FROM THE GARLAND COUNTY CIRCUIT COURT. NO. CV-14-76-1.
HONORABLE JOHN HOMER WRIGHT, JUDGE.
Law Firm, P.A., by: Tyler C.M. Tapp III, for appellant.
Rutledge, Att'y Gen., by: Nga Mahfouz, Ass't
Att'y Gen., for appellee.
S. HIXSON, Judge. KINARD and WHITEAKER, JJ., agree.
KENNETH S. HIXSON, Judge
appeal concerns the community-notification level assigned to
appellant Vernon Keith Dillard pursuant to the Sex Offender
Registration Act of 1997. The express purpose of that Act is
to release certain information about sex offenders to the
public in order to protect the public
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.
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.
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.
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. 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
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.
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
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 ...