Right to counsel

Key_development Question_mark

Litigation, Sexually Dangerous Persons - Registration/Notification

In State v. Leon, 2013 R.I. Super. LEXIS 45 (R.I. Super. 2013), the court addressed whether there is a constitutional right to counsel for second tier review of sex offender classifications.  It cited to the U.S. Supreme Court's holding in Turner v. Rogers for the proposition that “the civil-criminal distinction is not dispositive, and a state may not deny an indigent litigant counsel by styling a proceeding as ‘civil’”, although it conceded that “Unlike a criminal defendant's right to counsel under the Sixth Amendment [], a right to appointed counsel under the Due Process and Equal Protection clauses of the Fourteenth Amendment is not categorical or automatic.” 


The Leon court then conducted a due process analysis and noted that while there is a presumption against appointing counsel where physical liberty is not at stake, “[T]he requirements of §§ 11-37.1 et seq. may subject offenders to a wide range of serious consequences, including exposure to physical or verbal harassment, police surveillance, ostracism, loss of employment and associational opportunities, possible lifetime registration requirements and felony prosecution if they fail to comply with those requirements, and restrictions on where they may reside.”  It then concluded, “Once a state provides a right to an appeal, due process and equal protection prohibit it from creating arbitrary or unreasoned distinctions that may effectively deprive indigents of that right when a protected liberty interest is at stake.”  


The Leon court relied on some facts specific to Mr. Leon’s case (such as the magistrate sua sponte raising the tier classification), and in a subsequent case, the court referred to Leon as a case that held “there is no per se right to an attorney on appeal of a Drug Court Magistrate's decision affirming or denying the Board's classification.”  DiCarlo v. State, 2016 R.I. Super. LEXIS 43 (Ri. Super. 2016).  However, after DiCarlo affirmed Leon’s construction of the statutory scheme to require appointment of counsel for this appeal, it added that “even if § 11-37.1-13(3) could not be harmonized with § 8-2-39.2 to include the right to appointed counsel upon appeal from the Drug Court Magistrate, which it can, providing an indigent petitioner with counsel in conjunction with the Superior Court review would comport with the guarantees of due process and equal protection. Finally, the mandatory appointment of counsel would help to promote judicial efficiency and economy by expediting the appeals process.”

Appointment of Counsel: categorical Qualified: no