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Matteson v. Rhode Island Department of Attorney General

Superior Court of Rhode Island, Providence

December 5, 2019


          For Plaintiff: Michael S. Pezzullo, Esq.

          For Defendant: Bethany A. Laskowski, Esq.


          VOGEL, J.

         Glen Matteson (Appellant) brings this appeal from a December 11, 2018 decision of the Drug Court Magistrate (the Magistrate) affirming his Risk Level III sex offender classification order issued by the Board. Appellant contends that the Board improperly disregarded his risk assessment test results in determining his classification pursuant to the Rhode Island Sexual Offender Registration and Community Notification Act (the Act), G.L. 1956 §§ 11-37.1-1 et seq. Appellant also contends that the Board "carried out a vendetta" against him because he was a State employee at the time of his arrest. Tr. I at 4, Nov. 20, 2018. [2] For the reasons set forth herein, the Court affirms the decision of the Magistrate. This Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 8-2-39.2(j).


         Facts and Travel

         On March 11, 2013, Appellant entered a plea of nolo contendere in Washington County Superior Court to one count of indecent solicitation of a minor. Tr. I at 3. In his decision upholding the Board's classification, the Magistrate discussed the factual background supporting the charge and conviction. The case came to the attention of the Richmond Police Department when the father of the victim reported that his son had received sexually explicit text messages from Appellant, the boy's soccer coach. Tr. II at 8-9. Appellant sent texts "that stated, 'Told you I was quite kinky.' Further, 'I got something for your ass, LOL' … 'You might hurt for a couple days after, LOL.'" Id. at 9. With the consent of the victim's father, a police detective took the victim's phone and posed as the minor. Appellant then exchanged a series of sexually explicit text messages with the detective, believing him to be the fifteen-year-old victim. Id. at 9. Appellant texted, "You just tell me one thing that you want me to do and I'll fill you with all your dreams," "As you lick me also," and "I want to see your hard dick." Id. at 9-10. He also requested nude pictures of the boy. Id. at 10.

         Appellant was sentenced to five years at the Adult Correctional Institutions, five years of which were suspended with five years of probation. The sentence included a no contact order with the victim, sex offender counseling and registration. See Sex Offender Community Notification Unit Interview (SOCNU Interview) at 1. Appellant complied with the terms of his release, and his probation ended on March 10, 2018. Tr. I at 3.

         This was not Appellant's only contact with the system as a sex offender. On February 15, 2013, he pled guilty in the United States District Court for the District of Rhode Island to charges of receiving, possessing, and distributing child pornography. Tr. II at 8. The State Police discovered the images when its Computer Crime Unit reviewed Appellant's cell phone, computer, thumb drives, and a CD from Google Legal Services containing Appellant's e-mails. Id. at 10-11. The complete inspection yielded images of prepubescent children-some appearing as young as five years old-with multiple images depicting nude prepubescent males engaged in graphic sexual acts with adult males. Id. at 11-12. That investigation demonstrated that Appellant was distributing and receiving pictures and videos of child pornography. Id. After Appellant pled guilty in that case, the District Court sentenced Appellant to sixty months to serve followed by ten years supervised release, as well as sex offender counseling and registration. See SOCNU Interview at 2.

         On August 24, 2017, SOCNU probation officer Mary-Anne Campbell interviewed Appellant before the anticipated termination of his state probation. See SOCNU Interview at 3. Ms. Campbell reported the contents of the interview in a seventeen-page document. See id. Appellant claimed that he collected child pornography because he was "looking for answers" as to why he was sexually abused as a child. Id. at 3. Appellant further stated that he had not intended to meet with his solicitation victim and that he "thought it was all a big joke." Id. at 5.

         Appellant presented himself to the Kent Center for counseling and psychiatric assessment on October 23, 2017. See Tr. II at 4. Appellant discussed his history of childhood abuse, his prior hospitalization for suicidal ideation, and past medical history. See Appellant's Mem. in Supp. of Argument on Sex Offender Classification (Appellant Mem.), Exhibit B, Kent Center Initial Psychiatric Assessment (the Kent Center Assessment) at 2.

         In accordance with the requirements of the Act, § 11-37.1-3, Appellant registered as a sex offender following his release from federal custody. Tr. II at 2. Pursuant to § 11-37.1-6, the Board is required to determine the risk level of each offender. In Appellant's case, the Board issued its Decision on December 28, 2017, classifying him as a Level III risk to reoffend.[3] See Decision at 1. As part of the Decision, the Board employed three validated risk assessment tools-the Static-99R, the Stable 2007, and the Static 2002R. Id. Appellant scored in the "Average Risk" category on the Static-99R and Static 2002R tests and scored in the "Low Risk" category on the Stable 2007 test. Id.

         On January 8, 2018, Appellant timely filed a request for review of the Board's classification. Tr. I at 1. Pursuant to § 11-37.1-14, the Court appointed legal counsel to represent Appellant at the hearing before the Magistrate. Id.

         The Magistrate conducted a hearing on November 20, 2018, at which both Appellant and the State had an opportunity to present oral argument, testimony, and further evidence. Tr. I at 2. For its part of the case, the Attorney General submitted the administrative record, consisting of Appellant's appeal request from the Board's Decision; the Decision; the SOCNU Interview; Appellant's State Judgment of Conviction and Commitment; the Richmond Police Department Police Narrative; Appellant's Arrest Report and Witness Statement to Detectives Drew Bishop and Eric Yell of the Richmond Police Department; Appellant's Conditions of Probation; and the Notice of Duty to Register. At the hearing, Appellant introduced exhibits into evidence that included his Progress Reports from sex offender counseling with the Counseling & Psychotherapy Center (CPC) as well as his Kent Center Assessment. Tr. I at 2.

         Three weeks later, on December 11, 2018, the Magistrate issued a bench decision, finding that Appellant's Level III sex offender classification was supported by the record and should be affirmed and rejecting arguments that Appellant warranted a lower classification based on his risk assessment results. Tr. II at 19-20. He also found no evidence for Appellant's contention that his Level III classification was the result of the Board's "vendetta" against him due to his employment with the State correctional system at the time of his arrest. Id. at 18. In his decision, the Magistrate referenced the large volume of child pornography possessed by Appellant. Id. at 19. He also noted his position as an authority figure over the children he coached on a high school boys' soccer team, and his abuse of that position by soliciting and sending sexually explicit text messages to one of the boys on his team. Id.

         The Magistrate found that, given the multiple offenses that Appellant committed over a long period of time, the Board's Decision classifying Appellant as a Level III offender was supported by the record and should be affirmed. Id. The Magistrate noted both the progress Appellant was making in counseling and that he had a steady support system, but concluded that those factors, although favorable to Appellant, did not impact his finding that the Board did not err in classifying Appellant as a Level III offender. Id.

         Following the Magistrate's December 11, 2018 decision, Appellant, through counsel, filed a timely appeal seeking review of the Magistrate's decision by a justice of this Court pursuant to § 8-2-39.2(j). Months later, on September 18, 2019, Appellant's counsel first requested the transcripts from Appellant's two appearances before the Magistrate. In pursuing a Motion for Extension of Time to Transmit the Record on Appeal, counsel candidly acknowledged that he "assumed, incorrectly, that same [transcripts] were not necessary due to the nature of the appeal." See Appellant's Mem. in Supp. of Mot. for Extension of Time, Sept. 19, 2019. The Court granted the Motion for Extension of Time, applying a "good cause" standard. See Bench Decision Granting Mot. for Extension of Time, October 17, 2019. [4] The Court acknowledged that it was a "close call," but would grant the Motion due to the absence of prejudice to the State, even though ignorance of the law does not provide an excuse for an untimely filing. Id.

         The Court now turns to the merits of the appeal-namely, whether the Board was justified in classifying Appellant as a Level III sex offender despite the results of the validated risk assessments.

         II ...

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