Opinion
10-P-1721
02-13-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 161486 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
John Doe appeals from a Superior Court judgment affirming a Sex Offender Registry Board (board) classification decision requiring him to register as a level three (high risk) sex offender. Underlying Doe's classification are two separate sexually violent offenses involving children, one as a juvenile and another as an adult, the latter occurring while he was on probation for his juvenile offense. On appeal, Doe argues that (1) the board's decision was not supported by substantial evidence, (2) his attorney rendered ineffective assistance of counsel, and (3) the composition of the board rendered his classification invalid. We affirm.
Indecent assault and battery on a child under fourteen is both a sex offense involving a child and a sexually violent offense indicative of heightened risk of recidivism. See G. L. c. 6, § 178C. A sex offense involving a child, in and of itself, indicates a high risk. See 803 Code Mass. Regs. § 1.40(9)(c)(12) (2002).
1. Substantial evidence. A classification decision will be set aside only if it is 'unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.' Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006). We agree with the judge's assessment that substantial evidence supported the hearing examiner's conclusion that Doe posed a high risk of reoffense and a substantial danger to vulnerable victims without the benefit of community informational access:
'The Hearing Examiner carefully considered aggravating and mitigating factors. Her decision cites, among other things, plaintiff's repetitive and compulsive behavior, and the age of his victims when the abuse occurred (age seven), rendering the victims extra-vulnerable. Plaintiff also committed his second sex crime in a public place, and victimized both males and females. The Examiner also considered factors in the plaintiff's favor, such as his acceptance of responsibility for his actions and expression of remorse, his sex offender treatment, and his probation status. Taken as a whole, a reasonable person could regard this evidence as proper bases for concluding that the plaintiff poses a high risk of re-offense and dangerousness.'
2. Ineffective assistance of counsel. For substantially the reasons set forth in the board's brief at pages thirteen through twenty-seven, we reject Doe's arguments that he received ineffective assistance of counsel because his attorney failed to (i) seek expert funds to demonstrate that 'adolescent brain development' renders Doe unlikely to reoffend; (ii) object to introduction of certain of Doe's medical and school records; and (iii) challenge the constitutionality of Doe's classification. Doe has failed to demonstrate that his counsel's performance fell below that of an ordinarily fallible lawyer and that but for such deficiencies there was a reasonable probability of a lower classification. See Poe v. Sex Offender Registry Bd., 456 Mass. 801, 811-814 (2010).
Doe's counsel's failure to seek funds for an expert witness does not amount to ineffective assistance of counsel for the reason, if no other, that Doe still has not 'identif[ied] and articulate[d] the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.' Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008). Indeed, it is difficult to see how Doe would have been entitled to expert funds even had counsel requested them. Doe's sexual reoffense as an adult renders him an adult sexual offender. Consequently, his juvenile status at the time of his first offense was not a special condition justifying retention of an expert on that basis. Nor does Doe proffer any basis for concluding that his medical conditions has any bearing, much less a mitigating effect, on his risk of reoffense or degree of dangerousness.
Similarly unavailing is Doe's claim that counsel was ineffective in failing to challenge the constitutionality of the statutory scheme for sex offender classification. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 628 (2011). Such a challenge would have been fruitless because the board lacks the authority to determine the constitutionality of the statute and regulations. See ibid.
Even beyond that deficiency, Doe's vague constitutional arguments fail to establish that the classification and registration requirements violate the United States Constitution or the Massachusetts Declaration of Rights. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 759-762 (2006) (no substantive due process violation where classification is supported by substantial evidence of risk of reoffense and danger to the community); Commonwealth v. Olaf O., 57 Mass. App. Ct. 918, 919 (2003) (sex offender registration requirement not punitive).
Finally, the failure of Doe's attorney to object to the admission of school and medical records does not amount to ineffective assistance of counsel because the records were either not privileged, see Commonwealth v. Beauchemin, 410 Mass. 181, 185 (1991) (school records not privileged), or Doe waived any privilege to disclosures made to social workers and therapists by signing a written waiver. See Doe, Sex Offender Registry Bd. No. 10800, 459 Mass. at 642. Nor has Doe demonstrated that he was prejudiced by the admission of these records. See id. at 643.
3. Validity of the classification. There is no merit to Doe's argument that his classification was invalid because the board did not contain among its members a psychologist experienced in evaluating juvenile sex offenders. See Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 791-793 (2008). Doe lacks standing to challenge the composition of the board. See id. at 789-790. Moreover, as noted, Doe is an adult, not a juvenile. The board had the authority to classify him because there were at least four sitting board members at the time of classification, and 'the board . . . is authorized to carry out its legislatively mandated duties, regardless of whether it is fully constituted with two licensed psychologists or psychiatrists.' Id. at 791.
Judgment affirmed.
By the Court (Grasso, Cohen & Carhart, JJ.),