                                   Cite as 2016 Ark. App. 147


                   ARKANSAS COURT OF APPEALS

                                           DIVISION II
                                         No. CV-15-753

                            Opinion Delivered: MARCH 2, 2016
VERNON KEITH DILLARD
                  APPELLANT APPEAL FROM THE GARLAND
                            COUNTY CIRCUIT COURT
V.                          [NO. CV-14-76-1]

                             HONORABLE JOHN HOMER WRIGHT,
SEX OFFENDER ASSESSMENT      JUDGE
COMMITTEE
                    APPELLEE AFFIRMED


                               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 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




       1   It is undisputed that Mr. Dillard is required to register as a sex offender.
                                Cite as 2016 Ark. App. 147


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



                                             2
                                Cite as 2016 Ark. App. 147


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 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




       2 Arkansas Code Annotated section 12-12-917(h) (Supp. 2015) provides that a sex
offender or sexually dangerous person may request the committee to reassess the assigned
risk level of the sex offender after five years have elapsed from the initial risk assessment.
                                              3
                                 Cite as 2016 Ark. App. 147


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
       indicates that the highest and most visible means of community notification is
       required.

The Level 4 designation requires a finding that the offender is a “sexually dangerous person,”

which is also defined in the Sex Offender Registration Act of Arkansas Code Annotated at

section 12-12-903(15)(A) (Supp. 2015). Prior to a 2013 amendment, the same statutory

definition was used to define a “sexually violent predator.” However, the 2013 amendment

also added § 12-12-903(15)(B), which provides that “[a] person previously classified as a

sexually violent predator is now considered a sexually dangerous person.” So it is clear that

the terms “sexually violent predator” and “sexually dangerous person” are synonymous.

       In this appeal, Mr. Dillard argues that the SOAC erred, as a matter of law, in declaring

him a Level 4 sex offender because no court had ever, within the time and manner required

by law, declared him to be a “sexually dangerous person.” Mr. Dillard relies on Arkansas

Code Annotated section 12-12-918 (Supp. 2015), which provides:

         (a)(1) In order to classify a person as a sexually dangerous person, a prosecutor may
       allege on the face of an information that the prosecutor is seeking a determination
       that the defendant is a sexually dangerous person.
               (2)(A) If the defendant is adjudicated guilty, the court shall enter an order
               directing an examiner qualified by the Sex Offender Assessment Committee

                                               4
                                 Cite as 2016 Ark. App. 147


               to issue a report to the sentencing court that recommends whether or not the
               defendant should be classified as a sexually dangerous person.
               (B) Copies of the report shall be forwarded immediately to the prosecutor
               and to the defense attorney.
               (C) The report shall not be admissible for purposes of sentencing.
               (3) After sentencing, the court shall make a determination regarding the
               defendant’s status as a sexually dangerous person.
         (b)(1) In order for the examiner qualified by the committee to prepare the report:
               (A) The defendant may be sent for evaluation to a facility designated by the
               Department of Correction; or
               (B) The committee may elect to send an examiner to the local or regional
               detention facility.
               (2) The cost of the evaluation shall be paid by the Department of
               Correction.
         (c)(1) Should evidence be found in the course of any assessment conducted by the
       committee that a defendant appears to meet the criteria for being classified as a
       sexually dangerous person, the committee shall bring this information to the attention
       of the prosecutor, who will determine whether to file a petition with the court for
       the defendant to be classified as a sexually dangerous person.
               (2) The sentencing court shall retain jurisdiction to determine whether
               a defendant is a sexually dangerous person for one (1) year after
               sentencing or for so long as the defendant remains incarcerated for the
               sex offense.
         (d)(1) The judgment and commitment order should state whether the offense
       qualified as an aggravated sex offense.
               (2) Should the aggravated sex offense box not be checked on the
               commitment order, the court will be contacted by the committee and
               asked to furnish a written determination as to whether the offense
               qualifies as an aggravated sex offense.

Mr. Dillard contends that the above legislation mandates that, for a defendant to be classified

as a sexually dangerous person and thus subject to a Level 4 assessment, such finding must

be made by a court and not the SOAC. Mr. Dillard argues that, because the SOAC did not

have the statutory authority to declare him a Level 4 offender, we should reverse and modify

his offender level to Level 3.

       We conclude that the SOAC did not exceed its statutory authority in finding

Mr. Dillard to be a sexually dangerous person and assessing him as a Level 4 sex offender.

                                              5
                                  Cite as 2016 Ark. App. 147


The Sex Offender Registration Act was not enacted until 1997. Therefore, the court

presiding over Mr. Dillard’s rape conviction in 1992 could not have made such a designation

under the terms of Arkansas Code Annotated section 12-12-918, as that section did not yet

exist.

         Moreover, the SOAC’s Guidelines and Procedures explain the following options for

designating a sexually dangerous person:

         Potential routes for determination as to whether an individual should be designated
         a Sexually Dangerous Person:

         1.     Pursuant to § 12-12-918, a prosecutor may allege SDP status and upon
         conviction, the Court shall enter an order for an assessment by an examiner qualified
         by the SOAC. SOCNA will prepare a report to be sent to the Court with copies to
         the prosecuting attorney and the defense attorney. Upon receipt of a report, the
         Court shall determine if SDP status is appropriate.

         2.     Pursuant to A.C.A § 12-12-922, if during the course of a SOCNA assessment
         grounds are found for believing that an individual may be a SDP, that information
         will be presented to the SOAC by SOCNA. SOAC will determine whether the
         offender meets the criteria for SDP by a majority vote.

The potential routes as described above are accurate.

         Arkansas Code Annotated section 12-12-918 pertains to offenders during the

prosecution of a criminal case, and permits the trial court to classify a person as a sexually

dangerous person. However, Arkansas Code Annotated section 12-12-922 (Supp. 2015)

alternatively gives the SOAC authority to conduct its own assessment on the issue. Arkansas

Code Annotated section 12-12-922(a) provides:

           (a)(1) The alternative procedure under this section may be used for sexually
         dangerous person evaluations if information that was not available to the court at the
         time of trial emerges in the course of a sex offender evaluation.
           (2)(A) Examiners qualified by the Sex Offender Assessment Committee shall
         include in the assessment of any sex offender convicted of a sex offense a review as

                                               6
                                Cite as 2016 Ark. App. 147


       to whether the frequency, repetition over time, severity of trauma to the victim, or
       established pattern of predatory behaviors suggests that the sex offender is likely to
       engage in future predatory sexual offenses.
         (B) If a mental abnormality or personality disorder is suspected, a licensed
       psychologist or psychiatrist qualified by the committee may conduct further
       assessment to determine the presence or absence of a mental abnormality or
       personality disorder.
         (C) If further assessment under subdivision (a)(2)(B) of this section is conducted by
       a licensed psychologist or psychiatrist qualified by the committee, the report of the
       further assessment shall be presented to the committee.

Pursuant to subsection 12-12-922(b)(1)(A), a sex offender may challenge an assigned risk

level by submitting a written request for an administrative review. Pursuant to subsection

12-12-922(b)(4)−(6), the administrative review is conducted by the SOAC, and after its

review, the SOAC issues its findings to the sex offender. Ark. Code Ann. § 12-12-

922(b)(7)(A)(i).   Consequently, contrary to appellant’s argument, there was statutory

authority for SOAC to find him to be a sexually dangerous person. 3 Therefore, we affirm

the agency’s assessment of appellant as a Level 4 sex offender.

       Affirmed.

       KINARD and WHITEAKER, JJ., agree.

       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.




       3We observe that our supreme court previously affirmed an agency assessment of a
Level 4 sex offender in Parkman v. Sex Offender Screening & Risk Assessment Committee,
2009 Ark. 205, 307 S.W.3d 6.
                                              7
