Loe v. Sex Offender Registry Board , 73 Mass. App. Ct. 673 ( 2009 )

Green, J.

In this appeal, the plaintiff contends that ineffective assistance of appointed counsel at his classification hearing before the Sex Offender Registry Board (board) caused him to be classified as a level three sex offender. The parties disagree on the standard under which his claim of ineffective assistance should be evaluated. Our review of the record leads us to conclude that the disagreement is immaterial; even were we to assume, favorably to the plaintiff, that the standard articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), should apply, we agree with the Superior Court judge’s assessment that the plaintiff has not established that better work by counsel would have accomplished anything of material benefit to the plaintiff. We accordingly affirm the judgment of the Superior Court and the order denying the plaintiffs motion for a new hearing before the board.

Background. The bulk of the material facts came into evidence at the administrative hearing as undisputed documentary information. The findings of the hearing examiner accurately summarize that information as follows.

On June 21, 1989, the petitioner approached his twenty-eight year old former girlfriend as she attempted to leave work in a taxicab. He forced her out of the taxicab and into his car, and drove her to the parking lot behind his house. In the process, he kicked her in the stomach, struck her in the face multiple times, and threatened her with a baseball bat. He then raped and threatened to kill her. When she reached home, she called the police and went by ambulance to the hospital. The defendant admitted the assault but claimed the sex was consensual. He subsequently pleaded guilty to the rape and received a sentence of from six to nine years.

On May 7, 1990, while awaiting sentencing for the rape, the plaintiff stabbed two individuals, one in the neck, the other in the chest. He pleaded guilty to armed assault with intent to kill, G. L. c. 265, § 18, and received a five- to eight-year sentence to run consecutively from the sentence for the rape.

In the same time period, the plaintiff was found guilty of possessing a firearm without a license, G. L. c. 269, § 10; of possessing a firearm with serial number removed, G. L. c. 269, § 11B; of assault and battery, G. L. c. 265, § 13A; of a threat to commit a crime, G. L. c. 275, § 2; and of concealing leased property, G. L. c. 265, § 87. He received concurrent one-year terms for these offenses.

While incarcerated, the plaintiff accrued eight disciplinary reports. The offenses included fighting with an inmate, insubordination for refusing to obey an order, possession of an illicit alcoholic substance, stealing, possession of a nine-inch long metal pipe with a one-quarter inch diameter, and threatening to stab a sex offender therapist.

The plaintiff completed the first three phases of a sex offender treatment program, but declined to participate in the fourth and final phase.² Though the plaintiff had used marijuana and alcohol prior to incarceration, he refused treatment for substance abuse during his incarceration.

The plaintiff was released on November 27, 2002. On July 27, 2003, he assaulted his sister and his physically and mentally disabled father.³ They obtained an abuse prevention order. The plaintiff thereafter pleaded guilty to domestic assault and battery.

Upon completion of his sentences for the criminal offenses, the board in 2003 preliminarily assigned the plaintiff a level three classification. The plaintiff challenged that classification, and was appointed counsel to represent him before the board. After an evidentiary hearing, the hearing officer issued an eighteen-page memorandum of decision, finding the plaintiff to be at high risk of reoffending and ordering him to register as a level three sex offender. The plaintiff appealed to the Superior Court, where the hearing officer’s decision was affirmed. The plaintiff filed a notice of appeal to this court, and was assigned new counsel.⁴ Appellate counsel then sought a stay of proceedings in this court, to allow her to pursue a motion in the Superior Court for a new hearing before the board, claiming that prior counsel had furnished ineffective assistance. A judge of the Superior Court denied that motion, and the plaintiff’s ensuing appeal from the denial was consolidated with his appeal from the judgment affirming the hearing officer’s decision.

Discussion. As we observed in the introduction, the parties disagree on the standard that should apply to the plaintiff’s claim of ineffective assistance of counsel. The plaintiff argues that the standard should be the same as applies to claims of ineffective assistance in the criminal context, under Commonwealth v. Saferian, 366 Mass, at 96. The board responds, and we agree, that we need not resolve the question whether Saferian should apply to claims of ineffective assistance before the board, because the plaintiff has not established an entitlement to relief in the present case, even if we were to assess his claim under the Saferian standard.* ⁵

For purposes of our analysis, we recognize that the plaintiffs counsel displayed numerous shortcomings before the board.⁶ However, serious shortcomings in the performance of counsel do not alone suffice for relief under Saferian; to be entitled to relief, a party claiming ineffective assistance must establish that “better work might have accomplished something material for [him].”⁷ Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The plaintiff in the present case can make no such showing; the facts before the hearing officer compelled a level three classification, under the guidance of the factors specified in the applicable regulations.

The plaintiff had used significant force to commit the sexual offense. See 803 Code Mass. Regs. § 1.40(8) (2004). At the time of hearing he had been in the community for eleven months, while the highest risk period for recidivism extended for five years. See 803 Code Mass. Regs. § 1.40(9)(a). The sexual offense was violent. See 803 Code Mass. Regs. § 1.40(9)(c)(12). The victim was a person outside his family, a circumstance enlarging the potential pool of victims. See 803 Code Mass. Regs. § 1.40(7). The plaintiff had a history of violent nonsexual offenses. See 803 Code Mass. Regs. § 1.40(9)(b), (c)(6). He continued to deny that he had raped the victim. See 803 Code Mass. Regs. § 1.40(9)(c)(13). Neither in nor out of prison had he adequately participated in the sex offender treatment program. See 803 Code Mass. Regs. § 1.40(11), (17). His behavior during and after incarceration had not been satisfactory. See 803 Code Mass. Regs. § 1.40(19). The plaintiff had a history of substance abuse. See 803 Code Mass. Regs. § 1.40(16). He had committed crimes during pretrial probation. See 803 Code Mass. Regs. § 1.40(20). Finally, he was not supervised in the community. See 803 Code Mass. Regs. § 1.40(10).

The plaintiff’s claims of harm resulting from hearing counsel’s shortcomings are unpersuasive. Specifically, the plaintiff cites counsel’s failures (1) to generate favorable letters from family and friends; (2) to retrieve sex offender treatment records from prison; (3) to prepare the plaintiff for direct and cross-examination at the board hearing; and (4) to submit appropriate written argument in the board hearing or oral argument before the Superior Court.

As evidence of the benefit lost by reason of the first listed failure of counsel, the petitioner points to letters, which his family and friends would have submitted if asked by counsel, generally attesting to his good character, work ethic, and stable lifestyle. One came from his sister, who acknowledged the petitioner’s affinity for alcohol: “When [he] drmk[s] [he] get[s] very nasty but not in the sense to hurt anyone.” She concluded cryptically, “I’m not sure what I can write or say in [the plaintiffs] behalf to make you believe he won’t commit another sex offense. But like I said, I will stand by him always.” Another came from a neighbor; it acknowledged that the petitioner had “a bit of a drinking problem.” Such endorsements would not have affected the result. The record already established the plaintiff’s substance abuse and the recent assault on his family members. In any case, the hearing examiner acknowledged in his decision that the plaintiff was “trying to manage his alcoholism.”

Similarly unavailing is plaintiffs charge that counsel had the opportunity but did not request sex offender treatment records from prison authorities. The plaintiff does not describe what favorable facts those records would have revealed. More significantly, the plaintiff’s failure to participate in the fourth phase of sex offender treatment, his threat to his therapist, and his continuing denial of the rape overcame any potential prejudice from submission of the records themselves.

The plaintiff likewise suffered no harm by reason of adverse information elicited through his unprepared testimony on direct and cross-examination. He denied raping the victim; he admitted to using cocaine after he had committed the rape but before incarceration; he stated that he would “really end up hurting someone” if he did not stop drinking; he explained that the assault on his sister consisted of putting her in a headlock after consuming “18 Heinekens”; and finally he elaborated on the circumstances leading to the stabbing of the two individuals before his incarceration. However inauspicious they may have been, such admissions did not affect his classification. He had denied committing the rape in his letter to the board. Independent evidence of substance abuse and of his inadequate effort to address the problem was abundant. The police reports describing the stabbing and the assault on his sister and father were in the record.

Finally, the failure of hearing counsel to submit appropriate written argument at the board hearing, or oral argument before the Superior Court, did not affect the result. The undisputable information in the administrative proceedings compelled the classification. The motion judge accurately observed that better work or different counsel would not have altered the outcome in either the board or the court.

We affirm the judgment and the order denying the motion for a new administrative hearing.

So ordered.

2 In his memorandum of decision, the hearing examiner observed that

“the last phase . . . is by far the most intensive component. To reach this phase, an inmate must have abandoned any expressions of denial, and must have developed victim empathy. . . . Thus, the evidence of the [p]etitioner’s completion of partial treatment, in context, does not alone . . . signify any measure of substantial achievement.”

See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 811-813 (2006) (continuing denial of the offense is a legitimate enhancing factor; application of that factor to the facts must be rational).

3 The offense occurred three months before the board hearing.

4 Prior counsel had represented the plaintiff both before the board and in the appeal to the Superior Court.

5 We note that the sex offender registration context differs from the criminal setting in several respects material to application of the Saferian standard. Quite apart from any differences in the interests at stake are a variety of procedural questions in the handling of such claims. For example, though the concurrence suggests that a claim of ineffective assistance of counsel should be directed to the board hearing examiner, see post at 687 n. 7, we are aware of no other setting in which such a claim is directed for resolution to an administrative agency in the first instance, and we note that the plaintiff in the present case raised his claim by motion in the Superior Court. Though the parties have vigorously briefed and argued the question whether the plaintiff’s representation fell short of the Saferian standard, they have addressed no argument whatsoever to the procedural or practical details of how claims should be administered under Saferian. In the absence of briefing on the subject, and without any need to address the question in order to resolve the case before us, we are reluctant to join the suggestion in the concurrence that hearings on such claims should be considered by the hearing officers of the board, though we acknowledge the analogy between the role played by the board in the present setting and that occupied by the trial court in the criminal context. We believe it better to evaluate such questions in the context of a case where the answer will make a difference in the outcome.

6 Hearing counsel did not advise the plaintiff of his right to submit letters from family and friends attesting to his current character and lifestyle; he was unfamiliar with the facts; he attempted to cross-examine the board’s attorney under the impression that he was a witness for the board; he allowed the plaintiff to testify without preparation for direct or cross-examination; he did not timely request the plaintiff’s sex offender treatment records; he was not aware of the twenty-four factors codified by 803 Code Mass. Regs. § 1.40 (2004), as the indicia of the risk of reoffense; before the board he waived his closing argument and did not file proposed findings of fact and conclusions of law; and in the Superior Court he filed a motion for judgment on the pleadings without citation to the voluminous record, did not provide a supporting memorandum of law, and waived a hearing on the motion. This conduct conflicted with numerous performance standards promulgated by the Committee for Public Counsel Services for the representation of indigent persons in sex offender registration proceedings.

7 UnIike the criminal setting out of which Saferian arose, the party seeking relief in the present context is the plaintiff.