State v. Germane

• Decision Date: 02 June 2009
• Docket Number: No. 2006-169-C.A.,2006-169-C.A.
• Parties: STATE v. Thomas GERMANE.
• Court: Rhode Island Supreme Court

971 A.2d 555

STATE v. Thomas GERMANE.

No. 2006-169-C.A.

Supreme Court of Rhode Island.

June 2, 2009.

Christopher R. Bush, Department of the Attorney General, for Plaintiff.

John A. MacFadyen, Esq., Providence, for Defendant.

Present: GOLDBERG, Acting C.J., FLAHERTY, SUTTELL, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).

OPINION

Justice ROBINSON for the Court.

The appellant, Thomas Germane, appeals from an October 3, 2005 decision of the Superior Court upholding the determination of the Sex Offender Board of Review (board of review or board) that the appellant should be classified as a Risk Level III offender¹ for purposes of community notification pursuant to G.L.1956 chapter 37.1 of title 11 (entitled "Sexual Offender Registration and Community Notification Act").

On appeal, Mr. Germane contends that his classification pursuant to the sex offender registration statute was improper because, in his view, the statute (both on its face and as applied), violates his right to procedural due process, which right is guaranteed by both the United States and Rhode Island Constitutions. The appellant further argues that, as applied to the facts of his case, the statute violates his right to substantive due process. He also contends that the statute is not compatible with the principle of separation of powers that is set forth in article 5 of the Rhode Island Constitution. The appellant further argues that application of the statute to his case constitutes a violation of the state constitutional prohibition against ex post facto laws.

In addition to his constitutional contentions, appellant also urges this Court to hold that the reviewing magistrate in the Superior Court clearly erred when he found that appellant had failed to show, by a preponderance of the evidence, that the board of review's classification of him as a Risk Level III offender was not in compliance with the law.

For the reasons set forth below, it is our view that a portion of chapter 37.1 of title 11, in some instances, could be irreconcilable with the constitutionally protected right to procedural due process. Nevertheless, in view of what actually transpired in this case, it is clear to us that Mr. Germane himself was not in fact deprived of that, or any other, constitutional right. In addition, we can perceive no basis for ruling that the magistrate committed clear error in upholding the board of review's risk level classification of appellant. We therefore affirm the judgment of the Superior Court.

Facts² and Travel

I Underlying Criminal Offenses

This case ultimately stems from appellant's commission of four first-degree sexual assaults against three victims (one victim having been the object of two such assaults) in the Spring of 1998.³

The first assault, which occurred on April 7, 1998, involved one act of forcible or coerced vaginal intercourse. In her statement to the police, the nineteen-year-old victim related how she had voluntarily entered Mr. Germane's truck on the evening of the assault. After he began driving her to an unknown location, she asked to leave the vehicle, whereupon appellant withdrew a folding knife and threatened her. He then drove her to a secluded location in East Providence, where he sexually assaulted her.

The second assault, which occurred about a week later, on April 15, 1998, also involved one act of forcible or coerced vaginal intercourse. The forty-eight-year-old victim was cognitively impaired as the result of a childhood injury.⁴ In a statement to police, she recounted being forcibly abducted by Mr. Germane, driven to a cemetery in Cranston, and then sexually assaulted. She mentioned being struck by appellant, but she gave the police no indication that a weapon was used during the assault.

The final two assaults, which occurred on May 19, 1998 (and which were committed against a single victim), involved one act of forcible or coerced fellatio and one count of forcible or coerced anal intercourse.⁵ The twenty-four-year-old victim acknowledged to the police that she was a prostitute and that she had voluntarily entered Mr. Germane's truck on the evening of the assault. However, she was then forced by appellant to perform an oral sexual act on him in the truck, driven to a secluded location in East Providence, and again assaulted in the woods. She mentioned that she saw a knife on appellant's belt and feared that he might use it against her, but she did not allege that he actually threatened her with the knife.

In view of what the prosecutor, at the time of the plea and sentencing proceeding in January of 2000, would describe as "certain background information and other difficulties with some of the victims,"⁶ the state apparently concluded that a plea agreement was preferable to proceeding to trial with respect to the above-summarized offenses. Accordingly, in exchange for a plea of nolo contendere by Mr. Germane, the state offered to recommend a sentence of twenty years at the Adult Correctional Institutions, six months to serve, nineteen and one-half months suspended, with probation.

Prior to the plea and sentencing, the magistrate⁷ presiding over the case received two psychiatric assessments of Mr. Germane that had been performed by experts in the field of psychological and sexual evaluation—viz., Dr. Theoharis K. Seghorn and Dr. John P. Wincze. Doctor Seghorn held five extended evaluation sessions with appellant (each involving two to three hours of interviews and testing), while Dr. Wincze held six sessions with appellant (said sessions also involving testing of Mr. Germane and interviews with Mr. Germane and his ex-wife). The two assessments were consistent with one another as to most significant matters; they generally concluded that Mr. Germane was a man of "below average intelligence" and that "he was not aroused by force or aggression or sadism * * *." They further concluded that he is "not a sexual predator," but that he would nonetheless benefit from continued psychological treatment or psychotherapy for the purpose of improving his emotional self-regulation and social skills. Both doctors independently determined that, in their professional opinion, Mr. Germane was at a low risk of re-offense.

On January 6, 2000, appellant pled nolo contendere to four counts of first-degree sexual assault. At that proceeding, appellant admitted that, had the cases proceeded to trial, the state could have proven beyond a reasonable doubt that, over the course of approximately two months, he had committed four acts of sexual assault against three women by the use of force or coercion. The Superior Court imposed the agreed-upon sentence; Mr. Germane was given credit for the six months that he had already served prior to the plea; and he was thereupon released. Several years later, at the time of the review by the Superior Court of the board of review's classification, the magistrate who conducted that review reflected that, although he did "not vividly recall" his thinking at the time of sentencing, he believed that he had agreed to the lenient sentence because "[Mr. Germane is] not a danger to society."

II First Classification by the Board of Review of Sexually Violent Predatory Behavior

A sex offender registration statute was first enacted in Rhode Island in 1992 (P.L. 1992, ch. 196, § 1). In 1996, the General Assembly repealed the original statute, G.L.1956 chapter 37 of title 11, and enacted the Sexual Offender Registration and Community Notification Act, G.L.1956 chapter 37.1 of title 11, as enacted by P.L.1996, ch. 104, § 1 ("the statute"). The new statute required the following persons to register his or her address with a designated state law enforcement agency: (1) anyone convicted of an enumerated criminal offense against a minor victim; (2) anyone convicted of a sexually violent offense; and (3) anyone determined by a newly created board of review to be a sexually violent predator. Section 11-37.1-3. The first two categories of offenders were required to register annually for ten years after the date of conviction and to verify their addresses quarterly for the first two years after the date of conviction. Section 11-37.1-4. Those individuals in the third category of offenders were required to register indefinitely until such time as a court might determine that a particular individual was no longer a sexually violent predator; offenders in this third category were also required to register their addresses with the appropriate authorities every ninety days. Id.

The statute also provided for community notification. Section 11-37.1-12 mandated the creation of a "notification advisory council," the purpose of which was to advise the Attorney General concerning guidelines and procedures that would govern community notification pursuant to the statute. The statute mandated that those guidelines "identify factors relevant to [the] risk of re-offense" and create a three-tiered classificatory scheme depending on the degree of that risk. Section 11-37.1-12(c)(l). Offenders at greater risk of re-offense would be subject to more comprehensive community notification than offenders posing a lesser risk.

In 1999 (after the commission of appellant's offenses, but before the disposition of the criminal charges against him), chapter 37.1 of title 11 was amended to create a new category of offenses subject to lifetime registration—viz., "aggravated offense[s]," which included most sexual offenses involving sexual penetration and the use or threat of force. Section 11-37.1-2(J), as amended by P.L.1999, ch. 255, § 1. The revised statute required an aggravated offender to register as a sexual offender for life and to update his or her address quarterly. Section 11-37.1-4(c).

Thus, having pled nolo contendere to several aggravated sexual offenses (viz., the abovereferenced four counts of first-degree sexual assault), under the amended statute Mr. Germane is required to register annually in person with local...