Doe v. Sex Offender Registry Bd.

966 N.E.2d 235

John DOE, Sex Offender Registry Board No. 27914

v.SEX OFFENDER REGISTRY BOARD.

No. 10–P–2073.

Appeals Court of Massachusetts, Essex.

Argued Jan. 9, 2012.

Decided April 23, 2012.

Rebecca Rose for the plaintiff.

Paul Tuttle for the defendant.

Present: KATZMANN, VUONO, & MEADE, JJ.

MEADE, J.

The plaintiff, John Doe, appeals from a Superior Court judgment that affirmed a hearing examiner's decision ordering that Doe be reclassified from a level two to a level three sex offender. On appeal, Doe claims that the failure to evaluate his competency prior to his reclassification hearing violated his rights to due process; that it was an abuse of discretion to deny his request for expert funds; that the reclassification decision was not supported by substantial evidence; and that his attorney provided him with ineffective assistance. We affirm.

1. Background. Doe is a convicted sex offender, who was originally classified by the Sex Offender Registry Board (board) as a level two sex offender in 2003. His index offense originated with his 1989 admission to sufficient facts on three counts of indecent assault and battery on three children under the age of fourteen.¹ Two of the victims were ten year old girls, and the third was a twelve year old girl; Doe was eighteen at the time. Doe did not appeal from the level two classification.

In 2009, the board notified Doe that he had been reclassified as a level three offender, and Doe sought a de novo administrative review of that decision. The review was held before a hearing examiner, and Doe was present and represented by counsel. Relying primarily on Doe's additional sexual assaults, which occurred in New Hampshire in 2005, the hearing examiner determined that the level three reclassification was warranted. Those offenses occurred when Doe was thirty-six years old and involved the sexual assault of a fourteen year old girl, and inappropriate conduct with the girl's fifteen year old friend with whom he had had a romantic relationship. These charges were dismissed after a New Hampshire judge found Doe to be incompetent to stand trial by reason of his mental retardation.²

Even though the charges were dismissed, the hearing examiner relied on police reports, which detailed a thorough investigation involving multiple interviews, to conclude, by a preponderance of the evidence, that the assaults did occur.

In addition, the hearing examiner relied on Doe's 2007 convictions on three counts of accosting or annoying a person of the opposite sex, wherein he made sexually suggestive comments and gestures to a group of thirteen year old girls. Doe was sentenced to six months in the house of correction for these convictions. While the convictions were not of a "sex offense," the hearing examiner relied upon them as "other useful information," permitted under the regulations, because Doe made obscene gestures and yelled sexual vulgarities at the girls.

Specific to Doe's mental health, the hearing examiner determined that there was insufficient evidence for Doe's mental retardation to be considered as a risk-aggravating factor. She also concluded that his mental retardation was stable and present at the time of his various offenses and misconduct. In that light, she did not consider Doe's condition to be a mitigating factor, either. As neither Doe nor the board claimed that Doe's mental health condition was an aggravating or mitigating factor, the hearing examiner denied Doe's request for expert funds.

Based on her total findings, the hearing examiner concluded that Doe's recent misconduct demonstrated a greater risk of reoffense than that suggested at his original classification, and that he currently presents a high risk of reoffense and, given the young ages of his victims, a high degree of dangerousness. She ordered that Doe must register as a level three sex offender. Upon Doe's appeal to the Superior Court, see G.L. c. 6, § 178M, and G.L. c. 30A, § 14, the hearing examiner's decision was affirmed.

2. Discussion. a. Competency. Prior to Doe's de novo hearing before the hearing examiner, see 803 Code Mass. Regs. § 1.10(1) (2002), Doe moved the board to continue his hearing due to his incompetency. Doe also sought an injunction in Superior Court seeking the same relief. Both were denied. Doe claims that because he had been declared incompetent to stand trial in the past, including for his most recent sex offenses in New Hampshire, the board violated his rights to due process by not continuing his reclassification hearing. As a result, Doe also claims that his "constitutional right to an attorney"³ and his right to a fair hearing were violated. We disagree.

As the judge properly noted, the statute does not exempt incompetent persons from classification or reclassification proceedings. Doe analogizes his circumstances to criminal proceedings where due process requires a defendant to be competent to stand trial. See Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) ; Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).⁴ But the analogy is not apt. The board's proceedings are civil in nature, not criminal. That is not to say that due process protections are not available. However, those protections are different, as due process is a "flexible" concept that varies given the circumstances. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Commonwealth v. Torres, 441 Mass. 499, 502, 806 N.E.2d 895 (2004). In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the United States Supreme Court identified "three distinct factors" that determine what procedures are necessary in particular civil cases affecting protected "liberty" or "property" interests. These are "[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."

In general, "[s]ex offenders have a constitutionally protected liberty and privacy interest in avoiding registration and public dissemination of registration information" that arises from their classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100, 697 N.E.2d 512 (1998). Because Doe has already been classified as a level two offender, and he does not challenge that classification, Doe's liberty interest at stake here lies in his remaining a level two offender and not having that classification raised to level three.

In some measure, the designations impose similar burdens. "Level two and level three sex offenders must register and report annually to their local police departments, and certain sex offender registry information, including their names, photographs, home and work addresses, and the offenses for which they were convicted or adjudicated, is available on request at local police stations." Doe, Sex Offender Registry Bd. No. 941 v. Sex Offender Registry Bd., 460 Mass. 336, 337 n. 1, 951 N.E.2d 344 (2011). See G.L. c. 6, §§ 178F ½, 178J, 178K(2)(b ) & (c ). However, for level three sex offenders, the above data is published on the Internet and is actively disseminated by local police departments by other means. G.L. c. 6, §§ 178D, 178K(2)(c ). Thus, the increase in classification from level two to three brings with it significant additional burdens, nearly as weighty as being classified at all. Nonetheless, not being classified as a sex offender or not being classified at a higher level do not rise to the level of a fundamental right. See Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass.App.Ct. 683, 689, 948 N.E.2d 1268 (2011), and cases cited. Doe does not claim that his incompetency somehow increases his liberty interest.

However, Doe does claim that his incompetency increases the risk of an erroneous deprivation of his liberty interest. We disagree. The "robust, adversary character" of the classification process minimizes the risk of the erroneous classification. See Commonwealth v. Nieves, 446 Mass. 583, 591, 846 N.E.2d 379 (2006). Doe received a de novo hearing before an impartial hearing examiner, appointed counsel, prehearing discovery, the ability to file motions prior to the hearing, and a written final decision based on the preponderance of the evidence. Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 776, 857 N.E.2d 485 (2006). Doe was accorded the opportunity to challenge the classification decision and to receive review in the Superior Court and here on appeal. See ibid.

Even though Doe might be incompetent, he still had the assistance of counsel to investigate the facts underlying the board's classification and to evaluate the propriety of the board's application of any of the twenty-four factors it must consider. See Commonwealth v. Torres, 441 Mass. at 504, 806 N.E.2d 895 (attorney is almost always capable of advocating bail factors for incompetent defendant). Here, counsel did exactly that, including providing favorable testimony and letters from family and documents regarding counselling and sex offender treatment. Counsel filed and argued several prehearing motions⁵ and challenged the evidence presented by the board.

In the context of civil commitment proceedings for sexually dangerous persons pursuant to G.L. c. 123A, where an individual faces the prospect of being civilly committed for the rest of his life, the Supreme Judicial Court held that it could "see no reason why the public interest in committing sexually dangerous persons to the care of the treatment center must be thwarted by the fact that one who is sexually dangerous also happens to be incompetent."...