Present: All the Justices
LORENZO TOWNES
OPINION BY
v. Record No. 040979 JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2005
COMMONWEALTH OF VIRGINIA *
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Judge
Pursuant to Code § 37.1-70.6(A), the Commonwealth
successfully petitioned the Circuit Court of Campbell County
(trial court) to civilly commit Lorenzo Townes as a sexually
violent predator. In this appeal, the dispositive issue we
consider is whether Townes was subject to the statutory scheme
for the civil commitment of sexually violent predators.
BACKGROUND
On April 18, 1973, Townes was convicted in the Circuit
Court of Campbell County of statutory rape in violation of
former Code § 18.1-44 and was sentenced to eighteen years’
imprisonment. A conviction under former Code § 18.1-44 is
*
In the trial court this case was styled “Jerry W. Kilgore,
Attorney General of Virginia, ex rel. Commonwealth of Virginia
v. Lorenzo Townes.” While Code § 37.1-70.6 directs the Attorney
General to initiate the proceedings for civil commitment of an
alleged sexually violent predator, Code § 37.1-70.16 makes clear
that in doing so the Attorney General acts as counsel for the
Commonwealth in such proceedings. Thus, the Commonwealth is not
a relator with only a beneficial interest in the action but is
the real party in interest. Accordingly, we have amended the
name of this case to reflect the proper style.
defined as a predicate “sexually violent offense” for the
determination of a person as a “sexually violent predator.”
Code § 37.1-70.1. Townes completed serving his sentence for
this offense on January 22, 1991. However, as the result of
convictions for other offenses, none of which were sexually
violent offenses, committed by Townes while he was in prison,
Townes remained continuously in prison until April 2, 2002, when
he was granted parole. Townes violated his parole almost
immediately and was returned to prison on April 15, 2002 to
complete his remaining sentence.
On April 2, 2003, the Director of the Virginia Department
of Corrections notified the Commitment Review Committee that
Townes, who was scheduled to be released from prison on August
15, 2003, was subject to review for civil commitment by the
Commitment Review Committee because he had committed a sexually
violent offense and had been identified through testing as being
likely to re-offend. Code § 37.1-70.4. Following an
examination of Townes by Dr. Stephen M. Herrick, a licensed
clinical psychologist and certified sexual offender treatment
provider, as required by Code § 37.1-70.5(B), the Commitment
Review Committee completed its assessment of Townes and on May
21, 2003 forwarded to the Attorney General a recommendation that
Townes be committed as a sexually violent predator.
2
On June 25, 2003, the Commonwealth filed in the trial court
a petition for the civil commitment of Townes. By order entered
that same day, counsel was appointed for Townes as required by
Code § 37.1-70.2. The trial court subsequently entered an order
for the appointment of Dr. Evan Nelson, a clinical psychologist,
as a mental health expert to aid in Townes’ defense.
On July 18, 2003, the trial court conducted a probable
cause hearing as required by Code § 37.1-70.7. After hearing
testimony from Dr. Herrick, the trial court determined that
there was probable cause to believe that Townes is a sexually
violent predator and ordered that Townes remain in custody until
a full hearing on the Commonwealth’s petition could be
conducted.
On September 19, 2003, Townes filed several motions to
dismiss the Commonwealth’s petition. Townes contended in one of
the motions that the trial court lacked jurisdiction because he
had completed his sentence for the 1973 rape conviction and,
thus, was not incarcerated for a predicate sexually violent
offense at the time the Commonwealth’s petition was filed. 1 The
1
Townes also challenged the validity of the 1973 rape
conviction because Townes was a juvenile at the time of the
offense and allegedly was not afforded adequate due process when
he was transferred from the juvenile court to the circuit court
for trial as an adult. Although Townes reasserts this argument
on appeal, it is not germane to our resolution of the
dispositive issue and, accordingly, we will not address it. We
note, however, that in 2003 the legislature amended Code § 37.1-
3
trial court subsequently ruled that although Townes had
completed his sentence for the 1973 rape conviction, he was
subject to commitment as a sexually violent predator because he
remained incarcerated on other offenses.
During the trial on the commitment petition, the
Commonwealth presented evidence from Dr. Herrick, a Department
of Corrections employee, two probation and parole officers, and
the police officer who had arrested Townes on the 1973 rape
charge. Townes presented evidence from Dr. Nelson and Townes’
aunt and brother. Because our resolution of this appeal does
not require an examination of the evidence presented by these
witnesses, we need not recount the substance of their testimony.
Although the two expert witnesses differed in their
opinions, the trial court determined that Townes is a sexually
violent predator. The trial court specifically found that the
evidence established that Townes suffers from an antisocial
personality disorder that makes it difficult for him to control
his predatory behavior, and which makes it likely that he will
engage in sexually violent acts in the future. The trial court
further determined that Townes was in need of in-patient
70.2 to include the provision that “[i]n no event shall a
prisoner or defendant be permitted, as a part of any proceedings
under this article, to raise challenges to the validity of his
prior criminal sentences or institutional convictions.” Acts
2003, chs. 989 and 1018.
4
treatment and that there was no suitable less restrictive
alternative to in-patient treatment. Accordingly, in an order
dated February 9, 2004, the trial court, pursuant to Code
§ 37.1-70.10, ordered that Townes be committed to the custody of
the Department of Mental Health, Mental Retardation and
Substance Abuse Services for appropriate treatment and
confinement in a secure facility. We awarded Townes this
appeal.
DISCUSSION
Along with Commonwealth v. Allen, 269 Va. ___, ___ S.E.2d
___ (2005) (today decided) and McCloud v. Commonwealth, 269 Va.
___, ___ S.E.2d ___ (2005) (today decided), this case involves
the procedures required to be followed in order for the
Commonwealth to have a prisoner who has been convicted of a
sexually violent offense declared to be a sexually violent
predator and to have that prisoner involuntarily committed to a
secure mental health facility at the time of his release from
prison. Those procedures are set out in Chapter 2, Article 1.1
of Title 37.1, commonly referred to as the Sexually Violent
Predators Act (SVPA). Code § 37.1-70.1 through Code § 37.1-
70.19. We have reviewed those procedures in some detail in
McCloud and need not do so again here.
Townes contends that the trial court erred in finding that
he remained subject to the SVPA despite the undisputed fact that
5
he had completed serving his sentence for the 1973 rape
conviction, which the Commonwealth’s petition stated was the
sexually violent predicate offense supporting the assertion that
Townes is a sexually violent predator. The Commonwealth
responds that “[t]he General Assembly did not specifically
require that the prisoner be currently serving a sentence for
the sexually violent offense, only that he be in prison and have
[been convicted of] one of the four predicate offenses”
identified in Code § 37.1-70.1 that constitute sexually violent
offenses.
In relevant part, Code § 37.1-70.4 provides:
. . . .
B. The Director of the Department of Corrections
shall establish and maintain a database of prisoners
in his custody who are incarcerated for sexually
violent offenses.
C. Each month, the Director shall review the
database of prisoners incarcerated for sexually
violent offenses 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 as designated by
the Commissioner. Upon the identification of such
prisoners, the Director shall forward their name,
their scheduled date of release, and a copy of their
file to the [Commitment Review Committee] for
assessment.
(Emphasis added).
Code § 37.1-70.5(A) provides:
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Within 90 days of receiving notice from the
Director pursuant to § 37.1-70.4 regarding a prisoner
who is incarcerated for a sexually violent offense,
the [Commitment Review Committee] shall (i) complete
its assessment of such prisoner for possible
commitment pursuant to subsection B and (ii) forward
its recommendation regarding the prisoner, in written
form, to the Attorney General pursuant to subsection
C.
(Emphasis added).
The Commonwealth’s contention that the language of these
statutes does not limit the application of the SVPA to those
prisoners who are currently serving a sentence for a sexually
violent offense as defined by Code § 37.1-70.1 ignores the
present tense of that language. Grammatically the phrase “who
is incarcerated for a sexually violent offense” simply does not
purport to include prisoners incarcerated on offenses other than
statutorily defined sexually violent offenses. The Commonwealth
contends, however, that this Court should accept the
Commonwealth’s interpretation of these statutes because to do
otherwise would frustrate the purpose of the SVPA. We disagree.
It cannot be seriously disputed that a person subjected to
an involuntary civil commitment proceeding has a substantial
liberty interest in avoiding confinement in a mental hospital.
Zinermon v. Burch, 494 U.S. 113, 131 (1990). “Civil commitment
for any purpose constitutes a significant deprivation of liberty
that requires due process protection.” Addington v. Texas, 441
U.S. 418, 425 (1979). Accordingly, we are of opinion that,
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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.
Contrary to the Commonwealth’s interpretation, when
strictly construed, the clear and unambiguous language of Code
§§ 37.1-70.4 and 37.1-70.5 requires that a prisoner must be
serving an active sentence for a sexually violent offense as
defined by Code § 37.1-70.1 at the time he is identified as
being subject to the SVPA. Moreover, the Commonwealth’s
interpretation of the law would require us to add language and
broaden the scope of the act by applying it to prisoners “who
are or previously have been incarcerated for sexually violent
offenses.” Courts cannot add language to the statute the
General Assembly has not seen fit to include. Holsapple v.
Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003),
cert. denied, ___ U.S. ___, 125 S.Ct. 164 (2004). “Nor are they
permitted to accomplish the same result by judicial
interpretation.” Burlile v. Commonwealth, 261 Va. 501, 511, 544
S.E.2d 360, 365 (2001)). 2
2
Code § 37.1-70.1, the SVPA’s definitional statute, does
define a “sexually violent predator” as “any person who . . .
has been convicted of a sexually violent offense.” (Emphasis
added). However, the statute’s use of the present perfect tense
8
The Commonwealth concedes that at the time Townes was
identified by the Director and referred to the Commitment Review
Committee he had completed serving his sentence for the 1973
rape conviction. Accordingly, we hold that since Townes was no
longer “incarcerated for a sexually violent offense” at the time
of the Director’s notice to the Commitment Review Committee in
this case, the trial court erred in ruling that Townes was
subject to the provisions of the SVPA as a sexually violent
predator. 3
CONCLUSION
For these reasons, we will reverse the judgment of the
trial court and dismiss the Commonwealth’s petition.
Reversed and dismissed.
here in a passive construction is not relevant, as the
definition describes a person who has been determined to be a
sexually violent predator, not a prisoner who is subject to the
process for making that determination.
3
Because Townes was not subject to commitment under the
SVPA, we need not consider his further assignment of error
challenging the trial court’s determination that the evidence
was sufficient to declare him to be a sexually violent predator.
9