Miles v. Commonwealth

• Decision Date: 15 September 2006
• Docket Number: Record No. 052568.
• Citation: 634 S.E.2d 330
• Court: Virginia Supreme Court
• Parties: Ellis Lorenzo MILES v. COMMONWEALTH of Virginia.

634 S.E.2d 330

Ellis Lorenzo MILES v. COMMONWEALTH of Virginia.

Record No. 052568.

Supreme Court of Virginia.

September 15, 2006.

W. Edward Riley, IV (Boone, Cosby & Long, on briefs), Richmond, for appellant.

Pamela A. Sargent, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Frank S. Ferguson, Deputy Attorney General, on brief), for appellee.

Present: LACY, KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and CARRICO, S.J.

OPINION BY Justice BARBARAMILANO KEENAN.

In this appeal, we consider a statutory requirement that is part of the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 through -919 (the Act).¹ We decide the issue whether a certain numerical test score specified in Code § 37.2-903(C) which identifies an inmate for further review under the Act, is a condition precedent for additional proceedings against that inmate.

Ellis Lorenzo Miles challenges the circuit court's determination classifying him as a sexually violent predator and ordering his civil commitment. In 1995, Miles was convicted of rape in the Circuit Court of the City of Richmond and received a sentence of 20 years' imprisonment, with 14 years suspended. His criminal history prior to the date of the rape included one conviction of contributing to the delinquency of a minor, originally charged as statutory rape, and five other convictions that are not pertinent here because they did not involve prohibited sexual conduct. During his incarceration for the rape conviction, Miles was convicted of indecent exposure and committed 18 disciplinary infractions, seven of which were sexual in nature.

Because Miles was incarcerated for rape, a predicate offense under the Act, the Virginia Department of Corrections (DOC) evaluated him about 10 months before his scheduled release date. The DOC administered the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR), an objective testing instrument authorized by Code § 37.2-903(C) to identify potential sexually violent predators.

The RRASOR has four categories that yield a maximum total score of six. Virginia Criminal Sentencing Commission, Assessing Risk Among Sex Offenders in Virginia 29-30 (2001). An inmate receives one point if any of his sex offenses have involved male victims, one point if his age at release would be less than 25, and one point if any victim of his sex offenses is not related to the inmate. Id.

The remaining points are assessed based on the number of prior sex offense convictions, and prior charges of sex offenses, that occurred before the date of the inmate's predicate offense. The inmate is given one point if he has a single prior conviction of a sex offense, or if he has one or two prior charges of sexual offenses. If an inmate has two or three prior convictions of sex offenses, or has between three and five prior charges involving such offenses, the inmate is assigned two points. Finally, an inmate is assessed three points when he has four or more prior convictions of sex offenses, or has six or more prior charges of that nature. Id. According to the analysis performed by the DOC, Miles received a score of four on the RRASOR and therefore, under Code § 37.2-903(C), qualified for further review by the Commitment Review Committee (CRC).

Miles received a mental health examination as part of the CRC assessment. Dr. Christine A. Nogues, a licensed clinical psychologist, was appointed by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services (Department of Mental Health) to perform the examination. Dr. Nogues diagnosed Miles as having "Personality Disorder [Not Otherwise Specified] with antisocial features." She determined that Miles was "a sexually aggressive, or antisocially personality disordered offender" whose "personality disorder appears to predispose him to commit sexually violent offenses."

During the course of her examination, Dr. Nogues conducted various actuarial evaluations to assist in determining Miles' level of risk of committing future sexually violent offenses. Among those assessments, she independently scored Miles' RRASOR and also assigned him a result of four, which incorrectly included "three points for having four or more convictions."

The Office of the Attorney General (the Commonwealth) reviewed the CRC's recommendation, together with Miles' mental health examination, institutional history, treatment record, and criminal record, and determined that he is a sexually violent predator. Accordingly, the Commonwealth filed a petition in the circuit court requesting that Miles be classified as a sexually violent predator and subjected to civil commitment under the Act.

Miles filed a motion to dismiss, arguing that his correct RRASOR score was three and, thus, that the circuit court was not authorized to conduct further proceedings to determine whether he is a sexually violent predator. The circuit court denied Miles' motion.

At a bench trial, the circuit court heard evidence on the issue whether Miles is a sexually violent predator. Dr. Nogues testified regarding her examination of Miles and concluded that he is likely to commit sexually violent acts in the future. On cross-examination, however, Dr. Nogues admitted that Miles' RRASOR score was incorrectly computed. She stated that Miles' correct score was three, not four as originally indicated.

At the conclusion of the testimony, the circuit court entered an order finding that Miles suffers from "personality disorder [Not Otherwise Specified] with antisocial traits" and that he is likely to commit other offenses of a sexually violent nature. After hearing evidence from the Commonwealth and from Miles during the commitment phase of the trial, the circuit court ordered that Miles be involuntarily confined in a secure facility pursuant to the Act. This appeal followed.

Miles argues that the circuit court erred in denying his motion to dismiss. He emphasizes that the evidence was undisputed that the Commonwealth initiated proceedings against him under the Act based on an incorrect RRASOR score computed by the DOC. Miles asserts that absent this erroneous score, he would not have been identified as a potential candidate for classification as a sexually violent predator. Therefore, Miles contends that because his correct score was below the baseline score established in Code § 37.2-903(C) for further proceedings under the Act, the circuit court erred in conducting evidentiary proceedings to determine whether he is a sexually violent predator and should be committed.

In response, the Commonwealth argues that its use of an inmate's RRASOR score is a procedural mechanism, rather than a requirement for further proceedings under the Act. The Commonwealth observes that the Act does not provide an inmate the remedy of having the proceedings against him terminated when the inmate's RRASOR score has been incorrectly computed to his detriment. Therefore, according to the Commonwealth, a RRASOR score has no effect on the Commonwealth's right to proceed under the Act but is "merely a convenient, objective way of narrowing the prison population who will undergo the civil commitment review process." We disagree with the Commonwealth's arguments....