DENNIS LOE [Note 1] vs. SEX OFFENDER REGISTRY BOARD.

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,

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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 plaintiff's 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.

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The plaintiff completed the first three phases of a sex offender treatment program, but declined to participate in the fourth and final phase. [Note 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. [Note 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. [Note 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

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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. [Note 5]

For purposes of our analysis, we recognize that the plaintiff's counsel displayed numerous shortcomings before the board. [Note 6] However, serious shortcomings in the performance of counsel do

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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]." [Note 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 petitioner 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

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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] drink[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 plaintiff's] 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 plaintiff's 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

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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.

SIKORA, J. (concurring). I concur in the result but not in the deferral of a standard for evaluation of the claim of ineffective assistance of counsel in the classification process of the Sexual Offender Registration Board (board). We should explicitly adopt the standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), without further delay and implement it as an element of the administrative law system of registration and classification established by the Legislature.

Massachusetts decisional law authorizes an appellate court to address an issue (1) of public importance, (2) of first impression, and (3) of capable adversary briefing, even though it might be moot or otherwise unnecessary for decision of a case. See, e.g., Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943), and cases cited; Karchmar v. Worcester, 364 Mass. 124, 136 (1973); Geehan v. Trawler Arlington, Inc., 371 Mass. 815, 817 (1977); Commissioner of Correction v. Myers, 379 Mass. 255, 261 (1979). Under those criteria this appeal presents a paradigm for a decisive and useful statement. The issue carries public importance because it involves the implementation of a statutory program serving the public safety and affecting the interests of numerous individual registrants. It lacks any binding precedent. The parties have briefed it with adversarial thoroughness and motivation, the board as the agency of implementation and the registrant as the client of counsel arranged through the Committee for Public Counsel Services, the primary provider of legal representation for registrants in the board. It is squarely available as an alternative ground of decision. The unending flow of sex

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offenders from incarceration into classification assures the recurrence of the question.

In these circumstances an appellate court should resolve uncertainty, not prolong it. It need not accept the role of a sphinx without a secret. Confrontation of a substantial issue by an intermediate appellate court may be all the more appropriate because its work can bring the issue to the attention of the court of last resort and because that higher court remains available to correct or to revise the first decision with the assistance of not only the parties' arguments but also the analysis of the intermediate court. [Note SIKORA-1] By avoidance of a justiciable, significant, recurrent question of law, we risk abdication of a fundamental responsibility. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (Marshall, C.J.).

Additional background. The task and duty of hearing counsel was to pursue for his client either exemption from registration or the lowest possible level of the three classifications. The essence of that effort was to marshal evidence within the twenty-four regulatory criteria established by the board for exemption or appropriate classification of risk of reoffense or degree of dangerousness. 803 Code Mass. Regs. § 1.40 (2004). [Note SIKORA-2] The hearing

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examiner's determination of level three exposed the plaintiff to the broadest dissemination of his identity and history. [Note SIKORA-3]

Discussion. 1. The Saferian standard. Presently we have no standard to determine whether hearing counsel's representation is so deficient that it undermines the reliability of the administrative adjudication and requires a new hearing. The plaintiff

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proposes the test of Commonwealth v. Saferian, 366 Mass. at 96:

"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 -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence" (emphasis supplied).

Our courts have extended the Saferian standard from the evaluation of criminal defense work into two civil settings. In Care & Protection of Stephen, 401 Mass. 144, 148-149 (1987), the Supreme Judicial Court concluded that a parent confronting the transfer of custody of her children to the State possessed a statutory right to the effective assistance of counsel and that the courts should measure effectiveness by the Saferian standard. In Commonwealth v. Ferreira, 67 Mass. App. Ct. 109, 114-116 (2006), this court held that a respondent facing indeterminate civil confinement as a sexually dangerous person under the scheme of G. L. c. 123A held a statutory and constitutional right to the effective assistance of counsel again to be measured under the formula of Saferian. The board opposes the extension of Saferian into the statutory scheme for the registration of sexual offenders. It argues that the interest of the registrant in the loss of a degree of privacy lacks the weight of the interest of a criminal defendant or an alleged sexually dangerous person in the loss of his freedom or of a parent in the loss of custody of her children. It maintains that the public interest in the effectiveness of the registration program weighs against easy challenges to the classification process. It suggests a burden of proof and persuasion "higher than the one articulated in Saferian" for registrants alleging ineffective assistance by their attorneys. However it does not specify a heightened alternative.

Several strong considerations support the application of the Saferian test to the registration classification process. First, the interest of the registrant has constitutional and statutory weight. "Sex offenders have a constitutionally protected liberty and privacy interest in avoiding registration and public dissemination of

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registration information." Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100 (1998), citing Doe v. Attorney Gen., 426 Mass. 136, 143 (1997). [Note SIKORA-4] Accord Doe v. Attorney Gen., 430 Mass. 155, 160-161 (1999). The original statutory provision, G. L. c. 6, § 178M, added by St. 1996, c. 239, § 1, allowed for review of the board's classification by the Superior Court and for the right to counsel only in the Superior Court. The statutory right to counsel at the board hearing did not exist "[b]ecause the statute [did] not provide for an evidentiary hearing before the board." Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., supra at 100 n.10. By subsequent enactment, St. 1999, c. 74, § 2, inserting G. L. c. 6, § 178L, the Legislature expressly entitled indigents to counsel at the board classification hearing. "The right to counsel is of little value unless there is an expectation that counsel's assistance will be effective." Care & Protection of Stephen, 401 Mass. at 149.

Second, the two-part standard of Saferian is demanding. [Note SIKORA-5] It should not permit the abuse of the classification process feared by the board. The fault of the attorney must be "serious," and

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the resulting harm to the client must be "substantial." In a civil proceeding, a slight variation of the second prong may be appropriate: the inquiry is whether a better performance by counsel "would have realistically accomplished any change in the result." Care & Protection of Georgette, 54 Mass. App. Ct. 778, 793 (2002), S.C., 439 Mass. 28, 34-35 (2003). Those requirements do not permit minor shortcomings to obstruct the classification process, nor even larger oversights if they would not alter the classification result. The registrant must make "some showing that better work might have accomplished something material" for his position. Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

During its thirty-five years of application, Saferian has generated a number of corollaries against insubstantial arguments of ineffectiveness. The evaluation of a claim of ineffectiveness by the trier of fact (the hearing examiner in these circumstances) is entitled to special deference. [Note SIKORA-6] See, e.g., Commonwealth v.

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DeVincent, 421 Mass. 64, 69 (1995); Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996). The absence of affidavit support from trial counsel (about his or her own work) weakens proof of the claim of ineffectiveness. Commonwealth v. Savage, 51 Mass. App. Ct. 500, 505 n.6 (2001). A contention of ineffectiveness by reason of an omission by counsel must show a likelihood of success of the omitted action (a motion; an objection). See, e.g., Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983); Commonwealth v. Comita, 441 Mass. 86, 90-91 (2004). A client challenging a strategic or tactical judgment of counsel must show the choice to have been "manifestly unreasonable." See, e.g.,

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Commonwealth v. Martin, 427 Mass. 816, 822 (1998); Commonwealth v. Campanonio, 445 Mass. 39, 45 (2005). Even a substandard performance by counsel within the meaning of Saferian will not result in the required harm if the adverse evidence was overwhelming and the trier of fact aware of the attorney's error. See, e.g., Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351-353 (2008).

Third, board hearing examiners at the trial stage and Superior Court judges at the first stage of review are entitled to a definitive standard for the assessment of claims of ineffective assistance. As recounted, Saferian furnishes a developed standard readily adaptable to the registration scheme. It does not impose a change; rather it fills a void. In an unpublished memorandum and decision (which is without the force of precedent) issued pursuant to our rule 1:28, Doe, Sex Offender Registry Bd. No. 19469 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 1103 (2007), we assumed without deciding that Saferian applied to the registrant's claim of ineffective assistance in the board proceedings and in the Superior Court review of the board decision. The panel concluded that any errors by the attorney in the board and in the court would not have caused substantial harm to the registrant's position. In the choice of "assuming without deciding" the applicability of Saferian, the panel cited Commonwealth v. Sargent, 449 Mass. 576, 585-586 (2007) (applying Saferian to proceedings for the civil commitment of sexually dangerous persons under G. L. c. 123A but declining to establish a rule because the Commonwealth was agreeable to the standard in that instance). At this point, no articulated reason appears to support a pattern of deferred guidance and ad hoc decisions. Front-line adjudicators should not have to guess at a standard at the risk of reversal or repetition of their work. We should therefore follow the example of Commonwealth v. Ferreira, 67 Mass. App. Ct. at 115, and extend the Saferian standard to registration proceedings.

Finally, the Saferian test brings the benefit of familiarity. Superior Court judges must apply it frequently in the course of postconviction criminal process. Its cumulative decisional law is available to both judges and hearing examiners. The board has not proposed an identifiable alternative. It appears unlikely that an alternative would vary significantly from the logical elements

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inherent in the standard: fault by the attorney, and resulting serious harm to the client. In this case the Superior Court judge implicitly followed the logic of Saferian; she concluded that better work would not have altered the result in the board. [Note SIKORA-7] For the following reasons, that assessment was correct.

2. Application of the Saferian standard. The deficiencies of

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hearing counsel's work summarized in the majority opinion, ante at 676 n. 6, establish the "serious" failing contemplated by the first part of the Saferian test. However it did not cause the resulting classification or "substantial" harm required by the second part. The quantity and quality of undisputed adverse evidence ordained the result. As itemized by the majority, ante at 677, the overwhelming weight of the regulatory factors compelled the level three classification (the force and violence of the sexual offense; the nonfamily status of the victim; a history of violent nonsexual offenses; continuing denial; inadequate participation in sex offender treatment programs; a history of substance abuse; a relatively short interim since release; continuing unsupervised status).

The plaintiff emphasized three shortcomings of hearing counsel as the cause of the substantial harm of the level three classification: (1) counsel's failure to generate favorable letters from family and friends; (2) his failure to retrieve sex offender treatment records from prison; and (3) his failure to prepare the petitioner for direct and cross-examination at the board hearing. For the reasons canvassed by the majority, ante at 677-679, those failings would not have made a difference in the result created by the magnitude of undisputed adverse information.

Similarly in the Superior Court, counsel's deficient written and oral work could not have changed the result dictated by the same information embodied in the administrative record.

Conclusion. The reasoning of the majority and the application of the Saferian rule converge at the same result. The former resembles the implicit application of the latter. They are likely to converge in the vast majority of cases. For the guidance of all participants in this important public safety program, we should convert the de facto practice to a de jure standard, and straightforwardly adopt the Saferian rule.