Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
HARRY E. WARRINGTON
v. Record No. 092273 OPINION BY JUSTICE DONALD W. LEMONS
September 16, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Richard D. Taylor, Jr., Judge
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”).
I. Facts and Proceedings Below
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.
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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
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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.
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II. Analysis
A. Standard of Review
It is well-established that “[s]tatutory interpretation
presents a pure question of law and is accordingly subject to
de novo review by this Court.” Jones v. Commonwealth, 276 Va.
121, 124, 661 S.E.2d 412, 414 (2008) (internal quotation marks
omitted). Furthermore,
a person subjected to an involuntary civil
commitment proceeding has a substantial liberty
interest in avoiding confinement in a mental
hospital. Civil commitment for any purpose
constitutes a significant deprivation of
liberty that requires due process protection.
Accordingly, we are of opinion that, although
civil in nature, a statutory scheme such as the
SVPA that permits an involuntary commitment
process to be initiated by the Commonwealth is
subject to the rule of lenity normally
applicable to criminal statutes and must
therefore be strictly construed.
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).
B. Substantial Compliance
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
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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:
A. The Director shall establish and
maintain a database of each prisoner in his
custody who is (i) incarcerated for a sexually
violent offense. . . .
B. Each month, the Director shall review
the database and identify all such prisoners
who are scheduled for release from prison
within 10 months from the date of such review
who receive a score of five or more on the
Static-99 or a similar score on a comparable,
scientifically validated instrument designated
by the Commissioner[.]
. . . .
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:
A. Within 120 days of receiving notice
from the Director pursuant to § 37.2-903
regarding a prisoner who is in the database, or
from a court referring a defendant pursuant to
§ 19.2-169.3, the CRC shall (i) complete its
assessment of the prisoner or defendant for
possible commitment pursuant to subsection B
and (ii) forward its written recommendation
regarding the prisoner or defendant to the
Attorney General pursuant to subsection C.
B. CRC assessments of eligible prisoners
or defendants shall include a mental health
examination, including a personal interview, of
the prisoner or defendant by a licensed
psychiatrist or a licensed clinical
psychologist who is designated by the
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Commissioner, skilled in the diagnosis,
treatment, and risk assessment of sex
offenders, and not a member of the CRC. . . .
The licensed psychiatrist or licensed clinical
psychologist shall determine whether the
prisoner or defendant is a sexually violent
predator, as defined in § 37.2-900, and forward
the results of this evaluation and any
supporting documents to the CRC for its review.
The CRC assessment may be based on:
An actuarial evaluation, clinical
evaluation, or any other information or
evaluation determined by the CRC to be
relevant, including but not limited to, a
review of (i) the prisoner’s or defendant’s
institutional history and treatment record, if
any; (ii) his criminal background; and (iii)
any other factor that is relevant to the
determination of whether he is a sexually
violent predator.
Code § 37.2-905 states in relevant part:
A. Upon receipt of a recommendation by the
CRC regarding an eligible prisoner or an
unrestorably incompetent defendant for review
pursuant to § 19.2-169.3, the Attorney General
shall have 90 days to conduct a review of the
prisoner or defendant and (i) file a petition
for the civil commitment of the prisoner or
defendant as a sexually violent predator and
stating sufficient facts to support such
allegation or (ii) notify the Director and
Commissioner, in the case of a prisoner, or the
referring court and the Commissioner, in the
case of an unrestorably incompetent defendant,
that he will not file a petition for
commitment.
Finally, Code § 37.2-905.1 states:
The provisions of §§ 37.2-903, 37.2-904,
and 37.2-905 are procedural and not substantive
or jurisdictional. Absent a showing of failure
to follow these provisions as a result of gross
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negligence or willful misconduct, it shall be
presumed that there has been substantial
compliance with these provisions.
Warrington did not argue, either to the trial court or on
brief to this Court, that the Commonwealth engaged in willful
misconduct. Warrington maintains that the Commownealth’s
reliance in its petition on the report of a licensed
psychologist, who was not qualified in “treatment” as required
by Code § 37.2-904(B), constituted gross negligence and
therefore the Commonwealth did not substantially comply with
the SVPA and the trial court erred in not granting his motion
to dismiss the Attorney General’s petition. Upon review of
the record, it is clear that the Commonwealth complied with
all aspects of Code §§ 37.2-903, 37.2-904, and 37.2-905,
except that Dr. Berman did not have the “treatment”
qualification required by Code § 37.2-904. Immediately upon
discovering this discrepancy, the Attorney General informed
both the trial court and Warrington, and sought to replace Dr.
Berman with a qualified expert who satisfied the statutory
criteria.
We have previously held that “gross negligence is that
degree of negligence which shows indifference to others as
constitutes an utter disregard of prudence amounting to a
complete neglect of the safety of another. It must be such a
degree of negligence as would shock fair minded people
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although something less than willful recklessness.” Green v.
Ingram, 269 Va. 281, 290-91, 608 S.E.2d 917, 922 (2005)
(internal quotation marks and brackets omitted). The
Commonwealth’s actions clearly did not rise to such a
standard. As soon as the mistake was discovered, the Attorney
General informed both the trial court and Warrington and
worked diligently and quickly to resolve the problem.
Because Warrington did not meet his burden of proof in
showing that the Commonwealth’s actions were grossly
negligent, the Commonwealth – pursuant to Code § 37.2-905.1 –
is presumed to have substantially complied with Code §§ 37.2-
903, 37.2-904, 37.2-905. See Code § 37.2-905.1. The trial
court did not err in denying Warrington’s motions to dismiss
and motion for release.
As to the Attorney General’s second amended petition, we
hold that the trial court did not abuse its discretion by
granting the Attorney General’s motion to file a second
amended petition and substituting Dr. Nelson’s report for Dr.
Berman’s report. Rule 1:8, See Harris v. Commonwealth, 279
Va. 123, 129, 688 S.E.2d 279, 282 (2010) (the trial court did
not abuse its discretion “by granting the Commonwealth’s
motion to amend its petition to identify the predicate
sexually violent offense as abduction with the intent to
defile”). Furthermore, because the Attorney General timely
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filed the petition to civilly commit Warrington as a sexually
violent predator when Warrington was still incarcerated for a
sexually violent offense, and because the Commonwealth
substantially complied with the SVPA, the trial court did not
err by ordering Warrington to be held beyond his release date
until a final order was entered on the Attorney General’s
petition.
III. Conclusion
For the reasons stated, we hold that the trial court did
not err by denying Warrington’s motions to dismiss, by
granting the Attorney General’s motion to amend the petition,
by continuing to hold Warrington past his release date, or by
accepting Dr. Nelson’s report. Accordingly, we will affirm
the judgment of the Circuit Court of the City of Richmond.
Affirmed.
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