Opinion
No. 11–P–1252.
2013-05-14
John DOE, Sex Offender Registry Board No. 407 v. SEX OFFENDER REGISTRY BOARD.
By the Court (TRAINOR, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff was classified as a level three (high risk) sex offender by the Sex Offender Registry Board (board) pursuant to G.L. c. 6, § 178K(2)( c ). The plaintiff appealed and a judge of the Superior Court affirmed the decision of the board. The plaintiff then filed a motion pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974), seeking remand of the case to the board with instruction to consider the effect of the plaintiff's age on his risk of reoffense and to allow him to file a motion for funds to secure expert testimony on that issue, in light of Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612 (2010) ( Doe, No. 151564 ). The motion was denied. On appeal, the plaintiff argues that he is entitled to a remand because (1) the Superior Court judge abused her discretion in denying the motion, and (2) the plaintiff's right to due process was violated by his counsel's ineffective assistance in failing to present evidence of the effect of age on recidivism to the board. We affirm.
Discussion. 1. Standard of review. “ Rule 60(b)(6) authorizes relief from a final judgment in cases involving extraordinary circumstances, or whenever such action is appropriate to accomplish justice.” Hermanson v. Szafarowicz, 457 Mass. 39, 48 (2010) (citations and quotations omitted). “A motion pursuant to rule 60(b)(6) is addressed to the discretion of the judge, and will not be reversed on appeal save for abuse' of that discretion.” Owens v. Mukendi, 448 Mass. 66, 72 (2006) (citations and quotations omitted).
This appeal presents only one issue-whether the plaintiff is entitled to a remand and a motion for funds in view of Doe, No. 151564, supra. Although the plaintiff filed a timely notice of appeal from the judgment on the pleadings, that appeal has been abandoned. See Mass.R.A.P. 16(a)(2), 365 Mass. 860 (1974), and Mass .R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
2. Denial of relief under rule 60(b). A. Remand in light of Doe, No. 151564. The judge denied the plaintiff's rule 60(b) motion, reasoning that he “failed to offer any evidence on the age issue and such evidence was not precluded by law or custom.”
We agree. See Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 810 (2006) (issues not raised before board are waived). In Doe, No. 151564, the court explained that even though age is not listed as a factor in the board's regulations, “[t]here was substantial evidence presented at the hearing concerning the effect of age on recidivism. Because Doe was sixty-one at the time of the hearing, it was arbitrary and capricious for the board to classify Doe's ‘risk of reoffense and degree of dangerousness,’ G.L. c. 6, § 178K(1), without considering this evidence.” 456 Mass. at 622–623.
The judge was correct that “such evidence was not precluded by law or custom.” The counsel who represented the plaintiff before the board submitted an affidavit stating that he “did not make a motion for funds for an expert or seek to introduce age-related evidence in this case at the hearing level, because [he] knew such motions and arguments would be futile according to the state of the law in the Commonwealth at that time.” In fact, no law prohibited the board from considering the evidence. See Doe, No. 151564, 456 Mass. at 622–623. Contrast Commonwealth v. Vasquez, 456 Mass. 350, 356 (2010) (objection to admission in evidence of drug certificates would have been futile, because before the decision in Melendez–Diaz v. Massachusetts, 557 U.S. 305 [2009], judge required to follow Commonwealth v. Verde, 444 Mass. 279 [2005] ). In addition, counsel's affidavit did not state, and the record does not show, that attempts in other cases to introduce such evidence were consistently denied by the board. Contrast Doe, Sex Offender Registry Bd. No. 73946 v. Sex Offender Registry Bd., 79 Mass.App.Ct. 901, 902 (2011). Even if counsel believed a motion for funds would not be successful, he was not prohibited from presenting evidence as counsel did in Doe, No. 151564, supra at 621 (counsel “presented evidence of numerous scientific and statistical studies, published during the last decade, that conclude that age is an important factor in determining the risk of recidivism and that such risk diminishes significantly as an offender ages”).
Doe, No. 151564 is distinguishable from the present case because the plaintiff in this case presented no evidence to the board on the issue of the effect of his age (fifty-six at the time of the hearing) on his risk of reoffense and degree of dangerousness. Even if we took judicial notice of the fact that there is a relationship between an offender's age and the twin issues of recidivism and dangerousness, see Doe, No. 151564, supra at 62 n. 5, without evidence of how such a relationship might affect the plaintiff specifically, it is not possible to determine whether consideration of such evidence would have been material to the hearing examiner's determination that the plaintiff should be classified as a level three offender. Neither this court, nor the trial judge, can take judicial notice of how the scientific evidence discussed in Doe, No. 151564 would affect the classification of the plaintiff here. See Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 618–619 (1989); Wexler v. Stanetsky Memorial Chapel of Brookline, Inc., 2 Mass.App.Ct. 750, 752 (1975). In any case, the board is not required, in every case, to consider an offender's age as affecting his risk recidivism and dangerousness. The judge therefore did not abuse her discretion in denying the motion.
The court also ruled that the plaintiff there was entitled to file a motion for funds to secure an expert witness on that issue pursuant to Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764 (2008). See Doe, No. 151564, 456 Mass. at 624. Because we conclude that no remand is warranted, it is unnecessary for us to consider the plaintiff's argument that he was entitled to file a motion for funds to hire an expert.
B. Ineffective assistance of counsel. The plaintiff's alternative argument is that he is entitled to relief because his counsel was ineffective in not bringing the evidence of the effect of age on recidivism to the board's attention and in not filing a motion for funds to secure relevant expert testimony. “[S]ex offenders are entitled to the effective assistance of counsel at classification hearings and ... the civil formulation of the Saferian standard governs claims of ineffectiveness.” Poe v. Sex Offender Registry Bd., 456 Mass. 801, 811 (2010). As noted earlier, without any evidence in the record other than the bald assertion, based on the discussion in Doe, No. 151564, supra, that scientific evidence on the relationship between an offender's age, and his risk of recidivism and dangerousness exists, we cannot evaluate whether failure to present such evidence below was “manifestly unreasonable,” whether it “likely deprived the [fifty-six-year-old plaintiff] of an otherwise available, substantial ground of defence,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), or, ultimately, whether the failure requires extraordinary relief under Mass.R.Civ.P. 60(b). See Commonwealth v. DiRusso, 60 Mass.App.Ct. 235, 238 (2003) (“Absent support in the record, the defendant's claim of ineffective assistance is not properly presented for our consideration”). See also Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 610, 620 (2012) (“[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal. 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”) (citations and quotations omitted).
Order denying motion for relief from judgment affirmed.