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Dillard v. Sex offender Assessment Comm.

Court of Appeals of Arkansas, Division II

March 2, 2016



         Tapp Law Firm, P.A., by: Tyler C.M. Tapp III, for appellant.

         Leslie Rutledge, Att'y Gen., by: Nga Mahfouz, Ass't Att'y Gen., for appellee.

         KENNETH S. HIXSON, Judge. KINARD and WHITEAKER, JJ., agree.


          KENNETH S. HIXSON, Judge

         This appeal concerns the community-notification level assigned to appellant Vernon Keith Dillard pursuant to the Sex Offender Registration Act of 1997.[1] The express purpose of that Act is to release certain information about sex offenders to the public in order to protect the public

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safety. Ark. Code Ann. § 12-12-902 (Repl. 2009). On January 8, 2014, appellee Sex Offender Assessment Committee (SOAC) assessed Mr. Dillard as a Level 4 sex offender. Mr. Dillard sought judicial review of the SOAC's assessment, and on June 2, 2015, the Garland County Circuit Court entered an order upholding appellant's status as a Level 4 sex offender and denying him any relief. Mr. Dillard now appeals to this court, arguing that the SOAC lacked statutory authority to declare him a Level 4 sex offender and asking that we reverse and modify his status to that of a Level 3 sex offender. We affirm the agency decision, and we therefore affirm the circuit court order.

         This appeal is governed by the Administrative Procedure Act (APA). For purposes of our review in this case, the APA provides that an agency decision may be reversed or modified if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; or (4) affected by other error of law. Ark. Code Ann. § 25-15-212(h) (Repl. 2014). The appellate court's review is directed not toward the circuit court but toward the decision of the agency. State Sex Offender Assessment Comm. v. Wallace, 2013 Ark.App. 654. In this case, Mr. Dillard does not challenge the sufficiency of the evidence supporting the SOAC's decision or allege an abuse of discretion; he instead claims only that the agency's decision was in excess of its statutory authority under the provisions of the Sex Offender Registration Act. Therefore, our review is limited to ascertaining whether the agency's decision runs afoul of one of the criteria set out in section 25-15-212(h)(1)?(4). See Brown v. Sex Offender Assessment Comm., 2014 Ark.App. 236.

         The record demonstrates that Mr. Dillard has multiple prior convictions for sex offenses committed against young boys. In 1983, Mr. Dillard was convicted of sodomy in Oklahoma after admitting to oral sex with a twelve-year-old male. In 1987, also in Oklahoma, Mr. Dillard pleaded guilty to indecent proposal to a child, and in that case the victims were brothers, ages ten and thirteen. Mr. Dillard's most recent conviction occurred in Arkansas in 1992 after he pleaded guilty to rape committed against a twelve-year-old male, and he was sentenced to thirty-five years in prison.

         While Mr. Dillard remained incarcerated in Arkansas in 2007, the SOAC assessed him as a Level 4 sex offender. Mr. Dillard was released from prison in 2010, and in February 2013 he requested a reassessment of his community-notification level.[2] Based on the assessment process, an assessment report was completed and the Community Notification Assessment Unit assigned Mr. Dillard as a Level 4 sex offender. On administrative review, the SOAC found by a majority vote that Mr. Dillard was a sexually dangerous person, and thus confirmed that he was a Level 4 sex offender. The SOAC made extensive findings of fact in support of its decision, including that Mr. Dillard's 1992 conviction was a result of his forcible rape of a minor; that Mr. Dillard had subsequently been removed from a sexual-abuse treatment program because of his nonamenability to treatment; that Mr. Dillard's screening

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scale for pedophilic interest was at the highest level; and that Mr. Dillard minimized his prior offenses because, according to him, all of the child victims gave their " consent." It is from this reassessment as a Level 4 sex offender that Mr. Dillard appealed to the circuit court and now to the court of appeals.

          The Sex Offender Assessment Committee Guidelines and Procedures describe the community-notification levels as 1 (low) through 4 (high), compatible with the public's need to know about the sex offender depending on the severity of risk to the public. As relevant to this appeal, the levels are described as follows:

Level 3: Typically offenders in this category have a history of repeat sexual offending, and/or strong antisocial, violent or predatory personality characteristics. These are individuals whose offense and criminal history require notification throughout the community.
Level 4: Sexually Dangerous Person refers to a person who has been adjudicated guilty of a sex offense or acquitted on the grounds of mental disease or defect of a sex offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sex offenses. The designation ...

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