Opinion
PM-2018-2012
01-20-2023
STATE OF RHODE ISLAND Plaintiff/Appellee v. BRIAN SMITH Defendant/Registrant
For Plaintiff: Bethany A. Laskowski, Esq. Caitlin Crowley Isherwood, Esq. For Registrant: Brian Smith, pro se.
Providence County Superior Court
For Plaintiff: Bethany A. Laskowski, Esq. Caitlin Crowley Isherwood, Esq.
For Registrant: Brian Smith, pro se.
DECISION
VAN COUYGHEN, J.
Before this Court is Registrant Brian Smith's (Registrant) so-called appeal of a November 2, 2021 decision of a Superior Court Drug Court Magistrate, sitting as a Superior Court Justice, affirming Registrant's Risk Level III sex offender classification by the Rhode Island Sex Offender Board of Review (Board).
I Facts and Travel
On September 8, 2014, Registrant was charged with second-degree child molestation and simple assault after an incident that occurred on the Newport Polo Field on July 19, 2014. (Hr'g Tr. 6:1-11; 7:23-8:2, Nov. 2, 2021) (Nov. Tr.). This charge ultimately became N2-2015-0045A and, on April 4, 2016, Registrant was found not guilty on two counts of second-degree child molestation, but was found guilty of simple assault and sentenced to two years in prison. Id. at 8:5-11. Following this first charge in September 2014, Registrant's niece came forward and filed an additional complaint against Registrant regarding a sexual assault that occurred in 2004. Id. at 8:23-9:6. This second case became P2-2015-3448, and on December 14, 2016, Registrant pled nolo contendere to second-degree child molestation and was sentenced to ten years in prison, with two years to serve and with eight years suspended. Id. at 9:7-12. Also, as a result of the first case, a third case was initiated against Registrant which alleged that Registrant previously molested two children in East Greenwich. Id. at 9:17-24. This third case became K2-2016-0637A, and on December 14, 2017, Registrant pled nolo contendere to two counts of second-degree child molestation and was sentenced to ten years, with six to serve and four suspended. Id. at 10:13-17.
Pursuant to G.L. 1956 § 11-37.1-6, the Board began the risk leveling process for Registrant based upon his conviction in the second case. See Hr'g Tr. 24:19-25:8, Sept. 28, 2021 (Sept. Tr.). As part of this process, Kevin Kroce, a field investigator for the Board, interviewed Registrant at the Adult Correctional Institutions (ACI) on August 30, 2017. Id. The Board issued a Risk Assessment Report on November 27, 2017, prior to Registrant's plea in the third case, classifying him as a Level III risk to reoffend. Id. at 2:14-17. The Board promptly notified Registrant of its decision, and Registrant filed an objection and requested a review of the Board's classification before the superior court. Id. at 2:17-19.
By statute, the Superior Court Drug Court Magistrate, sitting as a Superior Court Justice, oversees the sex offender calendar. G.L. 1956 § 8-2-39.2(f). The Magistrate that handles appeals from the Board conducted a two-day hearing, which occurred on September 28, 2021 and October 5, 2021, at which both Registrant and the State were permitted to present oral argument, testimony, and further evidence. See Sept. Tr. 6; Hr'g Tr. 2, Oct. 5, 2021 (Oct. Tr.). As part of the case, the Attorney General's Office submitted numerous exhibits to the superior court which the Board used in their risk leveling process for Registrant. Those exhibits included the Notice of Community Notification; the Risk Assessment Report; results of the STATIC-99 test, STATIC-2002 test, and the STABLE-2007 test; court documents that detailed the facts of each case against Registrant; various police reports that included the statements of individuals who alleged that Registrant molested children; and other relevant documents that included Registrant's pleas of nolo contendere on numerous counts of second-degree child molestation on multiple children. (Sept. Tr. 2:24-3:1; Nov. Tr. 4:22-5:4.) These exhibits also included documents relating to the third case in which Registrant pled nolo contendere on December 14, 2017, which was subsequent to the Board's assessment. Id. On the first day of the hearing, with counsel present but without the assistance of counsel, Registrant himself argued that the State's use of Registrant's nolo contendere pleas and child molestation charges, for which he was found not guilty, should not be considered when determining his risk level. (Sept. Tr. 19:10-20:4.)
On November 2, 2021, the Magistrate issued a bench decision affirming the Board's decision to classify Registrant as a Level III sex offender. (Nov. Tr. 22:25-23:4.) In his ruling, the Magistrate detailed the process by which he reached the decision and how, even weighing the facts in Registrant's favor, it was still reasonable to conclude that the Registrant should be classified as a level III offender. Id. at 25:12-15.
On December 13, 2021, Registrant filed this so-called appeal seeking review of the Magistrate's decision by a justice of this Court pursuant to § 8-2-39.2(j).
II Analysis
"[S]exual offender registration and notification is a civil regulatory process" and, as such, the rules of evidence do not apply. See State v. Germane, 971 A.2d 555, 593 (R.I. 2009). Once the Board makes a risk level determination of a defendant, the defendant can choose to appeal the determination before the drug court magistrate sitting as a superior court justice. See § 8-2-39.2(f). In any proceeding under the act, the state bears the initial burden of establishing "a prima facie case that justifies the proposed level of and manner of notification." Sec. 11-37.1-16(a). Section 11-37.1-16(b) defines "prima facie case" as proof that "(1) A validated risk assessment tool has been used to determine the risk of re-offense; [and] (2) Reasonable means have been used to collect the information used in the validated assessment tool." If the State successfully establishes a prima facie case, then the drug court magistrate hearing the appeal shall affirm the Board's findings. Sec. 11-37.1-16(c). If, however, the drug court magistrate "is persuaded by a preponderance of the evidence" that the determination of the risk level classification "is not in compliance with this chapter or the guidelines adopted pursuant to this chapter[,]" then the drug court magistrate can reclassify the risk level of the defendant or send the case back to the Board. See id. As such, the appellant is given an opportunity to present evidence, including testimony, challenging the State's prima facie case. See Germane, 971 A.2d at 580-81.
A Appellate Jurisdiction
Section 8-2-39.2(f) empowers the drug court magistrate "to hear and decide as a superior court justice all matters that may come before the superior court pursuant to chapter 37.1 of title 11 'sexual offender registration and community notification.'" Sec. 8-2-39.2(f). The foregoing section clearly establishes that the drug court magistrate acts as a superior court justice when addressing sex offender registration and community notification status. However, § 8-2-39.2(j) provides that if a party is "aggrieved by an order entered by the drug court magistrate[, that party] shall be entitled to a review of the order by a justice of the superior court." Sec. 8-2-39.2(j).
"It is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996). Moreover, when we examine an unambiguous statute, "there is no room for statutory construction and we must apply the statute as written." In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994). "[The Court's] ultimate goal [in construing a statute] is to give effect to the [General Assembly's] intention." Champlin's Realty Associates, L.P. v. Tillson, 823 A.2d 1162, 1165 (R.I. 2003). "[The Court] presume[s] that the General Assembly intended to attach significance to every word, sentence and provision of a statute." Retirement Board of Employees' Retirement System of State v. DiPrete, 845 A.2d 270, 279 (R.I. 2004). However, "[w]hen confronted with competing statutory provisions that cannot be harmonized, [the Court] adhere[s] to the principle that 'the specific governs the general."' Felkner v. Chariho Regional School Committee, 968 A.2d 865, 870 (R.I. 2009) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)).
Although §§ 8-2-39.2(f) and 8-2-39.2(j) may seem inconsistent at first glance, upon further review, it is clear that the two subsections are not inconsistent when reading the statute as a whole. Section 8-2-39.2 outlines the overlapping powers and responsibilities that are expected of a drug court magistrate. See § 8-2-39.2. There are times in which a drug court magistrate acts with his or her authority as a general magistrate, and it is during those times that the drug court magistrate is subject to § 8-2-39.2(j) and an aggrieved party must appeal the order to be reviewed by a justice of the superior court. Sec. 8-2-39.2(j); see R.I. Super. Ct. R. of Prac. 2.9.
It is important to note that a drug court magistrate's decision, when not acting as a superior court justice, is reviewable as set forth in Rule 2.9(h) of the Rhode Island Superior Court Rules of Practice (see infra).
However, in addition to the drug court magistrate's duties as a general magistrate, there are two subsections of § 8-2-39.2 that grant the drug court magistrate the authority, under very limited circumstances, to hear and decide cases sitting as a superior court justice. See, e.g., §§ 8-2-39.2(c) and (f). The language of § 8-2-39.2(f) very clearly grants the drug court magistrate the authority "to hear and decide as a superior court justice" appeals of a risk level classification decided by the Board. Sec. 8-2-39.2(f). When a drug court magistrate sits as a superior court justice, he or she must follow the same rules as other superior court justices and "[a]ny party aggrieved by a final judgment, decree, or order of the superior court may . . . appeal to the supreme court." G.L. 1956 § 9-24-1. Although aggrieved parties will have to appeal to a different court depending on the nature of the case, the two sections are not inconsistent because they both detail different roles and the corresponding authority of a drug court magistrate. In the instant matter, Registrant should have appealed the Magistrate's decisions to the Rhode Island Supreme Court because the language of §§ 8-2-39.2(f) and 8-2-39.2(j) are not inconsistent, and the Magistrate sat as a superior court justice when he heard Registrant's appeal of the Board's level III classification. See id.; see also § 8-2-39.2(f). Thus, this Court has no basis to hear this case as an appellate tribunal.
Even if §§ 8-2-39.2(f) and 8-2-39.2(j) are considered inconsistent and thus ambiguous, it is still clear that Registrant should have appealed the Magistrate's decision to the Rhode Island Supreme Court instead of the superior court when applying the principles of statutory construction. '"When a statute is ambiguous, . . . [the Court] must apply the rules of statutory construction and examine the statute in its entirety to determine the intent and purpose of the Legislature.'" Kingston Hill Academy v. Chariho Regional School District, 21 A.3d 264, 271 (R.I. 2011) (quoting In re Tetreault, 11 A.3d 635, 639 (R.I. 2011)). "[This Court's] ultimate interpretation of an ambiguous statute, however, is grounded in policy considerations and [the Court] will not apply a statute in a manner that will defeat its underlying purpose." Arnold v. Rhode Island Department of Labor and Training Board of Review, 822 A.2d 164, 169 (R.I. 2003) (citing Pier House Inn, Inc. v. 421 Corp., 812 A.2d 799, 804 (R.I. 2002)). Further, it is a commonplace principle of statutory construction that '"the specific governs the general[,]'" and that courts give precedence to the specific statute. Felkner, 968 A.2d at 870 (quoting Morales, 504 U.S. at 384).
Section 8-2-39.2(f) specifically addresses a magistrate's power and authority concerning sexual offender registration and community notification. In contrast, § 8-2-39.2(j) is more general in nature as it is a catchall for any party aggrieved by an order entered by a general magistrate. See § 8-2-39.2(j); see also Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1136 (R.I. 2002). Since § 8-2-39.2(f) specifically applies to a drug court magistrate's power and authority relating to sexual offender registration and is a specific statute, § 8-2-39.2(j) is inapplicable to sexual offender registration. See §§ 8-2-39.2(f) and (j); see also Wilkinson, 788 A.2d at 1136. Therefore, parties aggrieved by an order from a drug court magistrate sitting as a superior court justice concerning sexual offender registration and community notification must appeal the drug court magistrate's orders directly to the Rhode Island Supreme Court. See § 8-2-39.2(f); see also § 9-24-1.
Further, there have been cases where the Rhode Island Supreme Court has heard direct appeals from a drug court magistrate sitting as a superior court justice. In Germane, the seminal case dealing with sexual offender registration and community notification, the Rhode Island Supreme Court considered a direct appeal from the drug court magistrate's order. Germane, 971 A.2d at 573. The Supreme Court, referencing the drug court magistrate's opinion, stated, "Mr. Germane timely filed this appeal from the Superior Court's judgment." Id. Similarly, in State v. Dennis, 29 A.3d 445 (R.I. 2011), the Supreme Court again took a direct appeal of an order from the drug court magistrate sitting as a superior court justice. Dennis, 29 A.3d at 448.
Since the Drug Court Magistrate here was sitting as a Superior Court Justice when it heard Registrant's appeal of the Board's classification, Registrant should have filed this appeal before the Supreme Court. See § 8-2-39.2(f); see also § 9-24-1; see also Germane, 971 A.2d at 573. Therefore, because Registrant did not appeal directly to the Supreme Court, this so-called appeal is wrongfully before this Court and is therefore denied for lack of appellate jurisdiction. See § 9-24-1.
III Merits of the Case in the Event this Court does have Appellate Jurisdiction
A Standard of Review
Even if, arguendo, § 8-2-39.2(j) does apply to this matter, the following standard applies. Section 8-2-39.2(j) of the Rhode Island General Laws governs generally the superior court's review of a drug court magistrate's decision and provides:
"A party aggrieved by an order entered by the drug court 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, such review shall be on the record and appellate in nature. The court shall, by rules of procedure, establish procedures for reviews of orders entered by a drug court magistrate, and for enforcement of contempt adjudications of a drug court magistrate." Section 8-2-39.2(j).
Rule 2.9(h) of the Superior Court Rules of Practice sets forth the standard by which a superior court justice considers appeals from decisions of a magistrate. Pursuant to Rule 2.9(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 magistrate. The justice, however, need not formally conduct a new hearing and may consider the record developed before the magistrate, making his or her own determination based on that record whether there is competent evidence upon which the magistrate's judgment, order, or decree rests. The justice may also receive further evidence, recall witnesses or recommit the matter with instructions." R.I. Super. Ct. R. Prac. 2.9(h).
i Registrant's Argument
Registrant asserts that the Magistrate erred by accepting and relying upon, what Registrant refers to as, highly prejudicial evidence submitted by the State. Registrant alleges the evidence was highly prejudicial because it included charges that he was not found guilty of, which also formed the basis of the State's prima facie case. Registrant further argues that the Magistrate erred by taking judicial notice of the nolo contendere pleas as admissions of guilt. Lastly, Registrant claims the Magistrate incorrectly assumed there were findings of fact relevant to this matter arising from the prior court proceedings.
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." Germane, 971 A.2d at 588 and 594 (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 meet 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 "reasonable 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).
Therefore, according to § 11-37.1-16, a 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" of the risk level classification "is not in compliance with this chapter or the guidelines adopted pursuant to this chapter." See § 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.
Hearings were conducted before the Magistrate on September 28, 2021 and October 5, 2021. The State presented numerous exhibits, which the Board used in their risk leveling process for Registrant. Those exhibits included the Notice of Community Notification; the Risk Assessment Report; results of the STATIC-99 test, STATIC-2002 test, and the STABLE-2007 test; court documents that detailed the facts of each case against Registrant; various police reports that included the statements of individuals who alleged Registrant molested children; and other relevant documents, including, but not limited to, the pleas and resulting sentences in the second and third cases, case numbers P2-2015-3448 and K2-2016-0637A, respectively. The Magistrate afforded Registrant the opportunity to present evidence and testimony to challenge the State's prima facie case. However, Registrant chose not to present any new evidence to support his appeal.
In his decision, the Magistrate stated, "after reviewing the documents and materials submitted to the Court by the State, the Court finds the State has met the two-prong test required by statute. It has, in fact, established their prima facie case." (Nov. Tr. 21:17-21.) He further found that "the three tests used in this case are nationally recognized, well established risk assessment tools"-the STATIC-99 test, the STATIC-2002 test, and the STABLE-2007 tests-in its assessment of Appellant's risk of recidivism. Id. at 21:21-24 and 4:22-5:4. See Dennis, 29 A.3d at 447.
With regard to the second prong of the State's prima facie case, the Magistrate stated, "[t]he Court also believes nothing was presented to the contrary in the Court's mind, that reasonable means were used to collect the information used in the Assessment Report." (Nov. Tr. at 21:25-22:4.)
The information relied upon by the Board is consistent with the requirements of the Registration Act. In each case, as required by § 11-37.1-6(2)(i), the Board "shall . . . review other material provided by the agency having supervisory responsibility" over the offender, in addition to using the results of the validated risk assessment to make its determination. The approach mandated by the statute is consistent with the "express recommendation" of the creators of the STATIC-99 risk assessment, "who stated that 'a prudent evaluator will always consider other external factors that may influence risk in either direction."' Germane, 971 A.2d at 585.
Here, the record shows that the Board reviewed the three validated risk assessment tests, but also took into consideration other external factors that could influence Registrant's risk level. See Nov. Tr. 13-19. Those external factors included: Police Department narratives, Registrant's criminal history, the number of alleged victims, each of the three cases that alleged sexual assault against Registrant, the support system Registrant would have when he was released from prison, and the type of progress Registrant had made through attending sexual assault programs. Id. at 13:24-19:10. Additionally, the Board conducted its own interview with and assessment of Registrant while he was still at the ACI. (Sept. Tr. 24:19-25:8.)
Registrant asserts the Magistrate erred when he allowed the State to present evidence that included Registrant's nolo contendere pleas and the charges for which he was found not guilty. (Sept. Tr. 7:17-21.) However, "a plea of nolo contendere becomes an implied confession of guilt, and imposition of sentence follows as a matter of course . . . Thus, . . . the result is the same: the defendant stands convicted of the crime." Armenakes v. State, 821 A.2d 239, 246 (R.I. 2003) (internal quotation omitted). Additionally, "sexual offender registration and notification is a civil regulatory process" and, as such, the rules of evidence do not apply. See Germane, 971 A.2d at 593. Therefore, Registrant's nolo contendere pleas were properly considered by the Magistrate when he affirmed the Board's decision on the risk Registrant posed to the community as a sex offender. See id.
Similarly, because a nolo contendere plea followed by a sentence constitutes a conviction, the Board is also permitted to use a plea of nolo contendere to make their risk level determination. See id. at 564. In Germane, the Board was authorized to determine whether the defendant was a sexually violent predator following defendant's nolo contendere plea to several aggravated sexual offenses. Id. at 563-64. Likewise, in Dennis, the Board underwent an assessment of the level of risk to reoffend after the defendant entered a plea of nolo contendere. Dennis, 29 A.3d at 447. Therefore, because Registrant's nolo contendere pleas were followed by a sentence of imprisonment in the second and third cases (case numbers P2-2015-3448 and K2-2016-0637A, respectively), the Magistrate and the Board were permitted to consider his nolo contendere plea and resulting convictions to make their risk level classification.
Notwithstanding the evidence presented on Registrant's nolo pleas, and the not guilty finding regarding the sexual assault charges in N2-2015-0045A, there was plenty of other evidence in this case which supports upholding the Board's decision. This other evidence included the facts surrounding the second case and the sentence imposed in the second case. (Nov. Tr. 13:24-19:10.) Additionally, the evidence included claims surrounding the third case, which also resulted in a conviction, not to mention the valid risk assessment tools, all of which the Board is permitted to take into account when they make a risk level determination. Id. at 4:22-5:4, 13:24-19:10.
Accordingly, after de novo consideration, this Court accepts in whole that portion of the Magistrate's decision holding that the State met its prima facie case by showing that validated risk assessment tools were used to determine Registrant's risk to reoffend. This Court also finds that the Board used reasonable means to collect the information used in the three validated risk assessment tools and that the Board appropriately considered additional material. This Court further determines that competent evidence in the record supports the Magistrate's decision.
IV Conclusion
The Registrant's petition is denied because a superior court justice lacks appellate jurisdiction regarding the Magistrate's decision in this case.
However, if the petition is properly before this Court for appellate review, then for the reasons set forth in this Decision, after de novo consideration, the Magistrate's November 2, 2021 decision, and the resulting Order of the Magistrate entered on December 14, 2021, this Court accepts the decision and resulting Order of the Magistrate and further determines that competent evidence in the record supports said decision and Order. Registrant's claims lack merit, and his so-called appeal is denied. Judgment shall enter in favor of the State and against Registrant.