Warrington v. Commonwealth Of Va., Record No. 092273.
| Decision Date | 16 September 2010 |
| Docket Number | Record No. 092273. |
| Citation | 699 S.E.2d 233,280 Va. 365 |
| Parties | Harry E. WARRINGTONv.COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Jacqueline M. Ford (Bowen, Champlin, Foreman & Rockecharlie, on brief), Richmond, for appellant.
Sean J. Murphy, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General, on brief), for appellee.
Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.
Opinion by Justice DONALD W. LEMONS.
In this appeal, we consider whether the trial court erred by holding that the Commonwealth had substantially complied with certain requirements of Code §§ 37.2-900 et seq., the Sexually Violent Predator Act (“SVPA”), in its filing of a petition to civilly commit Harry E. Warrington (“Warrington”).
Pursuant to Code § 37.2-903, Gene M. Johnson, director of the Virginia Department of Corrections, referred Warrington to the Commitment Review Committee (“CRC”) on September 3, 2008. Dr. Lisa Berman (“Dr. Berman”) conducted an interview and evaluation of Warrington on October 28, 2008. Dr. Berman submitted her report to the CRC on November 13, 2008. The CRC then referred the matter to the Office of the Attorney General on November 21, 2008. On February 13, 2009, the Attorney General filed a petition to commit Warrington as a sexually violent predator pursuant to Code § 37.2-905.
Warrington was incarcerated for a conviction of a qualifying sexually violent offense under Code § 37.2-900, namely rape. His scheduled release date from incarceration for the criminal offense was March 16, 2009. After receiving the Attorney General's petition to have Warrington civilly committed as a sexually violent predator, the trial court entered an order requiring Warrington to remain in the custody of the Department of Corrections pending a probable cause hearing and a “final order” on the Attorney General's February 13, 2009 petition. The probable cause hearing required by Code § 37.2-906 was initially scheduled for April 3, 2009.
On March 17, 2009, the Attorney General wrote a letter to the trial court and Warrington acknowledging that Dr. Berman's experience did not satisfy the “treatment” criterion required under Code § 37.2-904. The Attorney General requested a continuance of the probable cause hearing so that a qualified expert could be appointed to evaluate Warrington. Warrington filed a motion to dismiss the petition on March 23, 2009, arguing that (i) the 90-day period required by Code § 37.2-905 had expired prior to the Attorney General filing his petition to civilly commit Warrington as a sexually violent predator and (ii) Dr. Berman's lack of qualification pursuant to the statute rendered the petition invalid and that the Attorney General would not be able to conduct a probable cause hearing within the required period pursuant to Code § 37.2-906.
On March 31, 2009, the Attorney General filed his first motion to amend the petition based on an evaluation of Warrington by Dr. Evan Nelson (“Dr. Nelson”), a licensed psychologist who was designated to re-evaluate Warrington. Warrington responded to the Attorney General's first amended petition by filing a memorandum in support of his motion to dismiss on April 1, 2009, in which he renewed his argument that the Attorney General exceeded the 90-day time limit to file a petition pursuant to Code § 37.2-905, that Dr. Nelson's report should not be considered, and that Warrington had been held past his release date based on an invalid report. Additionally, on April 3, 2009, Warrington filed an objection to the Attorney General's first amended petition, in which he argued that the Attorney General committed gross negligence by filing a petition based on the opinion of an unqualified licensed psychologist. Finally, on April 6, 2009, Warrington filed a motion for release from the custody of the Department of Corrections.
Based on Dr. Nelson's report, the Attorney General filed a second amended petition on April 8, 2009. On April 13, 2009, the trial court entered an order holding there was probable cause to believe Warrington “is a sexually violent predator pursuant to [Code § ] 37.2-900, et seq.” The probable cause hearing was conducted in a manner consistent with the requirements of Code § 37.2-906. In a different order entered the same day, the trial court granted the Attorney General's second motion to amend the petition.
On June 2, 2009, the trial court by order denied all of Warrington's motions and again granted the Attorney General's second motion to file an amended petition. The hearing to determine the merits of the petition was conducted without a jury. Upon consideration of the evidence presented, the trial court held that Warrington is a sexually violent predator and committed him to “the custody of the Department of Behavioral Health and Developmental Services (“DBHDS”) for appropriate treatment and confinement in a secure facility.”
Warrington noted his appeal, and this Court granted an appeal on the following assignments of error:
1. The trial court erred in permitting the Commonwealth to substitute Dr. Nelson's report and opinions for those of Dr. Berman, amend its originally filed Petition, and to proceed with an evaluation taken outside the requisite timeframe set forth in Virginia Code Sections 37.2-903 and 904 and by Dr. Nelson without the benefit of a CRC appointment.
2. The trial court erred in continuing to hold [Warrington] past his release date in order to permit the Commonwealth to conduct a second review over [Warrington]'s objection.
3. The trial court erred in denying [Warrington]'s Motion to Dismiss based on [Warrington]'s failure to comply with the SVPA.
Townes v. Commonwealth, 269 Va. 234, 240, 609 S.E.2d 1, 4 (2005) (internal quotation marks and citations omitted); see also
Baker v. Commonwealth, 278 Va. 656, 660, 685 S.E.2d 661, 663 (2009).
Warrington argues that the trial court erred by not dismissing the Attorney General's petition because the Commonwealth did not substantially comply with the SVPA in filing a civil commitment petition against him. The four statutes from the SVPA at issue in this appeal are: Code §§ 37.2-903, 37.2-904, 37.2-905, and 37.2-905.1. Code § 37.2-903 states in relevant part:
. . . . .
D. Upon the identification of such prisoners, the Director shall forward their names, their scheduled dates of release, and copies of their files to the CRC for assessment.
Code § 37.2-904 states in relevant part:
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