John Doe v. Sex Offender Registry Bd.

103 Mass.App.Ct. 431

220 N.E.3d 592

John DOE, Sex Offender Registry Board No. 22164

v.SEX OFFENDER REGISTRY BOARD.

No. 22-P-66

Appeals Court of Massachusetts, Suffolk.

Argued March 13, 2023

Decided September 28, 2023

Fred J. Burkholder, Boston, for the plaintiff.

David L. Chenail, for the defendant.

Present: Milkey, Singh, & Brennan, JJ.

MILKEY, J.

In 2011, the Sex Offender Registry Board (board) classified John Doe, who had been convicted of rape, as a level three sex offender. A Superior Court judge affirmed that classification in 2014; Doe did not appeal from that decision. Five years later, Doe requested that the board vacate his classification and grant him a new hearing based on alleged ineffective assistance of counsel. The board denied his motion, and, in 2021, a second Superior Court judge upheld the board's decision. On Doe's further appeal, we affirm.

Background. In 1991, a Superior Court jury found Doe guilty of raping a nineteen year old woman who told police that he had sexually assaulted her while holding her hostage, threatening to kill her, and choking her. He was sentenced to from eight to twelve years of prison, to be served from and after a 1990 armed burglary conviction for which he had received a twelve to twenty year sentence.¹ Doe refused sex offender treatment while incarcerated in Massachusetts. During that incarceration, he was cited for over thirty disciplinary reports.

As noted, the board classified Doe as a level three sex offender in 2011, and a Superior Court judge affirmed that classification in 2014 pursuant to G. L. c. 30A. No further direct appeal was taken. In urging the board to reopen his classification five years later, Doe claimed that both the attorney who represented him during his original classification hearing (hearing counsel), and the separate attorney who represented him in his appeal from the board's classification decision in the Superior Court (original appellate counsel), were constitutionally ineffective.² The board rejected that argument, without prejudice to Doe's right to file a petition seeking reclassification pursuant to 803 Code Mass. Regs. § 1.31 (2016). A Superior Court judge upheld the board's decision.

Discussion. Whether to reopen Doe's long-closed classification proceeding comes down to a balancing of the interests of finality with any demonstrated unfairness to Doe. See Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 457-458 & n.7, 86 N.E.3d 474 (2017) ( Doe No. 209081 ). How to strike that balance falls to the board in the first instance, although the Supreme Judicial Court has recognized that the power to reopen classification proceedings "must be sparingly used" (citation omitted). Id. at 457-458, 86 N.E.3d 474. "[F]actors generally to be weighed by the [board] include the advantages of preserving finality, the desire for stability, the degree of haste or care in making the first decision, timeliness, and the specific equities involved." Id. at 458, 86 N.E.3d 474. Courts are to review the judgment call that the board has made under a deferential abuse of discretion standard. Id. at 457, 86 N.E.3d 474. Our review of the 2021 Superior Court decision is de novo. See Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 219, 224, 154 N.E.3d 1 (2020).

Before turning to the substance of Doe's claims, we address a preliminary matter raised by the board. It is undisputed that the board's regulations provide Doe a right to petition for reclassification. See Doe No. 209081, 478 Mass. at 459, 86 N.E.3d 474. Although Doe would in that proceeding bear the burden of producing evidence that circumstances had changed, that should be an easy burden to meet now that over a decade has passed since his original classification, at least some of which Doe has spent in the community. As we have noted, "the bar for showing changed circumstances is ‘very low’ and ... the mere passage of time generally qualifies." See Doe, Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 533, 541 n.7, 169 N.E.3d 534 (2021). Once Doe has met his burden, the board would bear the burden of persuasion -- based on "clear and convincing evidence" -- "that the classification is current and correct." See Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 204, 102 N.E.3d 409 (2018). Thus, Doe already enjoys the opportunity to pursue reclassification with rights nearly identical to those he seeks through the current appeal. Based on this, the board argues that Doe is precluded from pursuing this appeal, especially now that so much time has passed. While there is some force to this argument, we decline to adopt a rule that the available administrative remedy per se precludes the present action. However, as the Supreme Judicial Court has instructed, the availability of the administrative remedy "is an additional factor specific to the board's regulatory scheme weighing in favor of the [board's] decision to reject [a sex offender's] request to reopen his initial classification proceeding [many] years after it had concluded." See Doe No. 209081, 478 Mass. at 459, 86 N.E.3d 474.

We turn to Doe's claim of ineffective assistance of counsel. In reviewing a claim of ineffective assistance of counsel, "we first consider ‘whether 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, 926 N.E.2d 187 (2010), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). If so, we then consider whether such deficient representation resulted in prejudice. Poe, 456 Mass. at 812-813, 926 N.E.2d 187, citing Care & Protection of Georgette, 439 Mass. 28, 33 n.7, 785 N.E.2d 356 (2003). Prejudice in this context means "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different" (quotations and citations omitted). Poe, supra at 813, 926 N.E.2d 187. We turn then to the specific ineffective claims that Doe is making.

1. Ineffective assistance of hearing counsel. Doe contends that his hearing counsel was ineffective for failing adequately to address one of the over thirty disciplinary reports that he received while incarcerated. That report, dated January 19, 2005, stated that the reason for a particular prison transfer was that Doe was "displaying unusual behavior towards a female staff member." Doe argues that any suggestion in the report that he exhibited behavior of a sexual nature during the incident is inaccurate.³ Such a misimpression was critical, Doe argues, because it provided the only evidence of recent misconduct that could have been construed as sexual. Furthermore, he argues that there could not have been a tactical reason for hearing counsel not to challenge the report.

Assuming that hearing counsel's performance was deficient in failing to adequately address the January 19, 2005 report, Doe has not demonstrated sufficient prejudice to warrant relief. His disciplinary history beyond that particular report was lengthy and serious, including insubordination toward correction officers, fighting, throwing a pot of hot coffee at an inmate, and assaulting another inmate with a knife. He has not contested the accuracy of any of these other reports. Had the potential misimpression left by the one report been challenged, it is unlikely that the board's over-all assessment of Doe's behavior while incarcerated would have been altered. Indeed, in the summary of the hearing decision, the hearing officer mentioned the "numerous" disciplinary reports without emphasis on any particular report. Nowhere in her twenty-seven page decision did the hearing examiner mention the January 19, 2005 incident as evidence of sexual misconduct.

Moreover, Doe's disciplinary history was only one of several factors that weighed in favor of a level three classification. Those factors included Doe's lengthy criminal history consisting of multiple serious sexual and violent offenses, and the lack of any subsequent sex offender treatment or offense-free time in the community. On this record, we conclude that there was not "a reasonable probability that but for [hearing] counsel's unprofessional errors, the result of the proceeding would have been different" (quotations and citations omitted). Poe, 456 Mass. at 813, 926 N.E.2d 187.

2. Ineffective assistance of original appellate counsel. Doe's original appellate counsel challenged the board's classification decision by filing an appeal pursuant to G. L. c. 30A, § 14. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 107-108, 18 N.E.3d 1081 (2014) (Doe No. 68549 ). In accordance with applicable procedures, the board filed the administrative record as its answer. Based on that record, the merits of Doe's appeal were then resolved by a Superior Court judge in 2014 through cross motions for judgment on the pleadings. Doe makes no claim that the briefing that original appellate counsel provided the judge was deficient in form or substance. Rather, he claims his counsel was constitutionally ineffective in various other aspects, the first being by his failure to attend the scheduled hearing, which allowed the matter to be heard on the papers without oral argument by either side.⁴

The reasons for counsel's not attending the scheduled G. L. c. 30A hearing are somewhat muddled on the current record. The hearing had been scheduled for an earlier date, and there is a suggestion that Doe's original appellate counsel claimed not to have received notice of the new hearing date. However, there is also a reference to a statement from original appellate counsel that his not attending the hearing was strategic, based on his concern that his attendance would reveal...