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State v. Brown

Supreme Court of Rhode Island

July 15, 2016

State
v.
Harry W. Brown.

         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 ...

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