Opinion
C.A. No. PM 12-1859
05-05-2014
STATE OF RHODE ISLAND v. EVAN LEON
For Plaintiff: Alison DeCosta, Esq. For Defendant: Katherine E. Godin, Esq.
DECISION
VOGEL , J. Evan Leon (Appellant) brings this appeal from a September 18, 2012 decision of the Drug Court Magistrate (the Magistrate), increasing his Risk Level II sex offender classification order issued by the Rhode Island Sex Offender Board of Review (the Board) to a Level III sex offender classification. As a threshold matter, Appellant argues that he should have been classified as a Level I sex offender. In the alternative, Appellant maintains that, at a maximum, he should have been be classified as a Level II sex offender instead. Jurisdiction is pursuant to G.L. 1956 § 8-2-39.2(j). For the reasons set forth herein, the Court vacates the decision of the Magistrate and remands the matter to the Board to reconsider Appellant's classification on an expanded record.
I
Facts and Travel
On March 12, 2008, Appellant, along with his mother, presented himself at the North Providence Police Station to report that he had been molesting his then-six-year-old female cousin. See Family Court Pet. The Appellant, born June 16, 1993, was fourteen years of age at the time. Id.
On July 29, 2008, a justice of the Family Court adjudicated Appellant delinquent on a charge of second-degree child molestation after he admitted sexually abusing his cousin over a period of approximately three to four years. See Stetson School, Inc., Initial Psychological and Risk Assessment at 4, Sept. 23, 2008 (Stetson Intake Assessment). The Appellant also admitted to a number of uncharged sexual acts involving several minors when he was between the ages of nine and fourteen. See id.; Sex Offender Community Notification Unit Interview (SOCNU Interview) at 7.
Following its finding that he was delinquent, the Court imposed a suspended sentence and placed Appellant on probation until he was nineteen years of age with Further Order of the Court. See Stetson Intake Assessment at 4. Thus, in the event that Appellant failed to comply with his probation and/or treatment plan, the Court had the authority to extend his probation and/or place him at the Rhode Island Training School until he reached the age of twenty-one years. See id. According to the conditions of his probation, Appellant was ordered to "cooperate with sex offender counseling"; "remain and cooperate with placement"; have "[n]o unsupervised contact with children under 12"; and have no contact with his cousin/victim. See Juvenile Probation and Parole Conditions of Juvenile Probation of the Department of Children, Youth and Families (DCYF).
On July 31, 2008, Appellant was admitted to the Stetson School for Residential Treatment and Special Education (Stetson) in Massachusetts to undergo treatment for sexually abusive youth. See Stetson Intake Assessment at 1. As part of his treatment, Appellant was required to attend a daily Sex Offender Treatment Program (Treatment Program). See SOCNU Interview at 6.
The Appellant resided at Stetson for almost twenty-one months until he was discharged on April 22, 2010. See Stetson Discharge Summ., May 18, 2010. In accordance with his transitional living plan, Appellant moved into a group home in Providence called Communities for People (C for P) and attended Mt. Pleasant High School. See SOCNU Interview at 4; Letter from Myles Glatter to Magistrate Burke at 1, May 3, 2012. The Appellant continued his treatment program by attending weekly group sessions and bi-weekly individual sessions while he was residing at C for P. See SOCNU Interview at 6.
On October 27, 2011, Mary Jean Erler, a SOCNU Field Investigator, interviewed Appellant before the anticipated expiration of his probation. See SOCNU Interview at 1. Ms. Erler reported the contents of the interview in an eight-page document. See id.
In accordance with G.L. 1956 §§ 11-37.1-1, et seq., the Sexual Offender Registration and Community Notification Act (the Registration Act), Appellant was required to register as a sex offender at the conclusion of his probation. (Tr. at 3, 6, Sept. 18, 2012) (Tr. II). Pursuant to § 11-37.1-6, the Board is required to determine the risk level of each offender. In Appellant's case, the Board issued a Risk Assessment Report (Decision) on December 19, 2011, classifying him as a Level II risk to reoffend. Id. at 1. The Board promptly notified Appellant of its Decision pursuant to § 11-37.1-13, and it provided further information of his right to have appointed counsel to represent him should he wish to appeal the Board's Decision in Superior Court. See Notice to Level II Offenders, R. Ex. 1 at 2.
This matter came before a Magistrate of the Superior Court on September 11, 2012 and September 18, 2012. The transcripts from those hearings will be referred to as Tr. I and Tr. II, respectively.
According to the Parole Board's Sexual Offender Community Notification Guidelines (the Guidelines), Level I sex offenders are subject to the fewest notification requirements: victim, witness, and local law enforcement agency notification. See R.I. Admin. Code 49-2-1 § 5; § 11-37.1-12(b)(1). Level II "Moderate Risk" sex offenders are subject to Level I sex offender notification standards along with additional requirements: notification to public and private education institutions, daycare facilities, and any establishments and organizations catering to children. See R.I. Admin. Code 49-2-1 § 7; § 11-37.1-12(b)(2). Notification standards for Level III "High Risk" sex offenders include the Level I and Level II sex offender notification standards and also empower local law enforcement agencies to provide additional disclosure to myriad other community groups which may come into contact with the sex offender. See R.I. Admin. Code 49-2-1 § 9; § 11-37.1-12(b)(3). Thus, for Level III offenders, the Guidelines indicate that notification may also be provided using any two or more of the following: new releases, fliers, advertisements in local newspapers, public access to hard copies at the law enforcement agency, public computerized access at the local library or at the law enforcement agency, or any other effective, appropriate and available methods of distribution. See R.I. Admin. Code 49-2-1 § 9.5.
On January 9, 2012, Appellant timely filed a request for review of the Board's classification. (Appeal Req. Tr. II at 1.) Pursuant to §11-37.1-14, a Superior Court Magistrate appointed legal counsel to represent Appellant at the hearing. See Letter from Counsel, Dec. 18, 2012.
The Magistrate conducted a hearing on Appellant's request on September 11, 2012, at which both the State and Appellant were permitted to present oral argument, testimony, and further evidence. See Tr. I at 4; Tr. II at 2. As part of the case, the Attorney General's Office had submitted the record to the Superior Court consisting of the Appeal Request; the Decision; the SOCNU Interview; an unsigned affidavit from Investigator Erler; the Family Court Petition; the Stetson Intake Assessment; a 2008 clinical evaluation of Appellant; the 2008 investigative findings of the DCYF Child Abuse and Neglect Tracking System (CANTS); Appellant's Conditions of Probation; and the Notice of Duty to Register. At that hearing, Appellant introduced various exhibits, including a Discharge Summary from Stetson, a letter from Appellant's therapist, Myles Glatter ACSW, LICSW, and an affidavit from Appellant. See id.
One week later, the Magistrate issued a bench decision rejecting Appellant's contention that he should have received a Level II classification. See Tr. II at 11-12. The Magistrate also, sua sponte, increased his classification from a Level II to a Level III risk to reoffend. See id. In his ruling, the Magistrate detailed the extensive incidents of sexual abuse committed by Appellant beyond the acts charged. See Tr. I at 6-9; Tr. II at 2-5, 8-11. Some of those admitted offenses constitute first-degree, as well as second-degree, child sexual molestation. His victims included babies in diapers as well as older children, and the offenses occurred repeatedly. See Tr. I at 6-7; Tr. II at 9.
See § 11-37-8.1 ("[a] person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) years of age or under[ ]"); § 11-37-8.3 ("[a] person is guilty of a second degree child molestation sexual assault if he or she engages in sexual contact with another person fourteen (14) years of age or under.").
The Magistrate expressed concern that, in light of the nature and extent of the assaults, coupled with the purpose of the Registration Act, the Decision of the Board classifying Appellant as a Level II offender should be reversed. (Tr. II at 11-12.) He then found that Appellant should have a lifetime registration requirement, not just a limited obligation consistent with a Level II offender. Id. at 12. In rejecting the Board's classification, the Magistrate further noted that the Board did not consider the discharge summary. Id.
See § 11-37.1-4. Section 11-37.1-4(j) provides:
"Juveniles. Any juvenile having the duty to register under subsections (b) and (c) of this section shall be required to annually register in person with the local law enforcement agency having jurisdiction over the city or town in which the juvenile having the duty to register resides for fifteen (15) years subsequent to the date of release from confinement or placement in the community or probation for such offense or offenses and to verify his or her address on a quarterly basis for said fifteen (15) years. However, if a juvenile is adjudicated delinquent under § 11-37-8.1 or 11-37-8.3, the court shall assess the totality of the circumstances of the offense and if the court makes a finding that the conduct of the parties is criminal only because of the age of the victim, the court may have discretion to order the juvenile to register as a sex offender as long as the court deems it appropriate to protect the community and to rehabilitate the juvenile offender. Registration shall be subject to the provisions of this chapter." Sec. 11-37.1-4(j).
Directly following the Magistrate's September 18, 2012 decision, Appellant, through counsel, filed an appeal seeking review of the Magistrate's decision by a justice of this Court pursuant to § 8-2-39.2(j). Subsequently, on September 21, 2012, Appellant filed an Ex Parte Motion to Proceed In Forma Pauperis on appeal from the Magistrate's decision, accompanied by an affidavit of indigency. Additionally, Appellant raised an issue concerning whether indigent sexual offenders were entitled to court-appointed counsel on appeal to this Court from a Magistrate's decision. After reviewing the specific facts and circumstances of this case, the Court, Gibney, P.J., afforded Appellant the right to counsel in March 2013. See State of Rhode Island v. Evan Leon, No. PM-12-1859, March 12, 2013, Gibney P.J.; Letter from Counsel, Dec. 18, 2012.
Those procedural issues having been resolved, the Court turns to the merits of the appeal, to wit, the Magistrate's decision to increase the classification level risk to reoffend.
II
Standard of Review
Section 8-2-11.1(d) of the Rhode Island General Laws governs the Superior Court review of a Magistrate's decisions and provides:
"A party aggrieved by an order entered by the administrator/magistrate shall be entitled to a review of the order by a justice of the superior court. Unless otherwise provided in the rules of procedure of the court, the review shall be on the record and appellate in nature. The court shall, by rules of procedure, establish procedures for review of orders entered by the administrator/magistrate, and for enforcement of contempt adjudications of the administrator/magistrate." Sec. 8-2-11.1(d)Pursuant to this statute, the Presiding Justice of the Superior Court in Administrative Order No. 94-12 promulgated procedures governing a Superior Court justice review of an administrator/magistrate's decision. In accordance with Administrative Order 94-12(h),
"The Superior Court justice shall make a de novo determination of those portions to which the appeal is directed and may accept, reject or modify, in whole or in part, the judgment, order or decree of the Master. The justice, however, need not formally conduct a new hearing and may consider the record developed before the Master, making his or her own determination based on that record whether there is competent evidence upon which the Master's judgment, order or decree rests. The justice may also receive further evidence, recall witnesses or recommit the matter to the Master with instructions." Admin. Order 94-12(h).
The term "Master" was amended to "Magistrate" by P.L. 1998, ch. 442, § 1.
Thus, the Superior Court justice conducts a de novo review of the portions of the record appealed. See Paradis v. Heritage Loan & Inv. Co., 678 A.2d 440, 445 (R.I. 1996) (recognizing that Administrative Order 94-12 gives a Superior Court justice "broad discretion in his or her review of the master's decision" and finding that "the trial justice's de novo review of the master's decision, based solely upon the record, was proper"). The record on appeal includes "[t]he original papers and exhibits filed with the clerk of the Superior Court, the transcript of the proceedings, and the docket entries." Admin. Order 94-12(f).
III
Analysis
The Appellant asserts that the Magistrate exceeded his statutory authority and violated Appellant's federal and state constitutional rights to due process, fair notice and a fair hearing when he sua sponte increased Appellant's sex offender classification. Alternatively, Appellant contends that even if the Magistrate did not exceed his statutory authority, he erroneously increased Appellant's sex offender classification to Level III. Instead, Appellant avers, the Magistrate either should have reduced his classification to a Level I or left his original classification unchanged. The Appellant further maintains that his constitutional and statutory rights were violated when the Attorney General's Office filed the instant matter as an appeal in Superior Court under his full name rather than as a juvenile proceeding in Family Court where his identity would have been withheld from public disclosure.
1
The Prima Facie Case
Determination of sex offender registration and the review thereof is governed by the Registration Act and the Guidelines. It is undisputed that Appellant was adjudicated delinquent on a charge of second-degree child molestation in Family Court and that, as a result, he is required to register as a sex offender. In accordance with § 11-37.1-6,
"Six (6) months prior to release of any person having a duty to register under § 11-37.1-3, or upon sentencing of a person having a duty to register under § 11-37.1-3, if the offender is not incarcerated, the agency having supervisory responsibility . . . shall refer the person to the sex offender board of review, together with any reports and documentation that may be helpful to the board, for a determination as to the level of risk an offender poses to the community and to assist the sentencing court in determining if that person is a sexually violent predator." Sec. 11-37.1-6(1)(c).
Under the Guidelines, the "Agency having custody" of Appellant is "the Department of Children, Youth and Families[,]" (R.I. Admin. Code 49-2-1 § 1.16), and the "Agency having control and supervision" over him is "the Department of Children, Youth and Families, Office of Juvenile Probation and Parole." R.I. Admin. Code 49-2-1 § 1.17.
Within thirty days of any such referral, the Board "shall conduct the validated risk assessment, review other material provided by the agency having supervisory responsibility and assign a risk of re-offense level to the offender." Sec. 11-37.1-6(2)(i). However, "[i]f the offender is a juvenile, the Department of Children, Youth & Families shall select and administer a risk instrument appropriate for juveniles and shall submit the results to the sex offender board of review." Sec. 11-37.1-6(1)(b). Thus, according to the clear language of § 11-37.1-6, the Board is required either to conduct its own risk assessment or, in the case of a juvenile offender, review an appropriate risk assessment administered by the DCYF. See also R.I. Admin. Code 49-2-1 § 3.5 ("The Board of Review shall use a scientifically validated and reliable risk assessment instrument in order to make their respective determinations. The Board of Review may consider the results of the risk assessment instrument conducted by the Sex Offender Notification Unit, or the agency having custody and supervision regarding a particular sex offender, in lieu of conducting its own risk assessment instrument for that offender.").
With respect to risk level assessments, "the board shall have access to all relevant records and information in the possession of any state official or agency having a duty under §§ 11-37.1-5(a)(1) through (6), relating to the juvenile and adult offenders under review by the board . . . ." Sec. 11-37.1-6(4). Such records and information include, but are "not limited to, police reports; prosecutor's statements of probable cause, presentence investigations and reports, complete judgments and sentences, current classification referrals, juvenile and adult criminal history records, violation and disciplinary reports, all psychological evaluations and psychiatric evaluations, psychiatric hospital records, sex offender evaluations and treatment reports, substance abuse evaluations and treatment reports to the extent allowed by federal law . . . ." Id.
At the conclusion of its review,
"the board may find that, based on the assessment score and other material, that the person may possess a mental abnormality or personality disorder that makes the person likely to engage in sexually violent predatory offenses. In these cases, the committee shall ask the parole board psychiatrist or if the offender is a juvenile, a DCYF psychiatrist to conduct a sex offender evaluation to determine if the offender possesses a mental abnormality or personality disorder that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." Sec. 11-37.1-6(2)(i)In the event that the Board receives "sufficient evidence and documentation to suggest that a person may be a sexually violent predator, the sex offender board of review shall forward a report to the attorney general for consideration by the court." Sec. 11-37.1-6(2)(ii).
If a person who is subject to registration objects to the classification level issued by the Board, that person may request a hearing pursuant to § 11-37.1-14. Determination of sex offender registration and the review thereof is governed by § 11-37.1-16. It provides, in pertinent part:
"(a) In any proceeding under this chapter, the state shall have the burden of going forward, which burden shall be satisfied by the presentation of a prima facie case that justifies the proposed level of and manner of notification.
"(b) For purposes of this section, "prima facie case" means:
"(1) A validated risk assessment tool has been used to determine the risk of re-offense;
"(2) Reasonable means have been used to collect the information used in the validated assessment tool." Sec. 11-37.1-16(a)-(b).
Our Supreme Court has declared that "[t]here are numerous practical reasons why basic fact-finding by the board of review should be thoroughly and transparently documented in any report transmitted to the Superior Court." State v. Germane, 971 A.2d 555, 588 and 594 (R.I. 2009) (criticizing the Board for not having appellant's most up-to-date evaluations before it, and "exhort[ing] [it] to be far more meticulous in its submissions in the future"). As previously stated, on appeal, for the State to carry its burden of presenting its prima facie case, it must show that "[a] validated risk assessment tool has been used to determine the risk of re-offense" and "[r]easonable means have been used to collect the information used in the validated assessment tool." Sec. 11-37.1-16(b)(1)-(2).
Once the State establishes a prima facie case, the Registration Act establishes a limited role for the Court:
"Upon presentation of a prima facie case, the court shall affirm the determination of the level and nature of the community notification, unless it is persuaded by a preponderance of the evidence that the determination on either the level of notification or the manner in which it is proposed to be accomplished is not in compliance with this chapter or the guidelines adopted pursuant to this chapter." Sec. 11-37.1-16(c).
Hence, according to § 11-37.1-16, the Magistrate must affirm the Board's findings when the State presents a prima facie case unless he or she "is persuaded by a preponderance of the evidence that the determination on either the level of notification or the manner in which it is proposed to be accomplished is not in compliance with this chapter or the guidelines adopted pursuant to this chapter." Sec. 11-37.1-16(c). As such, an appellant is given an opportunity to present evidence and testimony challenging the State's prima facie case. See Germane, 971 A.2d at 580-81 ("Pursuant to the plain language of § 11-37.1-16, the state bore the initial burden of making out a prima facie case before the Superior Court, whereupon the burden shifted to appellant to rebut the board of review's classification of his risk level."). Notwithstanding the foregoing, "[u]pon application by the attorney general or counsel for the sex offender, the court may remand any case pending adjudication of sexually violent predator status back to the sex offender board of review for further determination of sexually violent predator status and community notification level pursuant to § 11-37.1-6." Sec. 11-37.1-20.
In his appeal from the Board's sex offender classification, Appellant asserts that the Board "failed to properly consider [Appellant's] progress in sex offender treatment by considering his intake evaluation at the Stetson School, yet not even attempting to obtain [his] discharge summary or more recent treatment records." (Mem. of Law in Supp. of Pet'r's Obj. to his Assigned Classification Level at 1.) In essence, Appellant contends that the Board's failure to consider available treatment records necessarily prevented the State from establishing its prima facie case.
On September 11, 2012, a hearing on the matter was conducted before a Superior Court Magistrate. The Magistrate had before him the record submitted by the Office of the Attorney General. At the hearing, counsel for the Appellant, Attorney Katherine Godin, contended "that the Board of Review made a clear error when it ignored a treatment record." (Tr. I at 3). Attorney Godin then observed that the Board "did submit the intake report when my client first began his in-patient treatment at Stetson; however it never even bothered to look at or consider or submit his discharge reports or any subsequent treatment reports." Id. Following the hearing, the Magistrate issued a bench decision on September 18, 2012. See Tr. II at 1-12.
In his decision, the Magistrate found "that the State has met the two-prong test required by statute and has, in fact, established a prima facie case." Id. at 6. He further found that "[r]egarding the first prong, the test used in this case is a nationally recognized, well established juvenile risk assessment tool. The Court also believes nothing was presented to the contrary, that reasonable means were used to collect the information used in the assessment." Id. In reaching this decision, the Magistrate observed:
"The State, through the Attorney General's office, introduced the records of the Sex Offender Review Board which included the Sexual Offender Registration Board of Review used a juvenile sex offender protocol, commonly referred to as J-SOAP-II to assess future risk of Mr. Leon. The J-SOAP is designed to be used with offender juvenile boys. The results of the J-SOAP in this matter indicated that Mr. Leon was a moderate to high risk to reoffend based upon information presented to the board. In addition to the J-SOAP, the board states that they considered other factors in classifying the petitioner, including criminal records, police reports, institutional, probation, parole, supervision as well as treatment information." (Tr. II at 3-4).
The Juvenile Sex Offender Assessment Protocol-II (J-SOAP-II) Manual is published by the United States Department of Justice's Office of Juvenile Justice and Delinquency Prevention. The J-SOAP-II Manual "is designed to be used with boys in the age range of 12 to 18 who have been adjudicated for sexual offenses . . . ." R. Prentky & S. Righthand, Juvenile Sex Offender Assessment Protocol-II (J-SOAP-II) Manual, at 1 (2003) (hereinafter J-SOAP-II Manual). It provides "a checklist whose purpose is to aid in the systemic review of risk factors that have been identified in the professional literature as being associated with sexual and criminal offending." Id.
The J-SOAP-II Manual recognizes that the "stakes are often very high" when assessing risk with juvenile sex offenders because "[u]nlike adults, adolescents are still very much 'in flux.' No aspect of their development, including their cognitive development, is fixed or stable." Id. The J-SOAP-II Manual further recognizes that because adolescents often have very unstable life circumstances, "[i]n a very real sense, we are trying to assess the risk of 'moving targets.'" Id. Consequently, the J-SOAP-II Manual "strongly recommend[s] that youths be re-assessed for risk at a minimum of every 6 months . . . ." Id. However, the manual also states that "[d]ecisions about reoffense risk should not be based exclusively on the results from J-SOAP-II. J-SOAP-II should always be used as part of a comprehensive risk assessment." Id. This is because "at the present time, J-SOAP-II is not an actuarial scale. J-SOAP is an empirically informed guide for the systematic review and assessment of a uniform set of items that may reflect increased risk to reoffend." Id. at 8. However, "[t]o enhance reliability, [it] strongly recommend[s] that examiners use as many sources of information as possible when scoring J-SOAP-II." Id. at 9.
J-SOAP-II consists of a twenty-eight risk-factor checklist that is distributed among two distinct sections: a static risk assessment section and a dynamic risk assessment section. Id. at 12-27. Each of these sections are divided into two scales, for a total of four scales.Id. The manual sets forth the scoring guidelines for the twenty-eight risk-factor items. Id. at 11. According to the manual's guidelines, each item is "scored using a 0 to 2 scale, with 0 always associated with the apparent absence of the item and 2 always associated with the clear presence of the item." Id. When an item receives a score of "1," it "implies the presence of some information that suggests the presence of the item, but the information is insufficient, unclear, or too sketchy to justify a score of '2.'" Id. Once the individual scores are obtained, the overall J-SOAP-II score is "obtained by summing the items on each of the four scales and then adding the four scale scores . . . ." Id. Thereafter, "[e]ach scale score is then divided by the total possible score for that scale to determine the relative 'proportion of risk' rated as present for each of the four scales." Id. Then, "the overall J-SOAP-II score is divided by the total possible score . . . ." Id.
According to the Guidelines, "Each risk of re-offense assessment shall be made on the basis of the facts of each individual case, after review of appropriate documentation." R.I. Admin Code 49-2-1 APPENDIX. The Guidelines then list the factors that "should be considered in conjunction with the factors that have already been articulated in RI General Laws § 11-37.1-1." Id. The risk reoffense factors listed in the Guidelines are not as comprehensive as those listed in the J-SOAP-II.
The static risk assessment scales are "Scale 1. Sexual Drive/Preoccupation Items" and "Scale 2. Impulsive/Antisocial Behavior Items." J-SOAP-II Manual at 12 and 16. The dynamic risk assessment scales are "Scale 3. Intervention Items" and "Scale 4. Community Stability/ Adjustment Items." Id. at 21 and 25.
The twenty-eight risk factor items consist of the following: (1) "Prior Legally Charged Sex Offenses;" (2) "Number of Sexual Abuse Victims;" (3) "Male Child Victim;" (4) "Duration of Sex Offense History;" (5)"Degree of Planning in Sexual Offense(s);" (6) "Sexualized Aggression;" (7) "Sexual Drive and Preoccupation;" (8) "Sexual Victimization History;" (9) "Caregiver Consistency;" (10) "Pervasive Anger;" (11) "School Behavior Problems;" (12) "History of Conduct Disorder Before Age 10;" (13) "Juvenile Antisocial Behavior (ages 10-17);" (14) "Ever Charged or Arrested Before the Age of 16;" (15) "Multiple Types of Offenses;" (16) "History of Physical Assault and/or Exposure to Family Violence;" (17) "Accepting Responsibility for Offense(s);" (18) "Internal Motivation for Change;" (19) "Understands Risk Factors and Applies Risk Management Strategies;" (20) "Empathy;" (21) "Remorse and Guilt;" (22) "Cognitive Distortions;" (23) "Quality of Peer Relationships;" (24) "Management of Sexual Urges and Desire;" (25) "Management of Anger;" (26) "Stability of Current Living Situation;" (27) "Stability in School;" and (28) 'Evidence of Positive Support Systems."
In the instant matter, the Court has reviewed the record as submitted by the Attorney General's Office. It consists of the Appeal Request; the Decision; the SOCNU Interview; an unsigned affidavit from Investigator Erler; the Family Court Petition; the Stetson Intake Assessment; a 2008 clinical evaluation of Appellant; the 2008 investigative findings of the DCYF CANTS; Appellant's Conditions of Probation; and the Notice of Duty to Register. Also before the Court are exhibits that were submitted by Attorney Godin; namely, the Discharge Report from Stetson, a letter from Appellant's therapist, Myles Glatter ACSW, LICSW, and an affidavit from Appellant.
In its Decision, the Board described J-SOAP-II as
"a checklist whose purpose is to aid in the systemic review of risk factors that have been identified in the professional literature as associated with sexual and criminal offending. It is designed to be used with boys who are ages 12 through 18 years old. The J-SOAP-II may be used to assess the risk of sexual re-offending for non-adjudicated youth with a history of sexually coercive behavior as well as those who have been adjudicated for sexual offenses." (Decision at 1.)
The Board then observed: "Mr. Leon was assessed at a Moderate-High risk level on this risk assessment instrument." Id. The Board listed several characteristics in the case after stating that it had "considered the J-SOAP-II as well as other available documentation, including criminal record, police, institutional, probation/parole supervision, and treatment information . . . ." Id. The Board noted that "[t]he record indicates Mr. Leon participated in a residential sex offender specific program, Stetson House, in Barre, MA. Currently Mr. Leon has transitioned to a temporary community placement where he participates in weekly group sessions and bi weekly individual sessions." Id. at 3.
As stated previously, the State had the burden of presenting "a prima facie case that justifies the proposed level of and manner of notification." Sec. 11-37.1-16(a). To carry this burden, the State was required to demonstrate that "[a] validated risk assessment tool has been used to determine the risk of re-offense" and "[r]easonable means have been used to collect the information used in the validated assessment tool." Sec. 11-37.1-16(b)(1)-(2).
Although the Board's Decision references the existence of a J-SOAP-II risk assessment instrument, no such instrument can be found in the record. As a result, the Court is unable to either review said document to assess its validity or determine whether reasonable means were used to collect the information used in the J-SOAP-II.
Furthermore, the SOCNU Interview indicates that Appellant had been required to attend daily sex offender treatment while he attended Stetson, as well as weekly group sessions and biweekly individual sessions while he was residing at C for P. However, as the record does not contain or include any psychological or psychiatric evaluations, sex offender evaluations or treatment reports, the Court is unable to discern how the Board could have considered the effect, if any, that such intense sex offender treatment may have had on Appellant. In addition, despite the fact that the Board found Appellant to possess a risk level of moderate to high, there is no evidence in the record to suggest that the Board requested a psychiatrist "to conduct a sex offender evaluation to determine if the offender possesses a mental abnormality or personality disorder that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons[,]" as required by § 11-37.1-6(2)(i). In light of these evidentiary deficiencies, the Court cannot conclude that the State presented a prima facie case justifying the proposed Risk Level II sex offender classification. See § 11-37.1-16.
It is only after the State has established a prima facie case that this Court's role in reviewing a case comes into play. See § 11-37.1-16(c) ("Upon presentation of a prima facie case, the court shall affirm the determination of the level and nature of the community notification, unless it is persuaded by a preponderance of the evidence that the determination . . . is not in compliance with this chapter or the guidelines adopted pursuant to this chapter.") (Emphasis added.) However, considering that the State was unable to meet its initial burden of making out a prima facie case, the Court concludes that the burden never shifted to Appellant to rebut the level of notification proposed by the Board. See Germane, 971 A.2d at 581 (stating that the "burden may properly devolve upon a defendant once the state has developed a prima facie case and has adduced evidence sufficient to make it just that the defendant be required to challenge the proof with excuse or explanation") (emphasis added).
The record reveals that during the hearing, Attorney Godin stated: "I would suggest if this Court is not going to reverse and remand back to the Board, that it consider the evidence that I have submitted in determining whether his risk level is appropriate." (Tr. I at 4.) In Germane, our Supreme Court acknowledged that the Magistrate in that case cured numerous deficiencies in the record "by allowing appellant to introduce evidence challenging the board of review's findings." 971 A.2d at 589. In that case, similar to the present one, "[t]he board of review did not have before it the most up-to-date evaluations of appellant's current status." Id. However, unlike the present case, the Board did have an evaluation from the appellant's therapist concerning his progress in counseling. Id. at 587. More importantly, in Germane, the actual validated risk assessment instrument (the STATIC-99) was forwarded to the Superior Court as part of the State's prima facie case. Here, the equivalent risk assessment instrument (the J-SOAP-II) is missing from the record, so the Court is unable to review same.
Thus, despite the fact that Attorney Godin's statement possibly could be construed as a waiver of Appellant's rights; as the State did not present a prima facie case, her statement constitutes a request for a remand. See § 11-37.1-20 ("Upon application by . . . counsel for the sex offender, the court may remand any case pending adjudication of sexually violent predator status back to the sex offender board of review for further determination of sexually violent predator status and community notification level pursuant to § 11-37.1-6."). Furthermore, although Attorney Godin requested the Magistrate review additional documents, the State's failure to present its prima facie case precluded the Magistrate from reviewing same.
In view of the Court's conclusion that the State was unable to establish its prima facie case, the Court does not reach the issue of whether the Appellant should be classified as a Level III sex offender, as determined by the Magistrate. Instead, the Court orders the case to be remanded to the Board for proceedings consistent with this Decision.
2
Confidentiality
The Appellant contends that his constitutional and statutory rights were violated because he has been forced to proceed in the instant appeal under his real name. He additionally asserts that those rights will continue to be violated unless he is allowed either to proceed under a pseudonym or that the Court impounds the case.
Family Court Administrative Order 99-9 sets forth the applicable Family Court procedures with respect to juvenile sexually violent predators. It provides, in pertinent part:
"In accordance with RIGL sections 11-37.1-13 to 11-37.1-16, a juvenile seeking a review of the parole board's intent to promulgate a community notice that a juvenile's risk of re-offense is either moderate or high, shall file an application for review not less than ten (10) business days from the date of the parole board's letter. Pursuant to RIGL section 11-37.1-12, the application for
review shall be filed in the county where the juvenile resides or intends to reside. The county clerk will forward such application to the Juvenile Clerk's Office in Providence. The filing of an application for review operates as a stay of community notification by the parole board." Id. at 2.
In Rhode Island, "[t]he General Assembly has tended to advance society's interest in safeguarding the identity of juvenile offenders from the public." In re Richard A, 946 A.2d 204, 211 (R.I. 2008). However, "the confidentiality afforded to a juvenile is not absolute." Id. at 212. Accordingly, while recognizing the "trend [in juvenile sex offender registration cases] toward the partial erosion of confidentiality in the juvenile-justice system," our Supreme Court stated that "it is noteworthy that both the registration and any information accompanying the registration are available only to law enforcement agencies and are not disseminated to the public at large. This is a significant consideration." Id.
The Court then "conclude[d] that the Registration Act is not inconsistent with the prevailing view that juvenile proceedings generally should be confidential." Id. (Emphasis in original.) Importantly, however, the Court then recognized that "the confidentiality value is not an absolute nor does it exist in a vacuum; there are times (and this is one such time) when that value must give way to other legitimate societal priorities." Id.
Under the Delinquent and Dependent Children Act, an adult is defined as "a person eighteen (18) years of age or older . . . [,]" (G.L. 1956 § 14-1-3(1)), and a child is defined as "a person under eighteen (18) years of age." Sec. 14-1-3(3). In the present case, Appellant was an adult for purposes of the statute at the time that this case was filed by the Office of the Attorney General. However, it is undisputed that Appellant was a juvenile when he was adjudicated a delinquent; thus, while it would have been preferable for the State to bring the present action in Family Court under a pseudonym, the Court considers the error, if any, to be harmless. Nevertheless, at this time, the Court orders the case be placed under a protective order. In the event that Appellant's classification ultimately is determined to be at or above a Level Risk II, such confidentiality would not protect Appellant from later having to publicly register as a sex offender pursuant to the Registration Act.
IV
Conclusion
Based on a de novo review of the entire record on appeal, this Court finds that the State did not meet its burden of presenting a prima facie case. This Court vacates the decision of the Magistrate and remands the matter to the Board so that the record can be expanded to include the relevant J-SOAP-II risk assessment report, as well as its supporting documents and treatment evaluations for the Board's consideration. The Court further orders that the case be placed under a protective order to preserve Appellant's confidentiality. In light of these conclusions, the Court need not address the remaining issues raised by Appellant.
Counsel shall prepare an appropriate order for entry.
RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: State of Rhode Island v. Evan Leon
CASE NO: PM 12-1859
COURT: Providence County Superior Court
JUSTICE/MAGISTRATE: Vogel, J.
ATTORNEYS:
For Plaintiff: Alison DeCosta, Esq.
For Defendant: Katherine E. Godin, Esq.