry Bd. No. 6904 v.Sex Offender Registry Bd., 82 Mass.App.Ct. 67, 73 (2012). See also G. L. c. 6, §§ 178E (a), 178L (1) (a) .
Here, we conclude that the hearing examiner did not abuse her discretion in a manner warranting relief for three reasons. First, the hearing examiner's decision to deny the motion was reasonable because SORB was required by law to issue a final classification at least ten days prior to Doe's earliest release date. See G. L. c. 6, § 178E (a) (SORB shall classify incarcerated sex offender at least ten days before offender's earliest possible release date). Doe was scheduled for release no later than June 26, 2020. Therefore, by law, the hearing could not be substantially delayed beyond its scheduled date of June 15, 2020.
Second, recognizing the impact of the pandemic on Doe's preparation for the hearing, the hearing examiner offered to allow Doe time to meet with his counsel immediately prior to the hearing and permitted the record to remain open for one week following the hearing to allow additional time to acquire and submit any further medical records. Notably, Doe's counsel declined the opportunity to speak with her client prior to the hearing and did not submit any additional medical records during the period for which the record remained open.
Third, and arguably most importantly, Doe has not shown, as he must in order to obtain relief, that the denial of the requested continuance may have caused him any prejudice. See Doe, Sex Offender Registry Bd. No. 22188 v.Sex Offender Registry Bd., 101 Mass.App.Ct. 797, 804 (2022). He did not make any proffer to SORB or move for leave to present additional evidence in the Superior Court pursuant to G. L. c. 30A, § 14 (6), regarding any evidence or argument he would have submitted or presented to the hearing examiner had the continuance been granted. Nor, once this appeal was filed and new counsel appointed, did Doe seek leave from this court to file in the Superior Court a motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), documenting how the denial of the continuance prejudiced him.
2. Weight of regulatory factors. Doe next argues that the hearing examiner was required to specify the weight given to each regulatory factor she applied, and, because she did not do so, we are prevented from conducting a meaningful review of Doe's level three classification. We disagree.
A hearing examiner has broad discretion to consider how much weight to ascribe each factor, and "a reviewing court is required to 'give due weight to [the examiner's] experience, technical competence, and specialized knowledge.'" Doe, Sex Offender Registry Bd. No. 68549 v.Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014), quoting G. L. c. 30A, § 14 (7). The hearing examiner's ultimate decision must apply the clear and convincing evidence standard, see Doe, Sex Offender Registry Bd. No. 380316 v.Sex Offender Registry Bd., 473 Mass. 297, 298 (2015), must be supported by "substantial evidence," Doe No. 68549 , supra at 109, and further "must show that the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex." Doe, Sex Offender Registry Bd. No. 136652 v.Sex Offender Registry Bd., 81 Mass.App.Ct. 639, 651 (2012). The decision, as well as the application of regulatory factors, must be sufficiently reasoned and explained to enable effective review. Id. at 651-652.
In applying the regulatory factors, the hearing examiner did not explicitly specify the amount of weight given to eight factors. While not required, it would indeed be helpful for our review if hearing examiners explicitly stated whether they were ascribing a threshold, moderate, high, or some other degree of weight to each applied factor, and "the relative weight that [the examiner] assigned each factor." See Doe, Sex Offender Registry Bd. No. 23656 v.Sex Offender Registry Bd., 483 Mass. 131, 143 (2019). Nevertheless, in the circumstances of this case, we are satisfied that Doe's level three classification was supported by substantial evidence, which is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Doe No. 68549 , 470 Mass. at 109, quoting G. L. c. 3 0A, § 1 (6).
Doe's brief enumerates nine factors that he contends the hearing examiner failed to assigned weight. Doe's list does not include factor 38 (victim impact statement), which the examiner also applied without an assignment of weight, and as explained infra, two of the factors Doe cited were in fact assigned weight.
Contrary to Doe's argument, the hearing examiner did assign weight to factors 2 (repetitive and compulsive behavior) and 3 (adult offender with child victim), each of which she applied with "increased weight." The hearing examiner did not merely list the other factors at issue; she provided an account of the evidence she considered and explained why each factor was applicable. Specifically, for factor 7 (relationship between the offender and victim), the hearing examiner stated that Doe's sex offenses against Victim 1 began less than two years after she was placed in his home as a foster child and their relationship was therefore extrafamilial for that period. She further explained that Doe occupied a position of trust in his capacity as Victim 2's babysitter. In applying factor 18 (extravulnerable victim), the hearing examiner explained that Doe's victims were under the age of eight and therefore extravulnerable. In applying factor 19 (level of physical contact), the hearing examiner considered that Doe attempted to or did penetrate both victims with his penis. In applying factor 21 (diverse victim type), the examiner considered that Doe's victims were both intrafamilial and extrafamilial. In applying factor 22 (number of victims), the hearing examiner noted that Doe had offended against two or more victims. In applying factor 28 (supervision by probation or parole), the hearing examiner stated that Doe would be on probation for five years following his release from incarceration. In applying factor 32 (sex offender treatment), the hearing examiner considered that Doe had begun sex offender treatment but was only in the early stages of treatment. Finally, in applying factor 38 (victim impact statement), the hearing examiner took note of Victim l's impact statement. The application of these factors was sufficiently explained to permit an effective review of the hearing examiner's decision, which we conclude was supported by substantial evidence.
3. Ineffective assistance of counsel. Finally, Doe argues that he is entitled to a new hearing because his attorney provided him ineffective assistance. Doe contends that his attorney failed to meet or otherwise speak directly with him prior to the hearing, and that she failed to obtain medical records that might have provided mitigating evidence of his risk to reoffend in the future. We are not persuaded.
To support an ineffective assistance of counsel claim in the sex offender registry context, the offender must first show that "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 Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Second, the offender must show "a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Poe, supra at 813, quoting Commonwealth v. Mahar, 442 Mass. 11, 15 (2004) .
Here, Doe's attorney acted within the realm of reasonable behavior expected from an ordinary lawyer given the unusual circumstances created by the pandemic. After being assigned on March 10, she was prevented from speaking to Doe due to the pandemic restrictions. Nevertheless, she corresponded with him by mail and diligently attempted to obtain his medical records prior to the hearing by traveling to the Massachusetts Treatment Center on May 15. Although she was stymied by the impact of the pandemic in this respect as well, her efforts were reasonable given the restrictive measures in effect during the spring of 2020. Recognizing that she had not complied with the Committee for Public Counsel Services guidelines regarding sufficient representation, Doe's attorney moved for a continuance prior to the hearing, and renewed her motion at the hearing itself. Though her efforts ultimately did not result in the lowering of Doe's final level of classification, her actions nevertheless did not fall measurably below those of an ordinary, fallible lawyer. See Poe, 456 Mass. at 812. See also Saferian, 366 Mass. at 98.
Doe's attorney was met in the lobby by a staff member and informed that "it would not be possible to get [her] copies of [Doe's] records in time for his June 15, 2020 hearing."
Most importantly, and assuming without deciding that Doe's lawyer was ineffective, Doe has failed to show that he was prejudiced by her inaction. Doe has not suggested any way in which further communication with his lawyer would have helped him present a stronger case before the hearing examiner. With respect to the submission of evidence, Doe's attorney conceded during the hearing that "most of the records that [she] probably would have gotten have been submitted by SORB." Without more, we cannot conclude that Doe was prejudiced by the performance of his counsel. See Poe, 456 Mass. at 812. See also Commonwealth v. Ferreira, 67 Mass.App.Ct. 109, 115 (2006) (Saferian standards apply when right to counsel is statutory in civil proceeding involving deprivation of liberty).
Judgment affirmed.
Desmond, Sacks & D'Angelo, JJ.
The panelists are listed in order of seniority.