Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Carrico and Koontz, S.JJ. ∗
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 100840 JUSTICE LEROY F. MILLETTE, JR.
March 4, 2011
MWANDO MICHAEL AMERSON
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Pursuant to the Civil Commitment of Sexually Violent
Predators Act (SVPA or Act), Code §§ 37.2-900 et seq., the
Commonwealth petitioned the Circuit Court for the City of
Virginia Beach to civilly commit Mwando Michael Amerson as a
sexually violent predator (SVP) following his release from
prison on a sexually violent offense. The circuit court, by
agreed order, found Amerson to be an SVP. A hearing was then
held to determine whether Amerson should be civilly committed
or conditionally released. At the conclusion of the hearing,
the circuit court decided to conditionally release Amerson to
an out-of-state agency, the Court Services and Offender
Supervision Agency for the District of Columbia (CSOSA). The
question presented is whether the circuit court had the
authority under the SVPA to conditionally release Amerson
outside the Commonwealth.
∗
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
I. BACKGROUND
In December 1999, Amerson was convicted of attempted rape
in the circuit court. He was sentenced to five years’
imprisonment, with all but 10 months suspended, and three
years’ supervised probation. He was released from prison in
March 2000.
In October 2002, while on probation for the 1999 offense,
Amerson was arrested and charged with first-degree child sexual
abuse in Washington, D.C. He entered a plea of guilty to
second-degree child sexual abuse and was sentenced to three
years’ imprisonment and three years’ supervised probation.
While he was serving his sentence for the 2002 offense in the
federal prison system, his probation for the 1999 offense was
revoked in the circuit court. Hence, after completing his
sentence for the 2002 offense, he was transferred from the
federal prison system to the Virginia Department of Corrections
to serve the remainder of his sentence for the 1999 offense —
four years and two months.
In November 2008, shortly before Amerson was scheduled to
be released from prison, the Commonwealth, pursuant to the
SVPA, petitioned the circuit court to civilly commit him as an
SVP. In July 2009, the circuit court, by agreed order, found
Amerson to be an SVP and ordered the Department of Behavioral
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Health and Developmental Services 1 (DBHDS) to prepare a report
on possible alternatives to civil commitment in accordance with
the SVPA.
Six months later, in January 2010, the circuit court held
a hearing to determine whether Amerson should be civilly
committed or conditionally released. During the hearing, two
conditional release plans were presented: one had Amerson
residing in Virginia and being supervised by DBHDS (the
Virginia plan), and the other had him residing in Washington,
D.C. and being supervised by CSOSA (the Washington plan). The
Commonwealth opposed both plans, claiming, among other things,
that Amerson would present an undue risk to public safety if he
were conditionally released. Nevertheless, it argued, if
Amerson were to be conditionally released rather than civilly
committed, he could only be conditionally released pursuant to
the Virginia plan because the SVPA does not permit an SVP to be
conditionally released outside the Commonwealth. It also
maintained that Amerson could not be transferred to CSOSA
pursuant to the Interstate Compact for the Supervision of Adult
Offenders (Interstate Compact), Code §§ 53.1-176.1 et seq.,
because he was no longer subject to supervision by the
1
Prior to July 1, 2009, the Department’s name was the
“Department of Mental Health, Mental Retardation and Substance
Abuse Services.” It was changed to the “Department of
3
Commonwealth as the result of the commission of a criminal
offense.
Amerson countered that he should be conditionally
released, as opposed to civilly committed, because, after
successfully completing state and federal sex-offender
treatment programs, he no longer needed secure inpatient
treatment. He asserted, moreover, that he should be
conditionally released in accordance with the Washington plan
because: (1) the individuals who would support him if he were
conditionally released lived in Washington, D.C.; (2) CSOSA had
agreed to supervise him under the Interstate Compact if he were
conditionally released in Washington, D.C.; (3) he had been
accepted by the University of the District of Columbia, where
he intended to continue his studies in business accounting; and
(4) he had two offers of employment in Washington, D.C.
After hearing the testimony of several expert witnesses
and the arguments of counsel, the circuit court took a recess
to call CSOSA to verify that, in the event that Amerson were
conditionally released in Washington, D.C., the agency would
notify DBHDS if he violated the conditions of his release.
When the hearing resumed, the circuit court informed counsel
that it had spoken with a supervisor at CSOSA who said that the
Behavioral Health and Development Services” effective July 1,
2009. See 2009 Acts chs. 813, 840.
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agency had accepted Amerson under the Interstate Compact and
that it would enforce all of the conditions of his release as
set forth in the circuit court’s order, including any condition
requiring notification to DBHDS in the event of a violation.
Apparently satisfied with the supervisor’s representations, the
circuit court ordered Amerson’s conditional release to CSOSA
under the Washington plan.
Following the hearing, the Commonwealth filed a motion to
stay the execution of the circuit court’s order conditionally
releasing Amerson to CSOSA. The circuit court denied the
motion to stay and entered its final order. The Commonwealth
noted its appeal and filed with this Court a motion to stay the
execution of the circuit court’s final order. We granted both
the Commonwealth’s motion to stay and its petition for appeal
on the following assignment of error:
The trial court erred by ordering that Amerson be
conditionally released as a sexually violent predator
to reside and be supervised outside of the
Commonwealth of Virginia without authority to do so
and contrary to the SVPA.
II. DISCUSSION
Whether the SVPA permits the conditional release of an SVP
outside the Commonwealth is a question of statutory
interpretation. As such, it “ ‘presents a pure question of law
and is accordingly subject to de novo review by this Court.’ ”
Warrington v. Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233,
5
235 (2010) (quoting Jones v. Commonwealth, 276 Va. 121, 124,
661 S.E.2d 412, 414 (2008)).
“ ‘[T]he primary objective of statutory construction is to
ascertain and give effect to legislative intent.’ ” Conger v.
Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010)
(alteration in original) (quoting Turner v. Commonwealth, 226
Va. 456, 459, 309 S.E.2d 337, 338 (1983)). “ ‘When the
language of a statute is unambiguous, we are bound by the plain
meaning of that language.’ ” Commonwealth v. Morris, 281 Va.
70,76, ___ S.E.2d ___, ___ (2011) (quoting Conyers v. Martial
Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174,
178 (2007)). And “ ‘[i]f a statute is subject to more than one
interpretation, we must apply the interpretation that will
carry out the legislative intent behind the statute.’ ” Id.
(quoting Conyers, 273 Va. at 104, 639 S.E.2d at 178).
Moreover, although SVPA proceedings are civil, rather than
criminal, in nature, we have held that the Act is subject to
the rule of lenity because “ ‘[c]ivil commitment for any
purpose constitutes a significant deprivation of liberty that
requires due process protection.’ ” Warrington, 280 Va. at
370, 699 S.E.2d at 235 (quoting Townes v. Commonwealth, 269 Va.
234, 240, 609 S.E.2d 1, 4 (2005)). It “ ‘must therefore be
strictly construed.’ ” Id. (quoting Townes, 269 Va. at 240,
609 S.E.2d at 4).
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The Commonwealth argues that the circuit court could not
conditionally release Amerson to CSOSA under the SVPA because
the Act contains no provision permitting the conditional
release of an SVP outside the Commonwealth. Amerson concedes
that the SVPA does not explicitly authorize the conditional
release of an SVP outside the Commonwealth, but contends that
it does so implicitly. He first points to the following
language of Code § 37.2-912(A): “The court shall subject the
respondent to the orders and conditions it deems will best meet
his need for treatment and supervision and best serve the
interests of justice and society.” Amerson submits that this
language demonstrates that the General Assembly understood that
each SVP is different and thus intended to give courts
discretion to “mold the shape of the SVPA to fit the SVP; not
the SVP to fit the SVPA.”
Next, Amerson points out that, under Code § 37.2-912, a
conditional release order may be implemented by DBHDS “or, if
the [SVP] is on parole or probation, the [SVP’s] parole or
probation officer.” Because “‘[p]arole or probation officer’
is not preceded by a specifying term confining the officer to
the Commonwealth of Virginia,” Amerson argues, the General
Assembly “le[ft] open the possibility that the conditions of
release could be implemented by ANY parole or probation
officer.”
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Lastly, Amerson points to Code § 37.2-909(A), which
provides in relevant part:
Any respondent committed pursuant to this
chapter shall be placed in the custody of [DBHDS] for
control, care, and treatment until such time as the
respondent’s mental abnormality or personality
disorder has so changed that the respondent will not
present an undue risk to public safety. [DBHDS]
shall provide such control, care, and treatment at a
secure facility operated by it or may contract with
private or public entities, in or outside of the
Commonwealth, or with other states to provide
comparable control, care, or treatment.
Amerson contends that, if DBHDS may contract with another
entity outside the Commonwealth to provide control, care, or
treatment for a civilly committed SVP, then it surely may do so
for a conditionally released SVP. After all, Amerson
continues, had the General Assembly intended for every SVP to
remain inside the Commonwealth, it could have said so in the
SVPA, but “[t]here is no provision, code section, or even
reference to a single word or term confining an offender to
remain in Virginia.”
We find Amerson’s arguments unpersuasive for several
reasons. First, while it is true that courts are given some
discretion under the SVPA to set the conditions for release,
they do not have the authority, as Amerson puts it, to “mold
the shape of the SVPA to fit the SVP.” A court’s authority to
civilly commit or conditionally release an SVP is wholly
derived from and limited by the SVPA. Thus, a court may not go
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beyond the authority granted in the Act in determining the
proper course of action for an SVP, even if it believes that
doing so would “best meet his need for treatment and
supervision and best serve the interests of justice and
society.” Code § 37.2-912(A).
Second, although the SVPA does not define “parole or
probation officer,” we think it clear that the General Assembly
was only referring to Virginia parole and probation officers.
As the Commonwealth notes, the Act also does not define
“Department of Corrections,” “Attorney General,” “community
service boards,” “judicial officer,” and “law-enforcement
officer.” It is, however, manifest from the context in which
those terms are used that they only refer to Virginia entities
and personnel. Further, as the Commonwealth maintains, the
General Assembly could not have intended to legislate with
reference to entities and personnel over which it has no
authority.
Third, Amerson reads too much into Code § 37.2-909(A). By
its terms, that section only refers to the placement of SVPs
who are civilly committed, not conditionally released. As Code
§ 37.2-909(A) demonstrates, had the General Assembly intended
to allow DBHDS to contract with an entity outside the
Commonwealth to monitor or supervise a conditionally released
SVP, then it certainly knew how to include such a provision.
9
For us to adopt Amerson’s reading of Code § 37.2-909(A), then,
we would have “to add language to the statute that the General
Assembly declined to employ.” Virginian-Pilot Media Cos., LLC
v. Dow Jones & Co., 280 Va. 464, 468, 698 S.E.2d 900, 902
(2010). Time and again, we have “refused to engage in that
enterprise” because “ ‘[w]e must determine the legislative
intent by what the statute says and not by what we think it
should have said.’ ” Id. at 468-69, 698 S.E.2d at 902 (quoting
Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401, 406-07
(1963)).
Finally, when the SVPA is read as a whole, we believe it
evident that the Act does not provide for the conditional
release of an SVP outside the Commonwealth. For instance, as
the Commonwealth points out, Code § 37.2-913(B), which
addresses the execution of an emergency custody order for an
SVP who has violated the conditions of his release, only
contemplates the conditional release of an SVP inside the
Commonwealth:
The emergency custody order shall require a law-
enforcement officer to take the respondent into
custody immediately. A law-enforcement officer may
lawfully go to or be sent beyond the territorial
limits of the county, city, or town in which he serves
to any point in the Commonwealth for the purpose of
executing an emergency custody order pursuant to this
section.
10
(Emphasis added.) Had the General Assembly intended to
permit the conditional release of an SVP in and outside the
Commonwealth, we would expect a provision of the SVPA
addressing the emergency custody of an SVP who was
conditionally released outside the Commonwealth — but there
is no such provision.
The circuit court recognized this problem, but
nonetheless ordered Amerson to be conditionally released to
CSOSA because, in its view, a capias could be issued for
him if he violated the conditions of his release. As the
Commonwealth contends, a capias is not an adequate
substitute for the retrieval mechanism laid out in Code
§ 37.2-913(B) because it cannot be served outside the
Commonwealth. But even if it were adequate, we find it
unlikely that the General Assembly would have left it up to
courts to devise such a substitute retrieval mechanism on
an ad hoc basis.
In sum, we conclude that no provision of the SVPA
authorizes the conditional release of an SVP outside the
Commonwealth. We therefore hold that the circuit court erred
in conditionally releasing Amerson to CSOSA in accordance with
the Washington plan. 2
2
Amerson also claims that the circuit court had authority
to transfer him to CSOSA under the Interstate Compact. We
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III. CONCLUSION
For the reasons stated, we reverse the judgment of the
circuit court and remand the case in order to allow that court
to determine whether Amerson should be conditionally released
pursuant to the Virginia plan.
Reversed and remanded.
disagree for two reasons. First, the Interstate Compact gives
the Interstate Commission, not courts, the power “[t]o oversee,
supervise and coordinate the interstate movement of offenders.”
Code § 53.1-176.2, art. V. Second, the Interstate Compact does
not apply to him because he is not “an adult placed under, or
subject to, supervision as the result of the commission of a
criminal offense.” Id., art. II. Rather, he is subject to
supervision by the Commonwealth because he has been found to be
an SVP under the SVPA – which is a civil, not a criminal,
statutory scheme. Code § 37.2-901.
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