In re Care and Treatment of Miller

• Citation: 385 S.C. 539,685 S.E.2d 619
• Decision Date: 09 September 2009
• Docket Number: No. 4618.,4618.
• Parties: In the Matter of the CARE AND TREATMENT OF James Carl MILLER, Appellant.
• Court: South Carolina Court of Appeals

685 S.E.2d 619

385 S.C. 539

In the Matter of the CARE AND TREATMENT OF James Carl MILLER, Appellant.

No. 4618.

Court of Appeals of South Carolina.

Heard April 23, 2009.

Decided September 9, 2009.

Withdrawn, Substituted, and Refiled November 4, 2009.

Appellate Defender Lanelle C. Durant, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Deborah R.J. Shupe, Assistant Attorney General Brandy A. Duncan, Assistant Attorney General William M. Blitch, Jr., all of Columbia, for Respondent.

LOCKEMY, J.:

James Carl Miller appeals the trial court's denial of his motion to dismiss, arguing the State's failure to hold a hearing within sixty days after the court found probable cause to believe Miller was a sexually violent predator requires the action be dismissed pursuant to the Sexually Violent Predator Act (the Act). We affirm.

FACTS/PROCEDURAL BACKGROUND

In 1998, the mother of a one-year-old baby walked into a room and found Miller leaning over her child with his pants down, while the baby's diaper was off. While exiting the room, Miller punched the mother. Miller pled guilty to committing a lewd act on a child under the age of sixteen years and criminal domestic violence of a high and aggravated nature (CDVHAN). The trial court sentenced Miller to fifteen years' imprisonment for the lewd act offense suspended upon the service of ten years and five years' probation, and ten years imprisonment for the CDVHAN, to be served concurrently.¹

Prior to his release, Miller's case was referred to the multi-disciplinary committee for assessment pursuant to section 44-48-40 of the South Carolina Code (Supp.2008). After review in May of 2005, the multi-disciplinary team found Miller satisfied the statutory definition of "Sexually Violent Predator" (SVP) pursuant to section 44-48-30 of the South Carolina Code (Supp.2008). Thereafter, the multi-disciplinary team referred the case to the Prosecutor's Review Committee (the Committee).

The Committee determined probable cause existed to conclude Miller was an SVP. After this finding, pursuant to section 44-48-70 of the South Carolina Code (Supp.2008), the State filed a petition requesting a trial court make a judicial determination as to whether Miller was an SVP and petitioned the trial court for a probable cause hearing. In August, the court appointed Janice Baker as Miller's counsel. A probable cause hearing pursuant to section 44-48-80 of the South Carolina Code (Supp.2008) was set for August 29, 2005, before the Honorable William P. Keesley.

When notified of the hearing, Baker informed the Attorney General's office that she would be relieved of counsel in the case and that the new attorney would be David B. Betts. Therefore, she would not participate in the hearing, and it needed to be postponed until Betts received the case file from her. The original hearing date was continued, and Betts was appointed by order. Efforts to get a new hearing were hindered by the untimely death of Judge Marc Westbrook shortly thereafter. On November 3, 2005, the court held Miller's probable cause hearing.

After the court found probable cause existed to believe Miller was an SVP, pursuant to section 44-48-90 of the South Carolina Code (Supp.2008), the State had sixty days to conduct Miller's civil SVP trial. Although Miller was scheduled to be released from prison on December 1, 2005, the Act allowed the State to continue to confine Miller for the sixty days leading up to his SVP civil trial. See § 44-48-90. The sixty-day window would have expired on January 2, 2006. Prior to the expiration of the sixty day time period, the State realized that it would not have a mental health evaluation from the Department of Mental Health by the deadline set by the statute. The State, therefore, moved for a continuance pursuant to section 44-48-90 on December 29, 2005. In its motion, the State pointed out January 2, 2006, was a holiday, and the last day for a trial of Miller's case would be December 30, 2005. Furthermore, the State indicated the court-ordered evaluation of Miller would not be complete until January 31, 2006, and pointed to problems in obtaining information related to Miller's prior North Carolina convictions.²

On January 13, 2006, the trial court held a hearing regarding the State's motion for a continuance. At the hearing, Miller's counsel argued Miller was being held "without bond and is now incarcerated because they said there was probable cause to have him evaluated." Further, Miller's counsel argued "the statute says — the [S]tate can ask for a continuance ... only if the respondent will not be substantially prejudiced, and it says it may be continued up[on] request of either party on a showing of good cause." Up until this time, Miller had made no motion to dismiss or raised an objection even though he was being held beyond his release date. The State responded that it was ready to try the case on January 13 or as soon as the court could get a jury together. The trial court commented on the State's delay in bringing the action by stating: "The Attorney General has got to comply with the statute, and the [courts] have got to give you an opportunity to be heard." Furthermore, the trial court noted: "The State has a habit of waiting until the man's about to be released in all cases and then filing these actions.... The legislature drew hard and fast lines and if [Miller] is going to suffer substantial prejudice and a deprivation of liberty is substantial prejudice." The court made the assertion about alleged habits of the State without any supporting documentation or evidence for its assertion. Even so, the trial court found it was not unreasonable to set the trial for the following week, beginning January 17, 2006. Thus, in effect the trial court granted the State's motion for a continuance.

Miller voiced no objection to the continuance, but in response to the trial court's ruling, Miller's counsel made a motion to dismiss for the first time based on Miller's substantial prejudice and cited to In re Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001). The trial court did not rule on Miller's motion to dismiss, but stated: "I think you have to file your motion if you want it dismissed, and then if you have a motion to dismiss and set forth the reasons then I could address that today." Miller's counsel agreed to file the motion to dismiss that afternoon and requested scheduling a hearing on that motion. The trial court again did not rule on Miller's motion to dismiss but instructed trial counsel to "file whatever you think you need to" and indicated "[w]hat I've stated in the record is the order of the [c]ourt."

On January 17, 2006, the trial court held a hearing on Miller's motion to dismiss. There, counsel stated: "[Miller] paid his debt under the criminal statutes of this State. He was free to go on December the 1st." The State responded by pointing out that Dr. Pamela Crawford conducts all the SVP evaluations in South Carolina, which is a fairly significant load. Further, the State reasoned "that [it] is very important, not only for the public and the State ... for her to do a thorough job." As support for its "good cause" assertion, the State mentioned several things out of its control occurred before and after Miller's probable cause hearing, including the untimely death of Judge Westbrook, change of Miller's counsel, and changes in the Attorney General's office. The State repeated that it was ready for trial, but the defense inferred that if the motion to dismiss was not granted it needed the case continued to have its own evaluation completed to combat the State's expert. Accordingly, the trial court continued the case. Further, it did not rule on Miller's motion that day but apparently took the matter under advisement. The trial court denied Miller's motion in a written order filed July 24, 2006, after weighing the State's interest in proceeding with the SVP trial against Miller's prejudice. Specifically, the trial court's order stated:

[T]he State routinely waits until the inmates falling under the [Act] are nearing their max-out date before beginning the process set out under the statute. However, the [c]ourt finds that the State's interest in examining potential [SVP]s outweighs the prejudice to [Miller]. Absent a showing of substantial prejudice, the [c]ourt DENIES the motion to dismiss but reminds the State that it is in the interest of justice to begin the statutory evaluation prior to the imminent max out date of inmates falling under the statute.

Thereafter, the State moved to alter or amend the trial court's order denying Miller's motion to dismiss. Specifically, the State requested the trial court remove the following sentence: "[T]he State routinely waits until the inmates falling under the [Act] are nearing their max-out date before beginning the process set out under the statute" from its order. The State pointed out that regardless of what may have occurred in other cases, the state began this process more than 180 days prior to Miller's scheduled release date. Furthermore, the State asserted but for Miller's decision to change counsel which delayed the process for more than sixty days, the probable cause hearing would have taken place more than ninety days before his release date. The trial court denied the State's motion to alter or amend on September 6, 2006, once again without providing any evidence to support its assertion.

Miller's civil SVP trial began on November 27, 2006, in Lexington County.³ The jury found Miller was an SVP, and the trial court issued an order of commitment. This appeal followed.

LAW/ANALYSIS

Miller argues the trial court erred in denying his motion to dismiss when his civil SVP trial was not held within sixty days after the probable cause hearing because he was incarcerated past his release date. Specifically, Miller argues section...