Doe, SORB No. 22164 v. Sex Offender Registry Board

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22-P-66 Appeals Court

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22164 vs. SEX
OFFENDER REGISTRY BOARD.

No. 22-P-66.

Suffolk. March 13, 2023. - September 28, 2023.

Present: Milkey, Singh, & Brennan, JJ.

Sex Offender. Evidence, Sex offender, Presumptions and burden
of proof, Prison record. Constitutional Law, Sex offender,
Assistance of counsel. Practice, Civil, Sex offender,
Assistance of counsel, Presumptions and burden of proof.
Administrative Law, Regulations.

Civil action commenced in the Superior Court Department on
October 17, 2019.

The case was heard by Jackie Cowin, J., on a motion for
judgment on the pleadings.

Fred J. Burkholder for the plaintiff.
David L. Chenail for the defendant.

MILKEY, J. In 2011, the Sex Offender Registry Board

(board) classified John Doe, who had been convicted of rape, as

a level three sex offender. A Superior Court judge affirmed

that classification in 2014; Doe did not appeal from that
2

decision. Five years later, Doe requested that the board vacate

his classification and grant him a new hearing based on alleged

ineffective assistance of counsel. The board denied his motion,

and, in 2021, a second Superior Court judge upheld the board's

decision. On Doe's further appeal, we affirm.

Background. In 1991, a Superior Court jury found Doe

guilty of raping a nineteen year old woman who told police that

he had sexually assaulted her while holding her hostage,

threatening to kill her, and choking her. He was sentenced to

from eight to twelve years of prison, to be served from and

after a 1990 armed burglary conviction for which he had received

a twelve to twenty year sentence.1 Doe refused sex offender

treatment while incarcerated in Massachusetts. During that

incarceration, he was cited for over thirty disciplinary

reports.

As noted, the board classified Doe as a level three sex

offender in 2011, and a Superior Court judge affirmed that

1 With respect to the armed burglary conviction, the record
indicates that before breaking into the home in question, he
told a third party he was going to go wait for a woman he knew
in her home and kill her. During the burglary, the defendant
attempted to strike the woman's relative with a shot gun, before
stealing the woman's car and fleeing. He previously had been
incarcerated in North Carolina for a breaking and entering
charge, and he was convicted there of escaping his confinement.
He also was convicted of numerous other crimes, some of which
involved violence. He faced at least four charges of raping a
child, but appears to have been ultimately acquitted of those.
3

classification in 2014 pursuant to G. L. c. 30A. No further

direct appeal was taken. In urging the board to reopen his

classification five years later, Doe claimed that both the

attorney who represented him during his original classification

hearing (hearing counsel), and the separate attorney who

represented him in his appeal from the board's classification

decision in the Superior Court (original appellate counsel),

were constitutionally ineffective.2 The board rejected that

argument, without prejudice to Doe's right to file a petition

seeking reclassification pursuant to 803 Code Mass. Regs. § 1.31

(2016). A Superior Court judge upheld the board's decision.

Discussion. Whether to reopen Doe's long-closed

classification proceeding comes down to a balancing of the

interests of finality with any demonstrated unfairness to Doe.

See Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender

Registry Bd., 478 Mass. 454, 457-458 & n.7 (2017) (Doe No.

209081). How to strike that balance falls to the board in the

first instance, although the Supreme Judicial Court has

recognized that the power to reopen classification proceedings

"must be sparingly used" (citation omitted). Id. at 457-458.

"[F]actors generally to be weighed by the [board] include the

2 Original appellate counsel was appointed to handle the
G. L. c. 30A appeal in the Superior Court after hearing counsel
withdrew because of an "irretrievable break down in the attorney
client relationship."
4

advantages of preserving finality, the desire for stability, the

degree of haste or care in making the first decision,

timeliness, and the specific equities involved." Id. at 458.

Courts are to review the judgment call that the board has made

under a deferential abuse of discretion standard. Id. at 457.

Our review of the 2021 Superior Court decision is de novo. See

Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender

Registry Bd., 98 Mass. App. Ct. 219, 224 (2020).

Before turning to the substance of Doe's claims, we address

a preliminary matter raised by the board. It is undisputed that

the board's regulations provide Doe a right to petition for

reclassification. See Doe No. 209081, 478 Mass. at 459.

Although Doe would in that proceeding bear the burden of

producing evidence that circumstances had changed, that should

be an easy burden to meet now that over a decade has passed

since his original classification, at least some of which Doe

has spent in the community. As we have noted, "the bar for

showing changed circumstances is 'very low' and . . . the mere

passage of time generally qualifies." See Doe, Sex Offender

Registry Bd. No. 6969 v. Sex Offender Registry Bd., 99 Mass.

App. Ct. 533, 541 n.7 (2021). Once Doe has met his burden, the

board would bear the burden of persuasion -- based on "clear and

convincing evidence" -- "that the classification is current and

correct." See Noe, Sex Offender Registry Bd. No. 5340 v. Sex
5

Offender Registry Bd., 480 Mass. 195, 204 (2018). Thus, Doe

already enjoys the opportunity to pursue reclassification with

rights nearly identical to those he seeks through the current

appeal. Based on this, the board argues that Doe is precluded

from pursuing this appeal, especially now that so much time has

passed. While there is some force to this argument, we decline

to adopt a rule that the available administrative remedy per se

precludes the present action. However, as the Supreme Judicial

Court has instructed, the availability of the administrative

remedy "is an additional factor specific to the board's

regulatory scheme weighing in favor of the [board's] decision to

reject [a sex offender's] request to reopen his initial

classification proceeding [many] years after it had concluded."

See Doe No. 209081, 478 Mass. at 459.

We turn to Doe's claim of ineffective assistance of

counsel. In reviewing 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.'" Poe v. Sex

Offender Registry Bd., 456 Mass. 801, 812 (2010), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If so, we

then consider whether such deficient representation resulted in

prejudice. Poe, 456 Mass. at 812-813, citing Care & Protection
6

of Georgette, 439 Mass. 28, 33 n.7 (2003). Prejudice in this

context means "a reasonable probability that but for counsel's

unprofessional errors, the result of the proceeding would have

been different" (quotations and citations omitted). Poe, supra

at 813. We turn then to the specific ineffective claims that

Doe is making.

1. Ineffective assistance of hearing counsel. Doe

contends that his hearing counsel was ineffective for failing

adequately to address one of the over thirty disciplinary

reports that he received while incarcerated. That report, dated

January 19, 2005, stated that the reason for a particular prison

transfer was that Doe was "displaying unusual behavior towards a

female staff member." Doe argues that any suggestion in the

report that he exhibited behavior of a sexual nature during the

incident is inaccurate.3 Such a misimpression was critical, Doe

argues, because it provided the only evidence of recent

misconduct that could have been construed as sexual.

3 According to the affidavit Doe submitted in support of his
motion for a new classification proceeding, he told his hearing
counsel that the "unusual behavior" had to do with assisting a
correction officer in filing a complaint against male
correctional employees. He further alleged that he provided his
counsel with an April 20, 2005 affidavit from a North Central
Correctional Institution (NCCI) superintendent that contradicted
the disciplinary report's stated reason for his transfer. In
particular, the affidavit stated that Doe was transferred
"pending an ongoing investigation of staff misconduct at NCCI
that involved [Doe]" and that Doe was transferred "for his own
safety."
7

Furthermore, he argues that there could not have been a tactical

reason for hearing counsel not to challenge the report.

Assuming that hearing counsel's performance was deficient

in failing to adequately address the January 19, 2005 report,

Doe has not demonstrated sufficient prejudice to warrant relief.

His disciplinary history beyond that particular report was

lengthy and serious, including insubordination toward correction

officers, fighting, throwing a pot of hot coffee at an inmate,

and assaulting another inmate with a knife. He has not

contested the accuracy of any of these other reports. Had the

potential misimpression left by the one report been challenged,

it is unlikely that the board's over-all assessment of Doe's

behavior while incarcerated would have been altered. Indeed, in

the summary of the hearing decision, the hearing officer

mentioned the "numerous" disciplinary reports without emphasis

on any particular report. Nowhere in her twenty-seven page

decision did the hearing examiner mention the January 19, 2005

incident as evidence of sexual misconduct.

Moreover, Doe's disciplinary history was only one of

several factors that weighed in favor of a level three

classification. Those factors included Doe's lengthy criminal

history consisting of multiple serious sexual and violent

offenses, and the lack of any subsequent sex offender treatment

or offense-free time in the community. On this record, we
8

conclude that there was not "a reasonable probability that but

for [hearing] counsel's unprofessional errors, the result of the

proceeding would have been different" (quotations and citations

omitted). Poe, 456 Mass. at 813.

2. Ineffective assistance of original appellate counsel.

Doe's original appellate counsel challenged the board's

classification decision by filing an appeal pursuant to G. L.

c. 30A, § 14. See Doe, Sex Offender Registry Bd. No. 68549 v.

Sex Offender Registry Bd., 470 Mass. 102, 107-108 (2014) (Doe

No. 68549). In accordance with applicable procedures, the board

filed the administrative record as its answer. Based on that

record, the merits of Doe's appeal were then resolved by a

Superior Court judge in 2014 through cross motions for judgment

on the pleadings. Doe makes no claim that the briefing that

original appellate counsel provided the judge was deficient in

form or substance. Rather, he claims his counsel was

constitutionally ineffective in various other aspects, the first

being by his failure to attend the scheduled hearing, which

allowed the matter to be heard on the papers without oral

argument by either side.4

The reasons for counsel's not attending the scheduled G. L.

c. 30A hearing are somewhat muddled on the current record. The

4 The board's counsel did attend the hearing, but agreed to
waive oral argument after Doe's counsel did not appear.
9

hearing had been scheduled for an earlier date, and there is a

suggestion that Doe's original appellate counsel claimed not to

have received notice of the new hearing date. However, there is

also a reference to a statement from original appellate counsel

that his not attending the hearing was strategic, based on his

concern that his attendance would reveal that Doe had just been

arraigned (with a $50,000 bail) on new charges in 2013,

including, among other offenses, rape and assault and battery.5

Whatever the explanation for counsel's allowing the matter to be

heard on the papers –- the quality of which Doe again does not

challenge -- we discern no actionable ineffective assistance

based on this issue. Assuming original appellate counsel erred

by not attending the c. 30A hearing, Doe has not demonstrated

prejudice resulting from counsel's absence, especially given

5 Doe also claims that his counsel was ineffective for
failing to pursue a habeas corpus petition so that he could have
attended the hearing on the cross motions. However, he cannot
demonstrate how his personal attendance at any such hearing
would have assisted him, especially given that the court's
review was limited to the administrative record. See Doe No.
68549, 470 Mass. at 108. Although Doe argues that "due process
should mandate the right to be present" in G. L. c. 30A
hearings, even in criminal proceedings, there is generally no
right to be present at appellate stages of proceedings. See
Reporters' Notes to Rule 18 (a), Mass. Ann. Laws Court Rules,
Rules of Criminal Procedure (LexisNexis 2022-2023) (criminal
defendant's presence generally not required at posttrial
proceedings). Moreover, Mass. R. Crim. P. 18 (a) (3), as
amended, 489 Mass. 1503, provides that a defendant need not be
present "at any proceeding where evidence is not to be taken."
10

that had the oral argument gone forward, the board's lawyer

would have had the opportunity to argue as well.

As noted, after Doe lost his initial appeal in the Superior

Court, original appellate counsel did not file a notice of

appeal from the judgment, a step that was necessary to allow the

case to proceed on appeal to this court. Doe claims that this

failure itself constituted ineffective assistance that warrants

automatically reopening his original classification proceeding.

The precise nature of this argument is important. In the face

of strong record evidence supporting a level three

classification,6 Doe has not made any showing of what potentially

winning arguments original appellate counsel might have made to

this court. Instead, Doe is arguing that original appellate

counsel never informed him that he lost his Superior Court

appeal; that had he been so informed, he would have insisted

that counsel pursue a further appeal; and that simply by failing

to discuss the viability of a potential further appeal with him,

counsel's conduct amounted to "serious incompetency,

inefficiency, or inattention" that fell "measurably below that

which might be expected from an ordinary fallible lawyer"

(citation omitted). Poe, 456 Mass. at 812. This argument has

6 In making this assessment, we have not taken into account
the new assault charges that Doe faced in 2013, which were not
before the board in its classification proceeding.
11

at least some force. Cf. Commonwealth v. Frank, 425 Mass. 182,

184 (1997) (given criminal defendant's statutory right to appeal

and his constitutional right to counsel at that appeal,

counsel's failure to perfect his appeal was "particularly

egregious in that it essentially waived [the defendant's]

opportunity to make a case on the merits" [citation omitted]).

However, there are two independent impediments to such an

argument succeeding. The first is that Doe has not met his

burden of establishing what in fact occurred here. Notably, his

claim that original appellate counsel unilaterally decided not

to pursue a further appeal without consulting him was supported

only by Doe's own affidavit; Doe did not file an affidavit from

his original appellate counsel substantiating that claim, nor

did he supply any adequate explanation for his failure to do so.7

Under these circumstances, the board did not abuse its

discretion in finding Doe's proof of inadequate assistance

insufficient. Cf. Commonwealth v. Savage, 51 Mass. App. Ct.

500, 505-506 & n.6 (2001) (where defendant alleged that counsel

failed to advise him of rights he would give up should he pursue

jury trial, "[c]onspicuously absent was an affidavit from trial

7 Current appellate counsel drafted an affidavit for
original appellate counsel to sign that would have addressed
these issues. Original counsel did not respond to this request,
which current counsel suggests, without further explanation, was
"believed to be because of injuries sustained in a recent
automobile accident."
12

counsel supporting the defendant's contention," and therefore

"judge was entitled to discount the defendant's affidavit as

self-serving, conclusory, and lacking in credibility" without

evidentiary hearing). See generally Commonwealth v. Miller, 101

Mass. App. Ct. 344, 345, 351-353 (2022). In sum, adequate proof

of the factual premise of Doe's argument is wanting.

Even were we to pass over these proof issues, and even were

we to assume arguendo that original appellate counsel's behavior

was so out of bounds as to allow Doe to satisfy the first prong

of the civil Saferian standard, Doe's argument that this would

entitle him to vacate the board's classification decision would

fail. That is because Doe would still have to satisfy the

second prong of the test, that is, he would have to show that

there is a "reasonable probability that but for counsel's

unprofessional errors, the result of the proceeding would have

been different" (quotations and citations omitted). Poe, 456

Mass. at 813. Doe has not attempted to show, much less shown,

how he was prejudiced by counsel's failure to file an appeal.

Unable to demonstrate how he was harmed, Doe seeks to draw

upon analogies to criminal law to argue that this is one of

those rare instances where he should be allowed to prove

actionable ineffective assistance without demonstrating any

prejudice. We are unpersuaded.
13

To be sure, it is well established that when a criminal

defendant's counsel has failed to file a timely notice for a

direct appeal from his conviction, we generally have "fully

restored the defendant's appellate rights . . . without

consideration of the strength or weakness of [the defendant's]

underlying appellate arguments." Commonwealth v. Alvarez, 69

Mass. App. Ct. 438, 442 (2007). Moreover, because of the

serious deprivation of liberty interests involved, courts often

have imported protections that apply to criminal defendants into

the law of sex offender registration. See, e.g., Poe, 456 Mass.

at 811-813 (recognizing right to counsel and right to effective

assistance of counsel). However, the Supreme Judicial Court on

many occasions has rejected wholesale importation of criminal

law concepts in this context. See, e.g., Doe, Sex Offender

Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass.

15, 26 (2021) (allowing relaxed hearsay rules); Doe, Sex

Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd.,

473 Mass. 297, 309 (2015) (Doe No. 380316) (rejecting proof

beyond reasonable doubt standard). The fact that the court has

held that a sex offender can bring an ineffective assistance

claim with respect to a board classification proceeding applying

a standard akin to the two-pronged Saferian test hardly means

that the court blindly intended to incorporate all aspects of
14

the application of such law in the sex offender registration

context.

Close scrutiny reveals why Doe's analogy to criminal law

breaks down in this specific instance. For many reasons, a

criminal defendant's right to take a direct appeal from a

judgment of conviction is considered sacrosanct. See

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("the right to

appointed counsel extends to the first appeal of right, and no

further"). Cf. Commonwealth v. Coral, 72 Mass. App. Ct. 222,

224-225, 227 (2008), cert. denied, 556 U.S. 1137 (2009)

(distinguishing between first appeals as of right and second-

tier discretionary appeals, and finding that defendant was not

entitled to counsel to represent him in various stages of

proceedings relating to withdrawal of his guilty plea). The

context before us is different. Doe already had the opportunity

to pursue a direct appeal, his G. L. c. 30A appeal in the

Superior Court. In any further appeal, the role of this court

would be identical to that of the judge in the initial appeal:

same administrative record, same legal issues, and same standard

of review. See Doe, Sex Offender Registry Bd. No. 524553 v. Sex

Offender Registry Bd., 98 Mass. App. Ct. 525, 527 n.3 (2020),

and cases cited.8 Whether to pursue such a second-level appeal,

8 In other contexts where a party has a right to counsel --
such as in care and protection cases, see Care & Protection of
15

even one Doe could have pursued as of right, lacks the

sacrosanct quality of a criminal defendant's right to pursue a

direct appeal from a judgment of conviction.9

Moreover, because Doe and other sex offenders have a right

to seek reclassification pursuant to the board's regulations, it

makes particular sense that they should not be able to reopen

long-concluded classification proceedings absent some showing of

prejudice. Cf. Commonwealth v. Patton, 458 Mass. 119, 129-130

(2010) (recognizing that even where probationer's "right to

appeal has been extinguished because of counsel's

ineffectiveness[,] . . . the State may provide some alternative

procedure" to direct appeal).

In fact, the Supreme Judicial Court already has implicitly

rejected the claim that prejudice need not be shown when

alleging ineffective assistance of counsel in the sex offender

registration context. See Doe No. 209081, 478 Mass. at 455. In

that case, a litigant effectively was denied the right to

Stephen, 401 Mass. 144, 149 (1987), and sexually dangerous
person cases, see Commonwealth v. Sargent, 449 Mass. 576, 580
(2007) -- this court has a fundamentally different role from the
trial court.

9 Of course, even in the pure criminal law context, the
right to counsel is not guaranteed in all matters. See, e.g.,
Commonwealth v. Conceicao, 388 Mass. 255, 258, 260 (1983)
(noting in context of motions for new trial that "indigent
defendants do not have an absolute right to have counsel
appointed to represent them in all postconviction proceedings").
16

counsel at his initial classification hearing and thereafter did

not file an appeal. Id. at 455-457. The court nevertheless

held that there was no abuse of discretion in the board's denial

of the litigant's motion to reopen proceedings because he did

not "adequately explain the delay [in seeking review] and did

not allege prejudice."10 Id. at 455. According to the court,

"[a]lthough the public's interest in such finality does not

trump an interest in rectifying a miscarriage of justice, here,

because the [litigant] failed to show prejudice, it was not

unreasonable for the board to conclude that finality and

timeliness outweighed the [litigant's] interest in reopening the

proceedings." Id. at 459-460. Even the dissent in that case

recognized that a showing of prejudice was required. See id. at

467 (Gants, C.J., dissenting) ("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" [emphasis added]). Notably, the court upheld the

board's refusal to reopen the proceedings even though the harm

that the litigant there had suffered –- deprivation of counsel

10In the case before us, Doe did not file his motion
seeking a new hearing for some five years. Even if we accept
his contention that he was unaware that no appeal to this court
had been filed, it took his new counsel several months to seek
to reopen the proceedings.
17

at the initial classification hearing stage –- was more

significant than any harm suffered in the case before us.

Further support for the board's position also can be found

in Patton, 458 Mass. at 128-130 (affirming denial of

probationer's motion for new trial). That case involved a

probationer who argued that his counsel was ineffective for

failing to appeal from a judgment of a probation violation that

resulted in the revocation of his probation despite the

probationer's specific instruction to file an appeal. See id.

at 129. Borrowing from criminal law, the court found that this

failure automatically constituted ineffective assistance. Id.

Nevertheless, the court went on to conclude that, unlike in the

criminal context, a showing of prejudice was required before a

forfeited appeal would be restored. Id. at 130. Thus, even

though ineffective assistance had been shown, the court was

called upon to "decide if the probationer was prejudiced by

counsel's failure." Id.

In fact, even in the context of direct criminal appeals,

"fully restor[ing] the defendant's appellate rights" does not

necessarily mean automatically reinstating the defendant's

appeal. See Alvarez, 69 Mass. App. Ct. at 442 & n.1. See also

White v. Commonwealth, 479 Mass. 1023, 1025 (2018) (rejecting

"the proposition that a defendant will always have the option of

proceeding with a reinstated direct appeal" and concluding best
18

course in circumstances was to proceed by motion for new trial

rather than direct appeal). Indeed, in Commonwealth v. Kegler,

65 Mass. App. Ct. 907, 908 (2006), where counsel had filed his

brief late and the question before us was whether to reinstate

the criminal defendant's direct appeal, we proceeded to review

the "fully briefed" merits of the underlying appellate claims

and concluded "that the issues raised would not warrant reversal

of the defendant's convictions." We ultimately affirmed the

denial of the motion to reinstate the appeal. Id. at 909.

Contrast Commonwealth v. Goewey, 452 Mass. 399, 405 (2008)

(remanding for further proceedings where only the Commonwealth

filed an appellate brief, finding "unilateral review[,] . . .

unaided by any advocacy for the defense, was not an adequate

substitute for the defendant's right to the effective assistance

of counsel"). Here, were we to consider the forfeited appeal,

we would have a similar benefit of knowing what Doe's appellate

arguments would have been because they were briefed in the

Superior Court. Indeed, any arguments not raised before the

board and Superior Court would have been waived. See Doe, Sex

Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457

Mass. 53, 56-58 (2010). Were we to review his claims "as if the

underlying issues were before us on direct appeal," see Alvarez,

supra at 443, he could not prevail.
19

The closest that Doe comes to demonstrating prejudice is to

point to the possibility that had his appellate counsel

appealed, he might have been able to secure the benefit of an

argument he never made. Specifically, Doe argues that if his

original appellate counsel had filed an appeal from the 2014

Superior Court judgment, and if that appeal had remained pending

as of December 11, 2015, the date the Supreme Judicial Court

published its opinion in Doe No. 380316, 473 Mass. at 297, then

he would have been entitled to having his hearing reopened under

the stricter "clear and convincing" standard adopted in that

case. See id. at 314. In other words, Doe's only prejudice

argument is based not on his counsel's forfeiting potentially

winning arguments, but on a speculative happenstance of timing.

There is at least some factual doubt about whether the appeal he

never took would have remained pending when Doe No. 380316 was

issued. In any event, however, as we have noted, Doe is now in

a position to try to take advantage of the clear and convincing

standard by filing for reclassification. In light of this, we

conclude that the board acted well within its discretion in

declining to reopen Doe's classification proceedings.

In sum, we decline to adopt a rule that sex offenders who

have lost their initial appeal from the board's classification

decision, but for whatever reason have not pursued a further

appeal, automatically get to reopen the classification
20

proceedings without any showing of prejudice. Because we

conclude that the board did not abuse its discretion in leaving

Doe to pursue reclassification pursuant to its regulations, we

affirm the judgment affirming the board's order denying Doe's

motion seeking to reopen the classification proceedings.

So ordered.
SINGH, J. (dissenting). Over a decade ago, the Supreme

Judicial Court held that "the principle of fundamental fairness

that underlies the statutory entitlement to counsel would be

ill-served if sex offenders were afforded something less than

what we usually refer to as the effective assistance of

counsel." Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813

(2010). The court added that applying Commonwealth v. Saferian,

366 Mass. 89 (1974), and its progeny to ineffective assistance

claims brought by sex offenders "brings the benefit of

familiarity," Poe, supra at 814, quoting Loe v. Sex Offender

Registry Bd., 73 Mass. App. Ct. 673, 686 (2009) (Sikora, J.,

concurring), and allows "attorneys, hearings examiners, and

judges alike" to "rel[y] on the rich body of case law

interpreting this standard," Poe, supra at 813-814.

This rich body of case law provides that, if an individual

is deprived of the right to pursue an appeal as a result of the

"ineffective assistance of . . . trial or appellate counsel in

failing to preserve and perfect that right, then" the individual

has made out a claim for ineffective assistance of counsel and

"is entitled to a remedy." White v. Commonwealth, 479 Mass.

1023, 1024 (2018). John Doe's motion to vacate his level three

classification established that Doe's Superior Court counsel

(prior counsel) forfeited Doe's right to appeal to this court by
2

failing to file a notice of appeal, without Doe's consent.

Nevertheless, the majority denies Doe his remedy.

The majority first justifies the Sex Offender Registry

Board's (board's) summary denial of Doe's motion on the basis

that adequate proof of the factual premise of Doe's argument was

lacking, because Doe did not submit an affidavit of his prior

counsel or adequately explain his failure to do so. However,

Doe's motion was supported by the uncontradicted affidavits of

both Doe and his newly appointed appellate counsel. Doe's

appellate counsel explained that he had communicated with prior

counsel about Doe's case and had received conflicting accounts

of why he did not attend the G. L. c. 30A hearing. Doe's

current appellate counsel also explained that he had prepared an

affidavit for prior counsel's signature, outlining all of the

ineffective assistance claims, but that prior counsel failed to

respond.

In view of the proactive measures taken by Doe's appellate

counsel to secure prior counsel's participation, Doe should not

be faulted for failure to provide an affidavit of prior counsel.

See Commonwealth v. Miller, 101 Mass. App. Ct. 344, 353 n.15

(2022) ("there may be innumerable fact-driven scenarios where

trial counsel may decline to provide support for a motion

alleging ineffective assistance of counsel. Thus, the level of

detail required in appellate counsel's affidavit may be dictated
3

by the circumstances of each case"). Even if prior counsel had

filed an affidavit asserting that he did timely advise Doe of

the Superior Court decision and the merits of an appeal from

that decision, the undisputed fact remains that he failed to

file a notice of appeal. Thus, even without prior counsel's

affidavit, Doe established that his prior counsel failed to

protect his appellate rights under circumstances where Doe

wanted to pursue an appeal.1

The majority next questions whether prior counsel's failure

to preserve Doe's appellate rights even constitutes professional

incompetence, given the strength of the evidence supporting a

level three classification. Regardless of the merits of any

given appeal, it is not counsel's prerogative to unilaterally

decide not to pursue an appeal; rather, the decision whether or

not to appeal belongs to the client. See Roe v. Flores-Ortega,

528 U.S. 470, 474-477 (2000) (counsel's failure to file a notice

1 Given Doe's persistent efforts to overturn his
classification and the fact that he was classified at the
highest level, there is no reason to doubt Doe's averment that
he would have insisted on pursuing an appeal, had his counsel
informed him of the Superior Court decision. Indeed, the
Committee for Public Counsel Services (CPCS) Assigned Counsel
Manual provides: "Except in extraordinary circumstances,
counsel should advise a client who has been classified as a
level 3 after an appeal to the Superior Court to appeal the
classification decision." Assigned Counsel Manual § M at 4.197
(June 12, 2023). In any event, nothing in the record suggests
that Doe's loss of appellate rights was the result of a
"deliberate and counseled choice." Commonwealth v. Frank, 425
Mass. 182, 185 n.2 (1997).
4

of appeal "cannot be considered a strategic decision; filing a

notice of appeal is a purely ministerial task"). Allowing

counsel to forfeit a client's right to appellate review based on

counsel's own assessment that an appeal lacks merit casts

counsel in the role of "amicus curiae" rather than advocate.

Cf. Anders v. California, 386 U.S. 738, 744 (1967) (where court-

appointed appellate counsel submitted letter to court indicating

that counsel would not be submitting brief because counsel was

of opinion that there was no merit to appeal, court stated that

"constitutional requirement of substantial equality and fair

process can only be attained where counsel acts in the role of

an active advocate in behalf of his client, as opposed to that

of amicus curiae").

Counsel's failure to file a notice of appeal to protect

Doe's rights in this case was deficient performance. See

Commonwealth v. Patton, 458 Mass. 119, 129 (2010) (counsel

ineffective where his omissions deprived petitioner of appeal);

Commonwealth v. Goewey, 452 Mass. 399, 400, 402-403 (2008)

(counsel ineffective where he failed to file opposition to

Commonwealth's interlocutory appeal); Commonwealth v. Trussell,

68 Mass. App. Ct. 452, 460 (2007) (permitting untimely appeal to

proceed where "defendant's motion papers suggest that failure to

file a timely appeal resulted from an act or omission of counsel
5

to which the defendant did not assent," and "[n]othing in the

Commonwealth's papers suggest[ed] otherwise").

The majority further faults Doe for failing to show how he

was prejudiced by counsel's failure to file a notice of appeal

because Doe did not identify any meritorious appellate issues.

Although a person asserting an ineffective assistance claim is

ordinarily required to show prejudice in order to overcome the

"strong presumption of reliability," typically accorded to

judicial proceedings, Flores-Ortega, 528 U.S. at 482, quoting

United States v. Cronic, 466 U.S. 648, 659 n.26 (1984), this

presumption is absent where counsel's alleged deficiencies "led

not to a judicial proceeding of disputed reliability, but rather

to the forfeiture of a proceeding itself," Flores-Ortega, supra

at 483. See Cronic, supra at 658-659 (complete denial of

counsel is "so likely to prejudice the accused that the cost of

litigating [its] effect in a particular case is unjustified").

See also Commonwealth v. Millien, 474 Mass. 417, 431 (2016),

quoting Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994)

(Massachusetts prejudice standard "is at least as favorable to a

defendant as is the Federal standard").

The "denial of [an] entire judicial proceeding itself,

which a defendant wanted at the time and to which he had a

right, . . . demands a presumption of prejudice." Flores-

Ortega, 528 U.S. at 483. Therefore, "[s]o long as a defendant
6

can show that 'counsel's constitutionally deficient performance

deprive[d him] of an appeal that he otherwise would have taken,'

courts are to 'presum[e] prejudice with no further showing from

the defendant of the merits of his underlying claims.'" Garza

v. Idaho, 139 S. Ct. 738, 747 (2019), quoting Flores-Ortega,

supra at 484. See Commonwealth v. Alvarez, 69 Mass. App. Ct.

438, 441 (2007) ("the defendant is not required to specify or

argue the appellate issues that he would raise were his appeal

reinstated"). See also Goewey, 452 Mass. at 403 n.3, and cases

cited ("[t]here is a distinction between . . . cases where a

defendant is represented by counsel who provides substandard

assistance and . . . cases where a defendant is represented by

counsel who provides no assistance at all. In the limited class

of cases falling into the latter category, it is said that

prejudice can be presumed . . .").

Recognition of presumptive prejudice in these circumstances

is not limited to purely criminal cases. In Patton, 458 Mass.

at 129, the Supreme Judicial Court considered a probationer's

claim of ineffective assistance based on counsel's failure to

heed the probationer's request to timely appeal the result of

his violation hearing. See Commonwealth v. Durling, 407 Mass.

108, 112 (1990), citing Gagnon v. Scarpelli, 411 U.S. 778, 782

(1973) ("Revocation hearings are not part of a criminal
7

prosecution"). The Supreme Judicial Court held, in relevant

part, that it was

"satisfied . . . that the probationer has proved a claim of
ineffective assistance of counsel . . . . [because] [t]he
failure of trial counsel to file a timely notice of appeal
when specifically instructed by his client to do so deprived
the probationer of an appeal to which he was entitled. This
constitutes ineffective assistance of counsel. . . . Where
a probationer has been deprived of his right to a direct
appeal due to the ineffective assistance of counsel, he must
either be retried or his appeal must be reinstated" (citations
omitted).

Patton, supra. Patton thus concluded, as a matter of law, that

counsel's failure to file the requested appeal constituted

ineffective assistance of counsel. See id.

The majority's reliance on Patton in support of its

conclusion that Doe was required to set forth the substantive

arguments his counsel would have made on appeal is misplaced.

After holding that counsel's failure to file the requested

appeal constituted ineffective assistance, the Supreme Judicial

Court said that the probationer's appellate rights could be

restored through "some alternative procedure" so long as it was

sufficient to cure the due process violation. Patton, 458 Mass.

at 129. The court found that a motion filed pursuant to Mass.

R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),

provided a sufficient "alternative procedure" for the

probationer, who had already filed a rule 30 (b) motion in the

trial court, the denial of which was the subject of the court's
8

review.2 Patton, supra at 129-130. See Evitts v. Lucey, 469

U.S. 387, 399 (1985). Critically, the Supreme Judicial Court

did not consider the substance of the probationer's claims of

error in Patton, until after making an implicit determination

that the loss of the probationer's appellate rights had been

cured by his subsequent filing of a rule 30 (b) motion. Patton,

supra at 129-130.

Here, in contrast, there is no suggestion that Doe's

appellate rights have been restored. Doe's motion to vacate was

not required to conform to the requirements of rule 30 (b),

which only applies to criminal proceedings, and it was

reasonable for him to conclude based on applicable precedent,

that his motion needed only to establish that his counsel's

deficiencies resulted in the loss of an appeal he wished to

pursue. Likewise, the board was not required to adhere to the

standard of review applicable to motions filed under rule 30 (b)

in reviewing Doe's motion, which the board denied without a

hearing in a margin endorsement just a few days after it was

2 A motion pursuant to rule 30 (b) "permits examination of
the claimed errors to determine whether the defendant was
deprived of any constitutionally protected rights by his failure
to appeal." Commonwealth v. Cowie, 404 Mass. 119, 123 (1989).
Moreover, if a rule 30 (b) motion is denied, then a defendant
"may appeal that denial and thus obtain appellate review of any
issue that would have afforded the defendant relief had his
appeal been timely filed." Id.
9

filed.3 See Commonwealth v. Upton, 484 Mass. 155, 161-162

(2020), quoting Commonwealth v. Barry, 481 Mass. 388, 401, cert.

denied, 140 S. Ct. 51 (2019) (under rule 30 [b], judge must

evaluate "the seriousness of the issues raised and the adequacy

of the defendant's showing on those issues" to determine whether

substantial issue has been raised that requires evidentiary

hearing).

The majority's contention that the Supreme Judicial Court

has already implicitly rejected Doe's claim of presumptive

prejudice in Doe, Sex Offender Registry Bd. No. 209081 v. Sex

Offender Registry Bd., 478 Mass. 454 (2017) (Doe No. 209081), is

also misplaced. Unlike the petitioner in this case, the

petitioner in Doe No. 209081 did not assert that his failure to

timely appeal from his classification decision was based on an

omission of counsel. He had procedurally waived his claim that

during his classification hearing the board had violated his

right to due process. In holding that the board had properly

denied the petitioner's motion to reopen the proceeding because

the petitioner had "failed to articulate in any manner how he

was prejudiced by the error," id. at 458, the Supreme Judicial

3 If the board's review of Doe's motion had been subject to
the rule 30 (b) standard, his appellate counsel's failure to
file an appeal would clearly have raised a serious issue
warranting an evidentiary hearing if there was any question that
prior counsel's failure to file a notice of appeal was the
result of Doe's counseled choice.
10

Court held the petitioner to the same standard as a criminal

defendant raising an unpreserved claim of error in a collateral

attack on a conviction, see, e.g., Commonwealth v. LaChance, 469

Mass. 854, 856 (2014), cert. denied, 577 U.S. 922 (2015) ("where

the defendant has procedurally waived his Sixth Amendment public

trial claim by not raising it at trial, and later raises the

claim as one of ineffective assistance of counsel in a

collateral attack on his conviction, the defendant is required

to show prejudice from counsel's inadequate performance . . .

and the presumption of prejudice that would otherwise apply to a

preserved claim of structural error does not apply").4 This

case, in contrast, is not a collateral attack on the board's

4 Notwithstanding the inapplicability of Doe No. 209081, 478
Mass. at 458, the majority cites to it in support of the
position that delay in filing the motion justified the board's
denial of Doe's motion to vacate. Ante at . Although the
petitioner in that case failed to provide any explanation as to
the delay, here Doe provided a detailed account as follows.
Doe's prior counsel entered his appearance in the Superior Court
on November 8, 2012, after an irretrievable breakdown in the
attorney-client relationship between Doe and his hearing counsel
that led hearing counsel to withdraw while Doe's Superior Court
review was still pending. On January 3, 2013, Doe was arrested
on new charges, and unable to make bail, he remained in custody
until February 1, 2017. After his release, Doe was living at a
mosque, where he was shot twice in his lower extremities by a
man who targeted him based on his status as a level three sex
offender. After the shooting, which occurred on September 24,
2018, Doe reached out to prior counsel to inquire about the
status of his G. L. c. 30A review, which he believed was still
pending. After prior counsel informed Doe that no notice of
appeal had been filed, Doe requested new counsel, who was
appointed on February 25, 2019, and filed a motion to vacate on
Doe's behalf later that year.
11

classification decision, but an attempt by Doe to reinstate his

right to appeal from that decision. Cf. Tuan Vu v. United

States, 648 F.3d 111, 114 (2d Cir. 2011) (petition to reinstate

appellate rights not collateral attack on sentence or

conviction).

Nevertheless, the majority distinguishes a sex offender

appeal to this court by characterizing it as a "second-level"

appeal that lacks the "sacrosanct" quality of a criminal

defendant's right to pursue a direct appeal from a judgment of

conviction. Ante at . While the Superior Court does perform

a review of an administrative body's determination under G. L.

c. 30A, an appeal from that trial court determination to this

court is a direct appeal as of right. And while this court's

review is based on the same record that was before the Superior

Court, the nature of the review is different. The Superior

Court is making a trial court determination of a motion for

judgment on the pleadings.5 An appeal to this court from that

determination is not a collateral appeal, and it is not a

discretionary appeal. Cf. Pennsylvania v. Finley, 481 U.S. 551,

5 Indeed, in sex offender cases, CPCS appoints attorneys to
represent clients in board hearings; those attorneys are charged
with representing the client through the G. L. c. 30A review at
the Superior Court, which is still a trial court proceeding, and
with perfecting an appeal to the Appeals Court. See CPCS,
Assigned Counsel Manual § M, at 4.197. For the appeal to the
Appeals Court, specialized appellate attorneys are appointed.
See id.
12

555 (1987); Commonwealth v. Conceicao, 388 Mass. 255, 258

(1983); Commonwealth v. Coral, 72 Mass. App. Ct. 222, 224-225

(2008), cert. denied, 556 U.S. 1137 (2009). It is an appeal as

of right with the right to counsel provided. In my view, any

such appeal should be considered "sacrosanct."6

6 To suggest, as the majority does, that the prejudice of
Doe's lost appeal can be measured or remedied simply by
reviewing the briefing on the motion for judgment on the
pleadings in the Superior Court devalues appellate advocacy and
renders the entire appellate process superfluous. In sex
offender classification cases in particular, there is a history
of appellate advocacy resulting in significant gains for
offenders whose cases would otherwise have been dismissed. See
Doe, Sex Offender Registry Bd. No. 7546 v. Sex Offender Registry
Bd., 487 Mass. 568, 580 (2021) (finding Superior Court's denial
of offender's motion to vacate final classification was abuse of
discretion where premature classification violated offender's
due process rights); Doe, Sex Offender Registry Bd. No. 380316
v. Sex Offender Registry Bd., 473 Mass. 297, 315-316 (2015) (Doe
No. 380316) (vacating Superior Court decision affirming
offender's level two classification where due process required
classification to be established under higher standard of
proof); Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender
Registry Bd., 450 Mass. 780, 784-785 (2008) (vacating Superior
Court decision affirming offender's level one classification
where "board's determination that [offender] had a mandatory
obligation to register annually, solely by virtue of his prior
conviction," violated offender's due process rights). See also
MacWhorter v. Derwinski, 2 Vet. App. 133, 135 (1992) ("The
purposes of filing a brief in a judicial appeal are to state the
position of the party from the point of view of an advocate --
advocacy being a prime ingredient of the appeal . . ."). Cf.
Eskridge v. Washington State Bd. of Prison Terms & Paroles, 357
U.S. 214, 216 (1958) (holding that "[t]he conclusion of the
trial judge that there was no reversible error in the trial
cannot be an adequate substitute for the right to full appellate
review available to all defendants . . . who can afford the
expense of a transcript"); Hughes v. Booker, 220 F.3d 346, 353
(5th Cir. 2000) (where defendant is "denied the effective
assistance of an appellate advocate," appellate court's
"independent review of the record cannot remedy this denial").
13

The majority concludes that filing for reclassification

will be sufficient to restore Doe's appellate rights, citing

assurances from the board referenced in a previous decision of

this court, which states in full that "we are informed by [the

board] that the bar for showing changed circumstances is 'very

low' and that the mere passage of time generally qualifies."

Doe, Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry

Bd., 99 Mass. App. Ct. 533, 541 n.7 (2021). Unfortunately,

these assurances are not codified in the board's regulations,

which are, nevertheless, clear that "a decision in a

reclassification hearing, in contrast with the original

classification, is not written on a clean slate." Doe, Sex

Offender Registry Bd. No. 326573 v. Sex Offender Registry Bd.,

477 Mass. 361, 367 (2017). See 803 Code Mass. Regs.

§ 1.31(5)(e) (2016) (in deciding motion for reclassification,

board is not foreclosed from "considering the information relied

on by the Board to determine the sex offender's prior

classification levels, including any prior written decisions

issued by the Board"); Noe, Sex Offender Registry Bd. No. 5340

v. Sex Offender Registry Bd., 480 Mass. 195, 203 (2018) ("We

recognize that an offender who has previously been registered is

not in the same position as someone who has never offended or
14

never been registered").7 Requiring Doe to seek

"reclassification" is not an adequate remedy for the loss of

appeal as the initial classification would necessarily have an

impact on any subsequent petition for reclassification.8

Because Doe's motion to vacate and supporting materials

established that he lost his right of appeal due to ineffective

assistance of counsel, the board abused its discretion in

denying the motion. At a minimum, it should have held an

evidentiary hearing to assess any questions of credibility. If,

after the hearing, the board were to find that Doe was, in fact,

7 There are additional limitations to the reclassification
approach, including instances where petitioners are ineligible
to apply due to specific circumstances outlined in the
regulations. See 803 Code Mass. Regs. § 1.31(2)(e) (2016)
(board may summarily deny motion for reclassification if
offender is incarcerated, has pending criminal charges, or has
not remained offense-free for more than three continuous years
since last classification). While these circumstances may not
be applicable to this case, the broader implications of the
majority's position underscore the need for an approach that
accounts for situations where an offender's ability to file for
reclassification might be restricted.

8 In Doe No. 380316, 473 Mass. at 314, the Supreme Judicial
Court required the board to reconsider all pending
classifications and appeals in view of its holding that due
process required risk classification to be established by clear
and convincing evidence. Where an offender can file a request
for reclassification three years from the date of an original
classification, which in many cases, is well before an appeal
from an original classification decision is fully litigated, the
Supreme Judicial Court's decision to order the board to
reconsider all of its pending classification decisions and
appeals, rather than suggest eligible offenders simply apply for
reclassification, speaks volumes. See 803 Code Mass. Regs.
§ 1.31.
15

deprived of an appellate proceeding due to the incompetency of

counsel, given the passage of time and the purpose of a

classification hearing, to assess a sex offender's present risk,

Doe's rights can be fully restored only by vacating his original

classification and granting him a de novo hearing.9 See Doe, Sex

Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472

Mass. 475, 483 (2015) ("the registration statute requires [the

board] to base its classification determinations on a sex

offender's 'current' risk to the community, in order to protect

the offender's right to due process").

Contrary to the majority's assessment, Doe has not asked us

to adopt a rule that sex offenders who "for whatever reason have

not pursued a further appeal . . . automatically get to reopen

9 Although the majority places a strong emphasis on the
importance of the public's interest in finality, "the interest
in finality is considerably less weighty in a sexual risk
classification proceeding than in a criminal case." Doe No.
209081, 478 Mass. at 464 (Gants, C.J., dissenting). As a
practical matter, "the concerns that in the past have typically
weighed in favor of finality -- the deterioration of evidence,
the need to resummon witnesses, the cost and time associated
with readjudication . . . are present in a criminal case but
largely absent in the context of a classification hearing." Id.
at 464-465; indeed, Doe's classification hearing involved only
documentary evidence. Moreover, a rigid commitment to finality
in this context could lead to classifications that are out of
touch with new information, research, and evolving societal
norms. Therefore, unlike other legal contexts where finality is
paramount to provide stability and reliability, an unwavering
commitment to finality in sex offender classification
proceedings could actually hinder the public's ability to make
well-informed decisions based on up-to-date classifications.
16

the classification proceedings without any showing of

prejudice." Ante at . Rather, Doe asks us to apply long-

standing precedent holding that presumptive prejudice arises

where counsel's incompetency forfeits a proceeding his client

had a right and a desire to pursue. Because I believe the

court's decision today affords sex offenders "something less

than what we usually refer to as the effective assistance of

counsel," Poe, 456 Mass. at 813, I respectfully dissent.