Poe v. Sex Offender Registry Bd.

456 Mass. 801

926 N.E.2d 187

Suffolk.

Ronald POE ¹v.SEX OFFENDER REGISTRY BOARD.

SJC-10518

Supreme Judicial Court of Massachusetts.

Argued Jan. 7, 2010.

Decided May 17, 2010.

COPYRIGHT MATERIAL OMITTED

Jonathan P. Harwell for the plaintiff.

Beatriz E. Van Meek, Special Assistant Attorney General (Jennifer K. Zalnasky, Special Assistant Attorney General, with her) for the defendant.

Eric Tennen, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

On August 29, 2006, after an evidentiary hearing at which the petitioner (Poe) was represented by appointed counsel, a hearing examiner of the Sex Offender Registry Board (board) found that Poe posed a high risk of sexual offense recidivism and a high degree of dangerousness, and ordered that he register as a level three sex offender. Poe filed a complaint for judicial review in the Superior Court, pursuant to G.L. 6, § 178M, and G.L. c. 30A, § 14, and later moved for judgment on the pleadings. The judge affirmed the board's classification decision. Poe appealed, claiming (1) that he was denied due process and the equal protection of the law by the hearing officer's refusal, in accordance with 803 Code Mass. Regs. § 1.40(15) (2004), to consider his expert witness's written opinion that Poe was in “the moderate range for re-offending”; and (2) that his hearing counsel provided ineffective assistance by offering in evidence two documents that Poe contends virtually ensured his classification as a level three sex offender. We granted Poe's application for direct appellate review, and now affirm the judgment of the Superior Court.

Background. In August, 1990, after his second conviction of open and gross lewdness, in violation of G.L. c. 272, § 16, Poe became a “[s]ex offender,” as defined in G.L. c. 6, § 178C, subject to classification by the board. On or about May 6, 2003, based on its assessment of Poe's risk of reoffense and degree of dangerousness, the board classified Poe as a level one sex offender. See G.L. c. 6, § 178L; 803 Code Mass. Regs. § 1.06 (2004). In January, 2005, after Poe was charged with enticing a child under sixteen years of age, in violation of G.L. c. 265, § 26C ( b ), the board notified him that he had been reclassified a level three sex offender. Poe challenged the classification and requested an evidentiary hearing before a hearing examiner. After being found indigent pursuant to G.L. c. 211D, counsel was appointed to represent him at the hearing. See G.L. c. 6, § 178L ( a ), ( c ); 803 Code Mass. Regs. §§ 1.07-1.08 (2004).

1. The board's evidence. At the hearing conducted on July 6, 2006, the board did not call any witnesses and offered only documentary evidence, specifically a classification report dated March 3, 2005; criminal history records; police reports; court dockets; and two sexual offender treatment status reports dated April 30, 2003, and January 5, 2005, of Poe's licensed therapist, Dr. Anthony Traniello. We summarize, in chronological order, the uncontested documentary evidence offered by the board regarding Poe's sexual conduct.

In October, 1982, Poe was accused of approaching young students and making obscene remarks to them. Poe was charged with lewdness, but the case was continued without a finding before being dismissed in 1985.

On March 3, 1988, a boy who was a seventh-grade student and his friend observed Poe masturbating on the second floor of a video rental store. Poe was convicted of two counts of open and gross lewdness. He received two sixty-day suspended sentences with probation through December 11, 1989.

On August 7, 1990, a fifteen year old boy was walking home when he observed a red automobile with Poe inside. As the boy passed by the vehicle, he noticed Poe masturbating. The boy yelled at Poe, and Poe drove away. The boy reported that Poe had done this to him and his thirteen year old brother in the past. Poe was convicted of one count of open and gross lewdness and received three years' probation.

On October 25, 1990, a Brookline police officer responded to a report that several boys had been followed by Poe in his vehicle. When Poe observed one of the boys write down his registration plate number, Poe reversed direction and rapidly drove away. No charges were filed.

On February 22, 1991, the mothers of three young boys reported to the police that Poe had been following their sons for the previous two days. The responding officer approached Poe, who was in an ice cream store at the time, pretending to use the telephone. No charges were filed.

On January 15, 1993, according to Poe's criminal history record he was charged with one count of open and gross lewdness, but the charge was dismissed nine months later. The board did not introduce a police report or any other details related to this charge.

On September 17, 2002, a Brookline police report documented that a male student was walking home when Poe drove by him and honked his horn. The student went into his house and then reemerged and walked toward school. Poe passed him twice more, staring at him both times. The boy was afraid and nervous, and when he arrived at school, he described Poe's actions to his principal, who notified the police. In response to police questioning, Poe admitted to having honked his horn and looked at the boy. The report also stated that another police officer had noticed Poe passing by a nearby school at least three times on September 9, 2002. Poe was charged with disorderly conduct as a result of the incident involving the boy walking to school, but the charge was dismissed.

On October 16, 2004, the Brookline police department received an electronic message (e-mail) that relayed electronically-transmitted text messages, or “instant messages,” during an “online conversation” or “chat,” between Poe and a person posing as a fourteen year old boy, who was referred to in the police report as “T.” Poe began the conversation by typing, “[H]i, i love really nice young teen boys ok with you i hope so.” Poe stated that he lived in Massachusetts, and T responded that he flew into Boston when he went to visit his grandmother in New Hampshire. Poe said that he would “really love” to meet T and asked him to be his boy friend. Poe indicated his willingness to perform sexual favors on T. Poe also stated that he frequently had oral sex with two young brothers, one fifteen years of age and the other thirteen years of age, who lived near him. Near the end of the “chat,” Poe admitted that he was masturbating during the instant messaging exchange.

On November 3, 2004, T again sent to police, by e-mail, part of an online instant messaging chat in which Poe asked a fifteen year old boy to “work with [him] on his ranch” taking care of horses. On November 29, 2004, Brookline police officers met with Poe, and he admitted to writing the nonsexual content of the online “chat” with T, but could not explain who typed the rest of the conversation, even though he admitted that he was the only one with access to his online account. Poe acknowledged that he used to live near two brothers, one fifteen years of age and the other thirteen years of age, and that he would spend time with them when their mother borrowed his vehicle. He also stated that he had communicated with five or six boys in Internet “chat rooms” in the past.

As a result of this conduct, Poe pleaded guilty on October 7, 2005, to one count of enticing a child under the age of sixteen, and received a one-year suspended sentence in the house of correction with three years' probation. On the Commonwealth's recommendation, Poe was also ordered to attend sex offender counselling, provide a deoxyribonucleic acid sample, stay away from children under eighteen years of age, refrain from employment or volunteer work involving children under eighteen, and have no access to the Internet.²

2. Poe's evidence. Poe called one witness at the hearing, Michael Reed, who first met Poe in 1982, and in 1989 became his case manager at the Department of Mental Retardation (department).³ Reed testified that intelligence testing conducted on Poe in 1982 indicated that he had an intelligence quotient of sixty-eight, which placed him in the mild retardation range. Poe “functions on ... probably about a sixteen, seventeen year old level.” Poe, who was forty-eight years of age at the time of the hearing, had lived with his elderly parents since 2001.⁴ When asked if plans had been made as to where Poe would live after his parents died, Reed said that Poe's parents had discussed purchasing a condominium unit for him, but if he needed a department placement in a residential facility and was classified a level three offender, he would be placed farther away from his relatives and would be under twenty-four hour supervision. Reed testified that Poe had been employed at the same supermarket for over three years, but a level three classification would probably cause Poe to lose his job and make it difficult for the department to find a work program for him that would be “secure” and not involve interaction with adolescents.

Reed testified that in the early 1990's Poe was prescribed a sex drive inhibitor, but he stopped taking it due to negative physical side effects. At the time of the hearing, Poe had an upcoming appointment with a new psychiatrist in hopes of finding a different medication. He had been seeing Dr. Traniello for sex offender treatment once per week for several years, and was preparing to begin group therapy as well. Reed testified that he envisioned Poe's treatment “continuing forever.”

Reed stated that he had discussed with Poe his latest conviction of enticing a child under the age of sixteen. He said that Poe was “quite surprised” by the prosecution because he did not believe his online conduct was “that big a deal” and he “had no intentions of acting on it.” In addition, Reed testified...