Commonwealth of Va. v. Amerson

• Citation: 281 Va. 414,706 S.E.2d 879
• Decision Date: 04 March 2011
• Docket Number: Record No. 100840.
• Parties: COMMONWEALTH of Virginiav.Mwando Michael AMERSON.
• Court: Supreme Court of Virginia

281 Va. 414

706 S.E.2d 879

COMMONWEALTH of Virginia

v.Mwando Michael AMERSON.

Record No. 100840.

Supreme Court of Virginia.

March 4, 2011.

Angela Boice Axselle, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General, on briefs), for appellant.John D. Hooker, Jr. (Hooker & Associates, Virginia Beach, on brief), for appellee.Present: KINSER, C.J., LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO and KOONTZ, S.JJ.^*OPINION BY Justice LEROY F. MILLETTE, JR.

Pursuant to the Civil Commitment of Sexually Violent Predators Act (SVPA or Act), Code §§ 37.2–900 et seq., the Commonwealth petitioned the Circuit Court for the City of Virginia Beach to civilly commit Mwando Michael Amerson as a sexually violent predator (SVP) following his release from prison on a sexually violent offense. The circuit court, by agreed order, found Amerson to be an SVP. A hearing was then held to determine whether Amerson should be civilly committed or conditionally released. At the conclusion of the hearing, the circuit court decided to conditionally release Amerson to an out-of-state agency, the Court Services and Offender Supervision Agency for the District of Columbia (CSOSA). The question presented is whether the circuit court had the authority under the SVPA to conditionally release Amerson outside the Commonwealth.

I. BACKGROUND

In December 1999, Amerson was convicted of attempted rape in the circuit court. He was sentenced to five years' imprisonment, with all but 10 months suspended, and three years' supervised probation. He was released from prison in March 2000.

In October 2002, while on probation for the 1999 offense, Amerson was arrested and charged with first-degree child sexual abuse in Washington, D.C. He entered a plea of guilty to second-degree child sexual abuse and was sentenced to three years' imprisonment and three years' supervised probation. While he was serving his sentence for the 2002 offense in the federal prison system, his probation for the 1999 offense was revoked in the circuit court. Hence, after completing his sentence for the 2002 offense, he was transferred from the federal prison system to the Virginia Department of Corrections to serve the remainder of his sentence for the 1999 offense—four years and two months.

In November 2008, shortly before Amerson was scheduled to be released from prison, the Commonwealth, pursuant to the SVPA, petitioned the circuit court to civilly commit him as an SVP. In July 2009, the circuit court, by agreed order, found Amerson to be an SVP and ordered the Department of Behavioral Health and Developmental Services ¹ (DBHDS) to prepare a report on possible alternatives to civil commitment in accordance with the SVPA.

Six months later, in January 2010, the circuit court held a hearing to determine whether Amerson should be civilly committed or conditionally released. During the hearing, two conditional release plans were presented: one had Amerson residing in Virginia and being supervised by DBHDS (the Virginia plan), and the other had him residing in Washington, D.C. and being supervised by CSOSA (the Washington plan). The Commonwealth opposed both plans, claiming, among other things, that Amerson would present an undue risk to public safety if he were conditionally released. Nevertheless, it argued, if Amerson were to be conditionally released rather than civilly committed, he could only be conditionally released pursuant to the Virginia plan because the SVPA does not permit an SVP to be conditionally released outside the Commonwealth. It also maintained that Amerson could not be transferred to CSOSA pursuant to the Interstate Compact for the Supervision of Adult Offenders (Interstate Compact), Code § 53.1–176.1 et seq., because he was no longer subject to supervision by the Commonwealth as the result of the commission of a criminal offense.

Amerson countered that he should be conditionally released, as opposed to civilly committed, because, after successfully completing state and federal sex-offender treatment programs, he no longer needed secure inpatient treatment. He asserted, moreover, that he should be conditionally released in accordance with the Washington plan because: (1) the individuals who would support him if he were conditionally released lived in Washington, D.C.; (2) CSOSA had agreed to supervise him under the Interstate Compact if he were conditionally released in Washington, D.C.; (3) he had been accepted by the University of the District of Columbia, where he intended to continue his studies in business accounting; and (4) he had two offers of employment in Washington, D.C.

After hearing the testimony of several expert witnesses and the arguments of counsel, the circuit court took a recess to call CSOSA to verify that, in the event that Amerson were conditionally released in Washington, D.C., the agency would notify DBHDS if he violated the conditions of his release. When the hearing resumed, the circuit court informed counsel that it had spoken with a supervisor at CSOSA who said that the agency had accepted Amerson under the Interstate Compact and that it would enforce all of the conditions of his release as set forth in the circuit court's order, including any condition requiring notification to DBHDS in the event of a violation. Apparently satisfied with the supervisor's representations, the circuit court ordered Amerson's conditional release to CSOSA under the Washington plan.

Following the hearing, the Commonwealth filed a motion to stay the execution of the circuit court's order conditionally releasing Amerson to CSOSA. The circuit court denied the motion to stay and entered its final order. The Commonwealth noted its appeal and filed with this Court a motion to stay the execution of the circuit court's final order. We granted both the Commonwealth's motion to stay and its petition for appeal on the following assignment of error:

The trial court erred by ordering that Amerson be conditionally released as a sexually violent predator to reside and be supervised outside of the Commonwealth of Virginia without authority to do so and contrary to the SVPA.

II. DISCUSSION

Whether the SVPA permits the conditional release of an SVP outside the Commonwealth is a question of statutory interpretation. As such, it “ ‘presents a pure question of law and is accordingly subject to de novo review by this Court.’ ” Warrington v. Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233, 235 (2010) (quoting Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)).

“ ‘[T]he primary objective of statutory construction is to ascertain and give effect to legislative intent.’ ” Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010) (alteration in original) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)). “ ‘When the language of a statute is unambiguous, we are bound by the plain meaning of that language.’ ” Commonwealth v. Morris, 281 Va. 70, 76, 705 S.E.2d 503, 505 (2011) (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)). And “ ‘[i]f a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.’ ” Id. (quoting Conyers, 273 Va. at 104, 639 S.E.2d at 178).

Moreover, although SVPA proceedings are civil, rather than criminal, in nature, we have held that the Act is subject to the rule of lenity because “ ‘[c]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.’ ” Warrington, 280 Va. at 370, 699 S.E.2d at 235 (quoting Townes v. Commonwealth, 269 Va. 234, 240, 609 S.E.2d 1, 4 (2005)). It “ ‘must therefore be strictly construed.’ ” Id. (quoting Townes, 269 Va. at 240, 609 S.E.2d at 4).

The Commonwealth argues that the circuit court could not conditionally release Amerson to CSOSA under the SVPA because the Act contains no provision permitting the conditional release of an SVP outside the Commonwealth. Amerson concedes that the SVPA does not explicitly authorize the conditional release of an SVP outside the Commonwealth, but contends that it does so implicitly. He first points to the following language of Code § 37.2–912(A): “The court shall subject the respondent to the orders and conditions it deems will best meet his need for treatment and supervision and best serve the interests of justice and society.” Amerson submits that this language demonstrates that the General Assembly understood that each SVP is different and thus intended to give courts discretion to “mold the shape of the SVPA to fit the SVP; not the SVP to fit the SVPA.”

Next, Amerson points out that, under Code § 37.2–912, a conditional release order may be implemented by DBHDS “or, if the [SVP] is on parole or probation, the [SVP' s] parole or probation officer.” Because “ ‘[p]arole or probation officer’ is not preceded by a specifying term confining the officer to the Commonwealth of Virginia,” Amerson argues, the General Assembly “le[ft] open the possibility that the conditions of release could be implemented by ANY parole or probation officer.”

Lastly, Amerson points to Code § 37.2–909(A), which provides in relevant part:

Any respondent committed pursuant to this chapter shall be placed in the custody of [DBHDS] for control, care, and treatment until such time as the respondent's mental abnormality or personality disorder has so changed that the respondent will not present an undue risk to public safety. [DBHDS] shall provide such control, care, and treatment at a secure facility operated by it or may contract with private or public entities, in or outside of the Commonwealth, or with other states to provide comparable control, care, or treatment.

Amerson contends that, if DBHDS may contract with another entity outside the...