Care and Treatment of Schottel v. State

• Decision Date: 12 April 2005
• Docket Number: No. SC 86137.,SC 86137.
• Citation: 159 S.W.3d 836
• Parties: In the Matter of the CARE AND TREATMENT OF Wilbur SCHOTTEL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

159 S.W.3d 836

In the Matter of the CARE AND TREATMENT OF Wilbur SCHOTTEL, Appellant, v. STATE of Missouri, Respondent.

No. SC 86137.

Supreme Court of Missouri, En Banc.

April 12, 2005.

Emmett D. Queener, Office of the Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David J. Hansen, Asst. Atty. Gen., Jefferson City, for Respondent.

LAURA DENVIR STITH, Judge.

Wilbur Schottel appeals the trial court's denial of his petition for release from confinement as a sexually violent predator (SVP) following an initial hearing at which the judge found that he had failed to meet his burden under section 632.498, RSMo 2000,¹ of showing probable cause to believe that he is safe to be at large and will not re-offend upon release. In determining whether an SVP petitioning for release has met his burden of proof under that statute, a judge is not to weigh the evidence or make credibility determinations, but is merely to determine whether probable cause exists, that is, whether the evidence presents a triable issue of fact that the person is safe to be at large and will not reoffend. Here, the record unequivocally shows that Mr. Schottel presented sufficient evidence to meet this burden. This Court therefore reverses the judgment and remands the case for the further hearing required under section 632.498 before a judge or jury as fact finder to determine whether Mr. Schottel should continue to be confined as an SVP.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Commitment of Mr. Schottel.

In 1995, Mr. Schottel was arrested for the molestation of five girls, ages eight to thirteen years. Later that year, he pled guilty to one count of sodomy and was sentenced to fifteen years in prison. In February 2000, after he had been released from prison for one day, the State filed a petition in the Clay County Circuit Court alleging that he was an SVP within the meaning of section 632.480 and sought his confinement in a Department of Mental Health facility.

The court found probable cause to believe that Mr. Schottel was an SVP. Initially, Mr. Schottel opposed his designation as an SVP and challenged the SVP statute on constitutional grounds. Before his objections could be ruled on, he stipulated that he was an SVP under section 632.480 and was committed to the Department of Mental Health (DMH). See Schottel v. State, 121 S.W.3d 337, 338 (Mo.App. W.D.2003)

.

B. Periodic Examinations of Mental Condition of SVP.

A person is not committed as an SVP indefinitely. Section 632.498 provides for "a current examination of the person's mental condition made once every year by the director of the department of mental health or designee." The director issues a report and provides it to the court and the committed person. If the director determines "that the person's mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the director shall authorize the person to petition the court for release." Sec. 632.501. The court then holds a hearing at which the burden is on the State to show "beyond a reasonable doubt that the petitioner's mental abnormality remains such that the petitioner is not safe to be at large and that if discharged is likely to commit acts of sexual violence." Id.

But, if the director does not determine that the person qualifies for release, then a different process ensues. The director must inform the committed person of his right to petition the court for release over the director's objection. If the SVP petitions for release, the court holds a preliminary probable cause hearing, and:

[I]f the court at the hearing determines that probable cause exists to believe that the person's mental abnormality has so changed that the person is safe to be at large and will not engage in acts of sexual violence if discharged, then the court shall set a hearing on the issue.

Sec. 632.498 (emphasis added). If the court sets such a second hearing, either party can request a jury trial and to have the petitioner's mental condition evaluated by experts. Id. Section 632.498 provides that the burden of proof at that second hearing:

shall be upon the state to prove beyond a reasonable doubt that the committed person's mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence.

C. Periodic Examinations of Mr. Schottel's Mental Condition.

Mr. Schottel was committed as an SVP in June 2000. As required by section 632.498, the director of DMH conducted a review and issued a report in June 2001 and again in June 2002. Both reports recommended that Mr. Schottel not be released. Mr. Schottel petitioned for court review on both occasions. It is the denial of the second of these petitions, following an evidentiary hearing in July 2003, that is the subject of this appeal.²

At the probable cause hearing on the director's second refusal to recommend release, Mr. Schottel orally moved that section 632.498 be held unconstitutional. The motion was overruled, and Mr. Schottel offered expert testimony in support of his claim that he had shown "probable cause exists to believe that [his] mental abnormality has so changed that [he] is safe to be at large and will not engage in acts of sexual violence if discharged ..." Sec. 632.498. The State offered contrary evidence, including the June 2002 report, other expert testimony, and the June 2003 report prepared while the court was considering the director's 2002 refusal to recommend release.

After considering this evidence, the court issued an order denying Mr. Schottel's petition for release without further hearing. The order denying relief made no factual findings. It simply tracked the statutory language by stating that the judge found "no probable cause that the respondent's mental abnormality has so changed that he is safe to be at large and will not engage in acts of sexual violence if discharged."

Because his petition was denied at the probable cause stage, Mr. Schottel was not given a second hearing — effectively a trial on the merits — before a judge or jury. He appealed to the Missouri Court of Appeals, Western District. That court transferred the case to this Court because it involves the constitutional validity of section 632.498 and so is within this Court's exclusive appellate jurisdiction. Mo. Const. art. V, sec. 3.

II. CONSTITUTIONAL CHALLENGE TO SECTION 632.498

Mr. Schottel alleges that section 632.498 denies him due process because it requires that, in order to be entitled to an evidentiary hearing on whether he is still an SVP, he must first show that he is safe to be at large and will not reoffend. This means that he must meet a higher burden to get an evidentiary hearing than the State is required to meet at that hearing or that it was required to prove in order to commit him initially. Further, the standard set by the statute is impossible for him to meet in that it requires him to show that he will not, rather than just likely will not, ever offend in the future. This claim presents an issue of law, which this Court determines de novo. Ochoa v. Ochoa, 71 S.W.3d 593, 595

(Mo. banc 2002).

A. Preservation of Constitutional Issue.

Mr. Schottel raised his constitutional challenge at the initial hearing on his second petition for release. The State suggests that he should have raised the issue during his initial commitment proceeding or when he challenged and appealed denial of release following his first yearly review in June 2001. Generally, a constitutional question must be raised at the earliest possible opportunity in order to be preserved for appellate review. City of Chesterfield v. Dir. of Revenue, 811 S.W.2d 375, 378 (Mo. banc 1991). Mr. Schottel did raise a constitutional challenge in his initial commitment proceeding, but when he stipulated to his status as an SVP, that challenge became moot. In any event, the propriety of Mr. Schottel's initial commitment and the denial of his first petition for release are not before this Court on this appeal. This appeal concerns only the denial of Mr. Schottel's second petition for release, filed in October 2002, and his success in this petition is not determined by whether his prior claims were meritorious. The State cites no authority for its argument that this Court nonetheless should hold that a question is not preserved for purposes of appeal if it could have been raised to oppose an earlier denial of release, and this Court declines to so hold.³

B. Section 632.498 is Constitutional.

As noted, under section 632.498, if the director of DMH objects to release, then the committed person may petition for release over objection. The court normally must hold an initial hearing on the petition, and:

If the court at the hearing determines that probable cause exists to believe that the person's mental abnormality has so changed that the person is safe to be at large and will not engage in acts of sexual violence if discharged, then the court shall set a hearing on the issue.

Sec. 632.498 (emphasis added). Mr. Schottel claims that section 632.498's placement of the burden on him to show that he "is" safe and "will not" engage in acts of sexual violence requires him to do the impossible — prove that he absolutely, with certainty, will be safe and will not reoffend if released. He argues that, since no one can predict the future with absolute certainty, this standard is impossible to meet. He further argues that placing a higher standard of proof on the committed person in order to cause the issue of release to proceed to trial than is placed on the State to obtain a trial regarding the initial confinement under section 632.480, or to keep him confined once he makes a probable cause showing, amounts to a violation of due process.⁴

This Court rejects Mr. Schottel's hyper-technical reading of the words "is" and "will not." Statutes are presumed to be constitutional and will not be...