Smith v. State
| Decision Date | 10 February 2009 |
| Docket Number | No. 33254.,33254. |
| Citation | 146 Idaho 822,203 P.3d 1221 |
| Parties | Jason C. SMITH, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Supreme Court |
Molly Huskey, State Appellate Public Defender, Boise, for appellant. Sara Thomas argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Mark Kubinski argued.
THE COURT'S PRIOR OPINION DATED FEBRUARY 9, 2009 IS HEREBY WITHDRAWN
Jason Smith was incarcerated for the 1998 rape of a fifteen-year-old girl. Prior to his release, he was referred to the Sexual Offender Classification Board (the Board or SOCB) to determine whether he should be classified as a violent sexual predator (VSP). The Board classified Smith as a VSP. Smith sought judicial review of that decision. After conducting an evidentiary hearing, the district court upheld the Board's decision. We conclude Smith's designation was not constitutionally sound and, therefore, reverse and remand with instructions to vacate Smith's designation as a VSP.
The facts are mostly undisputed in this case.1 In 1990, Smith, at the age of fourteen, pled guilty to lewd conduct with a minor under sixteen for anally raping a five-year-old that he was babysitting. At the time of the offense, Idaho did not have a statute for male rape. Smith was committed to the Idaho Department of Health and Welfare, where he completed a twelve-week sex offender treatment program. The program took Smith six months to complete because of his behavior.
In 1993, after a second victim came forward, Smith pled guilty to one count of male rape, in violation of I.C. § 18-6108. Ultimately, Smith was sentenced as an adult to thirty days in county jail and committed to the custody of the Idaho Department of Health and Welfare until the age of twenty-one. Prior to being sentenced, Smith was arrested for burglary. He was sentenced to five years, with one year fixed and placed on the 180-day retained jurisdiction program. He was thereafter placed on probation.
In 1998, Smith pled guilty to rape, in violation of I.C. § 18-6101(1). The rape charge stemmed from a sexual relationship with a fifteen-year-old girl. At the time of this offense, Smith was twenty-one and on felony probation for the burglary. Smith was sentenced to eight years imprisonment, with three years fixed, concurrent with the earlier sentence for the burglary.
In 2005, Smith admitted to committing a third male rape prior to the 1990 rape, which has remained uncharged. Smith testified that he admitted to this rape only because he was required to complete a polygraph test. He testified that the victim was five or six years old at the time of the attack.
Prior to Smith's release in late 2005, a psychosexual evaluation was conducted and Smith was referred to the Board to determine whether he should be designated as a VSP. The psychosexual evaluation was included in the information presented to the Board. The Board determined that Smith was a VSP and notified him of their decision. Smith sought judicial review of that decision by the district court. The district court was provided with a sealed record containing the documents that the Board relied on in making its determination to designate Smith a VSP. After an evidentiary hearing, the district court upheld the Board's decision. Smith appeals, contending that the Board, the district court, and this Court have violated his constitutional rights.
We begin by acknowledging the obvious: Smith's history of violent deviant sexual behavior is such that the Board's designation as a VSP may well be warranted. The important question presented by this appeal, however, is not whether he deserves that label. Rather, the question that is the focal point of this Court's inquiry is whether the State of Idaho has labeled Smith as a VSP in a fashion that comports with his constitutional right to due process. We first consider the constitutional flaws in the statutory scheme and next examine whether the proceedings before the district court rectified these flaws. We then consider Smith's claim that he did not receive effective assistance of counsel in the proceedings below.
Designation as a VSP is based on the provisions of Idaho's Sexual Offender Registration Notification and Community Right to Know Act (the Act or SOR Act). I.C. §§ 18-8301, et seq.; Lightner v. State, 142 Idaho 324, 325, 127 P.3d 227, 228 (Ct.App.2005). Only offenders convicted of certain specified crimes are eligible for designation as VSPs.2 The Board is charged with the duty of considering for VSP designation those inmates scheduled for release who have been referred by the department of correction or the parole commission. I.C. § 18-8314(1); IDAPA 57.01.01.031.02. Smith was such an inmate.3 A VSP designation is based upon the Board's determination that the offender continues to "pose a high risk of committing an offense or engaging in predatory sexual conduct." I.C. § 18-8303(15). The Board's rules provide that "[a] sexual offender shall be designated as a VSP if his risk of re-offending sexually or threat of violence is of sufficient concern to warrant the designation for the safety of the community." IDAPA 57.01.01.171. In reaching this decision, the Board is required to "assess how biological, psychological, and situational factors, may cause or contribute to the offender's sexual behavior." IDAPA 57.01.01.170. Once the Board determines whether to designate the offender as a VSP, it must make written findings that include a risk assessment of the offender, the reasons upon which the risk assessment is based, the Board's determination whether the offender should be designated, and the reasons upon which the determination is based. I.C. § 18-8314(7); IDAPA 57.01.01.173.
Apart from submitting to a mandatory4 psychosexual evaluation required by I.C. § 18-8317, the offender has no opportunity to provide input to the Board. "The Board and the evaluator conducting the psychosexual evaluation may have access to and may review all obtainable records on the sexual offender to conduct the VSP designation assessment." IDAPA 57.01.01.153. The offender is not given notice of the information being considered by the Board, much less an opportunity to be heard as to the reliability of that information. If the Board determines that the offender is to be designated as a VSP, the offender is notified of the Board's decision by way of a copy of the Board's written findings. I.C. § 18-8319(1).
If the Board makes a VSP designation, the offender has 14 days from receipt of the notice to seek judicial review. I.C. § 18-8319(3)(b). An offender designated a VSP is only entitled to challenge the designation on two grounds:
(a) The offender may introduce evidence that the calculation that led to the designation as a violent sexual predator was incorrectly performed either because of a factual error, because the offender disputes a prior offense, because the variable factors were improperly determined, or for similar reasons;5 and
(b) The offender may introduce evidence at the hearing that the designation as a violent sexual predator does not properly encapsulate the specific case, i.e., the offender may maintain that the case falls outside the typical case of this kind and, therefore, that the offender should not be designated as a violent sexual predator.6
I.C. § 18-8321(12). The scope of judicial review is limited to "a summary, in camera review proceeding, in which the court decides only whether to affirm or reverse the board's designation of the offender as a violent sexual predator." I.C. § 18-8321(4). Thus, the Act contemplates that judicial review will ordinarily occur without the offender having the opportunity to address the basis of the Board's decision. The Act does provide that "[w]here the proof, whether in the form of reliable hearsay, affidavits, or offers of live testimony, creates a genuine issue of material fact as to whether the offender is a violent sexual predator, the court should convene a fact-finding hearing and permit live testimony." I.C. § 18-8321(9). At the hearing, the State bears the burden of presenting a prima facie case justifying the Board's designation. I.C. § 18-8321(10). Despite this threshold burden of production, the offender ultimately bears the burden of proof, as Idaho Code § 18-8321(11) provides that "[t]he court shall affirm the board's determination unless persuaded by a preponderance of the evidence that it does not conform to the law or the guidelines."
The oddity lies herein: while both parties may introduce evidence, neither party is provided with the record utilized by the Board to make its determination, except for a written summary of information relied upon by the Board and documents that are available to the parties by other means. I.C. § 18-8321(3). All records that contain witness or victim names or statements, reports prepared in making parole determinations, or other "confidential" records are withheld from disclosure to the offender, his attorney, and even the prosecutor, and are available only to the district court for the purpose of reviewing the Board's determination. Id. The rules of evidence do not apply. I.C. § 18-8321(6).
In our view, there are significant constitutional shortcomings in the statutory procedure as a result of the lack of procedural due process afforded an offender. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515, 519 (1971). "[C]ertainly where the State attaches `a badge of infamy' to the citizen, due process comes...
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