DOE 526472 v. SEX OFFENDER REGISTRY BOARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level three sex offender. See G. L. c. 6, § 178K (2) (c). On appeal, Doe argues that: (1) SORB abused its discretion when it applied factor two (repetitive and compulsive behavior) and factor seven (relationship to the victim); (2) that his counsel provided ineffective assistance by having Doe testify, thereby eliciting additional evidence of Doe's criminal behavior and substance abuse; and (3) that the hearing examiner failed to make the necessary finding that Internet publication was necessary in Doe's case. In light of SORB's concession that factor two was improperly applied, we vacate the judgment and remand for further proceedings.

Background. In 2017, the twelve year old daughter of Doe's girlfriend reported that Doe had been sexually assaulting her for two years. The victim lived with Doe, and Doe was the father of the victim's three half-siblings. In her statements to the police (contained in a police report in evidence), the victim explained that, among other things, Doe had placed his mouth on her breasts and vagina, had penetrated her, and on one occasion had given her chocolate that made her “high” before assaulting her. The abuse occurred several times a week and began when the victim was ten years old and Doe was thirty-nine years old. The victim repeatedly told Doe to stop and said she would tell her mother, but Doe threatened to hurt the victim or her mother if she disclosed the abuse, and told the victim that she would be tearing the family apart. When asked, Doe told the victim he was not similarly abusing her half-siblings because “they're my blood, you're not my kid.”

Doe pleaded guilty to six counts of indecent assault and battery on a child under fourteen, one count of assault and battery, and one count of threatening to commit a crime.² He was sentenced to concurrent twenty-two month terms in a house of correction, and probation to be completed on October 25, 2021.

In October 2018, SORB notified Doe of his duty to register as a level three sex offender. Doe requested a hearing, which was held on May 13, 2019. At the hearing, Doe testified on his own behalf. He described his feelings of remorse, the familial support available to him, and his determination not to reoffend. During his testimony on direct examination, Doe also admitted that he had penetrated the victim, and that he had alcohol and substance abuse issues at the time. Doe had not previously pleaded guilty to offenses that involved penetration, and there was no other evidence regarding his alcohol and substance abuse issues.

Following the hearing, the hearing examiner again classified Doe as a level three sex offender. The hearing examiner applied the following high-risk and risk-elevating factors, among others: factor two (repetitive and compulsive behavior), factor three at an elevated weight (adult offender with child victim), factor seven (relationship between the offender and the victim), factor nine (alcohol and substance abuse), factor eighteen (extravulnerable victim), and factor nineteen (level of physical contact). The hearing examiner applied factor two at a threshold weight because Doe “sexually assaulted the [v]ictim multiple times per week during a two year period.” She also applied factor seven by classifying Doe's relationship to the victim as extrafamilial at the beginning of their relationship, and intrafamilial after Doe and the victim had lived in the same household for two years. The examiner applied risk-mitigating factor twenty-eight (supervision by probation or parole) in Doe's favor. The examiner did not give much weight to Doe's other evidence in mitigation, primarily because it was not supported by corroborating documents.

In concluding that Doe met the level three standards, the examiner emphasized “especially [Doe's] repetitive and compulsive behavior against an extrafamilial child victim,” which “continued despite her protests and clearly knowing his behavior was wrong.” A Superior Court judge affirmed the examiner's decision.

Discussion. 1. Factor two -- repetitive and compulsive behavior. A recent Superior Court judgment declared factor two, 803 Code Mass. Regs. § 1.33(2) (2016), the repetitive and compulsive factor, to be invalid in part -- that is, to the extent that it “attribute[ed] a high risk of reoffense whenever an offender committed two or more episodes of sexual misconduct, whether or not the offender was discovered, confronted or investigated between episodes ․” See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B, slip op. at 26 (Apr. 16, 2021) (Wilkins, J.) (Doe No. 22188). SORB did not appeal from that judgment, and more saliently, it concedes that factor two should not be applied in this case. SORB, however, urges us to affirm Doe's level three classification on the basis of the evidence and the remaining factors. Doe contends that inasmuch as factor two should not have applied, the judgment must be vacated and the matter remanded.

We are mindful that the hearing examiner applied several high-risk and risk-elevating factors that clearly apply -- such as factor three (adult offender with child victim), factor eighteen (extravulnerable victim), and factor nineteen (level of physical contact). There are also several indications that Doe continued the abusive behavior despite knowing that his behavior was wrong -- for example, he threatened to hurt the victim or her mother if the victim disclosed the abuse. Nevertheless, inasmuch as factor two was incorrectly applied here,³ we cannot say that factor two did not materially impact the hearing examiner's ultimate classification decision, particularly given the hearing examiner's reasoning that Doe's classification was based “especially [on Doe's] repetitive and compulsive behavior ․” (emphasis added). Given that the appropriate classification level is not “clearly dictate[d]” based on the underlying facts, we must vacate and remand. Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 657 n.4 (2019) (Doe No. 496501). Although we remand on this issue, we also discuss Doe's remaining arguments, to provide further guidance to the hearing examiner on remand.

2. Factor seven -- relationship between offender and victim (extrafamilial). Doe next argues that the hearing examiner erroneously applied factor seven by classifying the victim as extrafamilial rather than intrafamilial, given that Doe lived with the victim and she referred to him as her stepfather. However, the regulation is very specific on this issue: in applying factor seven, a relationship is considered extrafamilial as to “[a]ny persons who are family member substitutes (e.g. foster, step-relatives, or any other type of familial household ‘live-in’ relationship) who lived in the same household with the offender for less than two years prior to the offending behavior.” 803 Code Mass. Regs. § 1.33(7)(2)(b) (2016). Here, the hearing examiner appropriately applied factor seven by classifying the relationship between the victim and Doe as extrafamilial until November 2015 -- the date at which the victim and Doe had lived together for two years -- and intrafamilial thereafter. The examiner's application of the regulation was rational, and Doe's request that the hearing examiner refrain from “apply[ing] the strict letter of the regulation” is without merit.

3. Ineffective assistance. Doe also argues that his counsel's actions -- specifically, having Doe testify, thereby eliciting testimony regarding Doe's penetration of the victim and Doe's alcohol and substance abuse -- deprived him of his right to effective assistance of counsel. Doe has failed to demonstrate ineffective assistance on this record.

At the outset, we note that while ineffective assistance of counsel claims can be raised in the context of a SORB proceeding, see Poe v. Sex Offender Registry Bd., 456 Mass. 801, 811 (2010), Doe's ineffective assistance of counsel argument was not raised before the Superior Court. Appellate counsel notes that the same counsel represented Doe before the hearing examiner and the Superior Court, and argues that therefore this is Doe's first opportunity to raise his ineffective assistance claim. Ineffective assistance claims, however, should only be presented on direct appeal “when the factual basis of the claim appears indisputably on the trial record -- that is, where the issues do not implicate any factual questions more appropriately resolved by [the hearing examiner]” (citation omitted). Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 620-621 (2012). There is no such indisputable factual record here.

Doe bears the burden of showing (1) that his counsel's behavior fell “measurably below that which might be expected from an ordinary fallible lawyer” and (2) that counsel's behavior was prejudicial to Doe's case. Poe, 456 Mass. at 812, quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). Strategic decisions made by counsel may only rise to the level of ineffective assistance if they were “manifestly unreasonable” when made. Id. at 814. See Loe v. Sex Offender Registry Bd., 73 Mass. App. Ct. 673, 685 (2009) (Sikora, J., concurring). Furthermore, the absence of an affidavit from trial counsel weakens an ineffectiveness claim. Id.

Doe's fundamental argument is that counsel should not have presented his testimony. On this record, however, we do not know the basis for counsel's decision-making, nor do we know whether Doe insisted on testifying. We note that prior to Doe testifying, the examiner denied Doe's motion to exclude hearsay contained within the police report, including statements to the effect that Doe had penetrated the victim and that Doe had given her chocolate that made her “high” prior to abusing her. Having failed to exclude those statements, counsel may have made a tactical decision to address them by demonstrating Doe's acceptance of responsibility and awareness of how alcohol and substance abuse contributed to his abuse of the victim. Indeed, counsel stated in his closing argument that given “[Doe's] work that he's done ․ to understand [the abuse] means that he'll be of significantly less risk to reoffend.” Under the circumstances, Doe has not met his burden to show ineffective assistance of counsel.

4. Internet publication. The hearing examiner's decision precedes Doe No. 496501, in which the Supreme Judicial Court held that, prospectively, SORB would be required to make an explicit finding as to Internet dissemination. See Doe No. 496501, 482 Mass. at 656-58. Given that the case is being remanded for reconsideration, on remand the hearing examiner should make explicit findings about “whether and to what degree public access to [Doe's] personal and sex offender information ․ is in the interest of public safety.” 803 Code Mass. Regs. § 1.20(2)(c) (2016).

Conclusion. The judgment is vacated, and a new judgment shall enter remanding the case to SORB for further proceedings consistent with this memorandum and order.

So ordered.

Vacated

FOOTNOTES

2.   Two of the indecent assault and battery charges were originally charged as aggravated rape.

3.   As noted, factor two was not invalidated in toto; it applies in circumstances where the offender has “been confronted, apprehended, or charged before the subsequent offense occurs.” See Doe No. 22188, slip op. at 16.