In re McCracken, No. 25323.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PLEICONES, Justice
• Citation: 551 S.E.2d 235,346 S.C. 87
• Parties: In the Matter of the Care and Treatment of Donald Lee McCRACKEN, Appellant.
• Docket Number: No. 25323.
• Decision Date: 23 July 2001

346 S.C. 87
551 S.E.2d 235

In the Matter of the Care and Treatment of Donald Lee McCRACKEN, Appellant

No. 25323.

Supreme Court of South Carolina.

Heard March 7, 2001.

Decided July 23, 2001.

Rehearing Denied September 12, 2001.

346 S.C. 90

Kenneth W. Gaines, of Columbia, for appellant

Attorney General Charles M. Condon, Deputy Attorney General Treva Ashworth, Senior Assistant Attorney General Kenneth P. Woodington, and Assistant Attorney General Steven G. Heckler, all of Columbia, for respondent.

PLEICONES, Justice:

Appellant was found to be a sexually violent predator (SVP) by a jury and committed to the Department of Mental Health (DMH) for control, care, and treatment pursuant to S.C.Code Ann. § 44-48-100 (Supp.2000). He has appealed, raising both trial errors and constitutional issues. We affirm.

A. Mootness

The first issue we address is the State's contention that appellant's release from DMH's custody during the pendency of this appeal renders it moot. Under the SVP Act,¹ (Act) a person who is committed pursuant to the Act is entitled to an annual review of his status, § 44-48-110, or may be released at any time upon the petition of the Director of DMH. § 44-48-120. There exists the very real possibility, then, that many SVP appellants will be released before their appeals can be concluded. Since most of the issues raised by appellant are `capable of repetition but evading review,' we decline to dismiss the appeal on mootness grounds. Byrd v. Irmo High School, 321 S.C. 426, 468 S.E.2d 861 (1996).

346 S.C. 91

B. Civil or Criminal Statute

Appellant contends the Act is violative of his double jeopardy and ex post facto rights because, although nominally civil in nature, it is in fact punitive. At trial,² he did not attempt to distinguish our SVP Act from the Kansas Act upon which it was modeled, and which the United States Supreme Court has held is a civil, non-punitive scheme. Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Although appellant now argues on appeal that various features of our Act distinguish it from the Kansas Act, these claims were not raised below and, accordingly, are not properly before us now. E.g., Taylor v. Medenica, 324 S.C. 200, 479 S.E.2d 35 (1996). The only issue properly before us is whether the Act, on its face, constitutes additional criminal punishment.

We hold today in In the Matter of Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001) that a side by side comparison of our SVP Act and the Kansas Act does not reveal any substantial differences. On this record, appellant has failed to meet his burden of showing "clearest proof" that the Act on its face is punitive rather than civil in nature. Id.

C. Constitutional Claims

Appellant contends that the conditions of his confinement demonstrate that he is being improperly punished as a criminal. We find his remedy for any such unconstitutional confinement would be by writ of habeas corpus,³ and that in any case his release from DMH during this appeal renders moot this claim. We note that the Act provides that a person committed pursuant to it shall be kept in a secure facility, § 44-48-100(A), and that his commitment "shall conform to constitutional requirements for care and treatment." § 44-48-170. If these requirements are not honored by the custodian, then relief lies with an action brought against that individual, and not with a facial challenge to the statute which does not prescribe the terms of confinement.

346 S.C. 92

We decline to reach the merits of appellant's substantive due process claims made pursuant to the state⁴ and federal⁵ constitutions, finding they are not preserved for our review. The record contains a single reference to a substantive due process claim, apparently made during the probable cause hearing. The reference, in its entirety, is

We believe that [the Act] violates the U.S. and South Carolina Constitution [sic] in that it denies [appellant] as applied to this case his due process rights under the 14th Amendment and, of course, article one, section three of the South Carolina Constitution.

There is no ruling on this conclusory allegation, and therefore it is not properly before the Court. Taylor v. Medenica, supra; cf., Wilder Corp. v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998) (objection must state grounds).

Further, it is this Court's firm policy to decline to rule on constitutional issues unless such a ruling is required. Fairway Ford, Inc. v. County of Greenville, 324 S.C. 84, 476 S.E.2d 490 (1996). A constitutional claim must be raised and ruled upon to be preserved for appellate review. Hoffman v. Powell, 298 S.C. 338, 380 S.E.2d 821 (1989). A bald assertion, without supporting argument, does not preserve an issue for appeal. Wilder Corp. v. Wilke, supra. We decline to reach appellant's federal and state due process claims.

D. Trial Errors

Appellant raises three trial errors, two of which are not preserved for appeal.

First, he claims the trial court erroneously denied his directed verdict and motion for a judgment notwithstanding the verdict (jnov) because the evidence was insufficient to establish that he was a SVP. At trial, appellant made only a general directed verdict motion, stating, "I think [the State has] failed to meet their burden of proof beyond a reasonable doubt." This motion, which stated no specific ground, preserved nothing for appellate review. E.g., Connolly v. People's

346 S.C. 93

Life Ins. Co., 299 S.C. 348, 384 S.E.2d 738 (1989). Further, since only grounds raised in the directed verdict motion may properly be reasserted in the jnov motion, and since no grounds were raised in...