This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Risk Level Determination for R. L. S.
Filed November 28, 2006
Minnesota Department of Corrections
OAH Docket No. 7-1100-16679-2
R.L.S., OID# 206261, 1111 Highway 73, Moose Lake, MN 55767-8452 (pro se relator)
Mike Hatch, Attorney General, Noah A. Cashman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)
Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
By writ of certiorari, relator challenges the administrative law judge’s order affirming the End of Confinement Review Committee’s classification of him as a risk level III offender, arguing (1) the End of Confinement Review Committee exceeded its authority under the statute by assigning him a risk level III when his Sex Offender Screening Tool score would lead to a presumptive risk level II; and (2) the evidence does not support the determination that relator should be assigned a risk level III. We affirm.
D E C I S I O N
Relator R.L.S. was convicted of kidnapping and fourth-degree criminal sexual conduct. In accordance with the Sex Offender Community Notification Act, Minn. Stat. § 244.052 (2004), relator’s risk of reoffense was evaluated using the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R). Relator scored a 7 on the MnSOST-R, which leads to a presumptive risk level II. But the End of Confinement Review Committee (ECRC) assigned relator a risk level III based on four special concerns not accounted for by the MnSOST-R. Relator argues that the ECRC exceeded its statutory authority by assigning him a risk level III, when his MnSOST-R leads to a presumptive risk level II. We disagree.
of statutory interpretation are reviewed de novo. In re
Risk Level Determination of C.M., 578 N.W.2d 391, 395 (
interpreted the legislative intent of the Sex Offender Community Notification
Act to grant the ECRC discretion in determining an offender’s appropriate risk
Here, the ECRC noted four special concerns not accounted for in the MnSOST-R: (1) unsuccessful sex-offender treatment; (2) unwillingness to cooperate with release planning and conditions; (3) predatory-offense behavior; and (4) high-risk behavior suggesting increased potential for reoffense. During relator’s administrative hearing, relator admitted that his conduct satisfied each of the special concerns noted by the ECRC and to his numerous failed attempts at sex-offender treatment, numerous failures during Intensive Supervised Release (ISR), and failure to abstain from alcohol.
Because the ECRC has discretion in assigning relator a risk level higher than the presumptive risk level when special concerns are present, the administrative law judge properly determined that the ECRC did not exceed its statutory authority in assigning relator a risk level III.
Relator argues that the ECRC lacked sufficient evidence to warrant a risk level III because he was previously assigned a risk level II and in the absence of any subsequent sexual offenses his risk level should not have changed. We disagree.
review of a risk-level assignment, “[t]he offender has the burden of proof to
show, by a preponderance of the evidence, that the end-of-confinement review
committee’s risk assessment determination was erroneous.”
Subsequent to relator’s first risk-level determination, relator’s ISR was revoked on three occasions and restructured on another occasion due to violations. Relator’s ISR was revoked for violations of house arrest, possession of firearms, possession of a computer with internet access and bookmarked links to approximately 40 pornographic web sites, and use of alcohol. Relator failed to complete sex-offender treatment on at least five occasions. Relator completed a chemical-dependency program, but the discharge summary noted that relator’s prognosis was poor due to “a continued pattern of misrepresenting himself throughout the program, creating chaos and crises’ [sic] on the unit” and “an inability to internalize the principles of [the] program.”
Relator’s MnSOST-R score, the presence of four special concerns stemming from numerous ISR violations, and failed sex-offender treatment provide sufficient evidence to affirm the ECRC risk level III determination.
also objects to the ECRC’s consideration of prior acts that did not result in
criminal convictions in determining his risk level. In assigning relator a risk level III, the ECRC considered a 1993
rape charge later dismissed as the result of a mistrial as well as several
uncharged incidents. This court
has previously affirmed risk-level determinations in which evidence was
presented of prior acts that did not result in convictions. See In
re Risk Level Determination of R.B.P., 640 N.W.2d at 356 (upholding a risk-level
determination based partially on two uncharged sexual offense incidents). Here, relator has objected to ECRC’s use of
these prior acts, but has failed to support his objection with authority or
further argument. See State v. Modern
Recycling, Inc., 558 N.W.2d 770, 772 (
relator complains that it was improper for respondent to submit a confidential
appendix containing an Order for Initial Commitment from