Eric Burchette v. Sex Offender Screening and Risk Assessment Committee
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SUPREME COURT OF ARKANSAS
No.
07-408
Opinion Delivered 10-23-08
ERIC BURCHETTE,
APPELLANT,
VS.
SEX OFFENDER SCREENING AND
RISK ASSESSMENT COMMITTEE,
APPELLEE,
APPEAL FR O M THE PU LASKI
COUNTY CIRCUIT COURT, NO.
CV 06-4008, HON. ALICE GRAY,
JUDGE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
ADMINISTRATIVE LAW & PROCEDURE – PROCEDURES UNDER THE SEX OFFENDER REGISTRATION ACT
– APPELLANT ’S PROCEDURAL DUE-PROCESS RIGHTS WERE NOT VIOLATED – APPELLANT HAD
A MEANINGFUL OPPORTUNITY TO BE HEARD .– Where the Sex Offender Screening and Risk
Assessment Program (SOSRA) staff determined that appellant’s community notification risk
assessment should be Level 3, appellant’s procedural due-process rights were not violated
under either the Arkansas or United States Constitutions where he sought, as part of his
administrative review, a face-to-face interview before the Sex Offender Assessment
Committee (SOAC) and it was denied; appellant claimed that due process required that he
be allowed to personally appear before SOAC, answer their questions, and “plead to be
believed”; the supreme court held, however, that appellant had a meaningful opportunity to
be heard under the facts of this case because of the procedure provided by the Sex Offender
Registration Act of 1997, which included his face-to-face SOSRA interview and the SOAC
review.
Jeff Rosenzweig, for appellant.
Dustin McDaniel, Att’y Gen., by: Amy L. Ford, Ass’t Att’y Gen., for appellee.
The appellant, Eric Burchette, pled guilty to one count of sexual assault in the fourth
degree and to two counts of sexual indecency with a child in the Benton County Circuit
Court on November 9, 2004. Other allegations were made against Burchette, but he was not
charged; nor did he plead guilty to those offenses. Following his guilty pleas, he was
sentenced to six years in the Arkansas Department of Correction.1 He now appeals his Level
3 community notification risk assessment on grounds that he did not receive a hearing before
the Sex Offender Assessment Committee (“SOAC”).
After Burchette was incarcerated in the state penitentiary following his guilty pleas, the
Sex Offender Screening and Risk Assessment program (“SOSRA”) of the Arkansas
Department of Correction assessed Burchette pursuant to the Sex Offender Registration Act
of 1997 (“the Act”). See Ark. Code Ann. §§ 12-12-901 to -920 (Repl. 2003 and Supp.
2007). As part of the assessment, on November 1, 2005, Burchette was interviewed by a
SOSRA interviewer pursuant to regulations promulgated by SOAC. See 004-00-002 Ark.
Code R. § 18 (Weil 2007). Based, in part, on that interview, SOSRA determined that
Burchette’s community notification risk assessment should be Level 3 and notified him of that
decision in a letter dated December 13, 2005. Burchette administratively appealed the
SOSRA assessment to SOAC. As part of his appeal, Burchette requested a hearing before the
seven-person SOAC, which was denied.2 Burchette also requested and received documents
from SOSRA and provided additional information to SOAC for its review. After receiving
the additional documentation, as well as the SOSRA file with Burchette’s interview, SOAC
upheld the Level 3 assessment.
1
Defense counsel now represents to this court that Burchette has been paroled.
2
The regulatory procedure is for one member of the nine-person SOAC to review an
assessment appeal and then advise the full committee if he or she determines the assessment
level should be modified. See 004-00-002 Ark. Code R. § 30 (Weil 2007).
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Burchette next sought judicial review of SOAC’s decision in the Pulaski County
Circuit Court, which denied and dismissed his complaint. He appealed that decision to the
court of appeals, and while the appeal was pending, this court decided Munson v. Arkansas
Department of Correction Sex Offender Screening & Risk Assessment, which held that SOAC is
required, under the Arkansas Administrative Procedure Act, to issue written findings of fact
and conclusions of law. 369 Ark. 290, 294, 253 S.W.3d 901, 904 (2007). Without such
written findings, this court held that there was no final order for review. Id. As a result of
Munson, Burchette’s case was remanded to SOAC with directions for it to enter a final order.
SOAC did so, and Burchette again filed for judicial review before the Pulaski County Circuit
Court, which affirmed the Level 3 assessment on grounds that it was supported by substantial
evidence and found Burchette’s due-process arguments to be without merit. He now appeals
the SOAC decision to this court.
Burchette’s sole point on appeal is that he was entitled to a hearing before the nineperson SOAC before it could affirm the initial assessment that he was a Level 3 sex offender.
He acknowledges this court’s recent holding that an offender is not entitled to a hearing under
the Act, codified at Arkansas Code Annotated sections 12-12-901 to -920. Munson v. Ark. Dep’t
of Correction Sex Offender Screening & Risk Assessment, 369 Ark. 290, 253 S.W.3d 901 (2007).
He argues, nevertheless, that constitutional due-process requirements demand that he receive
a hearing.
In considering any constitutional challenge to a statute, this court begins with the
axiom that every act carries a strong presumption of constitutionality. See, e.g., Ark. Dep’t of
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Corr. v. Bailey, 368 Ark. 518, 523, 247 S.W.3d 851, 855 (2007). The party challenging the
legislation bears the burden of proving its unconstitutionality, and any doubts about the statute
will be resolved in favor of its constitutionality, if it is possible to do so. Id. Given this
presumption, a statute is invalid only if it is in clear and unmistakable conflict with
constitutional requirements. Id. at 524, 247 S.W.3d at 855.
According to the Act, persons convicted of certain enumerated offenses must register
as sex offenders. Ark. Code Ann. § 12-12-905 (Supp. 2007). The Act also directed SOAC
to promulgate regulations establishing guidelines and procedures for the disclosure of relevant
and necessary information regarding sex offenders to the public. Id. § 12-12-913(c)(1)(A).
These regulations must identify factors relevant to an offender’s future dangerousness and
likelihood of reoffense or threat to the community.
Id. § 12-12-913(c)(2)(A).
The
regulations are required to set forth the extent of information to be made public, depending
on the offender’s level of dangerousness, pattern of offending behavior, and the extent to
which the information will enhance public safety. Id. § 12-12-913(c)(2)(B). As part of this
process, the Act further requires that SOAC conduct an individual assessment of each
offender’s risk to the public. Id. § 12-12-917(b).
Under the regulations promulgated by SOAC, SOSRA examiners perform the initial
risk assessment, as was done with Burchette. 004-00-002 Ark. Code R. § 11 (Weil 2007).
They are required to consider, but are not limited to, the following information: (1) the
offender’s criminal history; (2) the interview with the offender conducted by a SOSRA staff
member; (3) a polygraph examination or Voice Stress Analysis, if SOSRA believes they
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otherwise lack adequate information to assess the offender; (4) a review of any available,
relevant mental health records; (5) psychological testing; (6) actuarial instruments designed to
assess individuals convicted of sexual offenses; and (7) other information relevant to the
offender’s offense history and/or pattern. Id. § 12. Based on this assessment, an examiner
determines the appropriate level of risk.3 Id. §§ 14–15. The assessed level of risk determines
the amount of information about the offender that is made available to the public. Id. § 24.
An offender can challenge his initial assessed risk level as determined by the SOSRA
examiner by submitting a written request for administrative review to SOAC. Ark. Code
Ann. § 12-12-922(b)(1)(A) (Supp. 2007). The offender may also request copies of all
documents generated by the examiner, a listing by document name and source of all
documents that may be available from other agencies having custody of those documents, and
a copy of the tape of the interview.
Id. § 12-12-922(b)(1)(B).
Upon request for
administrative review, a member of SOAC must conduct the review and respond to the
offender within thirty days. Id. § 12-12-922(b)(6)(A). The SOAC reviewer can recommend
to the full SOAC to set aside the risk level assigned by SOSRA if: (1) it is not supported by
substantial evidence, (2) the rules and procedures were not properly followed, or (3) there is
new information bearing on the offender’s risk to the community. Id. § 12-12-922(b)(3)(B).
3
Sentencing courts generally have the authority to categorize an offender as a Level 4
sexually violent predator. See Ark. Code Ann. § 12-12-918 (Supp. 2007). However, if
information not available to the court at the time of trial emerges in the course of a sex
offender evaluation, a SOSRA examiner can recommend to SOAC that an offender be
designated as a Level 4 sexually violent predator. Id. § 12-12-922(a).
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A vote by the full SOAC is required to change the initial assessment by SOSRA. 004-00-002
Ark. Code R. § 30 (Weil 2007). Following the administrative review by SOAC, an offender
may petition for judicial review pursuant to the Arkansas Administrative Procedure Act. Ark.
Code Ann. § 12-12-922(b)(7)(A)(ii) (Supp. 2007).
Burchette first urges that the Act does not satisfy procedural due-process requirements
under either the Arkansas or United States Constitutions because he was not allowed a
hearing before SOAC. He cites this court to Connecticut Department of Public Safety v. Doe in
support of his contention. 538 U.S. 1 (2003). In Doe, the United States Supreme Court held
that the appellant was not entitled to a hearing on his current level of dangerousness before
being placed on Connecticut’s sex offender registry. Id. at 3. The Connecticut statute
mandated that all convicted sex offenders be listed on the registry. Id. The Court noted that
current dangerousness was not a factor in placing offenders on the Connecticut list, and that
state officials made no determination regarding a convicted offender’s level of risk to the
community. Id. In fact, the Connecticut registry included a disclaimer that there had been
no “determination that any individual included in the registry is currently dangerous.
Individuals included within the registry are included solely by virtue of their conviction
record and state law.” Id. at 5. Therefore, the Court held that the offender was not entitled
to a hearing because due process “does not require the opportunity to prove a fact that is not
material to the State’s statutory scheme.” Id. at 3.
According to Burchette, Doe mandates that he receive a hearing because, unlike
Connecticut, an offender’s assessment under Arkansas’s statutory scheme depends on factual
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determinations and assessments made by the State regarding current dangerousness and the
likelihood of reoffense. He specifically relies on the Court’s statement in Doe that “[p]laintiffs
who assert a right to a hearing under the Due Process Clause must show that the facts they
seek to establish in that hearing are relevant under the statutory scheme.” Id. at 8. He
interprets that passage to mean that when an offender seeks to dispute relevant facts regarding
dangerousness and reoffense, he is automatically entitled to a hearing before SOAC.
In the instant case, Burchette specifically asserts that the SOSRA examiner and SOAC
relied on allegations of conduct for which he was never charged or convicted in assessing him
a Level 3 offender. He argues that his risk assessment level was artificially high because SOAC
considered these untrue allegations of violent conduct. Accordingly, Burchette maintains that
a hearing before SOAC was essential in order for him to dispute those allegations.
We turn then to the issue of procedural due process. Procedural due-process rights
exist primarily to ensure that a state proceeding, resulting in a deprivation of liberty or
property, is fair. See Bailey, 368 Ark. at 524, 247 S.W.3d at 855–56. This court has set out
the requirements of due process:
The fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner. The extent to which
procedural due process must be afforded the recipient is influenced by the
extent to which he may be condemned to suffer great loss. It depends upon
whether the interest in avoiding that loss outweighs the government interest in
summary adjudication. Thus, determining what process is due involves the
consideration of three factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
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procedural safeguards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens that additional or
substitute procedural requirements would entail.
State of Wash. v. Thompson, 339 Ark. 417, 425–26, 6 S.W.3d 82, 87 (1999) (internal citations
omitted).
In Arkansas Department of Correction v. Bailey, supra, the offender appealed his Level 3
sex offender assessment on grounds that it resulted from conduct for which he had not been
convicted and was based on facts he did not have an opportunity to fully contest. 368 Ark.
at 522, 247 S.W.3d at 854. Bailey argued specifically that the Level 3 assessment was
unconstitutional because he was adjudicated not guilty by reason of mental disease or defect
and, therefore, never had his day in court on the charged sexual conduct. Id. at 521, 247
S.W.3d at 854. This court, however, held that Bailey’s due-process rights were satisfied
because he had availed himself of the statutory provisions of Arkansas Code Annotated section
5-2-313, governing acquittals based on a mental health report. Id. at 528, 247 S.W.3d at 858.
We further concluded that Bailey was not denied sufficient procedural due-process rights
because he conceded that he had engaged in the charged conduct when he entered a plea of
not guilty by reason of mental disease or defect. Id. at 527, 247 S.W.3d at 858.
This court went on in Bailey to consider the general constitutionality of the Act by
discussing, in depth, a decision of the Eighth Circuit Court of Appeals, Weems v. Little Rock
Police Department, 453 F.3d 1010 (8th Cir. 2006). In Weems, two defendants appealed their
placement on the Arkansas Sex Offender Registry and contended that the Act was
unconstitutional. Id. The court affirmed the district court’s grant of a motion to dismiss for
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failure to state a claim, holding that the Act was consistent with procedural due-process
requirements. Id. at 1019–20. In doing so, the Weems court laid out a comprehensive
overview of the procedural protections provided by the Act. Id. at 1012–13. The court also
restated the district court’s finding that the “Due Process Clause does not require the State to
extend the rights to counsel and to confront witnesses to the risk assessment process.” Id. at
1014. In finding the procedures constitutional, the court noted specifically:
Before a team operating under the oversight of the Sex Offender
Assessment Committee may assign a risk level to an offender, the team
conducts a thorough review of official records and historical data, performs
psychological testing and evaluation, undertakes actuarial analyses, and conducts
a personal interview with the offender. The offender has an opportunity to be heard
through the interview, and may access most records and information maintained
by the committee.”
Id. at 1018 (emphasis added).
We reiterate that Burchette’s sole point on appeal is that he was entitled to a hearing
before the nine-person SOAC. As an initial matter, it is difficult for this court to know with
certainty what Burchette means by a “hearing.” Based on his briefs and oral argument before
this court, it appears he is not requesting a right to counsel, that witnesses be present, to crossexamination, or even that his testimony be under oath. Rather, it appears he wants to give
his unsworn version of events, relating to the accusations for which he did not plead and was
not charged, in person to SOAC so that SOAC can assess his credibility face-to-face. Of
course, his version of events was previously given to the SOSRA interviewer in a face-to-face
meeting. But Burchette maintains that SOAC is the ultimate fact-finder, if there is an appeal
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of the SOSRA decision, and that body should be required to weigh his credibility. We note
on this point that when there is no appeal to SOAC, SOSRA is the ultimate fact-finder.
In short, Burchette contends that he could not protect his rights merely by presenting
written statements to SOAC. Instead, he urges that due process requires that he be allowed
to personally appear before SOAC, answer their questions, and “plead to be believed.” And
yet, as was underscored by the court in Weems, in the instant case, Burchette had an in-person
opportunity to give his version of the events during his SOSRA interview. In fact, the
SOSRA Assessment Summary prepared after Burchette’s November 1, 2005 interview
includes a portion titled “Offender Version.” The interviewer included a handwritten report
of Burchette’s assertions that he did not engage in the conduct initially alleged but for which
he was not charged. Hence, despite his disagreement with his risk assessment, it is clear from
the record that Burchette had a meaningful opportunity to be heard on the matter in his
interview. Moreover, the Act gave Burchette an opportunity to appeal the SOSRA staff’s
Level 3 assessment to SOAC and, following that, to the Pulaski County Circuit Court as part
of judicial review.
We hold that Burchette had a meaningful opportunity to be heard under the facts of
this case because of the procedure, which included the face-to-face SOSRA interview and the
SOAC review. Burchette’s procedural due-process rights under either the Arkansas or United
States Constitutions were not violated by denying him a second face-to-face interview before
SOAC.
Affirmed.
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IMBER, J., not participating.
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