Plaintiff: Laura N. Nicholson, Esq.; Bethany Anne Laskowski,
Defendant: Stephen Thomas Morrissey, Esq.
this Court is Thomas Yates Exley's (Mr. Exley) appeal of
the order of a Superior Court Magistrate (the Magistrate),
dated March 28, 2017 and submitted May 10, 2017, affirming
the sex offender classification determined by the Rhode
Island Sex Offender Board of Review (the Board). The Board
classified Mr. Exley as a Level II sex offender for the
purposes of the Rhode Island Sexual Offender Registration and
Community Notification Act (the Act), G.L. 1956 §
11-37.1-1. On appeal, Mr. Exley asserts that he should have
been classified as a Level I sex offender. Jurisdiction is
pursuant to G.L. 1956 § 8-2-39.2(j).
facts of the underlying offense are set forth in the
Board's Risk Assessment Report. The Risk Assessment
Report indicates that on December 4, 2006, a
seventeen-year-old victim residing in Marin County,
California, notified her therapist of inappropriate sexual
touching by her father. (Risk Assessment Report 3.) The
victim was identified as Mr. Exley's biological daughter.
Id. at 3.
December 8, 2006, the victim was taken to a rehabilitation
center and remained in the program for forty-five days.
Id. Thereafter, on January 12, 2007, the victim gave
a written statement detailing the sexual assault.
Id. The victim reported that Mr. Exley's
inappropriate sexual conduct included "digital
penetration, masturbation of himself and the victim,
attempted sexual intercourse, and ultimately forced oral
copulation of the victim." Id. The incidents
occurred in the family home, a hotel room, and on a
commercial airplane. Id. at 3-4. The victim reported
that the incidents occurred four to five times a week over
three to four months. Id.
March 18, 2009, Mr. Exley submitted a guilty plea to one
count of forced oral copulation with his biological daughter.
(Risk Assessment Report 3.) The Marin County Superior Court
in California sentenced Mr. Exley to six years in the state
prison system, as well as five years parole with GPS and
lifetime registration. Mr. Exley was released on July 22,
2014. Soon after his release, Mr. Exley relocated to Rhode
Island, where he now permanently resides with his current
wife. Id. at 4. Mr. Exley will remain under Adult
Parole Supervision and GPS until July 22, 2019. Id.
his arrival in the state, Mr. Exley timely registered as a
sex offender as required by § 11-37.1-3. (Risk
Assessment Report 3.) On July 25, 2014, pursuant to §
11-37.1-12 and the Rhode Island Parole Board Sexual Offender
Community Notification Guidelines (the Guidelines), Mr. Exley
reported to the Board in order to receive a sex offender
classification to reflect his level of risk to the community.
On September 25, 2014, pursuant to § 11-37.1-6(1)(b),
the Board completed the Risk Assessment Report to determine
Mr. Exley's level of risk to reoffend, and determined
that Mr. Exley was a Level II sex offender and at moderate
risk to reoffend. Id. at 1.
Exley timely appealed the Board's Level II classification
to a Magistrate of the Superior Court in compliance with
§ 11-37.1-14. In response, the State moved to affirm the
Board's Level II classification.
Magistrate conducted a hearing on the appeal on March 28,
2017. Thereafter, on May 9, 2017, the Magistrate issued his
Decision on the record affirming the Board's Level II
classification. The Magistrate's Order dated March 28,
2017 was entered May 10, 2017. Mr. Exley timely appealed the
Magistrate's Order to this Court on May 23, 2017,
pursuant to § 8-2-39.2(j). Mr. Exley filed his appellate
memorandum (Exley's Appellate Mem.) on October 3, 2017,
and the State filed its memorandum (State's Mem.) on
November 7, 2017. Oral arguments took place on November 7,
of a Magistrate's Decision
Superior Court Justice's review of a decision of a
magistrate is governed by § 8-2-11.1(d). Section
8-2-11.1(d) provides, in pertinent part:
"A party aggrieved by an order entered by the . . .
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 review of orders
entered by the . . . magistrate, and for enforcement of
contempt adjudications of the . . . magistrate." Sec.
2.9(h) of the Superior Court Rules of Practice presently
governs the review. The Rule provides:
"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.P. 2.9(h).
record indicates that competent evidence supports the
magistrate's findings, the Court "shall not
substitute [its] view of the evidence for [the
magistrate's] even though a contrary conclusion could
have been reached." State v. Dennis, 29 A.3d
445, 450 (R.I. 2011) (citing Tim Hennigan Co. v.
Anthony A. Nunes, Inc., 437 A.2d 1355, 1357 (R.I.
1981)). The record on appeal includes "[t]he original
papers and exhibits filed with the Superior Court, the
transcript of the proceedings, and the docket entries."
of an Appeal of Sex Offender Review Board Level
appeal, the State has the burden of presenting "a
prima facie case that justifies the proposed level
of and manner of notification." Sec. 11-37.1-16(a). The
State must prove two "prongs" in order to establish
a prima facie case: first, that "[a] validated
risk assessment tool has been used to determine the risk of
re-offense, " and second, that "[r]easonable means
have been used to collect the information used in the
validated assessment tool." Dennis, 29 A.3d at
449, citing § 11-37.1-16(b)(1)-(2). The Superior Court
must affirm the classification level determined by the Board
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." Sec.
11-37.1-16(c). Accordingly, an individual on appeal is
afforded the opportunity to challenge the State's
prima facie case by presenting evidence and
testimony. State v. Germane, 971 A.2d 555, 580-81