JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 209081 vs. SEX OFFENDER REGISTRY BOARD.
SJC-12282
Supreme Judicial Court of Massachusetts
September 5, 2017. - December 6, 2017.
Middlesex. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
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Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Rehearing, Proceedings before agency, Regulations. Regulation. Waiver.
Civil action commenced in the Superior Court Department on August 3, 2015.
A motion to dismiss was heard by Peter B. Krupp, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Rebecca Rose for the plaintiff.
David L. Chenail for the defendant.
Elizabeth Caddick, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
BUDD, J. In 2008, the Sex Offender Registry Board (board), after a hearing, classified the plaintiff, John Doe, as a level three sex offender. Doe did not appeal from that decision. Over six years later, he sought to reopen his classification hearing, contending that the board violated his procedural due process rights when it went forward with his hearing without ensuring that his waiver of counsel was knowing and voluntary. When the board
We conclude that the board did not abuse its discretion in denying the plaintiff‘s petition to reopen his classification hearing where the petition, which was filed six years after the board‘s final decision, did not adequately explain the delay and did not allege prejudice.1 Although we do not reach the plaintiff‘s due process claim, we caution that pursuant to the board‘s own regulations, the board must ensure that sex offenders who choose to represent themselves at classification hearings “knowingly and voluntarily” waive their statutory right to counsel.2 See
Background.
On two different dates in 2008, the plaintiff pleaded guilty to one count of indecent assault and battery on a person over fourteen, and to two counts of rape and abuse of a child.3 In June, 2008, while the plaintiff was incarcerated for the first conviction, the board notified him of his duty to register with the board as a sex offender and preliminarily classified him at level three.4 The plaintiff requested a hearing to challenge the board‘s classification recommendation by filling out a form provided
At the October, 2008, hearing, however, the plaintiff refused to sign a waiver of counsel form and told the hearing examiner that, in fact, he did not wish to appear without counsel. The plaintiff indicated that he had expected that his criminal defense attorney would be present, and that there had been a misunderstanding regarding his representation. The hearing examiner treated the plaintiff‘s statements as a motion to continue the hearing so that the plaintiff could obtain an attorney, but denied the motion based on the plaintiff‘s initial indication, on the written board form, that he would represent himself.5 The plaintiff did not offer any evidence during the hearing. In a decision issued on November 18, 2008, the hearing examiner ordered the plaintiff to register as a level three sex offender based on the evidence introduced by the board.
The plaintiff waited more than six years, until after he had completed his criminal sentence, including five years of probation, to file in June, 2015, a petition to reopen the initial classification hearing with the board. In the petition, plaintiff claimed that the hearing examiner‘s actions during the 2008 proceeding deprived him of his due process rights and violated the board‘s regulations. Specifically, the plaintiff contended that he had had insufficient time to prepare for the hearing, and that the hearing examiner failed to telephone the plaintiff‘s criminal defense attorney or postpone the hearing after becoming aware that the plaintiff was confused without his attorney. Further, the plaintiff claimed that it was error for the hearing examiner to proceed with
The board summarily denied the plaintiff‘s petition to reopen on the grounds that it was untimely and the plaintiff had (initially) indicated that he would represent himself. The plaintiff timely filed in the Superior Court a complaint for judicial review of the board‘s denial of his petition. See
Discussion.
1. The board‘s denial of the plaintiff‘s request to reopen the classification hearing.
The board has inherent authority to reopen a classification proceeding and reconsider its decision at any time, by motion of the sex offender or by the board‘s own motion. Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 395-396 (2013) (Soe). One reason the board may decide to reconsider a sex offender‘s classification level after it has become final is to prevent or mitigate a miscarriage of justice.7 Id. at 394-395. The board‘s broad inherent authority in this area is “reviewable only for an abuse of discretion.” Id. at 396. We note that “[i]n general, administrative agencies have broad discretion over procedural aspects of matters before them.” Zachs v. Department of Pub. Utils., 406 Mass. 217, 227 (1989). When reviewing an agency‘s decision for abuse of discretion, we look to see whether the decision was reasonable. See Soe, supra at 392-393; Zachs, supra at 228; Massachusetts Elec. Co. v. Department of Pub. Utils., 376 Mass. 294, 307-308 (1978).
An agency‘s inherent power to reopen proceedings “must be
Here, we agree with the Superior Court judge that the board did not abuse its discretion in denying the plaintiff‘s petition to reopen the hearing.8 First, the plaintiff has failed to explain adequately his six-year delay in responding to the board‘s classification decision. The hearing examiner informed the plaintiff that he had thirty days from the receipt of the board‘s decision to seek judicial review of that decision. The hearing examiner further suggested that the plaintiff should consult an attorney regarding his appellate rights. In addition, the board‘s final classification decision included notice in three places, in bold and all capitalized print, that he had thirty days to appeal that decision to the Superior Court. Despite the plaintiff‘s claim that he mistakenly believed that he could not pursue an appeal of the board‘s classification decision until after he completed his sentence, the repeated references to the thirty-day deadline for filing an appeal provided more than adequate notice that, at the very least, he needed to explore his appeal options in a more timely way.
Second, although it is apparent that the board failed to ensure that the plaintiff knowingly and voluntarily waived his right to be represented by counsel at his classification hearing, the plaintiff failed to articulate in any manner how he was prejudiced by the error. The plaintiff‘s petition does not include an affidavit or,
Finally, the sex offender registration system administered by the board provides a plaintiff with the right to a new reclassification proceeding.
That judicial review of both the board‘s final classification and its reclassification decisions is subject to the timing constraints of
2. Right to counsel in Sex Offender Registry Board classification proceedings.
Because we conclude that in the circumstances of this case, the board did not abuse its discretion in declining to reopen the plaintiff‘s classification proceeding, we do not reach the plaintiff‘s claim that his right to counsel at the hearing was denied. That being said, it is clear from the record that the hearing examiner required the plaintiff to proceed pro se despite concluding that the plaintiff wanted to be represented by counsel. We therefore make the following observations.
“[A] sex offender is . . . entitled by statute to request an evidentiary hearing to challenge the board‘s recommended classification, to be represented by counsel at that hearing and to have counsel appointed if he is indigent.” Doe, Sex Offender Registry Bd. No 941 v. Sex Offender Registry Bd., 460 Mass. 336, 339 (2011). See
3. Conclusion.
For the reasons stated above, we remand the case to the Superior Court for entry of a judgment affirming the board‘s decision denying the plaintiff‘s petition to reopen the initial classification hearing.
So ordered.
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 209081 vs. SEX OFFENDER REGISTRY BOARD.
SJC-12282
Supreme Judicial Court of Massachusetts
September 5, 2017. - December 6, 2017.
GANTS, C.J. (dissenting, with whom Lenk, J., joins). In 2013, we declared in Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 395 (2013) (Soe), that the Sex Offender Registry Board (board) “has the inherent authority to reconsider a decision or reopen a proceeding to prevent or mitigate a miscarriage of justice.” We also declared that the board‘s decision not to exercise such authority is reviewable for an abuse of discretion. Id. at 396. Where, as here, the plaintiff petitioned to reopen his initial classification hearing on the ground that he was required to proceed without counsel despite his refusal to make a knowing and voluntary waiver of that statutory right at the hearing, I believe that it is an abuse of discretion for the board to deny the petition without deciding whether reopening the hearing is necessary to prevent or mitigate
The material facts in this appeal are not in dispute. When the plaintiff requested a hearing on the board‘s initial classification of him as a level three sex offender, he checked the box that read, “I will represent myself at the hearing.” At the time he checked this box on July 11, 2008, the plaintiff was serving a sentence in a house of correction after pleading guilty to one count of indecent assault and battery on a person over fourteen years of age, and was represented by counsel in a pending criminal case. At the classification hearing, the plaintiff appeared without counsel. The plaintiff, when advised of his rights by the hearing examiner, refused to sign the written waiver of his right to counsel, and told the hearing examiner, “I don‘t want to waive my [right to] counsel.”1 The hearing examiner understood that the plaintiff wished to have an attorney appointed or to retain his own attorney, but denied the request and proceeded with the hearing. The board offered in evidence the classification report and its five attachments, and rested its case. When asked by the hearing examiner whether he intended to present evidence, the plaintiff replied, “I‘m not sure what evidence I need to present to the [b]oard.” He offered no evidence in his defense.
The board concedes that the hearing examiner “blew it” when he refused to continue the hearing to allow the plaintiff to obtain counsel. At the time of the hearing, the board‘s regulations provided that a sex offender may represent himself at the hearing only after the offender signs a statement declaring that “he knowingly and voluntarily has waived” his right to counsel.
The plaintiff, although notified of his right to appeal from the board‘s final determination that he was a level three offender, did not timely seek judicial review of that determination. In 2015,
The plaintiff filed a complaint for judicial review of the board‘s denial of his petition. The Superior Court judge in 2016 allowed the board‘s motion to dismiss the complaint, concluding that “[the b]oard‘s regulations do not authorize a petition to the hearing examiner to reopen a hearing or conduct a new hearing once a decision is final.” The judge‘s conclusion was factually accurate but an error of law. Although the board‘s regulations do not specifically countenance petitions for reconsideration or reopening of a hearing, this court had declared in 2013 in Soe, 466 Mass. at 395, that the board retains the inherent authority to reconsider a decision or reopen a proceeding to prevent or mitigate a miscarriage of justice.
The judge also stated an alternative ground for the dismissal: that the board did not abuse its discretion in denying the petition because the petition was not timely, given the delay of more than six years. This, too, was an error of law, because the public interest in finality is not so great that it justifies the failure to rectify a miscarriage of justice.
“Although the public‘s interest in . . . finality . . . is weighty, it is not always paramount.” Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). In the criminal context, we have long recognized the “fundamental principle . . . that, if it appears that justice may not have been done, the valuable finality of judicial proceedings must yield to our system‘s reluctance to countenance significant individual injustices.” Commonwealth v. Brescia, 471 Mass. 381, 388 (2015). See, e.g., Commonwealth v. Rosario, 477 Mass. 69, 70, 78, 81 (2017) (affirming order granting new trial based on “substantial risk of a miscarriage of justice” approximately thirty years after defendant‘s conviction); Commonwealth v. Azar, 435 Mass. 675, 689-690 (2002) (remanding criminal case for new trial based on “substantial risk of a miscarriage of justice,” notwithstanding defendant‘s six-year delay in filing postappeal motion for new trial). That principle applies with
Indeed, the interest in finality is considerably less weighty in a sexual risk classification proceeding than in a criminal case. In a criminal case, the issue is whether a defendant committed a crime in the past with the intent required for that crime. In a risk classification proceeding, the issue is whether a person at the present time poses so substantial a risk of sexual recidivism that he or she should be classified a level one, two, or three sex offender. The purpose of the classification is not to punish or condemn for past crimes, but to protect the public from the risk of the sex offender committing future crimes. The plaintiff here, in a proceeding where he was denied his right to counsel, was classified as a level three sex offender and has suffered the consequences of that classification for the past nine years. In contrast with a criminal conviction, however, such a classification is never final; it is always subject to change over time as the person‘s risk of sexual recidivism changes, as it often does with age. See
Moreover, the concerns that in the past have typically weighed in favor of finality -- the deterioration of evidence, the need to
At a minimum, before finality is allowed to trump the demands of justice, an administrative agency (and, on review, a judge) must first evaluate whether there was a miscarriage of justice and balance the importance of rectifying or mitigating that miscarriage against the public interest in finality. The board did not do that here; to the extent that it even considered whether there was a miscarriage of justice, it erred by focusing solely on the plaintiff having checked the box regarding the waiver of counsel before the hearing, while ignoring the plaintiff‘s refusal to make a knowing and voluntary waiver at the hearing when the board‘s own regulation required just such a waiver.
Certainly, a more searching inquiry is necessary where the board concedes, as it does here, that the plaintiff was denied his statutory right to counsel. See
The court essentially concludes that the standard for reopening a classification hearing is the same for an individual who received the ineffective assistance of counsel as for an individual who was denied the right to counsel altogether, even though we have recognized that classification as a sex offender implicates a “constitutionally protected liberty . . . interest.” Doe No. 972, 428 Mass. at 100. Where a liberty interest is at stake, we have never before equated the two situations; we have always recognized that the denial of the right to counsel itself, unlike the ineffective assistance of counsel, is a structural error requiring a new trial because prejudice must be presumed. See, e.g., Commonwealth v. LaChance, 469 Mass. 854, 859 (2014), cert. denied, 136 S. Ct. 317 (2015) (distinguishing between “circumstances where the essential right to the assistance of counsel itself has been denied,” and prejudice is presumed, and “circumstances where ineffectiveness is based on ‘[a]n error by counsel,‘” where prejudice must be shown [citation omitted]). In criminal cases, it is without question that the denial of counsel is so “inherently unfair” that it “require[s] no showing of prejudice to warrant reversal.” Commonwealth v. Valentin, 470 Mass. 186, 194 (2014). See Commonwealth v. Means, 454 Mass. 81, 88-89 (2009) (“Because the right to the assistance of counsel is essential to individual liberty and security, . . . its erroneous denial can never be treated as harmless error“). And in the context of civil proceedings, too, our appellate courts have held that the denial of counsel is so “presumptively harmful” -- and its consequences so “pervasive, undetectable, and immeasurable” -- that justice requires new proceedings. Adoption of Gabe, 84 Mass. App. Ct. 286, 293-294 (2013) (ordering new trial on termination of parental rights).
“Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have” (citation omitted). United States v. Cronic, 466 U.S. 648, 654 (1984). Here, it is apparent from the record that without counsel the plaintiff received a classification hearing in form only; in substance, he had no meaningful opportunity to challenge the board‘s evidence. Unlike other errors that may require a showing of
Nor, where the plaintiff has been denied his statutory right to counsel, is it reasonable to deny rehearing because he failed timely to seek judicial review of his classification. We have held that failure to file a timely notice of appeal constitutes ineffective assistance of counsel where the defendant would have prevailed on appeal. See Commonwealth v. Patton, 458 Mass. 119, 129 (2010), citing Commonwealth v. Cowie, 404 Mass. 119, 122 (1989) (failure to timely appeal probation revocation was ineffective assistance of counsel). Here, there can be no doubt that, if the plaintiff had timely sought judicial review of his classification, he would have prevailed in obtaining a new hearing based on the denial of his right to counsel. He should not be left without an adequate remedy merely because he was unable, while incarcerated and without the assistance of counsel, timely to recognize that he had been denied his right to counsel.
Nor can it reasonably be expected that, given the passage of time, justice can now be served by the plaintiff‘s eligibility to request a reclassification hearing. Under the current board regulations, the plaintiff would bear the burden at such a hearing to demonstrate by clear and convincing evidence that his or her risk of sexual recidivism has decreased since the final classification.
For these reasons, I would reverse the Superior Court judge‘s allowance of the board‘s motion to dismiss, and remand the matter to the judge with instructions that he remand it to the board