Fogle v. State
| Decision Date | 07 July 2009 |
| Docket Number | No. WD 69618.,No. WD 69619.,WD 69618.,WD 69619. |
| Parties | In re: Michael FOGLE, Appellant-Respondent, v. STATE of Missouri, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Emmett D. Queener, Columbia, MO, for appellant.
Shaun J. Mackelprang and Alana M. Barragan-Scott, Jefferson City, MO, for respondent.
Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and JAMES E. WELSH, JJ.
In this case brought under the Sexually Violent Predator Act, section 632.480 through 632.513 RSMo., both parties appeal the judgment of the trial court. In the judgment, the court committed Michael Fogle to the custody of the Department of Mental Health (sometimes herein referred to as "the Department") for care, control, and treatment. The court also purported to impose special instructions on the Department concerning Fogle's treatment and privileges.
The State appeals, arguing that the court was without authority to impose the special instructions or "special conditions" on Fogle's confinement. Fogle also appeals, arguing that the State's petition should have been dismissed. The judgment is affirmed in part and vacated in part. The case is remanded for further proceedings.
The State filed a petition pursuant to the Sexually Violent Predator Act ("SVP Act") to commit Michael Fogle to a secure facility for care, control, and treatment. The probate court, after hearing, determined that there was probable cause to proceed.
Fogle moved to dismiss the petition on the basis that the State failed to follow procedures required by section 632.483 to file a commitment petition. The State's petition relied upon and incorporated Dr. David Suire's report that Fogle has a mental abnormality and is more likely than not to commit sexually violent offenses in the future. In his motion to dismiss, Fogle noted that Dr. Suire did not hold a Missouri-issued license to practice psychology at the time he prepared Fogle's end-of-confinement report. Fogle claimed that section 632.483 requires the commitment process to be initiated by a finding from a Missouri-licensed psychologist. The court denied the motion to dismiss.
In lieu of a regular trial on the petition, Fogle stipulated to the facts that the State would otherwise be required to prove: that he had pleaded guilty to at least one "sexually violent offense," as that phrase is defined in section 632.480(4); that he suffers from a "mental abnormality" within the meaning of section 632.480(2); and that as a result of his mental abnormality, he is more likely than not to commit predatory acts of sexual violence if not confined in a secure facility. Fogle, his counsel, and the State's counsel signed the stipulation. In the stipulation the parties specifically agreed that Fogle could reserve the right to appeal the contention related to the fact that Dr. Suire was not a Missouri-licensed psychologist as required by statute.
With Fogle's consent, the probate court held a brief commitment hearing by phone. Prior to the hearing, Fogle submitted a lengthy packet to the court, which he prepared himself, proposing certain conditions of confinement upon his commitment. The court then heard argument from counsel concerning treatment and management. Fogle's counsel complained about treatment options at the Department of Mental Health facility where Fogle would be held, requesting special conditions. The State objected to Fogle's request for special conditions and noted that Fogle failed to present evidence regarding treatment available at the facility. On the second day of the hearing, the judge stated she was inclined to order special conditions but that they "would be subject to challenge in the future." Fogle stated that he understood. Fogle then confirmed under oath that he desired to stipulate that he qualified as a sexually violent predator and to stipulate to his commitment.
The court ordered that the director of the Department of Mental Health include in the care and treatment of Fogle many specific conditions related to Fogle's activities and privilege level.
The State appeals from the special conditions set forth in the judgment. Fogle appeals the probate court's denial of his motion to dismiss. The two appeals have been consolidated.
In a court-tried case, the judgment of the trial court will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "Subject matter jurisdiction is a question of law subject to de novo review by this court." Warlop v. Warlop, 254 S.W.3d 262, 263 (Mo.App.2008).
Fogle has filed a motion to dismiss the State's appeal. He notes that the State is not appealing the commitment order but is, instead, appealing only the special conditions of confinement. Fogle's first argument in favor of dismissal is that because the statute specifically refers to the right to appeal the SVP determination, the State's authority to appeal under the SVP Act must be limited to appealing that determination and does not authorize an appeal of any other aspects of the judgment. His second argument is that the State lacks standing to appeal, because the special conditions are directed to the Department of Mental Health. Because of the overlap of these matters with the issues raised in the State's point on appeal, we will address both aspects of Fogle's motion in conjunction with analyzing the State's point on appeal. First, however, we will examine Fogle's point on appeal.
Fogle's claim on appeal is that the trial court erred in allowing the matter to proceed even though the section 632.483 requirements for a psychological evaluation were not followed. The statute requires a finding by a Missouri-licensed psychologist that the person may qualify as a sexually violent predator. Dr. Suire, upon whose opinion the petition relied, was not licensed in Missouri. Fogle urges that the defective petition deprived the probate court of subject matter jurisdiction to proceed with the case.
Fogle is correct that the statute specifies a psychologist licensed by the State of Missouri. But the issue as to the effect of that requirement is now resolved entirely by the recent decision of the Missouri Supreme Court in State ex rel. State v. Parkinson, 280 S.W.3d 70 (Mo. banc 2009).
The defendant in Parkinson also argued that the court "lacked jurisdiction because the licensed psychologist who authored an initial end-of-confinement report the department sent to the attorney general ... had not yet received his Missouri license at the time he filed the report." Id. at 72. Parkinson was a writ case in which the attorney general sought extraordinary relief to prevent release of the defendant by the trial court. The psychologist who authored the report in Parkinson is the same psychologist who authored the report in this case: Dr. Suire.
In making its writ of prohibition permanent, the Supreme Court found that any error of allowing Dr. Suire to author the report when he was not a psychologist licensed in Missouri did not affect subject matter jurisdiction and also was not prejudicial error. Id. at 77. It noted that section 632.483 provides that the "agency with jurisdiction" (here the Department of Corrections) shall give written notice to the attorney general and a multidisciplinary team established pursuant to section 632.483.4 that a person in the agency's custody "may meet the criteria of a sexually violent predator." Parkinson, 280 S.W.3d at 72. Pursuant to section 632.483.4, the multidisciplinary team reviews available records about the offender, including the psychologist's evaluation, to assess whether it believes the person meets the definition of a sexually violent predator and to notify the attorney general of its assessment.
Then section 632.483.5 requires a five-member prosecutors' review committee to review the referred person's records. The multidisciplinary team's assessment shall be made available to the prosecutors' review committee, which then "shall make a determination of whether or not the person meets the definition of a sexually violent predator."
Section 632.486 provides that if it appears to the attorney general "that the person presently confined may be a sexually violent predator and the prosecutor's review committee ... has determined by a majority vote, that the person meets the definition of a sexually violent predator, the attorney general may file a petition ... alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation."
Under section 632.489, upon the filing of the petition "the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator." If the court finds in the affirmative, the court shall direct that the person be sent to a secure facility for an evaluation by a psychologist or psychiatrist as to whether the person is a sexually violent predator, before the trial is conducted.
The Parkinson Court held that the court has personal jurisdiction over the defendant and subject matter jurisdiction to determine sexually violent predator proceedings. 280 S.W.3d at 75. The issue was not an issue of subject matter jurisdiction, but an issue of legal error. The Parkinson Court held that because the report in question was merely one of many items to be considered by the attorney general and the multidisciplinary committee, it was not a prerequisite to subject matter jurisdiction. Id. at 76. It also is possible to waive objection to the Missouri-licensing requirement. And even if the objection is preserved, as here, the issue of prejudice...
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