PRESENT: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ.,
and Carrico, S.J.
ELLIS LORENZO MILES
v. Record No. 052568 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 15, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this appeal, we consider a statutory requirement that is
part of the Civil Commitment of Sexually Violent Predators Act,
Code §§ 37.2-900 through –919 (the Act).1 We decide the issue
whether a certain numerical test score specified in Code § 37.2-
903(C), which identifies an inmate for further review under the
Act, is a condition precedent for additional proceedings against
that inmate.
Ellis Lorenzo Miles challenges the circuit court’s
determination classifying him as a sexually violent predator and
ordering his civil commitment. In 1995, Miles was convicted of
rape in the Circuit Court of the City of Richmond and received a
sentence of 20 years’ imprisonment, with 14 years suspended.
His criminal history prior to the date of the rape included one
conviction of contributing to the delinquency of a minor,
originally charged as statutory rape, and five other convictions
1
The Act, originally located in Title 37.1, was recodified
effective October 1, 2005. References contained herein are to
the current Act.
that are not pertinent here because they did not involve
prohibited sexual conduct. During his incarceration for the
rape conviction, Miles was convicted of indecent exposure and
committed 18 disciplinary infractions, seven of which were
sexual in nature.
Because Miles was incarcerated for rape, a predicate
offense under the Act, the Virginia Department of Corrections
(DOC) evaluated him about 10 months before his scheduled release
date. The DOC administered the Rapid Risk Assessment for Sex
Offender Recidivism (RRASOR), an objective testing instrument
authorized by Code § 37.2-903(C) to identify potential sexually
violent predators.
The RRASOR has four categories that yield a maximum total
score of six. Virginia Criminal Sentencing Commission,
Assessing Risk Among Sex Offenders in Virginia 29-30 (2001). An
inmate receives one point if any of his sex offenses have
involved male victims, one point if his age at release would be
less than 25, and one point if any victim of his sex offenses is
not related to the inmate. Id.
The remaining points are assessed based on the number of
prior sex offense convictions, and prior charges of sex
offenses, that occurred before the date of the inmate’s
predicate offense. The inmate is given one point if he has a
single prior conviction of a sex offense, or if he has one or
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two prior charges of sexual offenses. If an inmate has two or
three prior convictions of sex offenses, or has between three
and five prior charges involving such offenses, the inmate is
assigned two points. Finally, an inmate is assessed three
points when he has four or more prior convictions of sex
offenses, or has six or more prior charges of that nature. Id.
According to the analysis performed by the DOC, Miles received a
score of four on the RRASOR and therefore, under Code § 37.2-
903(C), qualified for further review by the Commitment Review
Committee (CRC).
Miles received a mental health examination as part of the
CRC assessment. Dr. Christine A. Nogues, a licensed clinical
psychologist, was appointed by the Commissioner of the
Department of Mental Health, Mental Retardation and Substance
Abuse Services (Department of Mental Health) to perform the
examination. Dr. Nogues diagnosed Miles as having “Personality
Disorder [Not Otherwise Specified] with antisocial features.”
She determined that Miles was “a sexually aggressive, or
antisocially personality disordered offender” whose “personality
disorder appears to predispose him to commit sexually violent
offenses.”
During the course of her examination, Dr. Nogues conducted
various actuarial evaluations to assist in determining Miles’
level of risk of committing future sexually violent offenses.
3
Among those assessments, she independently scored Miles’ RRASOR
and also assigned him a result of four, which incorrectly
included “three points for having four or more convictions.”
The Office of the Attorney General (the Commonwealth)
reviewed the CRC’s recommendation, together with Miles’ mental
health examination, institutional history, treatment record, and
criminal record, and determined that he is a sexually violent
predator. Accordingly, the Commonwealth filed a petition in the
circuit court requesting that Miles be classified as a sexually
violent predator and subjected to civil commitment under the
Act.
Miles filed a motion to dismiss, arguing that his correct
RRASOR score was three and, thus, that the circuit court was not
authorized to conduct further proceedings to determine whether
he is a sexually violent predator. The circuit court denied
Miles’ motion.
At a bench trial, the circuit court heard evidence on the
issue whether Miles is a sexually violent predator. Dr. Nogues
testified regarding her examination of Miles and concluded that
he is likely to commit sexually violent acts in the future. On
cross-examination, however, Dr. Nogues admitted that Miles’
RRASOR score was incorrectly computed. She stated that Miles’
correct score was three, not four as originally indicated.
4
At the conclusion of the testimony, the circuit court
entered an order finding that Miles suffers from “personality
disorder [Not Otherwise Specified] with antisocial traits” and
that he is likely to commit other offenses of a sexually violent
nature. After hearing evidence from the Commonwealth and from
Miles during the commitment phase of the trial, the circuit
court ordered that Miles be involuntarily confined in a secure
facility pursuant to the Act. This appeal followed.
Miles argues that the circuit court erred in denying his
motion to dismiss. He emphasizes that the evidence was
undisputed that the Commonwealth initiated proceedings against
him under the Act based on an incorrect RRASOR score computed by
the DOC. Miles asserts that absent this erroneous score, he
would not have been identified as a potential candidate for
classification as a sexually violent predator. Therefore, Miles
contends that because his correct score was below the baseline
score established in Code § 37.2-903(C) for further proceedings
under the Act, the circuit court erred in conducting evidentiary
proceedings to determine whether he is a sexually violent
predator and should be committed.
In response, the Commonwealth argues that its use of an
inmate’s RRASOR score is a procedural mechanism, rather than a
requirement for further proceedings under the Act. The
Commonwealth observes that the Act does not provide an inmate
5
the remedy of having the proceedings against him terminated when
the inmate’s RRASOR score has been incorrectly computed to his
detriment. Therefore, according to the Commonwealth, a RRASOR
score has no effect on the Commonwealth’s right to proceed under
the Act but is “merely a convenient, objective way of narrowing
the prison population who will undergo the civil commitment
review process.” We disagree with the Commonwealth’s arguments.
The statutory provision at issue, found in Code § 37.2-
903(C), states in relevant part:
[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 designated 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.
Under basic rules of statutory construction, we determine
the General Assembly’s intent from the words contained in the
statute. Tucker v. Commonwealth, 268 Va. 490, 493, 604 S.E.2d
66, 68 (2004); Commonwealth v. Diaz, 266 Va. 260, 264, 585
S.E.2d 552, 554 (2003). When the language of a statute is plain
and unambiguous, courts are bound by the plain meaning of that
language and may not assign the words a construction that
amounts to holding that the General Assembly did not mean what
it actually stated. Tucker, 268 Va. at 493, 604 S.E.2d at 68;
6
Caprio v. Commonwealth, 254 Va. 507, 511-12, 493 S.E.2d 371, 374
(1997).
Because proceedings under the Act may result in a
defendant’s involuntary confinement, he has a substantial
liberty interest at stake. See Zinermon v. Burch, 494 U.S. 113,
131, (1990); Townes v. Commonwealth, 269 Va. 234, 240, 609
S.E.2d 1, 4 (2005). As a result of this liberty interest, we
apply the rule of lenity normally applicable to penal statutes
to the Act’s provisions. Id. Under that rule, a statute must
be strictly construed in favor of a defendant’s liberty and may
not be extended by implication or construction. See id.; Welch
v. Commonwealth, 271 Va. 558, 563, 628 S.E.2d 340, 342 (2006);
Milteer v. Commonwealth, 267 Va. 732, 738, 595 S.E.2d 275, 278
(2004).
When strictly construed, the plain language of Code § 37.2-
903(C) subjects only those prisoners who receive a score of four
or more on the RRASOR to further proceedings under the Act to
determine whether they should be civilly committed as sexually
violent predators. The statute is wholly silent concerning the
Commonwealth’s authority to initiate proceedings under the Act
against inmates who have received a correct RRASOR score of less
than four.
Contrary to the Commonwealth’s argument, we are not
permitted to construe the statute to imply such authority.
7
Acceptance of the Commonwealth’s position would require us to
extend by implication the scope of Code § 37.2-903(C), and to
hold that the statute permits further proceedings against any
prisoner incarcerated for a predicate offense under the Act
merely because the statute does not expressly preclude such
proceedings. Such a construction would violate the rule of
lenity and principles of strict construction that we must apply
in a case of this nature. Townes, 269 Va. at 240, 609 S.E.2d at
4.
Additionally, we find no merit in the Commonwealth’s
argument that its proceedings against Miles were proper because
the Act does not provide a remedy of dismissal for prisoners who
incorrectly receive a RRASOR score of four. This argument
similarly asks us to draw an implication from the absence of
statutory language, which we are not allowed to do in our strict
construction of Code § 37.2-903(C). Id.
We observe, however, that the Commonwealth’s misapplication
of this statutory requirement of Code § 37.2-903(C) does not
affect the circuit court’s subject matter jurisdiction to decide
cases initiated under the Act. Thus, this requirement may be
waived by a defendant’s failure to raise a timely and proper
objection in the circuit court. See Nelson v. Warden, 262 Va.
276, 285, 552 S.E.2d 73, 77 (2001). However, because the record
8
before us does not raise such an issue of waiver, we need not
further discuss this principle.
Next, we note that the Commonwealth concedes in its brief
that Miles’ correct RRASOR score was three, and that the
Commonwealth mistakenly computed the score of four that Miles
initially received. At oral argument in this case, the
Commonwealth also conceded that it would not have initiated
proceedings against Miles if he had not received a score of four
on the RRASOR. By these concessions, the Commonwealth
effectively refutes its own argument that the RRASOR score
provision of Code § 37.2-903(C) is purely a procedural screening
guideline and lacks any substantive effect because but for
Miles’ erroneous RRASOR score, the Commonwealth would not have
taken further action against Miles.
Finally, we observe that the Commonwealth’s position
is also without merit because it effectively asks us to
hold that the Commonwealth’s own errors should redound to
Miles’ detriment. We find no basis for accepting such an
argument. Accordingly, we hold that, when strictly
construed, the provisions of Code § 37.2-903(C) require
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
9
the inmate declared a sexually violent predator under the
Act.2
For these reasons, we will reverse the circuit court’s
judgment and dismiss with prejudice the Commonwealth’s petition.
Reversed and dismissed.
2
Based on our holding, we do not reach Miles’ remaining
assignments of error. We also do not reach the Commonwealth’s
assignment of cross-error, which addresses issues related to the
circuit court’s qualification of Miles’ expert witness at trial.
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