Care and Treatment of Chandler v. State

Justice PLEICONES:

I respectfully dissent. In my opinion, there is evidence in the record which supports the probable cause hearing judge’s conclusion that respondent does not suffer from “a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” S.C.Code Ann. § 44-48-30(1)(b) (Supp.2007) (definition of sexually violent predator); In the Matter of Brown, 372 S.C. 611, 643 S.E.2d 118 (Ct.App.2007) (any evidence scope of review on appeal from probable cause determination).

In finding that respondent did not suffer from the requisite mental abnormality or personality disorder, the circuit court relied upon the following findings of fact:

1) Respondent was offered a Youthful Offender Act (YOA) sentence for the predicate offense based on a plea negotiated by a solicitor noted for careful protection of the public interest in sexual offense cases;
2) The negotiated plea was accepted by a trial judge who is also known for this kind of protective attitude;
3) Respondent turned himself in, and pled guilty, thereby accepting responsibility for his actions;
4) A YOA sentence indicates both the plea judge and the prosecutor believed respondent’s criminal acts were sub*262stantially caused by youthful poor judgment and impulsiveness, a conclusion concurred in by the hearing judge after review of the facts of all respondent’s offenses;
5) It does not appear that actual physical violence was involved in any of respondent’s offenses;
6) While incarcerated, respondent has completed several courses related to his offense;
7) Probation and registration as a sex offender, with the concomitant monitoring and supervision provide both an opportunity for respondent to rehabilitate himself and permanent protection for the public; and
8) Respondent has not been previously incarcerated for this type of conduct, nor has he received prior treatment or counseling.

The majority takes issue with certain evidence cited by the hearing judge. For example, the majority notes that there could be a variety of reasons why the State would offer Chandler a YOA sentence. I agree with the majority in this regard, but note that on appeal, “this court is concerned with the existence of evidence, not its weight.” In re Matter of Brown, 372 S.C. at 616, 643 S.E.2d at 121. In my view, whether the offender was offered a negotiated plea, a lesser sentence, and/or probation is relevant to the question of probable cause to believe the offender is among the “mentally abnormal and extremely dangerous group of sexually violent predators who require involuntary civil commitment in a secure facility for long-term control, care, and treatment.” S.C.Code Ann. § 44-48-20 (Supp.2007). While certainly factors other than the seriousness of the offenses and the offender’s potential threat to the public play a role in these considerations, the post-arrest decisions made by law enforcement professionals and prosecutors with intimate knowledge of the circumstances, which result in an alleged SVP serving a YOA, a probationary sentence, or no sentence at all, have evidentiary value in deciding whether an offender is more immature than dangerous. In my opinion, these prosecutorial and sentencing decisions provides evidentiary support for the probable cause hearing judge’s conclusion that respondent was more immature than abnormal.

*263The State alleged the following facts in support of its allegation that there was probable cause to believe respondent was a sexually violent predator:

(1) Chandler pled guilty in December 2003 to one count of ABHAN and was sentenced under the YOA. The victim stated that she was forced to have intercourse with Chandler.
(2) Chandler pled guilty to one count of CSC in the third degree based on two occasions on which he had intercourse with a 13-year-old girl. He was sentenced under the YOA.
(3) Chandler was arrested in April 2005 based on an allegation that he had intercourse with a 13-year-old girl. He denied the offense and was not charged.

The hearing judge found that actual physical violence was not involved in any of the crimes, which he viewed as a factor in determining whether there is probable cause to believe respondent suffers from a mental abnormality or personality disorder.

The majority rejects, as lacking in evidentiary support, the finding that physical violence was not involved in any of respondent’s offenses. The record contains the following evidence which support this finding:

(1) Offense A
This offense involved intercourse between 18 year old respondent and a 15 year old victim in February 2003. Although the victim stated she was “forced” to have intercourse, she did not report the incident and was a reluctant witness, expressing concern that she would be sent away from home for “getting in trouble again.” The incident occurred in a classroom during the school day but was not discovered until a week later when the victim’s sister was overheard yelling at respondent and others that the sister “was going to have [victim] tell everybody that she was raped.” There was no evidence of physical violence on the part of respondent in “forcing” the sexual encounter.
Respondent received a YOA sentence, suspended to two years probation, after pleading to Assault and Battery of a High and Aggravated Nature.
*264(2) Offense B
In March 2004, respondent, aged 19, had consensual intercourse with 13 year old victim at her home. Respondent told officers that the victim had lied about her age. Respondent received a YOA sentence after pleading guilty to Criminal Sexual Conduct with a Minor in the Third Degree (CSCM 3rd).
(3) Offense C

In 2005, 20 year old respondent was arrested and charged with Criminal Sexual Conduct with a Minor in the Second Degree for having consensual intercourse with a 13 year old. No charges were lodged.

In my opinion, there is evidence to support the finding that no physical violence was involved in any of respondent’s three offenses. Like the majority, I note that physical violence is not necessary in order for an offense to qualify as “sexually violent.” I agree with the circuit judge, however, that the absence of such violence may be probative the respondent suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence unless confined long term in a secure facility.

Finally, the majority suggests that respondent’s record of offenses is comparable to that of the respondent in In the Matter of Beaver, 372 S.C. 272, 642 S.E.2d 578 (2007). Beaver’s arrest record consisted of four counts of aggravated rape of a child, two counts of aggravated sexual battery, and two counts of incest arising from his molestation of his eight and ten year old daughters, charges which Tennessee authorities allowed him to plead down to one count of aggravated sexual battery and one count of incest. Following his release from prison in Tennessee, Beaver was charged in South Carolina with committing a lewd act on a child under sixteen (in this case, ten) and one count of communicating obscene messages to her. He was permitted to plead to the lewd act charge and the obscene message charge was dropped. In my opinion, the criminal history of respondent is not comparable to that of Beaver.

Based on the above, it is my opinion that there is evidence in the record which supports the probable cause judge’s finding that respondent is an immature person rather than an *265extremely dangerous sexual predator. I would therefore affirm. In the Matter of Brown, supra.

WALLER, J., concurs.