DOE 528723 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. See G. L. c. 6, § 178K (2) (c). Doe argues that his counsel at the SORB hearing provided ineffective assistance by failing to request funds for an expert to present live testimony and opine on Doe's risk of sexual reoffending. We affirm.

Background. In 2022, SORB classified Doe as a level three sex offender pursuant to G. L. c. 6, § 178K (2) (c). After SORB notified Doe of his duty to register as a level three sex offender, he challenged the initial classification. A hearing examiner conducted a de novo hearing on April 24, 2023.

Doe's governing offense was his sexual assault of a fourteen year old girl (victim one) in 2020. At the time of the offense, Doe was nineteen years old. Victim one knew Doe through Doe's brother and asked Doe for a ride when she and her cousin decided to run away from home. Doe drove victim one and her cousin to his house where he gave them alcohol. Victim one fell asleep; when she woke up, Doe was pulling down her pants and then penetrated her vagina with his penis. In September 2022, Doe pleaded guilty to a charge of indecent assault and battery, G. L. c. 265, § 13H, in connection with the incident.¹

In support of his ultimate decision to classify Doe as a level three sex offender, the examiner also relied on two other incidents of sexual misconduct. The first incident took place in 2018 and involved Doe's sexual assault of a fourteen year old girl (victim two) when Doe was sixteen years old.² Doe offered victim two a ride home in his car but drove to a pond instead of bringing her home. After they got out of the car, Doe forced victim two to fellate him and then vaginally penetrated her with his penis while he placed his hand around her neck and choked her.

The second incident of sexual misconduct took place in 2020, when Doe indecently assaulted a nineteen year old woman (victim three).³ Victim three was walking when Doe pulled up beside her in his car and offered her a ride. During the ride, Doe grabbed victim three's vagina and breast.

Despite the dismissal of the sex crimes against Doe in the two sexual misconduct incidents, the examiner found that they took place based on the victims’ detailed and plausible accounts and Doe's disclosure of corroborating details.

At the hearing, Doe submitted a report written by Dr. Barbara Quinones (report) discussing a forensic mental health evaluation she conducted at the request of Doe's criminal defense attorney on the governing offense. Citing 803 Code Mass. Regs. § 1.17(5) (2016), the examiner did not consider Dr. Quinones's ultimate risk opinion because she did not testify at the hearing.⁴ On June 26, 2023, the examiner issued a decision classifying Doe as a level three sex offender.

In July 2023, Doe appealed the SORB decision to the Superior Court. At the Superior Court hearing, Doe was represented by new counsel, who asked the judge to remand the matter for a new hearing because Doe's hearing counsel provided ineffective assistance by failing to call Dr. Quinones as a witness. The judge denied Doe's motion for judgment on the pleadings, ruling that, “based on the record, Doe has failed to make the necessary showing of serious incompetency due to the lack of in person expert testimony” and that “[e]ven if such a showing could be made, it cannot reasonably be said that such ineffectiveness resulted in prejudice such that the outcome would have been different.” The judge stated in his written decision that no explanation was given “as to why the expert was not present to testify.”

Discussion. Doe does not dispute the examiner's findings or challenge the examiner's application of risk factors. He instead argues that hearing counsel was ineffective for failing to request funds for an expert to testify and give an opinion on Doe's risk of sexual reoffending that considered SORB risk factors. Specifically, Doe argues that hearing counsel should have sought an expert in adolescent and late adolescent psychology based on information contained in the report. For the following reasons, we are not persuaded.

When considering 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” (citation omitted). Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010). If counsel is shown to be ineffective, we then determine whether any prejudice resulted -- that is, whether there is “a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different” (quotation and citation omitted). Id. at 813. “A claim of ineffective assistance of counsel should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record” (citation omitted). See Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 620 (2012) (Doe No. 27914).

SORB contends that Doe's argument is waived because Doe's hearing counsel never requested funds for an expert, and his Superior Court counsel argued only that hearing counsel was ineffective for failing to call Dr. Quinones as a witness at the classification hearing. We need not decide the waiver issue.

Even if we were to assume that Doe did not waive his claim that hearing counsel should have requested funds for an expert, his argument nevertheless fails because he has failed to demonstrate any prejudice. Doe argues only that “an expert in adolescent psychology would have assisted the examiner in understanding how Doe's brain development as an emerging adult was relevant to his recidivism risk.” Because Doe has failed to identify what information he might have submitted in support of his motion for expert funds, we are left to speculate at the effect such evidence might have had on the likelihood that the motion would have been allowed and thus unable to determine whether the outcome of the hearing would have been any different. See Doe No. 27914, 81 Mass. App. Ct. at 621 (“we are left to guess at the prejudicial effect of evidence that was not submitted at the hearing and not identified on this record”).

Doe's argument that hearing counsel was ineffective for failing to call Dr. Quinones as a live witness at the classification hearing also lacks merit. Here, the examiner admitted the report in evidence and found the report “useful in providing additional information about [Doe] and his sexual misconducts.” However, the examiner gave the report no evidentiary weight “beyond how that information related to the several [applicable risk] factors” because Dr. Quinones's opinion was based primarily on Doe's unverified self-reporting. Importantly, the examiner found that, contrary to Dr. Quinones's findings, Doe reoffended “after detection and was unnecessarily violent in one offense.” The examiner also found that, despite Dr. Quinones's assertion that “most adolescents desist on their own with maturation,” Doe's history did not fit that pattern. Given the examiner's findings about the report, it is unclear from the record -- and Doe has failed to identify -- what testimony Dr. Quinones would have provided that might have led to a different outcome. See Doe No. 27914, 81 Mass. App. Ct. at 622 (petitioner's failure to identify how proposed evidence supported ineffective assistance of counsel claim and lack of clarity of record “preclude[d] any analysis of counsel's performance or prejudice resulting therefrom”). Accordingly, we conclude that Doe has failed to demonstrate on this record “that there was a reasonable probability that his classification would have been lower if he had competent counsel.”⁵ See Poe, 456 Mass. at 815.

Judgment affirmed.

FOOTNOTES

1.   Doe received a split sentence with six months to serve and the balance suspended for two years. One count of rape of a child with force was nolle prossed, and two counts of providing liquor to a person under twenty-one were dismissed.

2.   In March 2021, in connection with this incident, Doe was charged in the Juvenile Court with two counts of rape of a child with force, one count of assault and battery, and one count of strangulation, which were all dismissed. Doe was later charged in District Court with assault and battery in connection with the same incident. In June 2022, Doe pleaded guilty and received a sentence of one year probation.

3.   Doe was arraigned in the District Court on two counts of indecent assault and battery. On June 9, 2021, the charges were dismissed at the Commonwealth's request.

4.   Pursuant to 803 Code Mass. Regs. § 1.17(5)(c), “failure to call the Expert Witness to testify at the hearing will result in the exclusion of so much of the report as expresses the Expert Witness's opinion as to the sex offender's risk of reoffense or degree of dangerousness.”

5.   Doe also points to several “other indicators of hearing counsel's incompetence,” chief among them that the hearing counsel's closing argument consisted of three sentences. Doe, however, has made no attempt in his brief to identify the prejudice from these acts. Moreover, Doe concedes that these other indicators are not “as serious as the failure to seek expert funds.”