Doe v. Sex Offender Registry Bd.

98 Mass.App.Ct. 1113

155 N.E.3d 774 (Table)

John DOE, Sex Offender Registry Board No. 525947

v.SEX OFFENDER REGISTRY BOARD.

19-P-1653

Appeals Court of Massachusetts.

Entered: October 15, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe,² appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. Concluding that the articles submitted by Doe had no significant bearing on his classification, that counsel acted effectively in light of the forcible rape committed by Doe, and that the classification was supported by substantial evidence, we affirm.

1. Standard of review. "A reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ), citing G. L. c. 30A, § 14 (7). "We ‘give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ " Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391 ), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015).

2. Articles. The examiner declined to give the articles submitted by Doe any weight because the offender was not a minor when he raped the victim. Where an offender presents evidence relevant to an offender's risk of recidivism, an examiner must at least consider it. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 622-623 (2010). Although we do not endorse the examiner's reasoning,³ the articles submitted by the offender did not present relevant evidence of the offender's risk of recidivism. One article was an abstract about the recidivism of juvenile offenders with psychopathic personality disorder. The other two stated that brain maturation does not cease until the early twenties but stated nothing about recidivism. A fourth was a thought piece by a New York Times legal columnist with no scientific training. The last stated that Australian adolescents charged with sexual offenses had a sexual recidivism rate of between nine and nine and one-half percent (and a general recidivism rate of at least sixty-one percent). Nothing in this article provides any reason to believe that the definition of adolescence included persons twenty years old. See www.who.int/health-topics/adolescent-health (World Health Organization definition of adolescent is "ages 10 to 19"). Indeed, the article appears to be concerned with teenagers. As the offender failed to provide any article stating that persons who sexually offend at age twenty are less likely to reoffend than other sex offenders, the examiner did not need to consider these articles.

3. Ineffective assistance of counsel. To show ineffective assistance of counsel in the sex offender registry context, the offender must first show "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).

In the proposed findings, Doe's counsel conceded the applicability of factor 3, adult offender with a child victim. Doe argues that counsel should have advocated for limited weight for this factor. The regulation provides that, "[i]f the difference in age between the offender and the victim is five years or less and there is evidence of a consensual, although statutorily criminal, sexual act, the [b]oard shall give limited weight to factor 3." 803 Code Mass. Regs. § 1.33(3)(a).⁴ Here, the examiner found that Doe committed a forcible rape, ignoring the victim's protestations, pulling off her clothes, and bruising her elbow and thighs when she tried to escape. These facts were well supported by the victim's consistent account. See Doe No. 523391, 95 Mass. App. Ct. at 89-90. Accordingly, Doe was not entitled to limited weight under the regulation. Similarly, we see no reasonable probability that the examiner would have decided to give limited weight to this factor had counsel argued, as Doe now suggests, that a forcible rape of a fifteen year old taxi customer was "highly distinguishable" from the mainstream of adult offenders preying on child victims.

4. Substantial evidence. "Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6). "A level two classification requires a finding, by clear and convincing evidence, that ‘(1) the offender's risk of reoffense is moderate; (2) the offender's dangerousness is moderate; and (3) a public safety interest is served by Internet publication of the offender's registry information.’ " Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138 ...