McCray v. Nebraska State Patrol
| Decision Date | 03 February 2006 |
| Docket Number | No. S-04-395.,S-04-395. |
| Citation | 271 Neb. 1,710 N.W.2d 300 |
| Parties | Clifton McCRAY, appellant v. NEBRASKA STATE PATROL, appellee. |
| Court | Nebraska Supreme Court |
Jeffry D. Patterson, of Bartle & Geier Law Firm, Lincoln, for appellant.
Jon Bruning, Attorney General, Mark D. Starr, Lincoln, and Jeffrey J. Lux, for appellee.
CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
The Nebraska State Patrol (NSP) classified Clifton McCray as a Level 3 sex offender under the Sex Offender Registration Act (SORA), Neb.Rev.Stat. §§ 29-4001 to 29-4013 (Cum.Supp.2004), and the district court for Lancaster County affirmed the classification. In McCray v. Nebraska State Patrol, 270 Neb. 225, 701 N.W.2d 349 (2005) (McCray I), we affirmed the judgment of the district court. We subsequently granted McCray's motion for rehearing and ordered that the case be reargued. During reargument, counsel for the NSP contended that an amendment to Neb.Rev.Stat. § 29-2264 (Cum.Supp.2002), which became effective on September 4, 2005, applied to one of the issues presented in this appeal. We requested and received supplemental briefing on this issue from both parties. We now withdraw our opinion in McCray I, and substitute this opinion, in which we find merit in McCray's arguments that the NSP erred in scoring his SORA risk assessment and conclude that he is entitled to reclassification as a Level 2 offender.
In 1998, McCray was convicted of three counts of third degree sexual assault. He was sentenced to 75 days in jail on one count, 45 days in jail on another count, and fined $500 on the third count. These convictions brought him within the purview of SORA, which requires a person convicted of a sex offense to register with the sheriff of the county in which he or she resides. See §§ 29-4003 and 29-4004. The information obtained as a result of such registration is forwarded to the NSP, which maintains a central registry of persons obligated to register under SORA. § 29-4004(9). The NSP is required to determine each registrant's risk of recidivism and assign a notification level based upon the degree of risk. § 29-4013(2)(b) and (e); 272 Neb. Admin. Code, ch. 19, § 12 (2000). If the risk of recidivism is low, the registrant is classified as a Level 1 offender and law enforcement officials who are likely to encounter the offender must be notified. § 29-4013(2)(c)(i); 272 Neb. Admin. Code, ch. 19, § 13.02 (2000). If the risk of recidivism is determined to be moderate, the registrant is classified as a Level 2 offender and schools, daycare centers, and religious and youth organizations must also be notified. § 29-4013(2)(c)(ii); 272 Neb. Admin. Code, ch. 19, § 13.03. If a person is classified as a Level 3 offender, indicating a high risk of recidivism, in addition to those groups entitled to notice with respect to Levels 1 and 2 offenders, notification must also be given to members of the public who are likely to encounter the offender. § 29-4013(2)(c)(iii); 272 Neb. Admin. Code, ch. 19, § 13.04. See, also, Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004).
Based upon factors enumerated in SORA that increase the risk of recidivism, the NSP developed a risk assessment instrument which it uses to evaluate all records and data concerning the offender in order to classify every offender in the registry in one of the three risk levels. See Slansky v. Nebraska State Patrol, supra. A score of 70 and below on the risk assessment instrument results in a Level 1 classification, a score of 75 to 125 results in a Level 2 classification, and a score of 130 or above results in a Level 3 classification. See id.
McCray was initially classified as a Level 3 offender, based upon a score of 155 on a risk assessment instrument completed on December 6, 2000. He requested an administrative hearing to challenge the classification. For reasons which are not entirely clear from the record, a second risk assessment was completed on September 3, 2002, in which McCray received a score of 195. At the time this risk assessment was completed, McCray's criminal history reflected a number of charges and convictions which were used in scoring. These included convictions for the violation of a restraining order, operation of a motor vehicle without an operator's license, and injury or destruction of another's property, as well as charges for failing to appear in court. McCray's criminal record also included eight sexual assault charges. Of those, three resulted in convictions, three were dismissed, and two were identified as being filed with other citations. In October 2002, McCray filed a request for a hearing to contest his classification.
While administrative review was pending, McCray petitioned the county court for Lancaster County to set aside a 1994 conviction for destruction of property of another, a 1998 conviction for attempted violation of SORA, and a 1999 conviction for violation of a restraining order. See § 29-2264. Section 29-2264(2) empowers a court to set aside certain criminal convictions in which the sentence does not include incarceration. In May 2003, the county court entered separate orders setting aside each of the three convictions pursuant to McCray's petitions.
On October 2, 2003, an administrative hearing was held to review McCray's challenge of his Level 3 classification. At the hearing, McCray challenged the scoring of item 2 on the risk assessment instrument, which assessed 30 points for three or more convicted counts for offenses other than traffic offenses or sex offenses. He also challenged item 14, which assessed 20 points for the fact that 24 months or less had elapsed between McCray's most recent arrest for a felony and/or Class I/II misdemeanor conviction and his prior release from court-ordered confinement or supervision. The parties stipulated that the scoring of items 2 and 14 was based entirely upon the three convictions which had been set aside in May 2003 pursuant to § 29-2264(4). McCray challenged the use of the set-aside convictions for scoring items 2 and 14. He also challenged the scoring of item 9, which assessed 30 points for the nature of his sexual assault behavior, based upon unsworn and unsigned victim statements given to police, which statements McCray argued were not correlated to any specific conviction. McCray argued that subtraction of the 80 contested points would lower his score from 195 to 115, placing him at a Level 2 risk classification.
On October 17, 2003, the hearing officer recommended that McCray's classification as a Level 3 sex offender be upheld. The hearing officer found that "because an order setting aside a conviction does not completely negate the conviction, proceedings such as sex offender risk assessment... may properly consider convictions which have been set aside." With respect to item 9, the hearing officer found that the risk assessment manual does not require that an offender be convicted or even charged for an offense scored under that category. Rather, the hearing officer found that there must merely be officially documented evidence of physical force or restraint. The superintendent of the NSP adopted the recommendations of the hearing officer as the decision of the NSP on October 22, 2003.
Pursuant to the Administrative Procedure Act, Neb.Rev.Stat. § 84-901 et seq. (Reissue 1999 & Supp.2003), McCray filed a timely petition in the district court appealing his classification as a Level 3 sex offender. The district court affirmed McCray's classification, and McCray filed this appeal in which he contended that the district court erred in finding that competent evidence supported the scoring of items 2, 9, and 14 on the risk assessment instrument.
In McCray I, we concluded with respect to items 2 and 14 that § 29-2264 was intended to operate prospectively and that because "McCray's convictions were not set aside until after his risk assessment instrument was completed ... the convictions were properly considered." 270 Neb. 225, 230-31, 701 N.W.2d 349, 354 (2005). We expressed "no opinion ... on what effect the convictions that were set aside would have on McCray's SORA assessment if the assessment had occurred after the convictions were set aside." Id. at 231, 701 N.W.2d at 354-55. We did not reach the issue of whether item 9 was properly scored because the subtraction of the 30 contested points from item 9 would still leave a risk assessment score of 165, which is 35 points higher than the threshold for classification as a Level 3 offender. McCray filed a timely motion for rehearing, which we granted.
McCray originally assigned, restated and consolidated, that the district court erred in finding that competent evidence supported the scoring of items 2, 9, and 14 on the risk assessment instrument. On rehearing, McCray assigns that we incorrectly determined in McCray I that the orders setting aside his non-sex-offense convictions could not be considered for purposes of risk assessment because they were entered after the risk assessment instrument was scored.
A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Lein v. Nesbitt, 269 Neb. 109, 690 N.W.2d 799 (2005). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is not arbitrary, capricious, or unreasonable. Id. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court. Id.
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