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DiCarlo v. State

Supreme Court of Rhode Island

June 21, 2019

Richard DiCarlo
State of Rhode Island.

          Superior Court Providence County, PM 13-5062 Associate Justice Patricia A. Hurst

          For Petitioner: Stefanie DiMaio-Larivee, Esq.

          For State of Rhode Island: Christopher R. Bush Department of Attorney General

          Present Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Maureen McKenna Goldberg Associate Justice.

         This case came before the Supreme Court on April 3, 2019, on appeal by the petitioner, Richard DiCarlo (petitioner or DiCarlo), from a Superior Court judgment in favor of the state, following a written decision denying the petitioner's appeal from a decision of a Drug Court magistrate upholding a determination by the Sex Offender Board of Review (the board) classifying him as a Level II, moderate-risk, sex offender under G.L. 1956 chapter 37.1 of title 11, the Sexual Offender Registration and Community Notification Act (the act). According to the petitioner, the objective risk-assessment tools employed by the board indicated a classification at a low-risk level, and not a moderate-risk Level II. On appeal, the petitioner argues that, in determining his classification level, the board violated his rights to due process, to the presumption of innocence, and to be spared from double jeopardy, by relying on alleged impermissible hearsay allegations for conduct of which he was acquitted. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         Facts and Travel

         On or about May 26, 2006, petitioner was indicted on two counts of first-degree child molestation sexual assault, three counts of second-degree child molestation sexual assault, and one count of third-degree sexual assault. See State v. DiCarlo, 987 A.2d 867, 868 (R.I. 2010). On July 30, 2007, following a jury trial, petitioner was acquitted of the counts charging first-degree child molestation, and the state dismissed the third-degree sexual assault count pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure; but, petitioner was convicted on all three counts of second-degree child molestation sexual assault. He was sentenced to three concurrent terms of twenty years' imprisonment at the Adult Correctional Institutions, with eight years to serve and twelve years suspended, with probation.[1] See id. at 869, 870.

         Upon his release from prison, as a consequence of his sexual assault conviction, petitioner was required to register as a sex offender in accordance with the act, in particular, § 11-37.1-3. In determining petitioner's risk-level classification and the nature and extent of notification to the community, the board reviewed relevant records and information and assessed petitioner's risk of reoffense, pursuant to § 11-37.1-6. As part of the risk-assessment process, the board utilized the STATIC-99 R, STATIC 2002, and STABLE 2007 tests, which are recognized as validated risk-assessment tools, and it concluded that petitioner fell in the low-risk range. In addition to these assessment tools, the board, as set forth in § 11-37.1-6, considered "any reports and documentation that may be helpful" in making its assessment, including petitioner's criminal record, treatment information, and institutional, probation, and parole supervision, as well as the mandatory "Sex Offender Risk of Re-Offense Assessment Factors" included in the Rhode Island Parole Board Sexual Offender Community Notification Guidelines. Although the risk- assessment scores had placed petitioner in a low-risk category, the board nonetheless recommended that petitioner be classified as a moderate-risk Level II offender.[2]

         The petitioner timely objected to the Level II classification and requested a hearing to review the classification, under § 11-37.1-14. Counsel was appointed. The petitioner challenged the assessment factors that the board relied upon in determining his risk of reoffending. Specifically, petitioner claimed that the board erred and abused its discretion in finding that petitioner's denial of responsibility, his refusal to participate in sex-offender treatment, and an inability to maintain a significant relationship-because he was incarcerated-indicated an increased risk of reoffense. Additionally, petitioner argued that the board improperly relied on insufficient evidence in reaching its conclusion that petitioner presented a moderate risk of reoffending because the risk-assessment results were not accurately reflective of petitioner's "true risk of re[]offending" because the board "didn't take proper consideration of what the results were showing them."

         On February 4, 2014, oral arguments were heard before a Superior Court Drug Court magistrate.[3] Neither party examined petitioner, nor did they present any witnesses or other evidence. Although the magistrate advised petitioner that he was "entitled to a meaningful hearing" and could "call witnesses, present any evidence [and] exhibits," petitioner's counsel informed the magistrate that, after conferring with petitioner, "we are going to rely on my memo, and I will proceed with highlighting some of my memo an[d] attached exhibits."

         Conversely, it was the state's position at the hearing that, although the board-as directed by statute-considered the three validated risk-assessment tools, the board is not obligated to confine its analysis to the risk-assessment tools when recommending a classification, but can consider other information in reaching its decision.

         In a decision rendered from the bench, the magistrate found that the state established a prima facie case based on the validated risk-assessment tools and, further, that reasonable means were used to collect the information. The magistrate, citing to § 11-37.1-6(b), also noted that that "provision makes clear that the scores on the test alone do not determine or mandate the level the person receives[, ]" thus, "[a] prudent evaluator will always consider other external factors which may influence risk in either direction" (quoting State v. Germane, 971 A.2d 555, 585 (R.I. 2009)); and here, "the factors considered and documented by the [b]oard are the factors set forth in the guidelines." Having determined that petitioner failed to show that the board's assessment was not in compliance with the act, the magistrate affirmed the board's classification of petitioner as a risk Level II sex offender. The petitioner subsequently filed an appeal to a justice of the Superior Court.[4]

         At a subsequent hearing on petitioner's motions to proceed in forma pauperis and for court-appointed counsel, the magistrate, after reiterating petitioner's entitlement to a meaningful hearing, explicitly asked petitioner's counsel: "Is there a legal issue that was not mentioned?" The petitioner's counsel responded: "I don't believe my client is suggesting that he did not receive a meaningful hearing." Counsel also stated that she believed that petitioner's "argument on appeal would be that the continued arguments made in the memo that some of the ...

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