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State v. Figueroa

Superior Court of Rhode Island, Providence

July 23, 2018

STATE OF RHODE ISLAND
v.
JOSE FIGUEROA

          For Plaintiff: Laura A. Nicholson, Esq.

          For Defendant: Glenn S. Sparr, Esq.

          DECISION

          GALLO, J.

         Before 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).

         The 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.

         I

         Facts and Travel

         The 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.

         Prior 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[1], 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[2] 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.

         II

         Standard of Review

         The 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.

         The 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 ...


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