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    "parties": [
      "James R. MUNSON v. ARKANSAS DEPARTMENT of CORRECTION SEX OFFENDER SCREENING & RISK ASSESSMENT"
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    "opinions": [
      {
        "text": "Annabelle Clinton Imber, Justice.\nAppellant James R. Munson was convicted of first-degree violation of a minor and sentenced to fifteen (15) years\u2019 imprisonment. We affirmed his conviction in Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998).\nOn September 4, 2003, the Arkansas Department of Correction Sex Offender Screening and Risk Assessment Committee (SOSRA) assessed Munson as a level III sex offender. Munson timely filed his request for administrative review of the assessment on September 15, 2003. Following an extended exchange of correspondence between Munson and SOSRA, Munson filed a petition for judicial review of SOSRA\u2019s assessment on July 28, 2005, and the circuit court dismissed his petition as being untimely. Fie then lodged an appeal in this court and presently has two motions pending here: (1) a motion to complete the record and (2) a motion to duplicate his briefs at the state\u2019s expense.\nAs we find no merit to the appeal, the appeal is dismissed without prejudice, and Munson\u2019s motions are moot. This court has consistently held that an appeal from the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam); Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam).\nPursuant to the Sex Offender Registration Act of 1997, codified at Ark. Code Ann. \u00a7\u00a7 12-12-901 through 12-12-922 (Repl. 2003 & Supp. 2005), the SOSRA committee shall conduct a sex offender risk evaluation and assessment to determine a sex offender\u2019s risk level. See Ark. Code Ann. \u00a7\u00a7 12-12-921 \u201412-12-922. Upon receiving a copy of the assessment, the offender can challenge the assigned risk level by seeking an administrative review. Id. \u00a7 12-12-922(b)(l)(A). The request for review must state that either the rules and procedures were not properly followed in reaching the decision of the offender\u2019s risk level, or there is evidence that was not available at the time of the assessment, which would have bearing on the assessment. Id. \u00a7 12-12-922(b)(3)(A). A member of the committee then has thirty (30) days to review the offender\u2019s assessment and send the offender the findings of the review by certified mail. Id. \u00a7 12-12-922(b)(6) (A) & (7)(A)(i). The offender has thirty (30) days, after he or she receives the findings, to file a petition for judicial review under the Arkansas Administrative Procedure Act. Id. \u00a7 12-12-922(b)(7)(A)(ii). Under the Arkansas Administrative Procedure Act, a person has thirty (30) days after he or she has been served with the \u201cagency\u2019s final decision\u201d to file a petition for judicial review with the circuit court. Ark. Code Ann. \u00a7 25-15-212(b)(l) (Repl. 2003).\nAfter being assessed as a level III sex offender in 2003, Munson requested an administrative review. The chair of the SOSRA committee, Billy Burris, responded to Munson\u2019s request by a letter dated November 17, 2003. The letter in its entirety states as follows:\nYou have requested a review of your Risk Level Classification. Generally, review requests are based on new information unavailable at the time of the assessment, or allegations that policy and procedures governing the process was [sic] not followed. The information that you provided will be forwarded to the Sex Offender Screening & Risk Assessment [sic].\nThe only information to be reviewed will be that which may not have been reviewed previously. If that information was in fact reviewed, then your request for a review is not justified.\nOn December 3, 2003, Munson sent a letter to Burris confirming that he had received the November 17 letter. In his letter, Munson requested information regarding who would be reviewing his case, and a copy of the results of the review. Munson then proceeded to send a series of letters to Burris and Max Mobley, the secretary of the SOSRA committee, further inquiring as to whether the review had been held and about the rest\u00e1is of the review.\nOn March 3, 2004, Mobley sent Munson a letter with a copy of the November 17 letter. In this letter, Mobley stated that the November 17 letter was Burris\u2019s opinion on the review of Mun-son\u2019s assessment. On March 14, 2004, Mobley sent Munson another letter stating in part \u201c[i]n case any confusion remains, Mr. Burris completed your review on November 17th. Your level 3 was upheld.\u201d Mobley also wrote that he had listened to the tapes of Munson\u2019s assessment interview, found no inappropriate actions on the part of the staff, and found Munson\u2019s presentation to the committee lacking in credibility.\nOn March 29, 2004, Munson sent Mobley a letter, in which he confirmed receipt of the March 3 and November 17 letters. However, he alleged that the November 17 letter did not contain any results of his review and instead the letter merely stated that his assessment had been sent to the committee for review. Then, Munson once again requested the results of the committee\u2019s review.\nOn April 6, 2004, Mobley sent Munson another letter in which he summed up the November 17 letter as meaning that Burris \u201clooked at what you sent, and found no basis for review.\u201d Mobley also indicated that the SOSRA committee did receive a copy ofBurris\u2019s opinion. He concluded by stating that Burris had written to Munson about the review on November 17 and reiterated to Munson \u201c[y]our risk level has not changed, nor w\u00e1l it.\u201d\nFinally, Munson filed a petition for judicial review in the Pulaski County Circuit Court on July 28, 2005. In his petition, Munson alleged that Burris and Mobley were avoiding his assessment review, and he stated that he had no knowledge of the results of the committee\u2019s review. In response, SOSRA filed a motion to dismiss, arguing that Munson\u2019s petition was untimely. SOSRA asserted that Munson received the results of his review in the November 17 letter and again in the March 14 and April 6 letters but failed to file his petition until several months after the thirty-day deadline had lapsed.\nThe circuit court entered an order granting SOSRA\u2019s motion to dismiss. In support of its order, the circuit court found that Munson received notice of the results of his administrative review through the November 17 letter and also received confirmation, through the March 14 and April 6 letters, that the November 17 letter constituted the results of his review. Based upon those findings, the circuit court concluded that Munson\u2019s petition for judicial review was not timely filed.\nUnder the Administrative Procedure Act, the judicial branch does not occupy a supervisory role by monitoring the day-to-day actions of the executive branch. Viswanathan v. Mississippi County Cmty Coll. Bd. of Trs., 318 Ark. 810, 887 S.W.2d 531 (1994). Rather, it is only the agency\u2019s judicial functions that are subject to appellate review and then only as narrowly prescribed in the act. Id. at 812, 887 S.W.2d at 532-33. The question of whether a petition for judicial review is based upon a final agency decision is a jurisdictional matter that a court can address at anytime. See id.\nWe have held that final orders are needed for appellate review, including review of agency decisions in a circuit court, and we have defined a \u201cfinal order\u201d as \u201cone that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy.\u201d McGann v. Pine Bluff Police Dep\u2019t, 334 Ark. 352, 974 S.W.2d 462 (1998). Additionally, a final decision or order of an agency \u201cshall be in writing\u201d and \u201cshall include findings of fact and conclusions of law, separately stated.\u201d Ark. Code Ann. \u00a7 25-15-210 (b)(1) & (2) (Repl. 2002). Under the Sex Offender Registration Act, the SOSRA committee shall send an offender the findings of his or her administrative review by certified mail. Ark. Code Ann. \u00a7 12-12-922(b)(7) (A) (i) (Supp. 2005).\nThe circuit court here found that the November 17 letter was the SOSRA committee\u2019s final decision on Munson\u2019s administrative review. We disagree. The language of the letter does not clearly indicate that Munson\u2019s right of review has been concluded. Instead, the letter is framed in terms that indicate the review was still ongoing. The letter specifically states that Mun-son\u2019s information \u201cwill be forwarded\u201d to the committee and \u201c[t]he only information to be reviewed will be that which may not have been received previously.\u201d Moreover, the November 17 letter does not contain any findings of fact or law with regard to the administrative review. The letter merely sets out the procedures that the committee members follow in performing a review. Accordingly, we hold that Burris\u2019s November 17 letter did not constitute the SOSRA committee\u2019s final decision on the assessment of Munson as a level III sex offender.\nThe circuit court also found that Mobley\u2019s March 14 and April 6 letters gave Munson further notice that a final decision had been reached on his administrative review. As stated above, the Sex Offender Registration Act requires the SOSRA committee to send an offender the findings of his or her administrative review by certified mail. Ark. Code Ann. \u00a7 12-12-922(b)(7)(A)(i). The requirement that a final decision be sent by certified mail acts as a confirmation of the date on which the offender received the final decision and thereby determines when the thirty-day deadline expires for filing a petition for judicial review under Ark. Code Ann. \u00a7 25-15-212(b). The record before us, however, does not contain any evidence that the March 14 and April 6 letters were sent by certified mail, as required by Ark. Code Ann. \u00a7 12-12-922(b)(7)(A)(i). Thus, without proof that the March 14 and April 6 letters were properly sent to Munson, we cannot say that either of those letters constituted a final decision under \u00a7 25-15-212(b). Moreover, in the absence of any proof that Munson received those letters, much less proof of dates of receipt, the deadline for filing a petition for judicial review \u2014 thirty (30) days after the offender receives the administrative review findings \u2014 cannot be determined. Ark. Code Ann. \u00a7\u00a7 12-12-922(b)(7)(A)(ii), 25-15-212(b).\nFor the reasons stated above, we hold that Munson did not receive a final decision on his administrative review from the SOSRA committee. We therefore dismiss Munson\u2019s appeal without prejudice so that he can obtain a final decision from the SOSRA committee. Furthermore, this disposition of Munson\u2019s appeal renders the pending motions moot.\nAppeal dismissed without prejudice; motions moot.\nMAY 17, 2007\nDustin McDaniel, Att\u2019y Gen., by: Amy L. Ford, Ass\u2019t Att\u2019y Gen., for Petitioner.",
        "type": "majority",
        "author": "Annabelle Clinton Imber, Justice."
      },
      {
        "text": "SUPPLEMENTAL OPINION ON DENIAL OF REHEARING\nAnnabelle Clinton Imber, Justice.\nIn September 2003, the Arkansas Department of Correction Sex Offender Screening and Risk Assessment Committee (SOSRA) assessed James R. Munson as a level III sex offender, pursuant to the Sex Offender Registration Act of 1997, Ark. Code Ann. \u00a7\u00a7 12-12-901 through 12-12-922 (Repl. 2003 & Supp. 2005). Munson requested an administrative review of the assessment under Ark. Code Ann. \u00a7 12-12-922 (Supp. 2005). After protracted correspondence between Munson and two SOSRA committee members, Munson received three letters containing ambiguous statements about the results of the administrative review. Munson eventually filed a petition for judicial review of the SOSRA assessment in the Circuit Court of Pulaski County. See Ark. Code Ann. \u00a7 12-12-922 (a)(7) (A)(ii). In response, SOSRA filed a motion to dismiss Munson\u2019s petition for judicial review because Munson filed his petition after the thirty-day deadline proscribed in Ark. Code Ann. \u00a7 12-12-922 (a)(7)(A)(ii). The circuit court granted the motion to dismiss finding that Munson failed to file his petition for judicial review within thirty (30) days after receiving SOSRA\u2019s initial letter concerning his administrative review.\nMunson then lodged an appeal in this court, and we issued our decision in the matter on March 22, 2007. See Munson v. Arkansas Department of Correction Sex Offender Screening & Assessment, 369 Ark. 290, 253 S.W.3d 901 (2007). We explained that in order for SOSRA\u2019s letters regarding the administrative review to be subject to judicial review under Ark. Code Ann. \u00a7\u00a7 12-12-922(a) (7) (A) (ii) and the judicial review section of the Administrative Procedure Act (APA), Ark. Code Ann. \u00a7 25-15-212, the letter must constitute notice of the final decision of the SOSRA committee. Under Ark. Code Ann. \u00a7 25-15-210(b)(2) an agency\u2019s final decision \u201cshall include findings of fact and conclusions of law, separately stated.\u201d Id. Thus, we concluded that the committee\u2019s initial letter to Munson was not a final decision of the committee, in part, because it did not contain any such findings. We also decided to dismiss Munson\u2019s appeal without prejudice because there was no proof in the record that the SOSRA committee members sent Munson any of the letters by certified mail, as required by Ark. Code Ann. \u00a7 12-12-922 (b)(7)(A)(i), and therefore we could not conclude that he had received notice of SOSRA\u2019s final decision.\nUpon petition for rehearing, SOSRA does not challenge our decision that Munson did not receive notice of the agency\u2019s final decision by certified mail. Instead, SOSRA contends that although section 12-12-922 allows a sex offender to obtain judicial review of SOSRA\u2019s administrative review of his risk assessment through the APA\u2019s judicial review section, Ark. Code Ann. \u00a7 25-15-212, the General Assembly did not intend for any other provisions of the APA to apply to the sex-offender-assessment process. Specifically, SOSRA argues that an administrative review of a sex offender\u2019s risk assessment does not constitute an \u201cadjudication\u201d as defined under the APA because no hearing is required in the assessment process. Accordingly, SOSRA argues that the APA does not apply to the committee\u2019s assessment determination, and thus the administrative review does not have to contain specific findings of fact and law. Based upon this analysis, SOSRA asks this court to remove the language in our decision that requires SOSRA to include specific findings of fact and law in the agency\u2019s final decision. For the reasons stated below, we decline SOSRA\u2019s request and therefore deny the petition for rehearing.\nUnder the APA, section 25-15-212(a) provides that \u201c[i]n cases of adjudication, any person ... who considers himself or herself injured in her person, business, or property by final agency action shall be entitled to judicial review of the action.\u201d Id. (emphasis added). Proceedings for judicial review \u201cshall be instituted by filing a petition [in the circuit court] within thirty (30) days after service upon the petitioner of the agency\u2019s final decision.\u201d Ark. Code Ann. \u00a7 25-15-212(b) (emphasis added). An \u201cadjudication\u201d is defined as an \u201cagency process for the formulation of an order,\u201d and an \u201corder\u201d is \u201cthe final disposition of an agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice and hearing.\u201d Ark. Code Ann. \u00a7 25-15-202 (1)(A) and (5) (Supp. 2005). \u201cIn every case of adjudication, a final decision or order shall be in writing or stated in the record.\u201d Ark. Code Ann. \u00a7 25-15-210(b)(l) (Repl. 2002). \u201cA final decision shall include findings of fact and conclusions of law, separately stated.\u201d Ark. Code Ann. \u00a7 25-15-210(b)(2) (Repl. 2002) (emphasis added).\nPursuant to the Sex Offender Registration Act, the SOSRA committee shall perform an assessment of each sex offender in accordance with the SOSRA committee guidelines, and the committee shall assign the sex offender a risk level. See Ark. Code Ann. \u00a7 12-12-922(a). The sex offender can then challenge the risk level by requesting an administrative review. Ark. Code Ann. \u00a7 12-12-922(b)(1)(A). A member of the committee shall conduct the administrative review within thirty (30) days of receiving a request for review, and \u201c[t]he findings of the administrative review shall be sent to the sex offender by certified mail.\u201d Ark. Code Ann. \u00a7 12-12-922(b)(6)(A) & (7)(A) (emphasis added). \u201cUpon receipt of the findings, the sex offender has thirty (30) days to file a petition under the Arkansas Administrative Procedure Act \u00a7 25-15-201, et. seq., for judicial review . . . .\u201d Ark. Code Ann. \u00a7 12-12-922(b)(7)(B) (emphasis added).\nSOSRA argues that the APA does not apply to the SOSRA committee\u2019s administrative review of a sex offender\u2019s risk assessment because section 12-12-922 does not require a hearing, and, therefore, the administrative review is not an order resulting from an adjudication. According to SOSRA\u2019s petition for rehearing, the SOSRA committee is only required to send the sex offender a certified letter \u201cstating the results ofSOSRA\u2019s consideration of the offender\u2019s request for review of his registration level,\u201d and section 12-12-922 does not require any formal findings of fact or law. Such a statutory interpretation, however, is contrary to the plain language of section 12-12-922.\nThe General Assembly specifically stated that judicial review of SOSRA assessment decisions would be governed by the provisions of the APA, including the judicial review provision in that subchapter, Ark. Code Ann. \u00a7 25-15-212. See Ark. Code Ann. \u00a7\u00a7 12-12-922(b) (7) (B) and 25-15-212. In deciding that judicial reviews of SOSRA decisions would be administered under Ark. Code Ann. \u00a7 25-15-212, the General Assembly relegated judicial review of such decisions to a statute that deals exclusively with adjudications. See Ark. Code Ann. \u00a7 25-15-212(a) (\u201cIn cases of adjudication, any person . . . who considers himself or herself injured . . . shall be entitled to judicial review.\u201d Id. (emphasis added)). Although we agree with SOSRA that section 12-12-922 does not require a hearing and thus does not fall squarely within the definition of an \u201corder,\u201d see Ark. Code Ann. \u00a7 25-15-202(5), the General Assembly\u2019s decision to place judicial review of SOSRA decisions under the APA reflects its intent to have an administrative review under section 12-12-922 function as an adjudication by the SOSRA committee. Accordingly, it follows that a SOSRA administrative review must meet the specifications for a reviewable adjudication under Ark. Code Ann. \u00a7 25-15-212. An adjudication is a final decision of an agency that must contain specific findings of fact and law, and thus the SOSRA committee\u2019s administrative reviews should be accompanied by such findings. Ark. Code Ann. \u00a7 25-15-210(b). Contrary to SOSRA\u2019s argument that the SOSRA committee need only send the sex offender a letter containing the bare results of the committee\u2019s decision as to whether the request for review is meritorious, section 12-12-922 does in fact require the committee to send \u201cfindings\u201d of the administrative review, which proscription is consistent with the requirements of the APA. See Ark. Code Ann. \u00a7 12-12-922(7)(A)(i) & (ii).\nMoreover, neither this court nor the circuit court can review a decision that is not final, and the APA requires specific findings of fact or law to accompany a final decision of an agency. See McGann v. Pine Bluff Police Dep\u2019t, 334 Ark. 352, 974 S.W.2d 462 (1998). Furthermore, without the required findings, the task of a reviewing court \u2014 to determine whether SOSRA\u2019s decision was correct \u2014 would be rendered more difficult, if not impossible, to perform. SOSRA\u2019s argument to the contrary implies that SOSRA. never has to render a final decision that meets the requirements set forth in the APA. We decline to adopt SOSRA\u2019s argument that the APA does not apply to the committee\u2019s assessment determination, and therefore we reaffirm our decision that a SOSRA administrative review must contain specific findings of fact or law pertaining to the results of the review.\nPetition denied.",
        "type": "rehearing",
        "author": "Annabelle Clinton Imber, Justice."
      }
    ],
    "attorneys": [
      "James R. Munson, Jr., pro se appellant.",
      "Dustin McDaniel, Att\u2019y Gen., by: Amy L. Ford, Ass\u2019t Att\u2019y Gen., for Petitioner."
    ],
    "corrections": "",
    "head_matter": "James R. MUNSON v. ARKANSAS DEPARTMENT of CORRECTION SEX OFFENDER SCREENING & RISK ASSESSMENT\n06-933\n253 S.W.3d 901\nSupreme Court of Arkansas\nOpinion delivered March 22, 2007\n[Rehearing denied May 17, 2007.]\nJames R. Munson, Jr., pro se appellant."
  },
  "file_name": "0290-01",
  "first_page_order": 314,
  "last_page_order": 323
}
