Opinion
ID # 9412013213
Submitted: June 29, 2001
Decided: September 28, 2001
Upon Defendant's Second Motion for Reduction of Sentence — DENIED
ORDER
After he pleaded guilty to three counts of Unlawful Sexual Contact Second Degree involving his foster daughter, Defendant was sentenced on November 3, 1995. On February 5, 1996, Defendant filed his first Motion for Reduction of Sentence. The motion was denied on May 15, 1996.
Defendant filed his second motion for sentence reduction, captioned "Motion for Sentence Modification," on May 15, 2001. As it did for the first motion, the court asked for the State's response to the second motion and the State, again, filed a letter strenuously opposing any sentence reduction or modification.
This time, Defendant asks "that he be relieved from any obligation to submit to polygraph testing." Alternatively, Defendant asks that he be relieved from having to pay for polygraph testing required by the probation authorities. Defendant also insists that he "has made good faith attempt to comply with all conditions of probation." He also argues that "polygraph testing is not reliable," and that it was not a condition of his probation.
Defendant does not identify the rule under which he has filed his latest motion. Presumably, it is Superior Court Criminal Rule 61. Under that rule, repetitive motions for postconviction relief are barred, "unless consideration of the claim is warranted in the interest of justice." Defendant's second motion for postconviction relief is not warranted in the interest of justice and so, it is procedurally barred.
Super. Ct. Cr. R. 61(i)(2).
Substantively, the court does not agree that Defendant has acted completely in good faith. The court is satisfied, based on earlier violation of probation reports, that if Defendant did not directly violate his probation, at times he has walked the line or otherwise tested his probation's limits. Defendant has confused technical compliance with good faith. Furthermore, while the court agrees with Defendant that polygraph testing is not reliable enough to be used as evidence in court, the court agrees with the State, nevertheless, that polygraph testing for sex offenders is a useful investigative tool. The State's response on this point is helpful and correct.
Finally, assuming that polygraph testing was not ordered originally, the court sees no reason why the probation authorities cannot order a sex offender to submit to a polygraph test for investigative purposes. Moreover, if Defendant has the resources to pay for testing, it is appropriate to bill him, within reason. A probationary sentence is in lieu of a prison sentence and probation is a priviledge. There is no reason why the taxpayers should have to underwrite the costs of correctional supervision, if a Defendant has the wherewithal to pay.
Defendant's sentence, including probation, should end soon. In the meantime, his original sentence is appropriate. Defendant's Second Motion for Reduction of Sentence is DENIED.
IT IS SO ORDERED.