Opinion
ID Nos. 82002935DI, 92003282DI.
Submitted: August 31, 2005.
Decided: November 21, 2005.
Upon the State's Motion to Designate the Defendant as a Tier III Sex Offender, Granted.
ORDER
Upon the of State of Delaware ("State")'s Motion to Designate David Distefano ("Defendant") as a Tier III Sex Offender pursuant to 11 Del. C. § 4121(e)(1), it appears to the Court that:
1. On August 11, 1982, Defendant pled guilty to one count of the lesser included offense of Rape in the Second Degree in violation of 11 Del. C § 763 and one count of the lesser included offense of Kidnapping Second Degree. Defendant abducted a woman not previously known to Defendant and forced her to have oral and vaginal intercourse.
Cr. A. Nos. PN82-06-0015, PN82-06-1627.
2. On October 8, 1982, Defendant was sentenced to 15 years at Level V, suspended after 10 years for 10 years at Level III effective August 11, 1982; and 10 years at Level V, suspended after 2 years for 10 years of probation.
3. On July 27, 1989, Defendant was released from Level V incarceration.
4 On December 8, 1992, Defendant pled guilty to Unlawful Sexual Penetration Second Degree in violation of 11 Del. C § 771 and Unlawful Sexual Contact First Degree in violation of 11 Del. C § 769. Defendant raped a prostitute who had not provided Defendant adequate sexual services. Defendant was sentenced to 8 years at Level V and 3 years at Level V suspended for 3 years at Level III.
5. On January 8, 1993, Defendant was found to have violated the conditions of parole because of a new sex crimes conviction in Case No. 92003282DI. Probation and parole officer Sandra Waller commented in her evaluation report that "Distafano's criminal history shows that he has a history of arrests for sexual offenses which began in 1976 with his arrest for indecent exposure at the age of 15 and culminates in his arrest and conviction for the current offenses of Unlawful Sexual Penetration and Unlawful Sexual Contact." Officer Waller concluded her evaluation stating: "It is the recommendation of this officer that Mr. Distafano's conditional release be revoked and further incarceration imposed."
6. On December 19, 1999, Defendant was released from Level V incarceration to serve the balance of his conditional release.
7. In a June 7, 2000 report, Probation and Parole Officer Abigail P. Cooper stated: "It is in this officer's opinion that Mr. Distefano is a serious threat to the community at large. He has not only displayed a pattern of alcohol abuse but severe sexual deviance. This officer feels that allowing him in the public will present a risk to each and every female that comes into contact with him."
8. On September 12, 2000, Defendant was found to have violated the conditions of probation and parole set in both his 1992 and 1993 convictions. Defendant had been arrested for Possession/Consumption of Alcohol, had failed to report the arrest to Probation and Parole, and the consumption of alcohol itself was a probation violation. Parole was revoked and Defendant was ordered to serve his remaining sentence.
9. In a February 18, 2004 report, Probation and Parole Officer Lauren E. Press stated: "Mr. Distefano's recent conviction for DUI as well as his current addiction to crack cocaine is of great concern to this officer given his sexual offending behaviors in the past. It is the feeling of this officer that Mr. Distefano poses risk to the community and himself. After speaking with Mr. Distefano's Sex Offender Relapse Prevention group leader, Alan Southard, this officer believes that Mr. Distefano needs to be removed from the community and receive intensive substance abuse treatment while incarcerated." The same report cited the following as aggravating factors:
• The behavior of the offender represents an immediate threat to the community or an identified victim.
• The behavior of the offender is repetitive and flagrantly defies the authority of the court.
10. On March 23, 2004, Defendant was found to have violated the conditions of probation and was sentenced to 3 years at Level V. After successful completion of the Greentree Program, the balance was to be served at Level III.
11. On April 7, 2004, the Honorable Richard Gebelein approved the Special Conditions of Probation. In the section for "comments" Judge Gebelein added a handwritten note stating: "Probation to continue as previously ordered. Defendant is a safety risk if unsupervised."
12. On May 25, 2005, Defendant was found to have violated the Conditions of Probation by failing to report for scheduled meetings with his supervising officer and testing positive twice for controlled substances (cocaine). Defendant was sentenced to 6 months at Level IV, work release.
13. Pursuant to 11 Del. C. § 4121 (a)(4)f:
"Sex Offender" means any person who is, or has been:
Convicted on or before June 27, 1994, of any offenses set forth in subparagraphs a, b, c, or d of this paragraph, or of any offense which is the same as or equivalent to such offenses as same existed and were defined under the laws of this state existing at the time of such conviction and who is as of September 1, 1998, serving a sentence of probation or parole as part of the sentence imposed for such conviction; who thereafter is deemed by a court of competent jurisdiction to have violated the terms of conditions of his or her probation and parole, and who is thereafter designated as a sex offender by the sentencing judge pursuant to subsection (e) of this section.
14. Pursuant to 11 Del. C. § 4121(e)(1)a:
(1) Risk Assessment Tier III. Any sex offender convicted or adjudicated delinquent of any of the following offenses shall be designated by the court to Risk Assessment Tier III:
a. Rape in the First Degree, Rape in the Second Degree, Rape in the Third Degree if the offense involved a child under 12 or the offense involved force or threat of physical violence, Unlawful Sexual Contact in the First Degree, Unlawful Sexual Intercourse in the First or Second Degree, Unlawful Sexual Penetration in the First or Second Degree, Unlawful Sexual Contact in the First Degree, Continuous Sexual Abuse of a Child, Sexual Exploitation of a child;
15. Defendant is eligible to be designated as a sex offender because his 1982 sentence was in effect as of September 1, 1998. On September 1, 1998, Defendant was still serving a parole sentence for the 1982 conviction, while simultaneously serving a Level V sentence for the additional sex crime felony convictions.
16. Even though Defendant's current violation of probation did not have a sexual component, Defendant's past violations of probation did. In fact, on January 8, 1993, Defendant violated the conditions of parole because of sex crimes. The Court's decision to grant the State's motion for Tier III registration is based upon Defendant's status on September 1, 1998 as a probationer for sexual offenses, as well as his subsequent conviction for violation of his supervised release.
17. In light of the fact that Defendant's arrests for sexual offenses began in 1976, it appears to the Court that Defendant is exactly the type of sexual predator that the United States Supreme Court contemplated when it upheld the constitutionality of sexual offender notification in Smith v. Doe. Although the public availability of such information may have an adverse impact upon the convicted sex offender, these consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate or punish the offender.
538 U.S. 84, 105 (2003).
Id. at 101.
Id. at 99.
18. Multiple reports by probation and parole officers, as well as the finding by Judge Gebelein, clearly identify the danger Defendant represents to the community. It is in the interest of the safety of the community that Defendant be designated a Tier III Sex Offender.
19. THEREFORE, the State's Motion to Designate the Defendant as a Tier III Sex Offender is GRANTED.