Plaintiff: Laura A. Nicholson, Esq.
Defendant: Glenn S. Sparr, Esq.
the Court is the Defendant Jose Figueroa's appeal from a
decision of the Magistrate upholding the determination of the
Sex Offender Treatment Board (Board) classifying the
Defendant as a Level III offender for community notification
purposes. Jurisdiction is pursuant to G.L. 1956 §§
11-37.1-16 and 8-2-39.2(j).
Defendant contends that the Magistrate erred when he
concluded that the Defendant failed to prove that his
classification by the Board as Risk Level III was not in
compliance with law.
offense for which the Defendant stands convicted initially
came to light in November 2008 when the twelve-year-old
daughter of a friend of the Defendant reported at school that
she and her eight-year-old brother had been sexually molested
by the Defendant. In an interview with the Child Advocacy
Center, the eight-year-old reported that the Defendant, known
to him as Angel, had penetrated his anus with his penis
approximately thirteen times. The eight-year-old confirmed
that the Defendant had similarly sexually molested his
twelve-year-old sister. He also offered that the Defendant
had shown pornographic movies to him, his sister, and a
younger brother. Notwithstanding the foregoing, the Defendant
was charged with molesting the eight-year-old victim only. He
pleaded nolo contendere to the offense and was
sentenced to a twenty-year prison term with eleven years to
serve and the balance suspended.
to his release, and as required by law, the Defendant was
referred to the Board for assessment of the Defendant's
risk of reoffense. The Board, after completing the
assessment, which included consideration of the
Defendant's scores from three validated risk assessment
instruments, found the Defendant's risk to
reoffend to be high and thus classified him at Level III for
community notification purposes. The Defendant expressed his
disagreement with the Board's determination by submitting
a timely request for review. The requested review was
referred to a Magistrate of this Court who, after hearing, based
on the record compiled by the Board, supplemented by
Defendant's counseling records, and oral and written
argument, concluded that the Defendant had not carried his
burden of establishing that the Board's determination of
his risk level was erroneous, and therefore, the Board's
determination that the Defendant be classified as Risk Level
III was affirmed.
statute empowering the Drug Court Magistrate to hear sex
offender classification and notification disputes also
affords an aggrieved party such as the Defendant a review of
the order of the Magistrate by a Justice of the Superior
Court. Sec. 8-2-39.2(j). This statute specifies that a review
be "on the record and appellate in nature."
Id. In accordance with the statute, the Superior
Court Rules of Practice dictate that the review by the
Superior Court Justice be limited to a determination based on
the record below whether the Magistrate's decision is
supported by competent evidence. R.P. 2.9.
interplay between § 8-2-39.2 and Rule 2.9 of the Rules
of Practice has generated some confusion as to the scope of
the Superior Court Justice's review of a Magistrate's
decision in sex offender risk level determinations. See
DiCarlo v. State, No. PM-13-5062, 2014 WL 11264685 (R.I.
Super. Mar. 4, 2014). This Court is convinced, however, that
read together, the statute and the rule of practice
contemplate an appellate review deferential in nature, more
akin to the scope and standard of review which governs
Superior Court reviews of ...