This opinion will be unpublished and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

A05-1947

 

In the Matter of the Risk Level Determination for R. L. S.

 

Filed November 28, 2006

Affirmed

Kalitowski, Judge

 

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

KALITOWSKI, Judge

            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

I.

            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.

            Questions of statutory interpretation are reviewed de novo.  In re Risk Level Determination of C.M., 578 N.W.2d 391, 395 (Minn. App. 1998).  But we afford “substantial deference to an administrative agency’s interpretation of its own rules and regulations.”  In re Risk Level Determination of R.B.P., 640 N.W.2d 351, 353 (Minn. App. 2002), review denied (Minn. May 14, 2002).  “If an administrative agency’s authority is questioned, [we] independently review [] the enabling statute.”  Id. (quoting Weber v. Hvass, 626 N.W.2d 426, 431 (Minn. App. 2001), review denied (Minn. June 27, 2001)).

            We have interpreted the legislative intent of the Sex Offender Community Notification Act to grant the ECRC discretion in determining an offender’s appropriate risk level.  Id. at 356.  “While the MnSOST-R score provides a presumptive risk level, this presumption can be rebutted by individual circumstances not taken into account by it. And the ECRC necessarily has the authority to consider these circumstances when making its ultimate risk assessment.”  Id.

            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.

II.

            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.

            On 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.”  Minn. Stat. § 244.052, subd. 6(b).  Relator was given the MnSOST-R in 2001.  At that time, relator scored a 7, leading to a presumptive risk level of II.  The psychologist who administered the MnSOST-R recommended a risk level of II, but noted that an assignment of risk level III “may also be appropriate.”  At this time, the ECRC assigned relator a risk level II.

            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.

III.

            Relator 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 (Minn. App. 1997) (holding the assignment of error in a brief based on a mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).  Because we have previously determined that the ECRC can consider prior acts not resulting in convictions and because relator has failed to adequately brief the issue, we find no prejudicial error and affirm.

            Finally, relator complains that it was improper for respondent to submit a confidential appendix containing an Order for Initial Commitment from Crow Wing County.  This issue also was not adequately briefed.  But even if the submission of the order is error, it is not prejudicial because we have not considered it in deciding this matter.

            Affirmed.