Gibson v. Commonwealth

Present: All the Justices

DONALD GIBSON
OPINION BY
v. Record No. 131256 CHIEF JUSTICE CYNTHIA D. KINSER
April 17, 2014
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jan L. Brodie, Judge

The Commonwealth filed a petition for the civil commitment

of Donald Gibson as a sexually violent predator pursuant to the

Civil Commitment of Sexually Violent Predators Act (SVPA), Code

§§ 37.2-900 through -921. After the fact finder determined that

Gibson is a sexually violent predator, the circuit court shifted

to Gibson the burden of proof to establish that he satisfies the

criteria for conditional release. Because the burden of proof

does not shift, we will reverse the circuit court's judgment.

RELEVANT FACTS AND PROCEEDINGS

The Commonwealth filed its petition pursuant to Code

§ 37.2-905 and requested the circuit court to hold that Gibson

is a sexually violent predator under Code § 37.2-908 and to find

that no suitable less restrictive alternative to involuntary

secure inpatient treatment is available. See Code § 37.2-

908(D). Following its determination that probable cause existed

to believe that Gibson is a sexually violent predator, see Code

§ 37.2-906(A), the court circuit conducted a two-day jury trial.

Upon the conclusion of the evidence, the jury found that Gibson
is a sexually violent predator as defined in Code § 37.2-900. 1

The circuit court entered an order in accord with the jury's

verdict. Pursuant to Code §§ 37.2-908(D) and (E), the circuit

court ordered that the trial be continued to receive additional

evidence on possible alternatives to commitment and to determine

whether Gibson meets the criteria for conditional release or

should be committed to the custody of the Department of

Behavioral Health and Developmental Services (DBHDS).

At the commencement of the reconvened trial to determine

Gibson's suitability for conditional release, the circuit court

stated: "[W]e go forward with the second phase of this hearing

and I believe [Mr. Gibson], the burden is on you to proceed."

Gibson objected, arguing that the burden was on the Commonwealth

to prove the elements of Code § 37.2-912 are not satisfied.

Gibson stated: "It's the burden of the Commonwealth . . . to

prove by clear and convincing evidence that there is not a

conditional release plan that will meet [the] factors" outlined

in Code § 37.2-912. In response, the Commonwealth,

citing Commonwealth v. Bell, 282 Va. 308, 714 S.E.2d 562 (2011),

argued that the burden is on Gibson to prove by a preponderance

1
In relevant part, the term "[s]exually violent predator
means any person who (i) has been convicted of a sexually
violent offense . . . ; and (ii) because of a mental abnormality
or personality disorder, finds it difficult to control his
predatory behavior, which makes him likely to engage in sexually
violent acts." Code § 37.2-900.

2
of the evidence that he meets the criteria for conditional

release. The circuit court agreed with the Commonwealth.

Relying on Bell and Code § 37.2-912, the circuit court shifted

to Gibson the burden of proof to demonstrate that he satisfies

the criteria for conditional release.

Gibson offered evidence in support of a conditional release

plan, including testimony from his family members who, under the

plan, would be tasked with his supervision if he were

conditionally released. After reviewing the conditional release

plan and hearing the evidence, which included a report from the

Commissioner of DBHDS as required by Code § 37.2-908(E), the

circuit court found that Gibson does not meet the criteria in

Code § 37.2-912(A). The court concluded that Gibson needs

inpatient treatment as a sexually violent predator and that the

conditional release plan does not "provide appropriate

outpatient supervision." The court also doubted that Gibson

"would comply with the conditions specified" and believed that

"he would present an undue risk to public safety." The court

ordered that Gibson be committed to the custody of DBHDS for

appropriate treatment and confinement. See Code § 37.2-908(D).

We granted Gibson's appeal on the sole issue whether the

circuit court erred in holding that Gibson bore the burden of

proof to establish the criteria for conditional release under

Code § 37.2-912(A).

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 ANALYSIS

The SVPA sets forth the statutory scheme that permits a

person convicted of a sexually violent offense to be declared a

sexually violent predator and committed to involuntary secure

inpatient treatment in a mental health facility after release

from prison. Although a proceeding under the SVPA is civil, it

nevertheless entails the potential involuntary loss of liberty,

and therefore a respondent subject to such a proceeding is

afforded certain rights typically available in a criminal

proceeding. McCloud v. Commonwealth, 269 Va. 242, 253-54, 609

S.E.2d 16, 21-22 (2005); see Code § 37.2-901. "[I]nvoluntary

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); accord Townes v.

Commonwealth, 269 Va. 234, 240, 609 S.E.2d 1, 4 (2005) ("Civil

commitment for any purpose constitutes a significant deprivation

of liberty that requires due process protection.") (internal

quotation marks omitted); see also Foucha v. Louisiana, 504 U.S.

71, 79 (1992) ("'The loss of liberty produced by an involuntary

commitment is more than a loss of freedom from confinement.'")

(quoting Vitek v. Jones, 445 U.S. 480, 492 (1980)).

When a proceeding under the SVPA reaches the trial stage,

the fact finder must determine "whether, by clear and convincing

4
evidence, the respondent is a sexually violent predator." Code

§ 37.2-908(C). Upon such a finding, the trial court then

determines whether to commit the respondent or to continue the

trial to receive additional evidence regarding possible

alternatives to commitment. Code §§ 37.2-908(D) and (E). When

the trial court decides to continue the trial to receive such

additional evidence, as the circuit court did in this case, the

court shall "reconvene the trial and receive testimony on the

possible alternatives to commitment." Code § 37.2-908(E). At

the conclusion of such testimony, the court

shall consider: (i) the treatment needs of
the respondent; (ii) whether less
restrictive alternatives to commitment have
been investigated and deemed suitable; (iii)
whether any such alternatives will
accommodate needed and appropriate
supervision and treatment plans for the
respondent, including but not limited to,
therapy or counseling, access to
medications, availability of travel, and
location of proposed residence; and (iv)
whether any such alternatives will
accommodate needed and appropriate regular
psychological or physiological testing,
including but not limited to, penile
plethysmograph testing or sexual interest
testing. If the court finds these criteria
are adequately addressed and the court finds
that the respondent meets the criteria for
conditional release set forth in § 37.2-912,
the court shall order that the respondent be
returned to the custody of the Department of
Corrections to be processed for conditional
release as a sexually violent predator
pursuant to his conditional release plan.

Code § 37.2-908(E).

5
 Pursuant to Code § 37.2-912(A), when the trial court

considers a respondent's need for secure inpatient treatment,

it shall place the respondent on conditional
release if it finds that (i) he does not
need secure inpatient treatment but needs
outpatient treatment or monitoring to
prevent his condition from deteriorating to
a degree that he would need secure inpatient
treatment; (ii) appropriate outpatient
supervision and treatment are reasonably
available; (iii) there is significant reason
to believe that the respondent, if
conditionally released, would comply with
the conditions specified; and (iv)
conditional release will not present an
undue risk to public safety. In making its
determination, the court may consider (i)
the nature and circumstances of the sexually
violent offense for which the respondent was
charged or convicted, including the age and
maturity of the victim; (ii) the results of
any actuarial test, including the likelihood
of recidivism; (iii) the results of any
diagnostic tests previously administered to
the respondent under this chapter; (iv) the
respondent's mental history, including
treatments for mental illness or mental
disorders, participation in and response to
therapy or treatment, and any history of
previous hospitalizations; (v) the
respondent's present mental condition; (vi)
the respondent's response to treatment while
in secure inpatient treatment or on
conditional release, including his
disciplinary record and any infractions;
(vii) the respondent's living arrangements
and potential employment if he were to be
placed on conditional release; (viii) the
availability of transportation and
appropriate supervision to ensure
participation by the respondent in necessary
treatment; and (ix) any other factors that
the court deems relevant.

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If, after considering the factors in Code § 37.2-912(A), the

trial court concludes that there is "no suitable less

restrictive alternative to involuntary secure inpatient

treatment," the court shall "order that the respondent be

committed to the custody of [DBHDS] for appropriate inpatient

treatment in a secure facility." Code § 37.2-908(D).

The issue in this appeal is whether the burden of proof

remains with the Commonwealth during the reconvened trial to

establish by clear and convincing evidence that no suitable less

restrictive alternative to involuntary secure inpatient

treatment exists, or whether the burden of proof shifts to the

respondent to establish that he meets the criteria for

conditional release under Code § 37.2-912(A). That issue is a

question of law reviewed de novo on appeal. Gallagher v.

Commonwealth, 284 Va. 444, 449, 732 S.E.2d 22, 24 (2012).

Recognizing that the SVPA is silent with regard to the

burden of proof regarding the criteria for conditional release

in Code § 37.2-912(A), the Commonwealth asserts that the burden

of proof shifts to the respondent to establish those factors.

The Commonwealth contends that the Court's decision in Bell,

which involved an annual review under Code § 37.2-910, governs

Gibson's reconvened trial because the plain language of Code §

37.2-912(A) requires a trial court to address the criteria for

conditional release "any time the court considers the

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respondent's need for secure inpatient treatment." The

Commonwealth further argues that the "wording" of the four

criteria for conditional release in Code § 37.2-912(A), which

require the trial court to make affirmative findings, indicates

that the burden of proof rests on the respondent.

In Bell, the Commonwealth challenged, among other things,

the sufficiency of the evidence to sustain the trial court's

judgment at the first annual review. 282 Va. at 310, 714 S.E.2d

at 563; see Code § 37.2-910. The trial court found that

although the respondent remained a sexually violent predator, he

nevertheless satisfied the criteria for conditional release in

Code § 37.2-912(A). 282 Va. at 310, 714 S.E.2d at 563. At

trial, the respondent had conceded that it was his burden to

establish the criteria for conditional release, and he made the

same concession on brief to this Court, asserting that his

burden was by a preponderance of the evidence. Id. at 313, 714

S.E.2d at 564. In response, the Commonwealth noted on brief

that this Court had already addressed the burden of proof when

determining whether to civilly commit or conditionally release a

sexually violent predator in McCloud and that the respondent

cited no authority for a different burden of proof depending on

whether that determination was made at an initial sexually

violent predator trial or during an annual review hearing.

Although allocation of the burden of proof was not the subject

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of the Commonwealth's assignments of error in Bell, this Court

stated: "We agree with [the respondent's] allocation of the

burden of proof, and recognize it as the appropriate allocation

on conditional release in sexually violent predator cases." Id.

at 313, 714 S.E.2d at 564.

That statement appears to be contrary to our earlier

decision in McCloud. There, we held that "the burden of proving

that there is no suitable less restrictive alternative to

involuntary confinement rests with the Commonwealth, and that

burden cannot be shifted to the [respondent]." 269 Va. at 261,

609 S.E.2d at 26. The Commonwealth argues that Bell tacitly

overruled McCloud on this point, while Gibson argues that Bell

addressed the burden of proof only in an annual review hearing

and that McCloud still governs as to an initial sexually violent

predator trial.

The SVPA expressly addresses allocation of the burden of

proof in only one place. Code § 37.2-910(C) provides that at

the mandatory review hearings conducted periodically after the

initial date of commitment, the Commonwealth must establish "by

clear and convincing evidence that the respondent remains a

sexually violent predator." Code § 37.2-908(C), however,

implicitly addresses the burden of proof by providing that the

fact finder must "determine whether, by clear and convincing

evidence, the respondent is a sexually violent predator." In

9
upholding the constitutionality of the SVPA and finding that it

satisfies due process requirements, we have emphasized that the

"individual's interest in the outcome of a civil commitment

proceeding is of such weight and gravity that due process

requires the state to justify confinement by proof more

substantial than a mere preponderance of the evidence" and that

"the 'clear and convincing' evidentiary standard is the minimum

standard that may be used in a civil commitment

proceeding." Shivaee v. Commonwealth, 270 Va. 112, 126, 613

S.E.2d 570, 578 (2005) (quoting Addington v. Texas, 441 U.S.

418, 427, 432-33 (1979)). The burden of proof by clear and

convincing evidence rests on the Commonwealth, not the

respondent, and never shifts. See Dobson v. Commonwealth, 260

Va. 71, 74-75, 531 S.E.2d 569, 571 (2000) (recognizing that an

impermissible shifting of the burden of proof implicates due

process rights).

Thus, we reiterate our holding in McCloud:

[T]he burden of proving that there is no
suitable less restrictive alternative to
involuntary confinement rests with the
Commonwealth, and that burden cannot be
shifted to the [respondent]. However, when
. . . the Commonwealth has adduced evidence
sufficient to satisfy the trial court that
involuntary confinement is necessary and,
thus, less restrictive alternatives are
unsuitable, the [respondent] then has the
burden of going forward with his case if he
is to rebut the Commonwealth's evidence.

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269 Va. at 261, 609 S.E.2d at 26.

The criteria for conditional release in Code § 37.2-912(A)

must be satisfied "[a]t any time the court considers the

respondent's need for secure inpatient treatment pursuant to

[the SVPA]." (Emphasis added.) We discern no reason to draw a

distinction between an initial sexually violent predator trial

and an annual review hearing in terms of which party bears the

burden of proof on the issue whether there are no suitable less

restrictive alternatives to involuntary confinement. 2 In both

instances, when the Commonwealth presents a prima facie case

showing that there is no suitable less restrictive alternative

to involuntary commitment, the respondent then has the burden to

produce evidence to rebut the Commonwealth's case by showing

2
In Bell, the question as to which party had the burden of
proof to establish the criteria for conditional release was not
at issue and thus our statement regarding the burden of proof
was dicta. But, to the extent Bell is contrary to our holding
today, it is overruled. We are mindful of the doctrine of stare
decisis and the critical role it serves in ensuring stability in
the law. However, stare decisis "'is not an inexorable
command.'" Home Paramount Pest Control Cos. v. Shaffer, 282 Va.
412, 419, 718 S.E.2d 762, 766 (2011) (quoting McDonald v. City
of Chicago, 561 U.S. ___, ___ 130 S.Ct. 3020, 3063, (2010)
(Thomas, J., concurring). And thus, when warranted, "we have
not hesitated to reexamine our precedent in proper cases and
overrule such precedent." Nunnally v. Artis, 254 Va. 247, 253,
492 S.E.2d 126, 129 (1997). "[S]tare decisis cannot possibly be
controlling when" the rule at issue "does not serve as a guide
to lawful behavior" and "has been proved manifestly erroneous."
United States v. Gaudin, 515 U.S. 506, 521 (1995).

11
that the respondent meets the criteria for conditional release

in Code § 37.2-912(A). 3

CONCLUSION

For the foregoing reasons, we conclude that the circuit

court erred by requiring Gibson to bear the burden of proof to

establish that he satisfies the criteria for conditional release

in Code § 37.2-912(A). We will reverse the circuit court's

judgment and remand the case for further proceedings consistent

with this opinion.

Reversed and remanded.

3
The burden of proof is not to be confused with the burden
of going forward to produce evidence. The burden of proof, also
referred to as the burden of persuasion, never shifts. Vahdat
v. Holland, 274 Va. 417, 424, 649 S.E.2d 691, 695 (2007); Darden
v. Murphy, 176 Va. 511, 516, 11 S.E.2d 579, 581 (1940); see also
Bacon v. Bacon, 3 Va. App. 484, 488 n.1, 351 S.E.2d 37, 40 n.1
(1986). When a plaintiff presents a prima facie case, the
burden of producing evidence to overcome that prima facie case,
also referred to as the burden of going forward, then shifts to
the defendant. Darden, 176 Va. at 516, 11 S.E.2d at 581. The
same is true in a criminal prosecution. See Neal v.
Commonwealth, 124 Va. 842, 848, 98 S.E. 629, 631 (1919) (holding
that "[t]he evidence may shift from one side to the other," but
Commonwealth always has the burden to prove a defendant's guilt
beyond a reasonable doubt).

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