Ferrara v. Commonwealth

• Decision Date: 25 February 2021
• Docket Number: Record No. 200117
• Citation: 299 Va. 438,854 S.E.2d 652
• Court: Virginia Supreme Court
• Parties: Frank Paul FERRARA v. COMMONWEALTH of Virginia

299 Va. 438

854 S.E.2d 652

Frank Paul FERRARA

v.COMMONWEALTH of Virginia

Record No. 200117

Supreme Court of Virginia.

February 25, 2021

Peter Thomas Hansen, Warrenton, (Pierce R. S. Hansen, Peter Thomas Hansen, P.C., on briefs), for appellant.

Susan Foster Barr, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Timothy M. Davidson, Assistant Attorney General, on briefs), for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE STEPHEN R. McCULLOUGH

Frank Paul Ferrara repeatedly refused to cooperate with the expert who was tasked with evaluating him for purposes of determining whether he was a sexually violent predator for purposes of Virginia's Sexually Violent Predators Act ("SVPA"), Code §§ 37.2-900 through -921. At his commitment hearing, Ferrara sought to introduce as substantive evidence the results of two prior mental health evaluations, conducted in past years, by a previous expert for the Commonwealth. The circuit court concluded that, due to Ferrara's failure to cooperate with the evaluation required in the present proceedings, Code § 37.2-906 foreclosed the introduction of this evidence. On appeal, Ferrara argues that the circuit court misconstrued this statute. Although we agree with Ferrara that Code § 37.2-906 applies to probable cause hearings rather than civil commitment hearings, we nevertheless affirm the judgment of the circuit court on the basis of harmless error.

BACKGROUND

Ferrara was convicted of four counts of forcible sodomy of his daughters in 1997. He was sentenced to 24 years in prison with 9 years suspended and 5 years of supervised probation. Before he was released, in 2010, Dr. Mark Hastings evaluated Ferrara to determine whether he qualified as a sexually violent predator. Dr. Hastings determined that Ferrara did not qualify. Ferrara was released on supervised probation in 2011.

In 2012, Ferrara's probation was revoked because of a petit larceny conviction. The court resuspended all but nine months of Ferrara's sentence. He was then released in 2013. In 2013 and 2014, Ferrara was convicted of two counts of felony indecent exposure and his probation was again revoked. He was sentenced to a total of three years and 15 months on the two convictions.

In 2016, before Ferrara's scheduled release, Dr. Hastings evaluated him a second time at the behest of the Commonwealth for possible civil commitment. Dr. Hastings again determined that Ferrara did not qualify as a sexually violent predator. Several months later, in 2017, the court revoked Ferrara's probation because he had attended Jehovah's Witness meetings where children were present, despite warnings from his probation officer not to do so without an approved chaperone. Ferrara was sentenced to an active term of one year and three months.

In advance of Ferrara's scheduled release, in 2018, he was evaluated a third time for civil commitment. This time he was evaluated by a different expert, Dr. Dennis Carpenter. Ferrara refused to participate in Dr. Carpenter's evaluation -- even after being advised that his refusal to cooperate would result in him not being able to put on his own expert at the civil commitment hearing.

Dr. Carpenter concluded that Ferrara was a sexually violent predator eligible for civil commitment, and he issued a report to that effect. Specifically, upon review of Ferrara's record and history, Dr. Carpenter diagnosed Ferrara with pedophilic disorder, nonexclusive type, sexually attracted to females; exhibitionistic disorder sexually aroused by exposing genitals to physically mature females; and other specified personality disorder, antisocial personality traits

. Dr. Carpenter concluded that based on Ferrara's conviction of forcible sodomy he had committed a sexually violent offense, and that the above-mentioned diagnoses constituted a mental abnormality that makes it difficult for Ferrara to control his predatory behavior and makes him likely to engage in sexually violent acts in the future. Dr. Carpenter's evaluation addressed the fact that his determination differed from the previous two evaluations of Dr. Hastings. Dr. Carpenter's evaluation notes that Dr. Hastings concluded that Ferrara was not a sexually violent predator because his pedophilic actions did not take place over a period of six months or more. However, Dr. Carpenter did "not agree with Dr. Hastings’[s] conclusions," and he noted that the six-month guideline articulated in the DSM-5 upon which Dr. Hastings based his conclusion is merely a guideline and is not mandatory. Dr. Carpenter stated that the pedophilia diagnosis "may be made if there is clinical evidence of sustained persistence of the sexual attraction to children even if the 6-month duration cannot be precisely determined."

Before Ferrara's probable cause hearing, the court appointed counsel for him. After this appointment, Ferrara persisted in refusing to cooperate with Dr. Carpenter. Relying on Dr. Carpenter's report and other evidence, the court found that probable cause existed.

Ferrara then moved pretrial to introduce the 2010 and 2016 evaluations of Dr. Hastings and to allow Dr. Hastings to testify at trial. In response, the circuit court held that

1) Respondent shall not elicit testimony during its cross-examination of the Commonwealth's expert, Dr. Carpenter, or make reference to in argument or opening statement, hearsay facts or opinion contained in prior evaluations conducted by Dr. Mark Hastings without first laying the requisite foundation; and 2) Respondent, Respondent's counsel and Respondent's witnesses shall not offer evidence or argument that Respondent previously served a period of incarceration in the [VDOC] for a sexually violent offense but prior to his release from VDOC the Commonwealth did not file a petition to civilly commit Respondent as a sexually violent predator without first approaching the Bench, outside the presence of the jury, and having the Court rule on the matter's admissibility.

The transcript indicates that the circuit court relied on Code § 37.2-906(D) in excluding Dr. Hastings’ reports and preventing Dr. Hastings from testifying.

The civil commitment proceeding was tried before a jury. At the trial, the circuit court did not allow Ferrara to call Dr. Hastings as a witness nor did it allow him to introduce either of Dr. Hastings’ reports. However, the court did permit Ferrara to question Dr. Carpenter on whether he relied on Dr. Hastings’ report or conclusions. Dr. Carpenter testified that he did not rely on Dr. Hastings’ conclusion, as he disagreed with it. Specifically, Dr. Carpenter testified that he did not "think [Dr. Hastings] considered the factual information in the way that I would consider it and the seriousness of the offenses and the pervasiveness of his aberrant sexual kinds of behaviors including indecent exposure, and the nature of his offenses." Dr. Carpenter also testified at length regarding his evaluation and specifically addressed the DSM-5's six-month guideline for a pedophilia diagnosis. Dr. Carpenter further discussed how his application of the Static 99, Static 99R, and Static 2002R actuarial assessments placed Ferrara in the category of high risk of sexually reoffending. Ultimately, the jury found that Ferrara was a sexually violent predator, and the court ordered Ferrara to be civilly committed as a sexually violent predator. Ferrara appeals.

ANALYSIS

I. CODE § 37.2-907(A) GOVERNS COMMITMENT TRIAL TESTIMONY WHILE CODE § 37.2-906(D) APPLIES IN PROBABLE CAUSE HEARINGS .

The parties dispute the extent to which Code § 37.2-906(D) applies at sexually violent predator commitment hearings. Ferrara maintains that this statute applies in probable cause hearings only, and that Code § 37.2-907(A) is the provision that governs the commitment hearing itself. The Commonwealth takes the view that Code § 37.2-906(D) can apply in both the probable cause hearing and in the commitment hearing. The distinction matters because Code § 37.2-906(D) broadly bars a non-cooperating respondent from presenting any expert psychiatric and psychological evidence, whereas Code § 37.2-907(A) more narrowly bars a non-cooperating respondent from presenting evidence from a court appointed expert, i.e., it does not by its terms bar a non-cooperating respondent from introducing evidence from a retained expert or an expert for the Commonwealth. Our review of the text and structure of these statutes leads us to agree with Ferrara.

"Statutory construction is a question of law which we review de novo." Parker v. Warren , 273 Va. 20, 23, 639 S.E.2d 179 (2007). First, applying the bar of Code § 37.2-906(D) to civil commitment hearings would render the language of Code § 37.2-907(A) entirely superfluous. We disfavor a construction of a statute that renders any part of the statute useless or superfluous. See Loch Levan Land Ltd. P'ship v. Board of Supervisors , 297 Va. 674, 685, 831 S.E.2d 690 (2019) ("We ordinarily resist a construction of a statute that would render part of a statute superfluous.") (quoting Davis v. MKR Dev., LLC , 295 Va. 488, 494, 814 S.E.2d 179 (2018) ); see also Owens v. DRS Auto. Fantomworks, Inc. , 288 Va. 489, 497, 764 S.E.2d 256 (2014).

Second, the sequential structure of the Code provisions as well the text of Code § 37.2-906(D) indicate that Code § 37.2-906(D) was intended to apply only to probable cause hearings. As is relevant here, the Code first contemplates that a prisoner being considered for civil commitment will be evaluated by an expert. Code § 37.2-904. That evaluation is to include, among other things, a personal interview by a licensed psychiatrist or a licensed clinical psychologist. Code § 37.2-904(B). After this evaluation, the Commitment Review Committee makes a recommendation to the Office of the Attorney General concerning what course of action to take for a particular person. Code § 37.2-904(C). If the Office of the Attorney General determines that a particular individual ought to be civilly committed, it will file...