Shellman v. Commonwealth

Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan,
and Powell, JJ., and Koontz, S.J.

REGINALD SHELLMAN
OPINION BY
v. Record No. 120261 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
November 1, 2012
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge

In this appeal, we consider whether Code § 37.2-910(A),

which permits the annual hearing to assess the need for secure

inpatient treatment for a respondent previously determined to

be a sexually violent predator to "be conducted using a two-

way electronic video and audio communication system,"

conflicts with the respondent's due process and statutory

rights. We also consider whether in this particular case the

order determining that the respondent remained a sexually

violent predator in need of secure inpatient treatment

accurately reflects the findings of the circuit court.

BACKGROUND

Reginald Shellman was convicted of aggravated sexual

battery in the Circuit Court of Fairfax County on February 21,

2001. Prior to his scheduled release from his term of

incarceration for this offense on July 15, 2009, the

Department of Corrections determined that Shellman qualified

for review as a potential sexually violent predator and
referred these findings to the Commitment Review Committee,

which subsequently referred the matter to the Office of the

Attorney General. Code §§ 37.2-903 to 37.2-905.

On June 1, 2009, the Commonwealth filed a petition in the

Circuit Court of Fairfax County seeking to have Shellman

civilly committed as a sexually violent predator. Following

the mandated procedures of Code §§ 37.2-906 to 37.2-908, a

probable cause hearing and trial were conducted, following

which the circuit court, in an order dated March 23, 2010,

determined that Shellman met the criteria for being a sexually

violent predator. The court further determined that there was

no suitable alternative to secure inpatient treatment and

ordered that Shellman be committed to the custody of the

Department of Behavioral Health and Development Services. In

the commitment order, the court scheduled an annual assessment

hearing of Shellman's status, pursuant to Code § 37.2-910, for

March 7, 2011.

For procedural reasons, including the court-approved

withdrawal from the case of Shellman's original counsel, the

assessment hearing was delayed from its initial date multiple

times. In an order dated June 21, 2011, the circuit court,

noting Shellman's objection, indicated that when held, "in

accordance with Code § 37.2-910(A)" the assessment review

hearing would "if practicable, be conducted by two-way

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electronic video and audio communications." The order further

stated that Shellman's new counsel could file a further

objection to conducting the hearing by video conference, if

desired.

On September 20, 2011, Shellman's counsel filed a motion

requesting that Shellman be permitted to attend the assessment

hearing in person. Shellman contended that appearing by video

conference rather than being physically present in the same

room during the hearing "stifles [private] communication

between the client and counsel," because the procedure for

permitting such communication was cumbersome. Shellman

further contended that "[w]hen there is not adequate

communication between the client and counsel during the

hearing [a respondent] is denied his right to effective

assistance of counsel, his right to be heard, [and] his right

to cross-examine and present evidence." Thus, Shellman

asserted that the "whenever practicable" standard of Code

§ 37.2-910(A) is unconstitutional because it is never

practicable to conduct a hearing by video conference without

violating a respondent's due process rights.

The Commonwealth opposed Shellman's motion to attend the

hearing, contending that "[a]ll the process due to Shellman at

his annual review hearing can be adequately provided while he

participates by video[ ]conference. He can see, hear, and

3
confront the witnesses against him, participate in person to

an appropriate extent, and confer privately with counsel upon

simple request."

Shellman's assessment hearing was held on October 26,

2011. Present in the circuit courtroom along with the trial

judge were counsel for the Commonwealth, Shellman's counsel,

and Shellman's mother. Shellman appeared by video conference

from the Virginia Center for Behavioral Rehabilitation in

Burkeville (Burkeville Center), where Dr. Mario Dennis, a

clinical psychologist and Director of Forensic Services at

Burkeville Center, was also present as a witness for the

Commonwealth. At the outset of the hearing, Shellman's

counsel noted that the circuit court had denied the motion for

Shellman to be physically present at the hearing and noted an

objection to that ruling. 1

During the course of the hearing, minor issues occurred

with the video conference system in regard to sound quality.

At one point, the video feed was lost both in the courtroom

and at Burkeville Center, and the hearing had to be suspended

for a short time while the connection was reestablished.

However, at no time during the hearing did Shellman or his

1
The record does not indicate in what manner the circuit
court initially communicated the denial of the motion to
Shellman's counsel; however, this ruling was subsequently
memorialized in an order entered November 2, 2011.

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counsel indicate that they could not follow the proceedings,

nor was any request made for a private communication to be

made between them.

At the conclusion of the hearing, the circuit court found

that Shellman remained a sexually violent predator, and

further ruled that he should remain in secure inpatient

treatment. The court confirmed this ruling in an order dated

November 1, 2011, finding that Shellman's "mental

abnormalities and personality disorder have not so changed

that he no longer presents an undue risk to public safety, and

he thus remains a sexually violent predator." Shellman's

counsel endorsed the order as "[s]een and exceptions noted as

stated in the record." This appeal followed.

DISCUSSION

With specific application to the Sexually Violent

Predator Act (SVPA), Code §§ 37.2-900 et seq., we have held

that "involuntary civil commitment is a significant

deprivation of liberty to which federal and state procedural

due process protections apply." Jenkins v. Director, Va. Ctr.

for Behav. Rehab., 271 Va. 4, 15, 624 S.E.2d 453, 460 (2006).

Accordingly, we have recognized that there are "certain

minimal standards" to which the Commonwealth is required to

adhere in order to afford the "due process guarantee[d] to a

respondent in an involuntary civil commitment proceeding."

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Id. Chief among these minimal standards is the right to a

"hearing at which evidence is presented and the respondent is

provided a chance to be heard and to present documentary

evidence as well as witnesses." Id. We have further held

that "the due process protections embodied in the federal and

Virginia Constitutions mandate that the subject of the

involuntary civil commitment process has the right to counsel

at all significant stages of the judicial proceedings." Id.

at 16, 624 S.E.2d at 460. Without question, the mandatory

annual assessment to determine a respondent's continued need

for secure inpatient treatment is a significant stage of the

judicial proceedings relevant to the respondent's liberty

interests.

Likewise, the SVPA contains statutory requirements for

the conduct of such hearings. As relevant to this appeal,

Code § 37.2-901 provides that

[i]n hearings . . . held pursuant to [the SVPA],
respondents shall have the following rights:

. . . .

2. To be represented by counsel.

. . . .

4. To be present during the hearing or trial.

5. To present evidence and to cross-examine witnesses.

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Code § 37.2-910(A) further provides that "[w]henever

practicable, the [annual assessment] hearing . . . shall be

conducted using a two-way electronic video and audio

communication system that meets the standards set forth in

subsection B of [Code] § 19.2-3.1." Code § 19.2-3.1(B)

provides, in relevant part, that when any two-way electronic

video and audio communication system is used "[t]he persons

communicating must [be able to] simultaneously see and speak

to one another."

With respect to the standard of review we should apply in

this appeal, Shellman contends that by not allowing him to be

physically present at the hearing along with counsel, the

circuit court created a "structural error" in the proceedings.

Thus, Shellman asserts that he need not show actual prejudice

resulting from the court's decision that it was practicable

for him to appear by video conference, as a structural error

in a proceeding "defies harmless error review."

The Commonwealth contends that Shellman does not assert a

structural error because he does not allege a complete denial

of the right to be present or a complete deprivation of the

assistance of counsel. Accordingly, the Commonwealth asserts

that Shellman must establish that he was actually prejudiced

by not being physically present at the assessment review

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hearing such that the outcome of the proceeding would have

been different.

In Morrisette v. Warden of the Sussex I State Prison, 270

Va. 188, 613 S.E.2d 551 (2005), we explained that "[a]

'structural error' is a 'defect affecting the framework within

which the trial proceeds, rather than simply an error in the

trial process itself.' " Id. at 192, 613 S.E.2d at 556

(quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).

Based on the record in this case, we hold that Shellman's not

being physically present at the hearing did not constitute a

structural error in the proceedings. Rather, the use of the

video conference was authorized by statute as a proper

procedure for conducting the assessment hearing if

practicable. Accordingly, we hold that Shellman must show

actual prejudice arising from the circuit court's decision to

have him appear at the assessment review hearing by video

conference.

Shellman further contends that the court's application of

Code § 37.2-910(A) would be subject to a de novo review in

this Court as a question of statutory construction. However,

the language of the statute is in no way ambiguous. A plain

reading of the statute makes it clear that the determination

of whether it was practicable for Shellman to appear by video

conference was a matter committed to the court's sound

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discretion. Accordingly, we will review Shellman's

constitutional claims de novo and the court's decision to

conduct the hearing by video conference under an abuse of

discretion standard.

On the merits, Shellman contends that by conducting the

assessment hearing by video conference rather than permitting

Shellman to be physically present in the courtroom, the

circuit court violated his due process rights, as well as his

statutory rights under Code § 37.2-901, 2 because there was no

adequate means for Shellman and his counsel to confer

privately during the hearing. Thus, Shellman maintains that

he was deprived of his right to competent representation by

counsel.

The record indicates that at no point during the hearing

did Shellman or his counsel express a desire or need to

communicate privately with the other. Shellman recognized in

2
On brief of this appeal, the Commonwealth asserted that
Shellman's claim that his statutory rights were violated had
been procedurally defaulted because the motion requesting that
he be permitted to attend the hearing did not expressly
reference the application of Code § 37.2-901. However, with
respect to the arguments raised by Shellman in this appeal,
the statutory rights he relies upon – the right to be present
at the hearing, the right to effective assistance of counsel,
and the right to confront and cross-examine witnesses – are
concomitant to and subsumed within identical considerations of
due process. Thus, for purposes of this appeal, the
determination whether the use of the video conference
satisfied due process would apply equally to whether it
comported with Code § 37.2-901.

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his motion that any such request would be honored, maintaining

only that the manner in which such private communications

would occur "stifles communication between the client and

counsel." Thus, he contended that "[t]here is no effective

way for [a respondent] and his counsel to interact during the

course of the proceedings if they are not in the same room."

However, Shellman's counsel conceded during oral argument of

this appeal that nothing in Code § 19.2-3.1 or Code § 37.2-910

would prohibit a respondent's counsel from joining his client

in the video conference facility at Burkeville Center, opining

only that it might be inconvenient for counsel to do so or

that by not being present in the courtroom, it might inhibit

counsel's ability to interact with the judge and the

witnesses.

The mere fact that an authorized manner for conducting a

proceeding under the SVPA may not provide for optimal

circumstances for the respondent and his counsel to

communicate privately does not mean that the respondent has

been deprived of due process. Rather, the Court must consider

whether the limitations of the authorized procedure constitute

a fair balance between the rights of the respondent and the

interest of the government in conducting the proceeding in an

efficient and effective manner.

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 Previously, we have not been called upon to consider what

factors should be used in determining whether conducting a

hearing by video conference is "practicable" under Code

§ 37.2-910(A) or under any similar statutorily authorized

proceeding. See, e.g., Code § 19.2-82(A) (providing for an

accused to be brought before a magistrate by video

conference). However, in United States v. Baker, 45 F.3d 837

(4th Cir. 1995), the United States Court of Appeals for the

Fourth Circuit addressed the issue in the context of a

competency commitment hearing of a prisoner by video

conference. The federal court's discussion of the factors to

be considered in balancing the interests of the respondent and

the government is instructive for the similar circumstances of

this case. The court first noted that

[t]he Supreme Court has identified . . . three
factors to consider in determining those procedural
safeguards due a person whose interests are to be
adversely affected by government actions:

First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and finally,
the Government's interest, including the
function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirements would
entail.

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Id. at 843 (quoting Mathews v. Eldridge, 424 U.S. 319,

335 (1976)).

In Baker, the court recognized with regard to the first

element of the Mathews balancing test that because the

potential "deprivation [of the respondent's liberty] is great

. . . the government's interest in conducting the hearings by

means of video conferencing technology must be great, and the

risk of an erroneous deprivation of liberty small for the

government to prevail." Id. at 844. Contrasting a commitment

hearing with a criminal trial, where observation of the

demeanor of the defendant and the witnesses by the trier of

fact is a major concern, the court observed that

the goal of a commitment hearing is far different:
[to determine] whether the respondent is mentally
competent. This determination is made by the court
and is based primarily upon the opinions of experts
proffered by the government and the respondent. The
expert opinions will not differ factually but only
in their theoretical premises. As a result, to
whatever extent the opinions are delivered by way of
oral testimony, the court will determine which
experts' opinions it finds more persuasive based not
upon the demeanor of the experts while testifying,
but upon the qualifications of the experts, and the
substance and thoroughness of the opinions offered.

Id. at 844-45 (internal citation omitted)

Thus, the court opined that in a civil commitment hearing

"[t]he aim of cross-examination is changed accordingly: its

goal is not to 'poke holes' in the testimony of a witness, but

to test the expert opinion given and determine its basis and

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its limits." Id. at 845. The court concluded that under the

second element of the Mathews test use of video conferencing

technology "runs far less risk of erroneous deprivation of

liberty [to the respondent in a commitment hearing] than would

affording similarly limited rights to criminal defendants."

Id.

Applying the third element of the Mathews balancing test

that "fiscal and administrative concerns [of the government]

are properly taken into account," the court concluded that

given the expense and security concerns related to the

transportation of respondents to court, "the government

interests in the use of the video conference technology at

civil commitment hearings are both apparent and substantial."

Id. at 847. Thus, the court held that "in light of the slight

risk of erroneous committal and the substantial government

interests," conducting a commitment hearing by video

conference did not violate considerations of constitutional

due process. Id.

We find the reasoning of Baker to be persuasive and

applicable to the present case. Unlike the initial trial in

which a respondent is determined to be a sexually violent

predator, the purpose of the annual assessment hearing is to

determine whether, in light of the treatment received in the

preceding year, the respondent remains a sexually violent

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predator and, if so, whether there is a less restrictive

alternative to continued secure inpatient treatment. These

matters are almost entirely to be determined by the court

through consideration of expert opinion. To the extent that

the circumstances of a community-based treatment plan must be

evaluated in part through lay witness testimony, the

credibility of the witnesses would not be a significant factor

in determining the appropriateness of the plan. Accordingly,

we hold that the provision in Code § 37.2-910(A) for

conducting annual assessment hearings under the SVPA by video

conference is neither unconstitutional facially nor

unconstitutional as applied in Shellman's case.

Shellman further contends that even if conducting an

assessment hearing by video conference is constitutionally

permissible, the manner in which his hearing was conducted

interfered with the ability of his counsel to provide

effective representation and that "technical problems [with

the video conference] made the situation even worse." While

conceding that the circuit court "[made] a good[]faith effort"

to provide a consistent quality of audio and video reception

and transmission, he contends that the record shows that

technical problems effectively negated the requirement of Code

§ 19.2-3.1 of the parties "seeing and speaking to one

another[] from being fully implemented," impairing his right

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to counsel and to confront the Commonwealth's witness in

violation of his rights afforded by Code § 37.2-901.

The "technical problems" which Shellman alludes to in

almost every instance did not involve problems with the video

conferencing equipment itself. Rather, as the record plainly

demonstrates, it was merely a question of whether the

participants were sufficiently close to the microphones so

that their voices would register on the audio feed, and that

the inability of the parties to hear one another was

immediately rectified. In the one instance where the video

feed actually failed, the record shows that the problem was

immediately noted and that the proceedings were suspended

until the problem was corrected. Thus, at no point material

to the proceedings were the parties prevented from seeing and

speaking to one another.

The record in this case amply demonstrates that Shellman

and his counsel were able to participate fully in the

proceedings, including the ability to see and hear the judge,

opposing counsel, and the witnesses and to cross-examine Dr.

Dennis. Moreover, in the absence of any evidence that

Shellman and his counsel sought to communicate privately or

that such a request would not have been honored, we conclude

that use of the video conference procedure resulted in no

detrimental effect on the ability of counsel to provide

15
Shellman with competent representation. Thus, we hold that

Shellman has not demonstrated he was deprived of any statutory

right afforded him under the SVPA.

Shellman further contends that even if the use of the

video conference did not violate his statutory and due process

rights, it was nonetheless not "practicable" for him to appear

by video conference where he had made an express request to be

physically present. In effect, he contends that the right to

be present at the hearing cannot be satisfied by an appearance

through a video conference if the respondent objects to that

process and asserts the right to "be present during the

hearing," provided by Code § 37.2-901(4), because that right

is in conflict with the "practicability" of conducting the

hearing by video conference permitted by Code § 37.2-910(A).

Thus, Shellman contends that the circuit court abused its

discretion as a matter of law in denying his motion to be

physically present at the assessment hearing. There is no

merit to this contention.

"[W]hen two statutes seemingly conflict, they should be

harmonized, if at all possible, to give effect to both."

Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609

(1998); see also Gilman v. Commonwealth, 275 Va. 222, 230, 657

S.E.2d 474, 477 (2008). A plain reading of the two statutes

at issue here, however, shows that Code § 37.2-901(4) and Code

16
§ 37.2-910(A) are not in conflict. Rather, it is apparent

that by providing for the conduct of an assessment hearing by

video conference "[w]henever practicable," the General

Assembly intended for this procedure to satisfy the

requirement of Code § 37.2-901(4) because the respondent would

"be present during the hearing" by video conference. There

being no conflict in the two statutes, and no evidence in the

record that the conduct of the hearing by video conference was

impracticable, we hold that the circuit court did not abuse

its discretion in denying Shellman's motion to be physically

present at the hearing. 3

Finally, Shellman contends that the recommitment order

entered by the circuit court on November 1, 2011 was erroneous

in that it recited that Shellman suffered from "mental

abnormalities and [a] personality disorder" (emphasis added),

whereas Dr. Dennis opined that Shellman's status as a sexually

violent predator was based solely on the "mental abnormality"

of pedophilia and not that Shellman suffered from any

"personality disorder." On brief, the Commonwealth concedes

that no evidence was offered to show that Shellman suffers

3
Because we find the circuit court did not commit error
in conducting the assessment hearing by video conference, it
is unnecessary for us to address the Commonwealth's argument
that Shellman has not demonstrated prejudice arising from the
manner in which the hearing was conducted.

17
from a "personality disorder" that contributes to his

inability to control his predatory behavior. However, the

Commonwealth contends that the court's summation of the

evidence clearly shows that it relied solely on Dr. Dennis'

testimony concerning Shellman's pedophilia in concluding that

Shellman met the criteria of a sexually violent predator. In

sum, the Commonwealth contends that the additional language of

the recommitment order may be viewed as surplusage or a

scrivener's error, and its mistaken inclusion does not

constitute a reversible error as the record as a whole shows

that Shellman received a fair hearing on the merits and

substantial justice has been reached. Code § 8.01-678. We

agree.

The language of the November 1, 2011 order essentially

tracks statutory criteria for determining whether a respondent

is a sexually violent predator. However, it is not necessary

for the trier of fact in an SVPA proceeding to find that the

respondent suffers from both a mental abnormality and a

personality disorder which makes it difficult for him to

control his predatory behavior. As the record in this case

demonstrates that the circuit court limited its consideration

of Shellman's status as a sexually violent predator to Dr.

Dennis' testimony concerning Shellman's mental abnormality as

a pedophile, we hold that the mistaken inclusion of the

18
additional language in the final order does not constitute

reversible error. However, in order that the record may

"speak the truth," see Jefferson v. Commonwealth, 269 Va. 136,

140, 607 S.E.2d 107, 110 (2005), we will remand the case so

that the surplus language, "and a personality disorder," may

be struck from the order nunc pro tunc. Code § 8.01-428(B).

CONCLUSION

For these reasons, we will affirm the judgment of the

circuit court that Shellman remains a sexually violent

predator in need of secure inpatient treatment, and we will

remand the case for correction of the final order as indicated

herein.

Affirmed and remanded.

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