Opinion
C.A. No. PM-2018-2195
12-05-2019
GLEN MATTESON Plaintiff, v. RHODE ISLAND DEPARTMENT OF ATTORNEY GENERAL Defendant.
ATTORNEYS: For Plaintiff: Michael S. Pezzullo, Esq. For Defendant: Bethany A. Laskowski, Esq.
DECISION
VOGEL , J. Glen Matteson (Appellant) brings this appeal from a December 11, 2018 decision of the Drug Court Magistrate (the Magistrate) affirming his Risk Level III sex offender classification order issued by the Board. Appellant contends that the Board improperly disregarded his risk assessment test results in determining his classification pursuant to the Rhode Island Sexual Offender Registration and Community Notification Act (the Act), G.L. 1956 §§ 11-37.1-1 et seq. Appellant also contends that the Board "carried out a vendetta" against him because he was a State employee at the time of his arrest. Tr. I at 4, Nov. 20, 2018. For the reasons set forth herein, the Court affirms the decision of the Magistrate. This Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 8-2-39.2(j).
This matter came before a Drug Court Magistrate of the Superior Court on November 20, 2018 and again on December 11, 2018. The transcripts from those hearings will be referred to as Tr. I and Tr. II, respectively.
I
Facts and Travel
On March 11, 2013, Appellant entered a plea of nolo contendere in Washington County Superior Court to one count of indecent solicitation of a minor. Tr. I at 3. In his decision upholding the Board's classification, the Magistrate discussed the factual background supporting the charge and conviction. The case came to the attention of the Richmond Police Department when the father of the victim reported that his son had received sexually explicit text messages from Appellant, the boy's soccer coach. Tr. II at 8-9. Appellant sent texts "that stated, 'Told you I was quite kinky.' Further, 'I got something for your ass, LOL' ... 'You might hurt for a couple days after, LOL.'" Id. at 9. With the consent of the victim's father, a police detective took the victim's phone and posed as the minor. Appellant then exchanged a series of sexually explicit text messages with the detective, believing him to be the fifteen-year-old victim. Id. at 9. Appellant texted, "You just tell me one thing that you want me to do and I'll fill you with all your dreams," "As you lick me also," and "I want to see your hard dick." Id. at 9-10. He also requested nude pictures of the boy. Id. at 10.
Appellant was sentenced to five years at the Adult Correctional Institutions, five years of which were suspended with five years of probation. The sentence included a no contact order with the victim, sex offender counseling and registration. See Sex Offender Community Notification Unit Interview (SOCNU Interview) at 1. Appellant complied with the terms of his release, and his probation ended on March 10, 2018. Tr. I at 3.
This was not Appellant's only contact with the system as a sex offender. On February 15, 2013, he pled guilty in the United States District Court for the District of Rhode Island to charges of receiving, possessing, and distributing child pornography. Tr. II at 8. The State Police discovered the images when its Computer Crime Unit reviewed Appellant's cell phone, computer, thumb drives, and a CD from Google Legal Services containing Appellant's e-mails. Id. at 10-11. The complete inspection yielded images of prepubescent children—some appearing as young as five years old—with multiple images depicting nude prepubescent males engaged in graphic sexual acts with adult males. Id. at 11-12. That investigation demonstrated that Appellant was distributing and receiving pictures and videos of child pornography. Id. After Appellant pled guilty in that case, the District Court sentenced Appellant to sixty months to serve followed by ten years supervised release, as well as sex offender counseling and registration. See SOCNU Interview at 2.
On August 24, 2017, SOCNU probation officer Mary-Anne Campbell interviewed Appellant before the anticipated termination of his state probation. See SOCNU Interview at 3. Ms. Campbell reported the contents of the interview in a seventeen-page document. See id. Appellant claimed that he collected child pornography because he was "looking for answers" as to why he was sexually abused as a child. Id. at 3. Appellant further stated that he had not intended to meet with his solicitation victim and that he "thought it was all a big joke." Id. at 5.
Appellant presented himself to the Kent Center for counseling and psychiatric assessment on October 23, 2017. See Tr. II at 4. Appellant discussed his history of childhood abuse, his prior hospitalization for suicidal ideation, and past medical history. See Appellant's Mem. in Supp. of Argument on Sex Offender Classification (Appellant Mem.), Exhibit B, Kent Center Initial Psychiatric Assessment (the Kent Center Assessment) at 2.
In accordance with the requirements of the Act, § 11-37.1-3, Appellant registered as a sex offender following his release from federal custody. Tr. II at 2. 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 its Decision on December 28, 2017, classifying him as a Level III risk to reoffend. See Decision at 1. As part of the Decision, the Board employed three validated risk assessment tools—the Static-99R, the Stable 2007, and the Static 2002R. Id. Appellant scored in the "Average Risk" category on the Static-99R and Static 2002R tests and scored in the "Low Risk" category on the Stable 2007 test. Id.
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" offenders are subject to Level I 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" 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).
On January 8, 2018, Appellant timely filed a request for review of the Board's classification. Tr. I at 1. Pursuant to § 11-37.1-14, the Court appointed legal counsel to represent Appellant at the hearing before the Magistrate. Id.
The Magistrate conducted a hearing on November 20, 2018, at which both Appellant and the State had an opportunity to present oral argument, testimony, and further evidence. Tr. I at 2. For its part of the case, the Attorney General submitted the administrative record, consisting of Appellant's appeal request from the Board's Decision; the Decision; the SOCNU Interview; Appellant's State Judgment of Conviction and Commitment; the Richmond Police Department Police Narrative; Appellant's Arrest Report and Witness Statement to Detectives Drew Bishop and Eric Yell of the Richmond Police Department; Appellant's Conditions of Probation; and the Notice of Duty to Register. At the hearing, Appellant introduced exhibits into evidence that included his Progress Reports from sex offender counseling with the Counseling & Psychotherapy Center (CPC) as well as his Kent Center Assessment. Tr. I at 2.
Three weeks later, on December 11, 2018, the Magistrate issued a bench decision, finding that Appellant's Level III sex offender classification was supported by the record and should be affirmed and rejecting arguments that Appellant warranted a lower classification based on his risk assessment results. Tr. II at 19-20. He also found no evidence for Appellant's contention that his Level III classification was the result of the Board's "vendetta" against him due to his employment with the State correctional system at the time of his arrest. Id. at 18. In his decision, the Magistrate referenced the large volume of child pornography possessed by Appellant. Id. at 19. He also noted his position as an authority figure over the children he coached on a high school boys' soccer team, and his abuse of that position by soliciting and sending sexually explicit text messages to one of the boys on his team. Id.
The Magistrate found that, given the multiple offenses that Appellant committed over a long period of time, the Board's Decision classifying Appellant as a Level III offender was supported by the record and should be affirmed. Id. The Magistrate noted both the progress Appellant was making in counseling and that he had a steady support system, but concluded that those factors, although favorable to Appellant, did not impact his finding that the Board did not err in classifying Appellant as a Level III offender. Id.
Following the Magistrate's December 11, 2018 decision, Appellant, through counsel, filed a timely appeal seeking review of the Magistrate's decision by a justice of this Court pursuant to § 8-2-39.2(j). Months later, on September 18, 2019, Appellant's counsel first requested the transcripts from Appellant's two appearances before the Magistrate. In pursuing a Motion for Extension of Time to Transmit the Record on Appeal, counsel candidly acknowledged that he "assumed, incorrectly, that same [transcripts] were not necessary due to the nature of the appeal." See Appellant's Mem. in Supp. of Mot. for Extension of Time, Sept. 19, 2019. The Court granted the Motion for Extension of Time, applying a "good cause" standard. See Bench Decision Granting Mot. for Extension of Time, October 17, 2019. The Court acknowledged that it was a "close call," but would grant the Motion due to the absence of prejudice to the State, even though ignorance of the law does not provide an excuse for an untimely filing. Id.
On October 23, 2019, after all legal work had been performed in connection with Appellant's request for review of the magistrate's decision, Appellant filed two motions. He filed a Motion to Appoint Counsel—to wit, his current attorney—and a Motion to Proceed In Forma Pauperis. These motions came before the Court for hearing on November 19, 2019, at which time this Court denied the Motion to Appoint Counsel with prejudice as it relates to any proceedings in the Superior Court. The Court referenced the discretionary nature of such an appointment, the fact that it would be tantamount to a retroactive appointment in that all legal work had been performed before the motion was even filed, and counsel's admitted unfamiliarity with the review process and standard of review. See Appellant's Mem. in Supp. of Mot. for Extension of Time, Sept. 19, 2019. The Court conditionally granted the Motion to Proceed In Forma Pauperis, in the event that after receiving the instant decision, Appellant seeks further review that necessitates incurring expenses in the Superior Court in connection therewith.
The Court now turns to the merits of the appeal—namely, whether the Board was justified in classifying Appellant as a Level III sex offender despite the results of the validated risk assessments.
II
Standard of Review
Section 8-2-39.2(j) of the Rhode Island General Laws governs 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).
Superior Court Rule of Practice 2.9(h) sets forth the standard by which a Superior Court justice considers appeals from decisions of a magistrate, though the rule does not specifically govern reviews of decisions from a drug court magistrate. Under 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. Practice 2.9(h).Whether this rule of practice impermissibly extends the applicable statute to permit de novo review of factual findings is not pertinent to this decision. In this case, the Court limited its review of the Magistrate's decision to the record and did not entertain additional evidence.
This Court finds guidance in the decisions of the Rhode Island Supreme Court in reviewing the decision of a drug court magistrate. The role of our Supreme Court in addressing a drug court magistrate's review of the Board's determination of a sex offender's risk to reoffend is clear. General Laws 1956 §§ 8-2-11.1(e) and 8-2-39(f) set forth the standard of review by which the Rhode Island Supreme Court reviews an order by a magistrate. The Supreme Court upholds factual determinations of the hearing justice unless those findings are clearly erroneous or demonstrate that the Superior Court justice misconceived or overlooked material evidence. The Supreme Court accords great weight to a hearing justice's determinations of credibility but considers issues of law de novo. DiCarlo v. State, 212 A.3d 1191, 1195 (R.I. 2019). In State v. Dennis, the Supreme Court applied the standard applicable to reviews of factual findings following a nonjury hearing. 29 A.3d 445, 450 (R.I. 2011). However, decisions from a drug court magistrate are generally not brought to the Supreme Court on direct appeal.
Section 8-2-39.2(j) governs direct appeals from a drug court magistrate. The appeals are heard by a justice of the Superior Court in accordance with the rules of procedure established by the Superior Court. In accordance with statute, this Court's review of the Magistrate's order was appellant in nature.
III
Analysis
Appellant argues that the Magistrate erred by affirming the Board's Level III sex offender classification. Appellant's argument rests mainly on the results of his validated risk assessments, which indicated he had a low or average risk to reoffend. Tr. I at 3-4. Appellant further contends that his high risk classification was due to his previous employment with a state correctional facility, and that the Board classified him as a Level III sex offender due to a "vendetta" against him. Id. at 4.
The Act and the Guidelines govern sex offender registration and the Court's review thereof. It is undisputed that Appellant pled no contest to indecent solicitation of a minor and was sentenced to five years suspended sentence with probation, as well as being required to attend sex offender treatment and to register as an offender. Tr. II at 8. 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."Section 11-37.1-6(1)(c). 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." Section 11-37.1-6(2)(i); 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 . . . in lieu of conducting its own risk assessment instrument for that offender.").
With respect to risk assessment levels, "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 . . . ." Section 11-37.1-6(4). Such records 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.
If a person subject to sex offender registration objects to the classification level issued by the Board, that person may request a hearing pursuant to § 11-37.1-14. Regarding the hearing, §11-37.1-16 provides,
"(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;Once the State presents its prima facie case, the Act states:
"(2) Reasonable means have been used to collect the information used in the validated assessment tool." Section 11-37.1-16(a)-(b).
"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."Section 11-37.1-16(c). Thus, the State bears "the initial burden of making out a prima facie case before the Superior Court, whereupon the burden shift[s] to appellant to rebut the board of review's classification of his risk level." State v. Germane, 971 A.2d 555, 580-81 (R.I. 2009). As such, an appellant challenging his or her classification may present evidence and testimony challenging the State's prima facie case.
In appealing the Board's Level III classification, Appellant contends that the Board "abused its professional judgment by placing [him] in the [Level III] high-risk category," while his validated risk assessment results indicated a low or average risk of recidivism. Tr. I at 6. Appellant further maintains that "the Board has a vendetta against him because he was employed by the State of Rhode Island at the time of his crimes, and in fact, a State computer was used as an instrumentality for one of the crimes which he committed." Id. at 4.
At the November 20, 2018 hearing, the Magistrate had before him the Attorney General's motion to affirm the Board's level and findings, along with "numerous exhibits as attachments, including the assessment report, police reports, etc." Tr. I at 2. Counsel for Appellant submitted a memorandum in support of lowering Appellant's classification, along with numerous counseling records attached as exhibits. Id. At the hearing, counsel argued that Appellant's three risk assessment scores placed him in a low or average risk category, and that the Board improperly disregarded these results in classifying Appellant as a Level III offender. Tr. I at 3-4. Following the hearing, the Magistrate issued a bench decision on December 11, 2018. See Tr. II at 1-21.
In his decision, the Magistrate found that "the State has met the two-prong test required by the statute, and has in fact established a prima facie case." Tr. II at 16. He further found that "[r]egarding the first prong, the three tests used in this case [were] nationally recognized, well-established risk assessment tools" and that "the Court also believes that nothing was presented to the contrary that reasonable means were used to collect the information used in the assessment report." Id. In reaching this decision, the Magistrate observed: "In this particular case the State, through [the] Attorney General's Office, introduced the record of the [Board] which include that the board use[d] the Static-99[R] with a score of two, placing Petitioner in the average risk category. The board also used the Static-2002 with a score of three, placing Mr. Matteson, again, in the average risk category. And finally, they used the Stable 2007, the more subjective of the three tests, that had a score of three which placed him in the low-risk category." Id. at 5-6. The Magistrate then found that "the board is directed to use other material in addition to those tests to make their determination on the risk an offender poses to the community." Id. at 6.
The Board is not limited to the results of the risk assessments when assigning a sex offender classification. In fact, the Board is required by both the Act and the Guidelines to consider both the risk assessment results and additional outside factors to determine the appropriate classification level of a sex offender. Section 11-37.1-6(2)(i) states that the Board "shall within thirty (30) days of a referral of a person . . . 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." (Emphasis added.) Section 11-37.1-6(4) further states that "the [B]oard shall have access to all relevant records and information in the possession of any state official or agency . . . relating to the juvenile and adult offenders under review." (Emphasis added.)
The Guidelines provide a list of "Assessment Factors" to be used in risk level determination, including "Degree of Violence," "Degree of Sexual Intrusion," "Victim Selection Characteristics," and other factors concerning the offender's prior history and support systems. See Guidelines, Addendum 1, Sex Offender Risk of Re-Offense Assessment Factors. The Guidelines further state that "[e]ach risk of re-offense assessment decision shall be made on the basis of the facts of each individual case . . ." Id. (emphasis added).
Our Supreme Court explicitly permits the use of factors beyond risk assessment results, holding that "[r]isk assessment is not an exact science, and a certain amount of judgment and even intuition must be exercised by both the board of review and the reviewing magistrate." Germane, 971 A.2d at 589. In fact, "the board of review's ability to consider dynamic factors beyond the static factors analyzed by the STATIC-99 . . . has a 'substantial relation to the public health, safety, morals, [and] general welfare.'" Id. at 585 (quoting Kaveny v. Town of Cumberland Zoning Board of Review, 875 A.2d 1, 10 (R.I. 2005)). Thus, "a sexual offender assessment should not take place in a vacuum or solely rest on the results of the risk assessment tools. The classification of an individual's future risk of sexual recidivism is not a one-size-fits-all application." Dennis, 29 A.3d at 451 (emphasis added).
The Static-99R Coding Rules explicitly state that the test "utilizes only static (unchangeable) factors that have been seen in the literature to correlate with sexual reconviction in adult males . . . The weaknesses of the STATIC-99 are that it demonstrates only moderate predictive accuracy . . . and that it does not include all the factors that might be included in a wide-ranging risk assessment . . . . [A] prudent evaluator will always consider other external factors that may influence risk in either direction." Germane, 971 A.2d at 585 (emphasis added). Accordingly, our Supreme Court held that it is "not only reasonable, but . . . in accordance with the express recommendation of the STATIC-99R's creators" for the Board to consider both the risk assessment results and outside factors when determining a sex offender's classification level. Id.
In affirming the Board's classification, the Magistrate found that the Board appropriately considered factors beyond the verified risk assessment scores. Tr. II at 8. The Magistrate highlighted some of these factors, including the specifics of Appellant's indecent solicitation charge: the Magistrate noted that Appellant sent sexually explicit text messages to his fifteen-year-old victim, repeatedly requested nude photographs of the boy and arranged to pick the boy up and take him to another location. Id. at 10. The Magistrate also noted the large amounts of child pornography found in Appellant's possession, including depictions of "sadistic conduct [towards] children who appeared to be as young as five years old." Id. at 12.
Ultimately, while the Magistrate found that "the Court weighs in [Appellant's] favor that he had no prior criminal record . . . ,that he admits to his actions, that he was gainfully employed prior to his offense and has certain strong stability factors," these factors did not meet Appellant's burden to show that the Board's classification was not in compliance with the Act or the Guidelines. Tr. II at 17-19. Based on "the relatively large number of pornographic images as well as his position of authority as coach of the youth who he solicited," as well as "the separate offenses that occurred over that time period," the Magistrate found the Board to be justified in classifying Appellant as a Level III offender. Tr. II at 19. The Magistrate concluded that while "[t]aken alone, . . . the charge of solicitation . . . or the various child pornography charges on their own could justify a Level II finding . . . a full and thorough review of this case in taking the various charges, together in the time frame, do in fact justify the [B]oard's Level III finding." Id.
The record therefore contains competent evidence supporting the Magistrate in finding that the Board appropriately considered other materials beyond the risk assessments when calculating Appellant's Level III classification, and the Court accepts this part of the Magistrate's findings.
Counsel's argument that the Board "ignored its own assessment tools" and "acted arbitrarily and unreasonably in placing [Appellant] in [the] high-risk category" is therefore without merit. Tr. I at 6. Such an argument disregards our Supreme Court's repeated declarations that the Board is obligated to consider factors beyond the risk assessment results, as well as clear language in the Act and Guidelines that supports consideration of outside factors. See Dennis, 29 A.3d at 451 ("[T]he duties of the Board include using a validated risk assessment instrument and other material to determine the level of risk the offender poses to the community.") (Emphasis added.).
Appellant presented several counseling reports from CPC indicating he is participating in group sessions and complying with treatment. See Def's Mem. Ex. A. Appellant further provided the Court with a copy of his Initial Psychiatric Assessment with the Kent Center, in which the psychiatrist diagnosed Appellant with post-traumatic stress disorder and stated that Appellant would attend weekly counseling sessions. See Kent Center Assessment at 2.
The Magistrate found that "[w]hile [Appellant's] efforts [at treatment] appear commendable, they do not sway the Court that the [B]oard has made a decision that is an error." Tr. II at 19. In addition, the Magistrate found that Appellant provided no evidence that the Board was carrying out "a vendetta" against Appellant due to his previous employment with the State; he noted that "[t]he record is completely absent of any indication" of a vendetta and found that "the Court specifically sets that argument aside." Tr. II at 18. Therefore, the Court finds that the record supports the Magistrate's finding that the records do not enable him to find by a preponderance of evidence that the Board's classification was in error, and the Court accepts this part of the Magistrate's findings.
IV
Conclusion
Based on a review of the entire record on appeal, this Court finds that there is competent evidence in the record supporting all of the Magistrate's findings concerning Appellant's claims that his classification was in error. This Court accepts all parts of the Magistrate's decision affirming the Board's classification of Appellant as a Level III sex offender.
Counsel shall prepare an appropriate order for entry.
ATTORNEYS:
For Plaintiff: Michael S. Pezzullo, Esq.
For Defendant: Bethany A. Laskowski, Esq.