DOE 523868 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, John Doe, appeals from a judgment of the Superior Court denying his motion for judgment on the pleadings and affirming the Sex Offender Registry Board's (SORB's) final classification of him as a level 2 sex offender. SORB concedes that Doe's counsel's representation of him before the hearing examiner fell “measurably below that which might be expected from an ordinary fallible lawyer,” Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 620 (2012), quoting Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010), when counsel introduced in evidence records of a group home in Carver that contained harmful evidence about Doe's substance abuse, mental health, and conduct. Counsel acknowledged in an affidavit that he saw these records for the first time the morning of the hearing and did not go through all of them before submitting them. SORB argues, however, that the effect of counsel's failure was not prejudicial.

As SORB concedes, the group home records were the basis upon which the hearing examiner applied “full aggravating weight” to one aggravating factor, factor 9 (history of alcohol and substance abuse), and were extensively cited in the hearing examiner's decision to give significantly less mitigating weight to factor 33 (home situation and support systems). To succeed on a claim of ineffective assistance of counsel in SORB cases, Doe must demonstrate that “counsel's serious incompetency” was prejudicial. Poe, 456 Mass. at 813. “We have defined prejudice in ineffectiveness claims as a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different” (quotations and citations omitted). Id. Given the extent to which the evidence introduced as a result of counsel's failure was intertwined with two important factors in the hearing examiner's conclusion, indeed with the entirety of the hearing examiner's report –- and although we express no opinion on his proper classification in light of all the evidence -– we think Doe has met his burden here. Contrast Poe, supra at 815-817.

Consequently, the judgment of the Superior Court is vacated and a new judgment shall enter remanding the case to SORB for initiation of a new proceeding before a hearing examiner who has not been exposed to the records in question.² We note that, of course, any findings that the hearing examiner might make on remand must comply with the requirements set out in the recent Supreme Judicial Court decision in Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019). Furthermore, our decision is without prejudice to Doe filing a new motion for funds for an expert supported by arguments more thorough than those previously presented.³

So ordered.

Vacated.

FOOTNOTES

2.   In light of this disposition, we need not address the other arguments put forward by Doe.

3.   Although SORB has conceded that the records obtained from the group home may not be introduced in the event of a remand, we express no opinion as to what information SORB may properly put before the hearing examiner, any question with respect to which should be addressed in the first instance before the hearing examiner, with any rulings subject to appeal in the ordinary course.