Simerly v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: LEMONS.
• Citation: Simerly v. Com., 514 S.E.2d 387, 29 Va.App. 710 (Va. App. 1999)
• Decision Date: 18 May 1999
• Docket Number: Record No. 3010-97-2.
• Parties: Bobby Joe SIMERLY v. COMMONWEALTH of Virginia.

514 S.E.2d 387

29 Va. App. 710

Bobby Joe SIMERLY v. COMMONWEALTH of Virginia.

Record No. 3010-97-2.

Court of Appeals of Virginia, Richmond.

May 18, 1999.

Diana H. Wheeler, Orange, for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BENTON, WILLIS and LEMONS, JJ.

LEMONS, Judge.

Bobby Joe Simerly was convicted of rape, abduction with the intent to defile, and malicious wounding. On appeal, he argues that the trial court erred in refusing to defer sentencing for a mental examination pursuant to Code §§ 19.2-300 and 19.2-176. We affirm the trial court's refusal to order a mental examination pursuant to Code § 19.2-176; however, we reverse and remand for resentencing after the trial court's compliance with Code § 19.2-300.

I. BACKGROUND

The victim testified that on April 1, 1997, Simerly attacked her while she was walking on a road near her house. Simerly dragged her 150 to 200 yards into the woods beside the road and then threw her to the ground. When she attempted to get up, Simerly kicked her in the face, pulled off her pants and underwear and raped her.

On September 23, 1997, Simerly was convicted in a bench trial of rape, abduction with the intent to defile, and malicious wounding. Counsel for Simerly requested preparation of a Presentence Investigation Report. A sentencing hearing was scheduled for November 14, 1997. At the hearing, evidence was introduced that Simerly refused to cooperate with the probation officer in the preparation of the presentence report. The investigation conducted by the probation officer revealed that Simerly had been charged with a crime in 1987, and had sought to plead guilty. With respect to that charge, the court had ordered Simerly to undergo a competency evaluation. Simerly had been found incompetent to stand trial and was committed to a mental facility for restoration. After his restoration to competency, Simerly was tried, convicted and served a five-year sentence. Simerly had not provided any of this information to either of the attorneys representing him.

At the sentencing hearing, Simerly's counsel requested that the court defer sentencing until a mental evaluation of him could be completed, pursuant to Code § 19.2-300. Simerly's counsel also requested that the court evaluate Simerly's mental state prior to sentencing pursuant to Code § 19.2-176. The trial court denied both motions. The court sentenced Simerly to life imprisonment for rape, life imprisonment for abduction with intent to defile, and twenty years imprisonment for malicious wounding.

II. CODE § 19.2-300

Code § 19.2-300 provides as follows:

In the case of the conviction in any circuit court of any person for any criminal offense which indicates sexual abnormality, the trial judge may on his own initiative, or shall upon application of the attorney for the Commonwealth, the defendant, or counsel for defendant or other person acting for the defendant, defer sentence until the report of a mental examination conducted as provided in § 19.2-301 of the defendant can be secured to guide the judge in determining what disposition shall be made of the defendant.

A criminal defendant is entitled as a matter of law to have a presentence report prepared prior to the imposition of his or her sentence. See Duncan v. Commonwealth, 2 Va.App. 342, 345-46, 343 S.E.2d 392, 394 (1986). At his sentencing hearing, Simerly's counsel expressed her belief that Simerly's failure to cooperate with the probation officer deprived the court of a "meaningful presentence report." Simerly's counsel argued that the presentence report failed to inform the court of mitigating factors in his case, and she requested pursuant to Code § 19.2-300 that the court order a mental evaluation before imposing sentence.

Code § 19.2-300 states that in a case involving "sexual abnormality," a trial judge "may on his own initiative" or "shall upon application of the ... attorney for the defendant" order a mental examination. (Emphasis added). Whether the crimes with which Simerly was charged constituted offenses involving "sexual abnormality," bringing them under the purview of the statute, is the issue before us on appeal.¹

The term "sexual abnormality" is not defined within Code § 19.2-300. Certainly, in common parlance it is difficult to imagine anything more sexually "abnormal" than forcible rape. However, the Commonwealth argues that the sexual act itself must be performed in some "abnormal" way before the statute may be invoked. "[L]anguage is ambiguous if it can be understood in more than one way ... [and] divergent interpretations tend to show that a statute's meaning is difficult to ascertain." Virginia-Am. Water Co. v. Prince Wm. Serv., 246 Va. 509, 514, 436 S.E.2d 618, 621 (1993) (citations omitted). When a statute is ambiguous, a court is permitted to consider extrinsic evidence to determine its meaning, including an analysis of its legislative history. See id. at 514-20, 436 S.E.2d at 620-24.

Code § 19.2-300 was first enacted in 1950. A Commission to Study Sex Offenses prepared a report entitled, "The Sex Offender and the Criminal Law," (S. 18 (Va.1951)) which was presented to the Governor and the General Assembly of Virginia in 1951. In its report, the commission stated that its purpose was to "study and report upon the statutes of Virginia dealing with sex offenders" and "to consider the nature of the problem, the measures in use in other States, and methods which might be employed in this State." S. 18 at 3. The commission stated,

[t]here are three major elements which usually characterize the acts of the dangerous sex offender toward which preventative efforts should be primarily directed. These are (1) the use of force in the performance of any sexual act against the will of one of the participants (2) a prohibited sexual act where there is a great disparity in age between the participants, whether or not the element of force enters, and (3) the repetitive compulsive nature of the act carried out with heedless disregard of consequences to the offender.

S. 18 at 2.

The report uses the term "dangerous sexual offender" interchangeably with the phrase "one who engages in abnormal sexual behavior." See S. 18. We conclude that the legislature intended the term "sexual abnormality" to include all sex offenses committed against the will of a victim in which the use of force is involved.²

Code § 19.2-300 first appeared in the supplement to the Code of 1950 and was originally codified at § 53-278.2. The language of the section read:

In the case of the conviction in any court of record of any person for any criminal offense which indicates sexual abnormality, the trial judge may on his own initiative, or on application of the Commonwealth's attorney, the defendant, or counsel for defendant or other person acting for the defendant, defer sentence until the report of mental examination of the defendant can be secured to guide the judge in determining what disposition shall be made of the defendant.

The language of Code § 53-278.2 remained unchanged until 1970. However, in 1970, Code § 53-278.2 was amended to read,

[i]n the case of the conviction in any court of record of any person for any criminal offense which indicates sexual abnormality, the trial judge may on his own initiative, or shall upon application of the Commonwealth's attorney, the defendant, or counsel for defendant or any other person acting for the defendant, defer sentence until the report of a mental examination of the defendant can be secured to guide the judge in determining what disposition may be made of the defendant.

Acts of the General Assembly, 1970, c. 62 (emphasis added).

The 1970 change in the language of Code § 53-278.2 reflected legislative intent to eliminate the exercise of discretion by the trial judge in ordering a mental examination prior to sentencing when requested by the defense or the Commonwealth. In 1975, Code § 53-278.2 was repealed and recodified at Code § 19.2-300. Acts of the General Assembly 1975, c. 495. As recently as 1990, the legislature made modest changes to Code § 19.2-300, but made no change in the language eliminating the judge's discretion. Acts of the General Assembly 1990, c. 697. From its inception, the provision has contained no definition of the term "sexual abnormality."

The concurring opinion attempts to draw a distinction between "force" and "violence" in the definition of "sexual abnormality." Unfortunately, such an analysis may shift the focus of the inquiry from the defendant's conduct to the victim's conduct as demonstrated in the case of Jones v. Commonwealth, 219 Va. 983, 252 S.E.2d 370 (1979), ironically cited in the concurring opinion. In Jones, the Virginia Supreme Court upheld a rape conviction and observed that "the woman is not required to resist to the utmost of her physical strength, if she reasonably believes resistance would be useless and result in serious bodily injury to her." Id. at 986, 252 S.E.2d at 372 (citations omitted). If the question to be answered is whether the defendant's conduct indicates "sexual abnormality," the answer should never rest upon the victim's conduct. The victim's decision to avoid violence does not make the defendant's conduct any less "abnormal."

Additionally, the attempt to draw the distinction between "force" and "violence" is not found in the most recent enactments of the General Assembly. The 1999 Session of the General Assembly enacted provisions for the civil commitment of sexually violent predators. S. 845, 1999 Session (Va.1999). Senate Bill 845 was enacted into law on April 7, 1999. In the definitions section, the legislature defines "sexually violent offense" to include a "violation of § 18.2-61 [rape], § 18.2-67.1 [forcible sodomy] or § 18.2-67.2 [object sexual penetration] or subdivision A1 of § 18.2-67.3 [aggravated sexual battery]." Code § 18.2-61 defines rape as an act of...