In the Matter of Jeffrey Allen Chapman

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of the Care and Treatment of Jeffrey Allen
Chapman, Appellant.

Appellate Case No. 2014-001181

Appeal From Greenville County

The Honorable Robin B. Stilwell, Circuit Court Judge

Opinion No. 27705

Heard May 17, 2016 – Filed February 15, 2017

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan M. Wilson and Senior Assistant
Deputy Attorney General Deborah R.J. Shupe, both of
Columbia, for Respondent.

JUSTICE HEARN: A Greenville County jury found Jeffrey Chapman met
the statutory definition of a sexually violent predator (SVP) as set forth in South
Carolina's Sexually Violent Predator Act (the Act),1 and the trial court
subsequently signed an order to civilly commit Chapman. In this direct appeal,
Chapman presents a novel issue of law related to the right to counsel in SVP

1
See generally S.C. Code Ann. §§ 44-48-10 to -170 (2002 & Supp. 2014); see also
S.C. Code Ann. § 44-48-30(1) (defining an SVP as a person who "suffers from a
mental abnormality or personality disorder that makes the person likely to engage
in acts of sexual violence if not confined in a secure facility for long-term control,
care, and treatment" and who has a qualifying sexually violent conviction).
proceedings. We hold that persons committed as SVPs have a right to the effective
assistance of counsel, and they may effectuate that right by seeking a writ of
habeas corpus. Therefore, although we affirm Chapman's commitment on issue
preservation grounds, he may reassert his ineffective assistance of counsel claims
in a future habeas proceeding.

FACTUAL/PROCEDURAL BACKGROUND
In 2005, Chapman pled guilty to one count of lewd act on a minor, involving
a ten-year-old female. He was sentenced to fifteen years' imprisonment, suspended
to time served and five years' probation. Approximately five years later,
Chapman's probation was revoked due to "technical violations," including a failure
to comply with his curfew and GPS monitoring requirements, and a circuit court
judge ordered him imprisoned for five years of his original sentence.

In 2013, prior to Chapman's release from prison, the State filed a petition
under the Act seeking Chapman's commitment as an SVP. In support of its
petition, the State cited Chapman's four prior convictions involving sexual assaults
on women, as well as the conviction for lewd act on a minor.

At Chapman's commitment trial,2 the State presented testimony from Dr.
Marie Gehle, the chief psychologist at the South Carolina Department of Mental
Health, who the court qualified as an expert in forensic and clinical psychology
and SVP mental health evaluations. Dr. Gehle testified she reviewed Chapman's
incarceration records, military records, and criminal history, including

2
Before opening statements, the trial court instructed the jury about the Act and
fully charged the jury on the law applicable to SVP cases. The trial court did not
re-charge the jury at the conclusion of the trial. See Rule 51, SCRCP ("[T]he court
shall instruct the jury after the arguments are completed."). We note trial courts
must charge the jury on the legal issues that apply to the evidence adduced at trial.
Clark v. Cantrell, 339 S.C. 369, 390, 529 S.E.2d 528, 539 (2000) ("When
instructing the jury, the trial court is required to charge only principles of law that
apply to the issues raised in the pleadings and developed by the evidence in support
of those issues." (emphasis added)). While preliminary jury charges may aid the
jury's understanding of the trial, it is impossible to be prescient with complete
accuracy, and therefore jury charges given at the beginning of trial will almost
never cover all of the relevant law that will be "developed by the evidence." For
this reason, trial courts should reiterate and supplement those charges at the
conclusion of a trial. See Rule 51, SCRCP.
investigation summaries, witness statements, Chapman's statements, and
sentencing sheets. Additionally, Dr. Gehle testified she interviewed Chapman and
performed psychological testing, which included completing the Static-99R
actuarial risk assessment tool.3

In explaining her findings, Dr. Gehle detailed the facts surrounding
Chapman's prior sex offenses, including two sexual assault convictions in Florida
in 1986, an attempted second-degree rape conviction in North Carolina in 1991, a
third-degree criminal sexual conduct conviction in South Carolina in 1992, an
indecent exposure conviction in South Carolina in 1997, and a lewd act on a minor
conviction in South Carolina in 2005. Dr. Gehle stated Chapman's behavior in
each instance appeared to be impulsive and violent. Moreover, she testified
Chapman took no responsibility for his actions, instead claiming the convictions
were the result of consensual sex or fabrication by the victims.

From her review of Chapman's records, psychological tests, and personal
interview, Dr. Gehle concluded Chapman suffered from biastophilia,4 anti-social
personality disorder, and substance abuse disorder. As a result of the interplay of
the characteristics of those diagnoses, Dr. Gehle opined that Chapman posed a high
risk of reoffending.

In contrast, Chapman presented testimony from several personal
acquaintances, each of whom testified to Chapman's good character. The
witnesses stated that after Chapman's last conviction, his life and attitude had
changed drastically as a result of him attending church. Chapman testified as well,
stating drugs and alcohol had a significant effect on his life since his teenage years,
and blaming substance abuse for most of his bad actions.

Chapman's final witness was Dr. David Price, a psychologist, who the court
qualified as an expert in clinical and forensic psychology. Dr. Price testified he
disagreed with Dr. Gehle's diagnoses of biastophilia and anti-social personality
disorder. In part, Dr. Price stated his disagreement stemmed from Dr. Gehle's
application and interpretation of the psychological tests Chapman completed,

3
Dr. Gehle explained the Static-99R is an actuarial tool consisting of ten questions
that "have been proven significantly related to sexual offending."
4
According to Dr. Gehle, biastophilia occurs "when a person experiences
recurrent, intense, sexually arousing fantasies, urges or behaviors involving
corrosive sexual acts with non-consenting persons over a period of at least six
months."
including the Static-99R test, because the test had been discredited to some degree
in professional circles.

Throughout the two-day trial, Chapman's counsel did not make any motions,
including a motion for a directed verdict or JNOV. Further, Chapman's counsel
objected only once, during Dr. Price's voir dire.

Ultimately, the jury found Chapman met the statutory definition for an SVP,
and the trial court ordered Chapman's commitment. Chapman appealed, and the
Court certified the appeal pursuant to Rule 204(b), SCACR.

ISSUES PRESENTED
I. Does a person committed as an SVP have a due process right to effective
assistance of counsel?

II. If a person committed as an SVP has a right to effective assistance of
counsel, when during his appeal may he raise his trial counsel's perceived
errors?

III. If a person committed as an SVP has a right to effective assistance of
counsel, what standard should a court use to evaluate counsel's
performance?

IV. Did trial counsel's failure to object to various alleged errors during trial
violate Chapman's right to effective assistance of counsel?

STANDARD OF REVIEW
"Questions of statutory construction are a matter of law." Boiter v. S.C.
Dep't of Transp., 393 S.C. 123, 132, 712 S.E.2d 401, 405 (2011). The Court
reviews questions of law de novo. Milliken & Co. v. Morin, 399 S.C. 23, 30, 731
S.E.2d 288, 291 (2012).

Moreover, on appeal from a case tried before a jury in an action at law,
appellate courts may not disturb the jury's factual findings "unless a review of the
record discloses that there is no evidence which reasonably supports the jury's
findings." Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 85, 221 S.E.2d
773, 775 (1976). Thus, this Court's jurisdiction in those cases extends only to the
correction of errors of law. In re Care & Treatment of Gonzalez, 409 S.C. 621,
628, 763 S.E.2d 210, 213 (2014).
 LAW/ANALYSIS

I. RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

Chapman argues because the Act provides him a right to assistance of
counsel during all stages of SVP proceedings, he necessarily has a right to
effective assistance of counsel during the proceedings. We agree.

The United States Supreme Court "repeatedly has recognized that 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);
accord Vitek v. Jones, 445 U.S. 480, 491–92 (1980) (plurality opinion). Moreover,
the Supreme Court found that to satisfy due process, prisoners suffering from a
mental disease or defect requiring involuntary commitment must be provided with
independent assistance during the commitment proceeding. Vitek, 445 U.S. at
496–97; id. at 500 (Powell, J., concurring). In accordance with these directives,
section 44-48-90 of the South Carolina Code provides, "At all stages of the
proceedings under [the Act], a person subject to [the Act] is entitled to the
assistance of counsel, and if the person is indigent, the court must appoint counsel
to assist the person." S.C. Code Ann. § 44-48-90(B).

We have previously recognized section 44-48-90 provides a statutory right
to counsel distinct from the Sixth Amendment right to counsel afforded in criminal
proceedings. In re Care & Treatment of McCoy, 360 S.C. 425, 427, 602 S.E.2d
58, 59 (2004); In re Care & Treatment of McCracken, 346 S.C. 87, 96, 551 S.E.2d
235, 240 (2001). However, given the significant due process implications inherent
in civil commitments, we find section 44-48-90's right to counsel is not merely a
statutory right, but also a constitutional one arising under the Fourteenth
Amendment and the South Carolina Constitution.5 Cf. Vitek, 445 U.S. at 496–97;
In re Care & Treatment of Ontiberos, 287 P.3d 855, 864–65 (Kan. 2012)
(examining the three due process factors espoused in Matthews v. Eldridge, 424
U.S. 319, 335 (1976), and concluding there is a constitutional right to counsel
arising under the Fourteenth Amendment and the state constitution with regards to
SVP commitment proceedings); Jenkins v. Dir. of the Va. Ctr. for Behavioral
Rehab., 624 S.E.2d 453, 460 (Va. 2006) (holding that because of the "substantial
liberty interest at stake in an involuntary civil commitment based on Virginia's

5
See U.S. Const. amend. XIV, § 1 (prohibiting states from "depriv[ing] any person
of life, liberty, or property, without due process of law"); S.C. Const. art. I, § 3
(same).
 [SVP] Act," persons subject to SVP proceedings have a constitutional right to
counsel arising under the Fourteenth Amendment and the state constitution).6 Lest
the right ring hollow, we further hold this right to counsel is necessarily a right to
effective counsel. Accord Smith v. State, 203 P.3d 1221, 1232–33 (Idaho 2009).7

Accordingly, because the Act provides Chapman with a right to counsel, he
consequently has a right to effective assistance of that counsel during his SVP
proceedings.

II. TIMING OF RAISING INEFFECTIVE ASSISTANCE CLAIMS
Chapman next asserts as the Act currently stands, there is no avenue in
which persons committed as SVPs may raise ineffective assistance of counsel
claims. Therefore, he argues, he should be able to raise his ineffective assistance
claims on direct appeal. In response, the State contends Chapman may assert an
ineffective assistance claim through a common law habeas proceeding. We agree
with the State that, as with all unlawful confinement claims, Chapman may assert
his claims that he is improperly in custody—whether due to his counsel's
ineffectiveness or otherwise—via a future habeas proceeding. See Dallin H. Oaks,
Habeas Corpus in the States: 1776–1865, 32 U. Chi. L. Rev. 243, 244 (1964–65)
(explaining although habeas corpus has ceased to be a significant remedy in most
civil litigation, it remains important in the civil commitment context).

Dating from as early as the 14th century, the right to petition a court for
relief from unlawful confinement has been heralded as the highest safeguard of an
individual's liberty. Literally, the phrase habeas corpus means "you should have
the body." Habeas corpus, The American Heritage Dictionary (2d ed. 1985).
South Carolina has recognized the writ of habeas corpus since 1787, the same year

6
To the extent McCoy and McCracken implied that the only right to counsel under
the Act was a statutory one, they are hereby modified.
7
In fact, courts considering this issue have unanimously determined that in civil
commitment proceedings where there is a right to counsel, there is a consequent
right to effective counsel. See, e.g., Wetherhorn v. Alaska Psychiatric Inst., 156
P.3d 371, 384 (Alaska 2007); Smith, 203 P.3d at 1232–33; In re Detention of
Crane, 704 N.W.2d 437, 438 n.3 (Iowa 2005); Ontiberos, 287 P.3d at 863;
Commonwealth v. Ferreira, 852 N.E.2d 1086, 1091 (Mass. App. Ct. 2006); In re
Mental Health of K.G.F., 29 P.3d 485, 491 (Mont. 2001); State v. Campany, 905
N.Y.S.2d 419, 425–26 (App. Div. 2010); In re Commitment of Hutchinson, 421
A.2d 261, 264 (Pa. Super. Ct. 1980); Jenkins, 624 S.E.2d at 460.
the writ was adopted into our federal constitution. See Oaks, supra, at 247–48;
McMullen v. City Council of Charleston, 1 S.C.L. (1 Bay) 46 (1787).8 This
extraordinary writ, though seldom granted, is nonetheless available to all
individuals who believe they are wrongly confined, following the exhaustion of
their direct appeal and other collateral remedies. As the State has acknowledged,
this Court could not deny an individual, such as Chapman, the right to file a writ of
habeas corpus seeking relief from his detention. See S.C. Const. art. I, § 18 ("The
privilege of the writ of habeas corpus shall not be suspended unless when, in case
of insurrection, rebellion or invasion, the public safety may require it.").

Notably, in the criminal context, the General Assembly removed certain
claims from the immediate province of habeas relief. In doing so, the legislature
provided an alternative procedure by which criminal defendants must assert claims
regarding ineffective assistance of counsel: post-conviction relief (PCR). See
generally S.C. Code Ann. §§ 17-27-10 to -160 (2014 & Supp. 2015) (the PCR
Act); Blume, supra, at 238–44 (detailing the history of the post-conviction process,
from its origins in habeas relief through the General Assembly's enactment of the
PCR Act). Thus, on direct appeal, this Court will not consider claims involving
ineffective assistance of counsel. See State v. Carpenter, 277 S.C. 309, 309–10,
286 S.E.2d 384, 384 (1982) (per curiam). Rather, those claims are limited to
review during PCR. Following such review, a criminal defendant may file a
petition for habeas corpus as a means of seeking final relief. Simpson v. State, 329
S.C. 43, 46, 495 S.E.2d 429, 431 (1998) (per curiam). However, petitions for
habeas relief serve only to ensure observance of fundamental constitutional rights
that have been overlooked in prior proceedings. Williams v. Ozmint, 380 S.C. 473,
477, 671 S.E.2d 600, 602 (2008); Aice v. State, 305 S.C. 448, 451, 409 S.E.2d 392,
394 (1991) (stating additional judicial review after PCR is appropriate only when
the judicial system has failed a defendant in such a way that to continue his
imprisonment without further review would amount to a gross miscarriage of

8
Although South Carolina did not formally adopt a habeas provision in its state
constitution until after the Civil War, it was the only colony to codify the writ by
the time of the American Revolution. John H. Blume, An Introduction to Post-
Conviction Remedies, Practice and Procedure in South Carolina, 45 S.C. L. Rev.
235, 238 (Winter 1994). In fact, many scholars contend most states omitted a
habeas provision from their early state constitutions not because they considered it
unimportant, but because they thought a formal assertion of the writ was
unnecessary given how solidly established the right to habeas corpus was in the
colonies. Oaks, supra, at 248, 249.
justice). As a result, habeas relief is only available when other remedies, such as
PCR, are inadequate or unavailable. Hamm v. State, 403 S.C. 461, 464, 744 S.E.2d
503, 504 (2013).

With regards to a civil commitment under the Act, Chapman is correct in
stating there is no statutory procedure, such as PCR, that would presently allow
persons committed as SVPs to effectuate their right to the effective assistance of
counsel. Regardless, we decline to address the merits of his claims on direct
appeal for the same reasons we do not address these claims in a criminal direct
appeal. See State v. Felder, 290 S.C. 521, 522–23, 351 S.E.2d 852, 852 (1986)
(quoting State v. Williams, 266 S.C. 325, 337, 223 S.E.2d 38, 44 (1976)) (finding
in direct appeals, the record rarely contains a factual basis for a claim that counsel's
performance was deficient, because it does not reveal counsel's possible strategic
explanation (or lack thereof) for taking or omitting the challenged action); cf.
Strickland v. Washington, 466 U.S. 668, 689 (1984) (stating in the criminal context
that courts must indulge a "strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance"). Rather, an evidentiary
hearing similar to a PCR hearing is necessary to explore the strategy underlying
counsel's actions and omissions during an SVP trial.

Because there is no existing statutory procedure providing for such a
hearing, we find Chapman's claims regarding ineffective assistance of counsel akin
to other habeas claims, in that the existing relief for the claims is either inadequate
(due to the lack of a fully developed record) or unavailable (due to the absence of a
specified procedure in which to assert the claims). Thus, we agree with the State
that persons committed under the Act may pursue their unlawful custody claims,
including ineffective assistance of counsel claims, in habeas proceedings.

We emphasize that, in recognizing Chapman's right to file a habeas claim for
ineffective assistance of counsel, we do not create a new framework out of whole
cloth. Rather, as stated, supra, habeas relief is uniformly available to those
imprisoned in violation of the law. See Harrington v. Richter, 562 U.S. 86, 91
(2011). Thus, our holding today merely declines to divest Chapman of his
fundamental right to seek relief from unlawful confinement.

We note that in general, there is no right to counsel in habeas proceedings,
whether criminal or civil. Thus, as a practical matter, a person committed as an
SVP would ordinarily be required to assert an ineffective assistance of counsel
claim in a habeas proceeding without the assistance of counsel. We find this result
would be not only inequitable, but also the functional equivalent of denying SVPs
 the right to effective assistance of counsel.9 As discussed, supra, the General
Assembly provides persons subject to commitment under the Act with a right to
counsel at "all stages of the proceedings." S.C. Code Ann. § 44-48-90. Due to the
unique unfairness of requiring SVPs to pursue ineffective assistance of counsel
claims without the assistance of counsel, this language must be construed as
providing persons committed under the Act with a right to counsel during their first
habeas proceeding. Cf. Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753, 755
(1999) (explaining successive PCR applications alleging ineffective assistance of
counsel are disfavored because they allow an applicant "more than one bite at the
apple," and giving examples of "rare procedural circumstances" in which a court
may entertain a successive application, such as if the court dismissed the first PCR
application without providing the applicant the assistance of legal counsel (citation
omitted) (internal quotation marks omitted)).

We recognize this portion of our holding is perhaps an unforeseen
application of the statutory language. Nonetheless, the General Assembly
provided SVPs with a right to counsel, which cannot be merely a superficial right.
Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) ("The cardinal rule
of statutory construction is to ascertain and effectuate the intent of the
legislature."); see also Tempel v. S.C. State Election Comm'n, 400 S.C. 374, 378,
735 S.E.2d 453, 455 (2012) ("This Court will not construe a statute in a way which
leads to an absurd result or renders it meaningless."); CFRE, L.L.C. v. Greenville
Cty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011) (stating in reading a
statute as a whole and in harmony with its purpose, the Court must read the statute
in a manner such that "'no word, clause, sentence, provision or part shall be
rendered surplusage, or superfluous, for the General Assembly obviously intended
the statute to have some efficacy, or the legislature would not have enacted it into
law'" (internal citations omitted) (internal marks omitted)). While the State
conceded this during oral argument, unquestionably, the General Assembly may
reevaluate an SVP's right to counsel and set forth a more comprehensive statutory
scheme to address this issue.

III. STANDARD TO MEASURE EFFECTIVENESS
Chapman finally argues the ordinary standard for granting habeas relief

9
Cf. S.C. Code Ann. § 17-27-60 (providing indigent PCR applicants with a right to
counsel to pursue their PCR claims); Rule 71.1(d), (g), SCRCP (providing indigent
PCR applicants with counsel if their application presents a question of law or fact
that will require a hearing, or if their application for relief is denied).
should not apply to ineffective assistance of counsel claims arising from SVP
proceedings.10 We agree, and hold the more appropriate standard in these
instances is the two-prong Strickland standard used to vindicate a criminal
defendant's Sixth Amendment right to counsel. See Cherry v. State, 300 S.C. 115,
117–18, 386 S.E.2d 624, 625 (1989) (describing the Strickland standard as
requiring a PCR applicant to prove counsel's deficient performance, and the
resulting prejudice).

An SVP's right to counsel arises from a constitutional right to due process
similar to the rights attendant to a criminal trial.11 Ontiberos, 287 P.3d at 867, 868;
see also Jones v. State, 477 N.E.2d 353, 357 (Ind. Ct. App. 1985) ("In considering
what constitutes effective representation, it seems reasonable to look to criminal
standards for guidance. Such an approach seems justified inasmuch as the
allegedly mentally ill person's liberty is at stake."); Jenkins, 624 S.E.2d at 460. We
further note a majority of jurisdictions use the Strickland standard in evaluating
ineffective assistance claims in a civil commitment context, "regardless of whether
that court held that the person's right to effective counsel arose from statute or the
constitution." Ontiberos, 287 P.3d at 867 (collecting cases).

Thus, in our state and others, Strickland is a well-known standard applied in
an extensive body of case law in the criminal and civil contexts. See In re
Detention of T.A.H.-L., 97 P.3d 767, 771 (Wash. Ct. App. 2004). Indeed, the
Strickland standard is the one most familiar to judges and attorneys, and thus
results in a more consistent application in our state courts. See Ontiberos, 287 P.3d
at 867 (citing T.A.H.-L., 97 P.3d at 771). Accordingly, we find using the

10
See generally Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990)
(stating a court will normally only issue a habeas writ under limited circumstances,
when there has been a violation that constitutes a denial of fundamental fairness
shocking to the universal sense of justice).
11
Justice Few would have us disregard both parties' recognition that habeas corpus
is available to anyone, including Appellant, who wishes to challenge the legality of
his or her confinement. The dissenting opinion mistakenly portrays the majority's
actions as improperly invading the legislature's role. We would respectfully remind
the dissent that this Court is tasked with interpreting and applying the law as
adopted by the legislature. A necessary part of this duty is ensuring that the law
comports with all constitutional requirements. Accordingly, we must avoid any
application of law that does not pass constitutional muster. Were we to accept the
dissent's contention that we are somehow encroaching on the legislature, we would
be forced to adopt an interpretation of the law that does not satisfy due process.
 Strickland standard to evaluate ineffective assistance claims—regardless of the fact
these claims must be asserted in habeas proceedings—will most consistently
ensure an SVP's ability to exercise his right to the effective assistance of counsel.

IV. MERITS OF INEFFECTIVE ASSISTANCE CLAIMS

As Chapman conceded in his briefs and during oral argument, none of his
ineffective assistance claims are preserved for appellate review because trial
counsel failed to object to any of the alleged errors. See Buist v. Buist, 410 S.C.
569, 574, 766 S.E.2d 381, 383 (2014). Accordingly, we affirm his commitment as
an SVP pursuant to Rule 220, SCACR. Our decision is without prejudice to his
ineffective assistance claims, and Chapman may reassert these claims during a
future habeas proceeding.

CONCLUSION
We cannot construe the Act in a manner that does not recognize an SVP's
constitutional right to the effective assistance of counsel. Necessarily, if it is to
have any meaning, an SVP must have an avenue to effectuate that right. Under the
current framework of the Act, we hold the appropriate forum to assert the right to
effective assistance of counsel is the long-recognized safeguard of due process:
habeas relief.

Based on the foregoing, we affirm Chapman's commitment as an SVP.

AFFIRMED.

BEATTY, C.J., KITTREDGE, J., and Acting Justice Costa M. Pleicones,

concur. FEW, J., dissenting in a separate opinion.

JUSTICE FEW: This is a direct appeal from an action at law.12 The Constitution
of South Carolina sets forth the jurisdiction of the Supreme Court in such a case:
"The Supreme Court shall constitute a court for the correction of errors at law
under such regulations as the General Assembly may prescribe." S.C. CONST. art.
V, § 5. See Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 85, 221 S.E.2d
773, 775 (1976) ("Article V, § 5 of our Constitution . . . sets forth the jurisdiction
of this Court."). Under article V, section 5, the Supreme Court has no power in
this case except to correct errors of law made by the trial court. See In re Care &
Treatment of Gonzalez, 409 S.C. 621, 628, 763 S.E.2d 210, 213 (2014) (stating in
an appeal from a jury verdict in an SVP trial, "the jurisdiction of the appellate court
extends merely to the correction of errors of law"); Lozada v. S.C. Law Enf't Div.,
395 S.C. 509, 512, 719 S.E.2d 258, 259 (2011) ("When reviewing an action at law,
our scope of review is limited to the correction of errors of law."); Townes Assocs.,
266 S.C. at 85, 221 S.E.2d at 775 ("In an action at law, on appeal of a case tried by
a jury, the jurisdiction of this Court extends merely to the correction of errors of
law . . . .").

The majority opinion recites this limitation on our power—citing
Gonzalez—but then ignores its own words and projects this Court beyond our
constitutional jurisdiction by writing procedural and substantive rules of law that
have nothing to do with any error of law made by the trial court. These new rules
do not concern the trial court's handling of this SVP trial, nor do they govern how a
future trial court will conduct an SVP trial. Rather, these new rules establish a
procedural and substantive scheme for resolving a completely different category of
lawsuits that have never been filed. The majority's new rules to govern these
future lawsuits violate the limits on our power set forth in article V, section 5 as
interpreted by this Court in Gonzalez, Lozada, and Townes Associates, and because
of that, the new rules also violate the separation of powers requirement set forth in
article I, section 8 of the Constitution of South Carolina.

It requires no justification for a court to honor the constitutional limitation
on judicial power—it is the law. In this case, however, the justification is clear.
First, the only procedural and substantive framework in South Carolina—until
now—to protect a litigant's right to effective counsel is the South Carolina
Uniform Post-Conviction Relief Act enacted by our Legislature. See S.C. Code
Ann. §§ 17-27-10 to -160 (2014); see also 28 U.S.C. § 2255 (2016) (Federal

12
The majority states in its first paragraph this is a "direct appeal." We have
previously held an SVP trial is an action at law. In re Treatment & Care of
Luckabaugh, 351 S.C. 122, 131, 568 S.E.2d 338, 342 (2002).
custody; remedies on motion attacking sentence). Second, this Court has
previously held, "The purpose of habeas corpus is to test the legality of the
prisoner's present detention," and, "The only remedy that can be granted is release
from custody." Gibson v. State, 329 S.C. 37, 40, 495 S.E.2d 426, 427 (1998)
(citing McCall v. State, 247 S.C. 15, 18, 145 S.E.2d 419, 419 (1965)). Under
Gibson and McCall, the only remedy available for a finding of ineffective counsel
would be to release from custody a person found by a jury to be a sexually violent
predator—because the courts do not have the power to grant a new trial.13 Third,
the majority's provision that the court must appoint—and the State must pay—
counsel to represent the SVP in the effective counsel proceeding violates section
14-1-235 of the South Carolina Code (2017), which provides, "A judge, court, or
court official shall not appoint an attorney to represent a party in a civil action
unless the authority to make the appointment is provided specifically by statute."

Finally, creating a procedural and substantive scheme for future litigation of
effectiveness of counsel in an SVP trial is particularly inappropriate for judicial
action. To illustrate this point, I pose a few questions. First, is there any
difference between the majority's new scheme and the annual review proceedings
provided in section 44-48-110 of the South Carolina Code (Supp. 2016)? If not—
or if the difference is only slight—can the right of effective counsel in the initial
commitment proceeding reach the constitutional dimension on which the majority
relies? Second, does an SVP—by filing a petition for habeas corpus claiming
ineffective counsel—waive his right to pursue annual review proceedings, or must

13
In this event it is questionable that SVP proceedings may be reinstituted. The
timetable for instituting such proceedings begins long before the person is released
from confinement on the original sentence, which will necessarily have passed by
the time a circuit court grants habeas corpus. See S.C. Code Ann. § 44-48-
40(A)(1) (Supp. 2016) (requiring the multidisciplinary team be given "written
notice . . . at least two hundred seventy days before" release); S.C. Code Ann. § 44-
48-50 (Supp. 2016) (stating the timetable for "forward[ing] a report of the
assessment to the prosecutor's review committee" is "within thirty days" of the
notice in subsection 44-48-40(A)(1)); S.C. Code Ann. § 44-48-60 (Supp. 2016)
(requiring the review committee to determine probable cause "within thirty days of
receiving the report"); S.C. Code Ann. § 44-48-70 (Supp. 2016) (requiring the
Attorney General to file the petition for SVP confinement "within thirty days of the
probable cause determination"). There is no provision in the SVP Act permitting
retrial after release from confinement.
the circuit court simultaneously conduct annual review proceedings and effective
counsel proceedings?14 Third, if the circuit court in annual review proceedings
finds no "probable cause exists to believe that the person's mental abnormality or
personality disorder has [sufficiently] changed," would that finding moot any
ongoing effective counsel proceedings by making a different outcome not
reasonably likely under the second prong of Strickland?15 Fourth, if the circuit
court must conduct simultaneous proceedings, is the counsel to be appointed
pursuant to the majority opinion permitted to be—or required to be—the same
counsel the SVP is entitled to in annual review proceedings pursuant to section 44-

14
Section 44-48-110 requires,

A person committed pursuant to this chapter must have
an examination of his mental condition performed once
every year. . . . The annual report must be provided to
the court which committed the person . . . . The court
must conduct an annual hearing to review the status of
the committed person. . . . If the court determines that
probable cause exists to believe that the person's mental
abnormality or personality disorder has so changed that
the person is safe to be at large and, if released, is not
likely to commit acts of sexual violence, the court must
schedule a trial on the issue.

Id. (emphasis added).
15
How could a circuit court find prejudice under Strickland if the same or another
circuit judge has already found in an annual review proceeding that no probable
cause exists to believe the SVP is "safe to be at large?" Further, if the judge in the
effective counsel proceeding is a different judge and the annual review judge found
no probable cause, is the second judge bound by the rule that "one circuit court
judge may not overrule another?" Salmonsen v. CGD, Inc., 377 S.C. 442, 454, 661
S.E.2d 81, 88 (2008). Conversely, if the effective counsel trial occurs first and the
circuit court finds prejudice, which surely moots the probable cause hearing in the
annual review proceedings, would the prospect of an annual review trial then moot
any appeal from the effective counsel trial?
48-110?16 Finally, there are other civil commitment proceedings as to which the
committed person has a statutory right to counsel. See S.C. Code Ann. §§ 44-17-
310 to -900 (2002 & Supp. 2016) (Care and Commitment of Mentally Ill Persons
Act); § 44-17-530 (2002) (providing "the court shall appoint counsel to represent
the person" subject to judicial commitment proceedings). Does the majority's new
scheme apply to those committed persons as well?

Some of these questions may be invalid, and never need to be answered, but
some of them are valid, and demand an answer. Whether these questions deserve
answers—and if so what are the answers—are inquiries that courts are uniquely
unqualified to complete. The Legislature, on the other hand, has numerous tools at
its disposal to adequately address these and other problems. All of this forces the
question of why this Court should create this new effective counsel scheme,
especially when the annual review procedure is already in place pursuant to statute.
See § 44-48-110. Respectfully, the majority has not answered any of these
questions.

The majority suggests in footnote eleven that I do not understand this Court's
duty to "ensur[e] that the law comports with all constitutional requirements." I am
satisfied that I do understand this duty, and further that I understand we must
exercise that duty within the constitutional limitations on our power. To respond
to the majority's suggestion, I will explain how—and when—I think this Court
should fulfill its duty to protect the constitutional rights of Chapman and other SVP
litigants who claim they have been denied due process because they received
ineffective assistance of counsel.

To begin, this Court has never heard an appeal from a circuit court's ruling
as to whether an SVP defendant received effective assistance from his attorney.
The trial court made no such ruling in this case. In fact, I am not aware that any
SVP defendant has ever brought such a claim in any South Carolina circuit court.
If an SVP brings such a claim, the first issue the circuit court will face is whether
the SVP's right to annual review adequately protects the SVP's due process rights
regarding the effectiveness of his counsel. No court—anywhere—not even the
courts from other states cited by the majority—has ever answered that question.

16
"The committed person has a right to have an attorney represent him at the
[annual review probable cause] hearing . . . ," and, "At the trial, the committed
person is . . . entitled to the benefit of all constitutional protections [i.e., counsel]."
§ 44-48-110.
 If the circuit court in which the claim is brought addresses the SVP's claim,
and if the aggrieved party appeals, this Court will then be required to determine
whether the circuit court committed any errors of law. Then—when the questions
that the majority answers in the abstract are actually contested issues in an appeal
before us—we will fulfill our duty to protect the due process rights of SVP
litigants, and our responsibility under article V, section 5, by determining whether
the trial court committed any errors of law. Until then, we act outside of our
constitutional authority if we write rules not necessary to resolve the actual case
before us, even though the rules may relate to the constitutional requirement of due
process.

My disagreement with the majority is not based on a misunderstanding of
our duty to protect the due process rights of our citizens. Rather, my disagreement
derives from my resolve to obey the constitutional limitations on our power. As
the majority recognizes, "none of [Chapman's] ineffective assistance claims are
preserved for review." Under this circumstance, we should affirm without any
comment on rules to govern future disputes. Because I believe the law written by
the majority in this case goes beyond the constitutional limits on this Court's power
and falls within the exclusive province of the Legislature, I respectfully dissent.