Kent
County Superior Court, K1/95-890A Associate Justice Allen P.
Rubine.
For
State: Lauren S. Zurier Department of Attorney General
For
Defendant: Kara J. Maguire Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
Maureen McKenna Goldberg Associate Justice
The
defendant, Harry W. Brown, is before the Supreme Court on
appeal from an adjudication by a justice of the Superior
Court declaring him to be in violation of the terms and
conditions of probation. The defendant applied for a transfer
of his probation supervision from the State of Rhode Island
to the Commonwealth of Pennsylvania pursuant to the
Interstate Compact for Adult Offender Supervision (ICAOS or
Compact), G.L. 1956 chapter 9.1 of title 13. Pennsylvania
accepted the transfer request and imposed additional
conditions of supervision upon the defendant, to which the
defendant acquiesced. The defendant ultimately violated the
additional conditions. In this appeal, we are tasked with
determining the effect to be given to these violations by
this state under the Compact. For the following reasons, we
affirm in part and vacate in part the judgment of the
Superior Court.
Facts
and Travel
In
1996, defendant entered a plea of nolo contendere to all
counts of a twenty-seven-count indictment that charged him
with first-degree child molestation sexual assault,
second-degree child molestation sexual assault, first-degree
sexual assault, second-degree sexual assault, and assault
with intent to commit first-degree sexual assault upon more
than one victim. In total, the trial justice[1] sentenced
defendant to forty-five years at the Adult Correctional
Institutions (ACI), twenty years to serve and twenty-five
years suspended with probation. The trial justice also
ordered that defendant would be required to obtain
sex-offender counseling, register as a sex offender, and
refrain from contact with the victims.
The
defendant was released from the ACI on parole on November 16,
2005. Pennsylvania began supervising his parole two days
later. In December 2008, defendant signed a document entitled
"Special Conditions of Parole" prepared by the
Commonwealth of Pennsylvania Board of Probation and Parole;
defendant agreed to abide by the following special condition
of parole:
"I shall refrain from using any computer and/or device
to create any social networking profile or to access any
social networking service or chat room (including but not
limited to MySpace.com, Facebook, Match.com, Yahoo
Messenger/Yahoo 360, AOL/AOL Instant Messenger, and any
online dating service) in my own name or any other name for
any reason unless expressly authorized by the District Parole
Supervisor."
On
October 20, 2011, presumably at the conclusion of his parole
term, defendant signed a document entitled "Rhode Island
Department of Corrections Adult Probation and Parole
Conditions of Supervised Probation" (Rhode Island
Conditions of Supervised Probation) in which he acknowledged,
"I must obey the * * * [c]onditions [set forth in the
document] throughout the term of my
[p]robation."[2] He also acknowledged that: "Failure
to follow each and every one of the [c]onditions of
[p]robation could result in further [c]ourt action. If I
violate my [p]robation, the [c]ourt could impose the sentence
allowable by law."
The
defendant applied for transfer of his probation supervision
from Rhode Island to Pennsylvania pursuant to the Compact.
The transfer application, which is dated October 15, 2011 and
was signed by defendant on January 4, 2012, provided, in
pertinent part, that:
"I, HARRY W. BROWN, am applying for transfer of my
parole/probation/other supervision from RHODE ISLAND (sending
state) to PENNSYLVANIA (receiving state). I understand that
this transfer of supervision will be subject to the rules of
the Interstate Commission for Adult Offender Supervision.
"I understand that my supervision in another state may
be different than the supervision I would be subject to in
this state. I agree to accept any differences that may exist
because I believe that transferring my supervision to
PENNSYLVANIA (receiving state) will improve my chances for
making a good adjustment in the community. I ask that the
authorities to whom this application is made recognize this
fact and grant my request for transfer of supervision.
"In support of my application for transfer, I make the
following statements:
"* * *
"2. I will comply with the terms and conditions of my
supervision that have been placed on me, or that will be
placed on me by RHODE ISLAND (sending state) and PENNSYLVANIA
(receiving state).
"3. I understand that if I do not comply with all the
terms and conditions that the sending state or the receiving
state, or both, placed on me, that it will be considered a
violation and I may be returned to the sending state."
Pennsylvania
accepted the transfer request.
Meanwhile,
defendant violated Pennsylvania's condition relating to
the use of social-networking sites. On December 1, 2011,
Pennsylvania sent Rhode Island a "Compact Action
Request, " indicating that Pennsylvania authorities
"allowed [defendant] to have limited access to the
[I]nternet. He took advantage of this privilege [by]
utilizing a cell phone to access online dating sites."
Through the Compact Action Request, one of the Pennsylvania
parole agents assigned to defendant's case requested
"that [Rhode Island] propose a special condition [on
defendant] to not utilize or have access to the [I]nternet at
any time." Rhode Island gave the following reply:
"Per [C]ompact [R]ule 4.103, the receiving state can
impose any conditions appropriate to offenders placed under
supervision in the receiving state. Therefore, if
[Pennsylvania] wishes to impose a condition of no [I]nternet
access, it has the authority to do so."[3]
Pennsylvania
thereafter imposed several additional conditions. On July 31,
2012, defendant signed two documents in which he agreed to
comply with the following pertinent additional conditions:
"You must not possess, view, listen to[, ] or read any
sexually explicit material, including any articles,
literature, books, magazines, photographs, e-mails, websites,
digital images, animated photographs or images, tapes,
videos, or any content that may be or is broadcast by radio,
television[, ] or computer (including by satellite). Sexually
explicit, for the purpose of this condition and all other
conditions, is defined as actual or simulated depiction of
the following: (1) sexual intercourse, including genital
– genital, oral – genital, anal – genital,
hand – genital[, ] or oral – anal intercourse;
(2) be[]stiality; (3) masturbation; (4) sadistic or
masochistic abuse; (5) exhibition of the genitals or pubic
area of any person; and (6) nudity.
"* * *
"You must not form an intimate or romantic/sexual
relationship with any person who has full or partial physical
custody, including visitation rights, of anyone under the age
of 18 years old without the prior written approval of
probation/parole supervision staff and[, ] if applicable, in
agreement with your treatment provider."
We
shall refer to these two conditions-together with the special
condition regarding use of the Internet to access
social-networking sites to which defendant agreed in December
2008 and with which he was obligated to comply-as the
Pennsylvania conditions.
Pennsylvania
parole agent Tracy Starzynski was assigned to defendant's
case in November 2013. Starzynski met with defendant and
reviewed the Pennsylvania conditions with him. The defendant
stated that he understood the conditions and acknowledged
that he knew that he was subject to them before his meeting
with Starzynski. Notwithstanding this acknowledgment,
defendant knowingly violated the Pennsylvania conditions.
On
January 11, 2014, Starzynksi and other Pennsylvania parole
agents searched defendant's residence and cell phone. In
defendant's bedroom, parole agents found at least one
pornographic DVD under his nightstand, as well as a stack of
photographs depicting nude or partially clad women in his
closet. The defendant admitted to parole agents that he used
these materials to masturbate. In addition, on top of the
stack of photographs that was discovered in his closet,
parole agents found a photograph of a fully-clothed
school-aged girl. The defendant admitted to parole agents
that the girl in the photograph was the child of a woman with
whom he recently had a yearlong dating relationship. Finally,
a search of defendant's phone revealed that he once again
had been using dating and social-networking sites. The
profile names used by defendant this time were different from
the earlier occasion when parole agents discovered his
unauthorized use of social-networking sites.
Based
on the evidence discovered during this search, defendant was
charged with violating the Pennsylvania conditions. On
January 14, 2014, defendant executed a form entitled
"Waiver of Probable Cause Hearing and Admission
Form" (waiver form), in which he proceeded to waive his
right to counsel and his right to a probable-cause hearing in
Pennsylvania; he also admitted that he violated the
Pennsylvania conditions. The waiver form provided, in
pertinent part, that:
"I have been advised of my right to a probable[-]cause
hearing and counsel representation at that hearing. With full
knowledge and understanding of my right to counsel and a
probable[-]cause hearing, I hereby waive those rights. I
waive these rights of my ...