State v. Ploof, 2009–469.

• Decision Date: 02 November 2011
• Docket Number: No. 2009–469.,2009–469.
• Citation: 162 N.H. 609,34 A.3d 563
• Parties: The STATE of New Hampshire v. William PLOOF.
• Court: New Hampshire Supreme Court

162 N.H. 609

34 A.3d 563

The STATE of New Hampshire

v.William PLOOF.

No. 2009–469.

Supreme Court of New Hampshire.

Argued: April 7, 2011.Opinion Issued: Nov. 2, 2011.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J.

The defendant, William Ploof, appeals an order of the Superior Court ( Abramson, J.) committing him to the custody of the New Hampshire Department of Corrections as a sexually violent predator pursuant to RSA 135–E:13 (Supp.2010). He argues that, on its face, the statute violates his right to procedural due process, the State Constitution's separation of powers provision, and his right to equal protection. We affirm.

In 1998, the defendant pleaded guilty to one count of aggravated felonious sexual assault and one count of sexual assault. The court sentenced him to concurrent terms of four to ten years at the state prison and twelve months at the house of corrections. In March 2007, as the defendant approached the end of his prison term, the Hillsborough County Attorney initiated the process established under RSA chapter 135–E for the involuntary commitment of sexually violent predators. In May 2007, a multidisciplinary team issued a report concluding that the defendant was a sexually violent predator within the meaning of the statute, after which the county attorney petitioned the superior court to commit him.

Prior to trial, the defendant moved to dismiss the petition, arguing that RSA chapter 135–E violates his state and federal constitutional rights to equal protection and due process of law. The trial court denied the motion. Subsequently, the defendant asked the trial court to find RSA 135–E:10, I, unconstitutional as a violation of the Separation of Powers Clause of the State Constitution. The trial court denied the motion. Following a seven-day trial, the jury unanimously found that the defendant is a sexually violent predator and the trial court entered an order committing him to the custody of the department of corrections for a period of five years.

The defendant has raised a facial challenge to RSA chapter 135–E. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” State v. Furgal, 161 N.H. 206, 210 (2010) (quotation omitted). For the reasons stated herein, we conclude that the defendant has not succeeded in carrying this heavy burden.

We review the trial court's interpretation of the statute de novo. See State v. Matthews, 157 N.H. 415, 417, 951 A.2d 155 (2008). When reviewing a legislative act, “we presume it to be constitutional and will not declare it invalid except upon inescapable grounds. In other words, we will not hold a statute to be unconstitutional unless a clear and substantial conflict exists between it and the constitution.” State v. Hynes, 159 N.H. 187, 199–200, 978 A.2d 264 (2009) (citations omitted). “When doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its constitutionality.” Bd. of Trustees, N.H. Judicial Ret. Plan v. Sec'y of State, 161 N.H. 49, 53, 7 A.3d 1166 (2010). The party challenging a statute's constitutionality bears the burden of proof. New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385, 13 A.3d 145 (2011) (quotation omitted).

In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. First Berkshire Bus. Trust v. Comm'r, N.H. Dep't of Revenue Admin., 161 N.H. 176, 179, 13 A.3d 232 (2010). When examining the language of a statute we ascribe the plain and ordinary meaning to the words used. Id. at 180, 13 A.3d 232. We read words or phrases not in isolation, but in the context of the entire statute and the entire statutory scheme. Id. When the language of a statute is plain and unambiguous, we do not look beyond it for further indications of legislative intent. Id.

I. RSA Chapter 135–E

The process for civil commitment of sexually violent predators begins several months before a person who has committed a sexually violent offense is to be released from prison. RSA 135–E:3, II. A sexually violent predator is any person who “[h]as been convicted of a sexually violent offense” and “[s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” RSA 135–E:2, XII. The term “[m]ental abnormality” is defined as “a mental condition affecting a person's emotional or volitional capacity which predisposes the person to commit sexually violent offenses.” RSA 135–E:2, VII. The term “[l]ikely to engage in acts of sexual violence” means that “the person's propensity to commit acts of sexual violence is of such a degree that the person has serious difficulty in controlling his or her behavior as to pose a potentially serious likelihood of danger to others.” RSA 135–E:2, VI.

The agency with custody of the inmate is required to give notice of his impending release to either the county attorney or the attorney general. Id. If either the county attorney or the attorney general has “an articulable basis to believe that the person is likely to engage in acts of sexual violence,” he or she may, within forty-five days of receipt of such notice, request an assessment of the individual by a multidisciplinary team to determine whether the person is a sexually dangerous predator. RSA 135–E:3, III. The multidisciplinary team “shall include, but is not limited to, 2 licensed psychiatrists or psychologists or one licensed psychiatrist and one licensed psychologist each of whom has specialized training or experience in the area of treatment and diagnosis of sex offenders.” RSA 135–E:3, I. “[T]he court shall appoint legal counsel to represent the person before any interview or personal examination of the person is conducted by the multidisciplinary team.” Id. If the person is unable to pay for counsel, the court shall appoint counsel pursuant to RSA 604–A:2. Id.

The multidisciplinary team assesses and evaluates the person, including “a review of the person's institutional history and treatment record, if any, the person's criminal background, and any other factor that is relevant to the determination of whether such person is a sexually violent predator.” RSA 135–E:3, V(a). The person being evaluated must be offered a personal interview. RSA 135–E:3, V(c). Within four months after receiving the request for an assessment and evaluation, the multidisciplinary team's written report containing its findings must be provided to the county attorney or attorney general. Id.

If the multidisciplinary team finds that the person meets the definition of a sexually violent predator, within fourteen days of receiving the team's report, the county attorney or attorney general may file a petition with the superior court “alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation.” RSA 135–E:6. A copy of the petition must also be sent to the person who is the subject of the petition. Id. Within ten days of the filing of the petition, “the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator.” RSA 135–E:7. If the court so finds, it must order that the person remain in custody in an appropriate secure facility for further proceedings. Id.

Within sixty days after the trial court's initial determination of probable cause, or, in cases where a jury trial has been elected, within sixty days after election of a jury trial, the court must conduct a trial “to determine whether the person is a sexually violent predator.” RSA 135–E:9, II. Either side may demand a jury trial. RSA 135–E:9, I. The person may retain experts or mental health professionals to perform an examination. RSA 135–E:9, IV.

At trial, the rules of evidence, statutes and rules governing the doctor-patient privilege and privileged communications “or other similar statutes or rules shall not apply.” RSA 135–E:10, I. The court may consider evidence of the person's prior conduct if such evidence is relevant to the issue of whether the person is a sexually violent predator. RSA 135–E:10, II. The multidisciplinary team's report is inadmissible unless the court finds the report's probative value substantially outweighs its prejudicial effect. RSA 135–E:10, III. Notwithstanding the general inapplicability of the rules of evidence, hearsay evidence is not admissible “unless it falls within one of the recognized exceptions to the hearsay rule or unless the court finds that the hearsay evidence contains circumstantial guarantees of trustworthiness and the declarant is unavailable to testify.” RSA 135–E:10, IV. Hearsay evidence shall not be used as the sole basis for committing a person. Id.

The State has the burden of proving by clear and convincing evidence that the person is a sexually violent predator. RSA 135–E:11, I. If the determination is made by a jury, the verdict must be unanimous. Id. If the court or jury determines that the person is a sexually violent predator, upon the expiration of the incarcerative portion of all sentences, “the person shall be committed to the custody of the department of corrections for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person no longer poses a potentially serious likelihood of danger to others.” RSA 135–E:11, II. An order committing a person is valid for up to five years. Id. The determination that a person is a sexually violent...