Shelton v. Com.

PRESENT: All the Justices

LEO M. SHELTON

v. Record No. 060280 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 8, 2007

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
H. Harrison Braxton, Jr., Judge

In this appeal, we consider whether the circuit court erred

in denying an inmate’s motion to dismiss proceedings initiated

against him under the Civil Commitment of Sexually Violent

Predators Act, Code §§ 37.2-900 through –920 (the Act). The

inmate argued that his score on a test designed to predict sex

offender recidivism fell below the minimum score qualifying an

inmate for further evaluation under the Act. We also consider

whether the inmate properly preserved his argument for

consideration by this Court.

In May 1995, Leo M. Shelton was convicted in the Circuit

Court of the City of Fredericksburg of aggravated sexual battery

and of taking indecent liberties with a child. The circuit

court sentenced Shelton for these offenses to a total of 10

years’ imprisonment, suspending 9 years of the total sentence.

In June 1995, Shelton was convicted in the Circuit Court of

Stafford County (circuit court) of three counts of aggravated

sexual battery, two counts of taking indecent liberties with a

child, and one count of sexual battery. For these offenses,
Shelton received a total sentence of 29 years’ imprisonment,

with 17 years of the total sentence suspended.

Before Shelton’s scheduled release from incarceration, the

Director of the Department of Corrections notified the

Department’s Commitment Review Committee (CRC) that Shelton

qualified for review under the Act because he had been convicted

of a sexually violent offense and had received a score of four

or higher on the Rapid Risk Assessment for Sexual Offender

Recidivism (RRASOR).1 See former Code § 37.1-70.4(C) (Cum. Supp.

2004). The CRC referred Shelton’s case to the Office of the

Attorney General.

After reviewing the CRC’s assessment, the Attorney General

determined that Shelton qualified as a sexually violent predator

under the Act. The Attorney General (the Commonwealth) filed a

petition in the circuit court requesting that Shelton be civilly

committed pursuant to the Act.

1
The Act, originally located in Title 37.1, was recodified
effective October 1, 2005 in Code §§ 37.2-900 through -920.
Further amendments were made to these provisions in 2006 and
2007. However, neither party contends that the reformatting of
these provisions has changed the operative terms and concepts
that affect the disposition of this appeal. Before Shelton’s
scheduled release from prison, the predecessor version of Code
§ 37.2-903 provided that prisoners incarcerated for a sexually
violent offense were to be assessed and evaluated based on the
RRASOR, a testing instrument used in predicting sex offender
recidivism. Under the then-applicable provision, prisoners who
received a score of four or more on the RRASOR were to be
referred to the CRC for further assessment. See former Code
§ 37.1-70.4 and former Code § 37.2-903(C) (Interim Supp. 2005).
For convenience of reference, the current Code references are
used in the remainder of this opinion.

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 At a probable cause hearing in the circuit court, Ronald M.

Boggio, Ph.D., a licensed clinical and forensic psychologist,

testified on behalf of the Commonwealth. Dr. Boggio stated that

the Department of Corrections initially assigned Shelton a score

of five on the RRASOR. However, Dr. Boggio determined that this

initial scoring contained “some errors,” and that Shelton’s

“actual score” on the RRASOR was two. Shelton raised no

objection to the RRASOR score at the probable cause hearing. The

circuit court determined that probable cause existed to believe

that Shelton was a sexually violent predator as defined in the

Act.

Shelton later filed a written motion in the circuit court

to dismiss the proceedings. In his motion and at oral argument

on the motion immediately before the trial began, Shelton argued

that the Commonwealth’s petition should be dismissed because Dr.

Boggio’s testimony at the probable cause hearing established

that Shelton’s actual RRASOR score was less than four. Shelton

contended that, therefore, he should not have been referred for

evaluation under the Act as a sexually violent predator. The

circuit court denied Shelton’s motion.

At trial, Dr. Boggio explained that after the probable

cause hearing, he again evaluated Shelton’s RRASOR score upon

learning that Shelton had committed one of his offenses while

released from jail on bond. Dr. Boggio stated that based on

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this additional information, Shelton should have received a

score of three on the RRASOR.

After hearing further evidence at trial, the circuit court

concluded that Shelton is a sexually violent predator under the

Act because he had been convicted of sexually violent offenses,

had been diagnosed with mental and personality disorders, and

has difficulty controlling his predatory behavior. The circuit

court later considered the issue of appropriate treatment for

Shelton, and determined that Shelton should be committed to the

custody of the Department of Mental Health, Mental Retardation

and Substance Abuse Services for treatment and confinement.

Shelton noted his objection to the circuit court’s final

order by endorsing the order, “SEEN AND OBJECTED TO,” and by

noting on the order that “[the] trial court erred in denying

[the] motion to dismiss for reasons stated in the motion to

dismiss.” This appeal followed.

Shelton argues that the circuit court erred in denying his

motion to dismiss because the evidence showed that the

Department of Corrections assigned him an incorrect score on the

RRASOR. According to Shelton, our holding in Miles v.

Commonwealth, 272 Va. 302, 634 S.E.2d 330 (2006), is controlling

and requires reversal of the circuit court’s judgment because

Shelton did not receive a correctly computed score of four or

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more on the RRASOR before the Commonwealth initiated proceedings

against him under the Act.2

In response, the Commonwealth argues that Shelton did not

adequately preserve this issue for appeal. The Commonwealth

contends that because Shelton did not renew his argument made in

his motion to dismiss at the conclusion of the Commonwealth’s

evidence or at any other point during the trial, he waived that

argument for purposes of appeal. We disagree with the

Commonwealth’s argument.

The primary purpose of requiring timely and specific

objections is to allow the trial court an opportunity to rule

intelligently on the issues presented, thereby avoiding

unnecessary appeals and reversals. Nusbaum v. Berlin, 273 Va.

385, 402-03, 641 S.E.2d. 494, 503 (2007); Johnson v. Raviotta,

264 Va. 27, 33, 563 S.E.2d 727, 731 (2002); Morgen Indus., Inc.

v. Vaughan, 252 Va. 60, 67, 471 S.E.2d 489, 493 (1996); Weidman

v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). A

specific, contemporaneous objection also provides the opposing

party an opportunity to address an issue at a time when the

course of the proceedings may be altered in response to the

problem presented. Nusbaum, 273 Va. at 406, 641 S.E.2d at 505;

Johnson, 264 Va. at 33, 563 S.E.2d at 731; Wright v. Norfolk &

2
Upon rehearing, the Court’s opinion in Miles is affirmed
by a published order dated this day. Miles v. Commonwealth, 274

5
W. Ry. Co., 245 Va. 160, 168, 427 S.E.2d 724, 728 (1993);

Weidman, 241 Va. at 44, 400 S.E.2d at 167. If a party fails to

make a timely objection, the objection is waived for purposes of

appeal. Nusbaum, 273 Va. at 406, 641 S.E.2d. at 505; see

Juniper v. Commonwealth, 271 Va. 362, 384-88, 626 S.E.2d 383,

398-401, cert. denied, ___ U.S. ___, 127 S.Ct. 397 (2006);

Johnson, 264 Va. at 33-34, 563 S.E.2d at 731-32.

Code § 8.01-384(A), which is applicable to the present

civil proceeding, provides in relevant part:

No party, after having made an objection or motion
known to the court, shall be required to make such
objection or motion again in order to preserve his right to
appeal, challenge, or move for reconsideration of, a
ruling, order, or action of the court . . . . Arguments
made at trial via written pleading, memorandum, [or]
recital of objections in a final order . . . shall, unless
expressly withdrawn or waived, be deemed preserved therein
for assertion on appeal.

In accordance with these statutory provisions, we determine

whether Shelton has preserved for appeal his objection raised in

his motion to dismiss by considering 1) the content and timing

of his objection; and 2) whether he waived his objection by

failing to restate it during the trial after the Commonwealth

presented Dr. Boggio’s testimony.

We hold that, when considered together, Shelton’s motion to

dismiss and his qualified endorsement of the final order

constituted a timely and specific objection to the

Va. 1, 645 S.E.2d 924 (2007).

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Commonwealth’s determination that he qualified for evaluation as

a sexually violent predator under the Act. Shelton’s argument

on the motion to dismiss gave the circuit court the opportunity

to consider the substance of Shelton’s objection and to rule

with full knowledge of the reasons underlying his objection. At

the time the circuit court rendered its final decision, as

reflected in Shelton’s endorsement of the final order, the court

again was apprised that Shelton maintained his objection to the

court’s ruling on the motion to dismiss.

In our decisions in several cases, we have rejected

arguments asserting a procedural bar under analogous

circumstances. Applying Code § 8.01-384(A), we have held that a

party’s objection to an error is preserved and is not waived

when that party notes an objection to a final order after making

an earlier objection or written motion permitting the court a

timely opportunity to rule on the argument raised. See Chawla

v. BurgerBusters, Inc., 255 Va. 616, 621-23, 499 S.E.2d 829,

832-33 (1998)(error preserved by plaintiff’s written motion and

supporting oral argument when objection noted on circuit court’s

final order); Stuarts Draft Shopping Ctr., L.P. v. S-D Assocs.,

251 Va. 483, 489, 468 S.E.2d 885, 889 (1996)(error preserved

when plaintiff stated objections in letter to court before trial

and in pretrial motion for summary judgment); Luckett v.

Jennings, 246 Va. 303, 306, 435 S.E.2d 400, 401 (1993)(error

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preserved when party in hearing on demurrer made argument based

on memorandum previously filed and later noted objection on

circuit court’s final order); Weidman, 241 Va. at 44, 400 S.E.2d

at 167 (error preserved when plaintiff filed motion to dismiss

and motion for reconsideration and made notation on circuit

court’s final order “SEEN: and all exceptions noted”) (emphasis

in original); see also McMinn v. Rounds, 267 Va. 277, 280-81,

591 S.E.2d 694, 697 (2004); Majorana v. Crown Central Petroleum

Corp., 260 Va. 521, 525 n.1, 539 S.E.2d 426, 428 n.1 (2000).

Here, as in the cases cited above, Shelton did not waive

his previously stated objection to the circuit court’s ruling.

In order for a waiver to occur within the meaning of Code

§ 8.01-384(A), the record must affirmatively show that the party

who has asserted an objection has abandoned the objection or has

demonstrated by his conduct the intent to abandon that

objection. See King v. Commonwealth, 264 Va. 576, 581, 570

S.E.2d 863, 865-66 (2002); Chawla, 255 Va. at 623, 499 S.E.2d at

833.

Contrary to the Commonwealth’s contention, Shelton did not

stipulate that his original RRASOR score of five was correct.

Instead, he merely stipulated that when the Department of

Corrections initially “scored” the RRASOR, he “was given a

five.” Also, Shelton did not abandon his objection, or

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demonstrate the intent to abandon that objection, by failing to

restate it during trial.

Throughout the proceedings, the circuit court was aware

that Shelton’s objection was based on the testimony of Dr.

Boggio that Shelton’s RRASOR score fell below the minimum score

required by Code § 37.2-903(C). In his trial testimony, Dr.

Boggio confirmed his earlier assessment that Shelton’s RRASOR

score was below the minimum statutory score authorizing referral

of an inmate for evaluation as a sexually violent predator.

Moreover, no other witness contradicted Dr. Boggio’s testimony

that Shelton’s RRASOR score was below the minimum score stated

in the statute. Thus, the evidence at Shelton’s trial did not

affect the merit of his earlier argument or result in an

effective abandonment of his claim. Accordingly, we hold that

Shelton adequately preserved his right to raise this issue on

appeal. See Code § 8.01-384(A).

We therefore consider Shelton’s argument that the circuit

court erred in denying his motion to dismiss. We agree with

Shelton that the resolution of this issue is controlled by our

decision in Miles. There, we considered the same version of

Code § 37.2-903(C) that was in effect when the Commonwealth

filed the present petition against Shelton. At that time, Code

§ 37.2-903(C) provided in relevant part:

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 [T]he 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 four or more on the Rapid Risk Assessment for
Sexual Offender Recidivism or a like score on a comparable,
scientifically validated instrument designed by the
Commissioner. 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.

We held that the statute required that “an inmate evaluated

under the RRASOR receive a correctly computed score of four as a

condition precedent before the Commonwealth may initiate

proceedings to have the inmate declared a sexually violent

predator under the Act.” Miles, 272 Va. at 308-09, 634 S.E.2d

at 334. We based our holding on our strict construction of the

statutory language, as mandated by the rule of lenity that we

have applied to the Act’s provisions. Id. at 307, 634 S.E.2d at

333; see Townes v. Commonwealth, 269 Va. 234, 240, 609 S.E.2d 1,

4 (2005).

In articulating our decision, we specifically rejected the

Commonwealth’s argument that an inmate’s RRASOR score is a mere

procedural screening device, rather than a statutory requirement

for further proceedings under the Act. We held that because the

applicable version of the statute was wholly silent regarding

the Commonwealth’s authority to initiate proceedings under the

Act against inmates who received a correctly computed RRASOR

score of less than four, we were not permitted construe the

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statute to imply such authority.3 Id. at 307-08, 634 S.E.2d at

334.

Based on our decision in Miles, we hold that the circuit

court erred in denying Shelton’s motion to dismiss. The version

of Code § 37.2-903(C) in effect when the present petition was

filed did not authorize the Commonwealth to proceed further

under the Act because the undisputed evidence showed that

Shelton’s correctly computed RRASOR score was lower than the

minimum score required by the statute.4

For these reasons, we will reverse the circuit court’s

judgment and dismiss the Commonwealth’s petition with prejudice.

Reversed and dismissed.

JUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring.

For the reasons stated in my concurring opinion in Miles v.

Commonwealth, 274 Va. 1, 1-2, 645 S.E.2d 924, 924-25 (2007)

(this day decided), I respectfully concur in only the result

reached by the majority. Once again, the Commonwealth’s own

3
Several amendments have been made to the Act, effective
July 1, 2007. Among those amendments is the addition of Code
§ 37.2-905.1, which states that the provisions of Code § 37.2-
903 are procedural, not jurisdictional, and that “[a]bsent a
showing of failure to follow [the provisions of § 37.2-903] as a
result of gross negligence or willful misconduct, it shall be
presumed that there has been substantial compliance with these
provisions.” See 2007 Acts ch. 876.
4
Based on our holding, we do not reach Shelton’s remaining
assignments of error.

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expert witness testified that the inmate’s initial score on the

Rapid Risk Assessment for Sexual Offender Recidivism that

prompted further proceedings under the Sexually Violent

Predators Act was inaccurate and less than the required score of

four. See former Code § 37.2-903(C).

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