Colorado SOMB Approved Standards Revisions Sexual Offense History Questions

8-19-16 Colorado:

Source Colorado SOMB Announcement:

Greetings,

On August 19, 2016, the SOMB approved revisions to the Standards and Guidelines as they pertain to sexual offense history questions, including sexual offense history polygraph questions. These revisions apply to Standards and Guidelines for adult sex offenders and juveniles who have committed sexual offenses.

All current Standards and Guidelines related to requirements for sexual offense history questions, including sexual offense history polygraph questions, are unchanged. The following revisions apply only when an adult sex offender or a juvenile who has committed a sexual offense refuses to answer such questions.

Below you will find three recent court decisions that support a client's right to refuse to answer sexual offense history questions, including sexual offense history polygraph questions. These decisions have necessitated the revised language to the Standards and Guidelines as follows:

"If the offender refuses to answer sexual offense history questions, including sexual offense history polygraph questions, then the provider shall meet with the supervising officer to identify and implement alternative methods of assessing and managing risk and needs. The provider shall not unsuccessfully discharge an offender from treatment for solely refusing to answer sexual offense history questions, including sexual offense history polygraph questions."

The revisions are implemented, where applicable, throughout the Standards and Guidelines for adult sex offenders as well as for juveniles who have committed sexual offenses. You are encouraged to review the attached documents carefully. You are welcome to submit proposed changes to be considered as the revision process moves forward. In addition, as questions arise, please do not hesitate to contact us.

Thank you.

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People vs. Robertson
People vs. Ruch
US vs. VonBehren

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USA v Del Valle-Cruz

4-6-15 Puerto Rico, Oklahoma, Florida:

USA v Del Valle-Cruz

Defendant Carlos Manuel Del Valle-Cruz ("Del Valle-Cruz") was sentenced to twenty-one months in prison and seven years of supervised release after pleading guilty to one count of failing to register as a sex offender.

By our count, this is the third time Del Valle-Cruz has been convicted of failing to register since his 1997 sex offense conviction. As troubling as that is, we note that he has not been charged with any other sex offenses in the intervening eighteen years.

The terms of Del Valle-Cruz's supervised release include a series of special conditions that prohibit him from contact with minors and require him to undergo sex offender treatment — terms that were not imposed as part of his sentence for the underlying sex offense. Moreover, these conditions were imposed in a boilerplate fashion, devoid of any explanation by the district court.

Del Valle-Cruz now seeks to vacate his conviction or, failing that, the aforementioned special conditions. A waiver of appeal bars Del Valle-Cruz's appeal of his conviction, as well as his appeal of most of the special conditions. NOTE: There is a large section within decision that explains this more fully, and includes the Oklahoma case of Starkey.

However, as to his appeal of the conditions that would interfere with his relationship with his son, to avoid a miscarriage of justice, we decline to enforce the waiver and instead vacate those conditions that would prevent Del Valle-Cruz from contact with, or residing with minors.

We will remand for de novo resentencing with respect to the supervised release term, so that the district court can consider the supervised release conditions as a whole and in light of intervening precedent.

Upon remand for further proceedings on the special conditions, we invite the district court to revisit the conditions and to explain their justification in this case.

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Conclusion

We dismiss Del Valle-Cruz's appeal of his conviction, as well as the conditions imposing sex offender treatment, and prohibiting working with or volunteering with minors.

We vacate conditions 13 and 15, and we remand to the district court for re-sentencing consistent with this opinion.

The re-sentencing shall be limited to the terms of supervised release, and at that time, given the concerns we have expressed herein, the district court may revisit all of the special conditions. United States v. Francois, 715 F.3d 21, 34 (1st Cir. 2013) ("[P]recedent in this Circuit establishes that `an appellate ruling invalidating a sentence . . . may implicate the trial judge's comprehensive, interdependent imposition of a penalty and thus require resentencing on all counts.'" (quoting United States v. Melvin, 27 F.3d 710, 712 (1st Cir. 1994))). At resentencing the district court should explain its reasons for the imposition of conditions and provide factual findings supported by the record.

Order requiring man to participate in sex offender program not unconstitutional

6-19-2014 Indiana:

The Indiana Court of Appeals has found (Patrick v Butts) that the order requiring a man to participate in the Sex Offender Management and Monitoring program does not violate Indiana’s prohibition of ex post facto laws.

George Patrick, convicted of two counts of Class B felony rape and two counts of Class C felony criminal confinement in 1991, was released on parole in 2007. But it was later revoked, and that’s when he filed his petition for writ of state habeas corpus relief, asserting his parole was revoked due to his “involuntary termination [sic] SOMM participation as a result of his special sex offender stipulations as a condition of his parole.”

“The Parole Board is allowed to impose conditions that are ‘reasonably related to the parolee’s successful reintegration into the community,’ Ind. Code § 11-13-3-4-(b), and that subsection was in place when Patrick was convicted. Our Supreme Court has found that the SOMM program ‘is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control,’” Judge Melissa May wrote in George Patrick v. Keith Butts, Superintendent, State of Indiana and Indiana Parole Board, 33A04-1311-MI-577.

“As the Parole Board’s authority to impose conditions on parole is not limited by the date on which the program was created, but rather is limited by the program’s ability to help reintegrate the parolee into society, the order that Patrick participate in SOMM does not violate the ex post facto clause.” ..Source.. by Jennifer Nelson

Bleeke v State

4-11-2014 Indiana:

Bleeke v State (Supreme ct)

Bleeke v State (Court of Appeals)

In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children—even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program.

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Conditions 4, 5, 17, 19, and 20, which we have laid out above, are all broadly aimed at restricting Bleeke from being near, communicating with, or associating with, children (and, until the injunction became permanent, from being near, communicating with, or associating with, his own children). Bleeke argues that there is no evidence whatsoever that he poses a risk to any minor, and that these conditions therefore are not reasonably related to his successful reintegration into the community.

We agree with Bleeke. None of the evidence presented at his individualized hearing or designated before the trial court in support of—or in opposition to—his motion for summary judgment indicates that Bleeke is, was, or will be a threat to children—either his own or otherwise. In fact, the evidence uncontrovertibly shows the opposite: that Bleeke is affirmatively not a threat to children, nor is he likely to be. The Parole Board’s only evidence to the contrary apparently consisted of a general study of cross-over offenders. But we note, as the Court of Appeals did, that the study itself was not made part of the record on appeal. Bleeke, 982 N.E.2d at 1049. This makes it impossible to assess whether the study raises a genuine issue of material fact as to the likelihood of Bleeke himself crossing over from an adult victim to a child victim.

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Parole Stipulation form 49108 ...

Miller v Commonwealth

2-21-2013 Kentucky:

Miller v Commonwealth

The Appellant Elmer David Miller was convicted of a misdemeanor and probated for the two-year statutory maximum on the condition that he attend counseling recommended by the Office of Probation and Parole. That office recommended that he enroll in the state's three-year sex offender treatment program required for felony sex offenders. At issue is whether his probation can be revoked for failing to do the impossible, that is, complete the program before his probation ended, and whether there are other options, such as extension of the probationary period, available. This Court concludes that Miller cannot be required to complete a program that extends beyond his period of probation, that he has completed his probation, and he is discharged from it as a matter of law.

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III. Conclusion
For the foregoing reasons, the Court of Appeals is affirmed in part, but to the extent that the Court of Appeals remanded this case to the trial court for a determination of whether Miller's probation should be revoked, its judgment is reversed. This case is remanded to the Lincoln Circuit Court with directions that the Appellant Elmer David Miller be deemed discharged from probation.

State v Stringer

1-23-2014 Iowa:

State v Stringer

Dale Stringer appeals the court's denial of his application to remove the requirement that he complete sex offender treatment as a condition of his probation. Stringer pled guilty to prostitution, in violation of Iowa Code section 725.1 (2011), following a police sting operation where Stringer offered an undercover police officer $40 for sex.

He was sentenced to 365 days in jail, that sentence was suspended, and he was placed on probation for two years. Stringer contends the crime of prostitution is not a sex offense under section 692A.102, and his criminal history does not justify the imposition of sex offender treatment as a condition of his probation.

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Based on the record before us, we cannot say that sex offender treatment "relates to the defendant's circumstances in a reasonable manner and is justified by the defendant's circumstances." Valin, 724 N.W.2d at 446, 449 (finding the trial court abused its discretion by imposing sex offender treatment as a condition of probation on a defendant convicted of operating while intoxicated where the defendant had a prior conviction for assault with intent to commit sexual abuse but had already successfully completed sex offender treatment as part of the prior conviction); State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998) (finding the trial court abused its discretion when it imposed a batterer's treatment program as a condition of probation on a defendant who was acquitted of domestic abuse and had no prior history of such conduct).

We conclude that the court abused its discretion when it refused to remove the Department of Correctional Services' requirement of sex offender treatment programming as a condition of Stringer's probation.

We therefore reverse the district court's decision imposing sex offender treatment as a condition of Stringer's probation.

REVERSED.