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Rickman v. Commonwealth

Supreme Court of Virginia

December 28, 2017

JOSEPH BOYD RICKMAN
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge

         PRESENT: All the Justices

          OPINION

          D. ARTHUR KELSEY, JUSTICE

         Joseph Boyd Rickman appeals a civil-commitment order entered pursuant to the Sexually Violent Predators Act, Code § 37.2-900 to -921 ("SVPA"). He claims that the circuit court's violation of a scheduling deadline for the initial probable-cause hearing required the circuit court to dismiss with prejudice the SVPA petition. We hold that this statutory procedural requirement, even if violated, did not require the relief that Rickman seeks.

         I.

         In 2003, Rickman was convicted of five counts of aggravated sexual battery, two charges of forcible sodomy, one charge of abduction of a minor, one charge of object sexual penetration, one charge of taking indecent liberties with a minor, and one charge of contributing to the delinquency of a minor. The circuit court sentenced Rickman to 75 years of imprisonment with 60 years suspended. The charges arose from Rickman's sexual abuse of two biological children and two step-children over a period of several years.

         In contemplation of his impending release from custody, on August 28, 2015, the Commonwealth filed a petition to have Rickman civilly committed. Pursuant to Code § 37.2-906(A)(ii), "the circuit court shall . . . schedule a hearing within 90 days to determine whether probable cause exists to believe that the respondent is a sexually violent predator." This subsection further provides that "[t]he respondent may waive his right to a hearing" and that either party may request a continuance to extend the hearing beyond 90 days "upon good cause shown or by agreement of the parties." Code § 37.2-906(A)(ii). Thus, the deadline for a probable-cause hearing was November 26, 2015, absent Rickman's waiver or a request for a continuance.

         Seeking to set a date for the probable-cause hearing, the parties exchanged a series of emails beginning in September 2015. They attempted to find an available date for the assistant attorney general, the Commonwealth's expert, Rickman's court-appointed counsel, and the circuit court. Rickman's counsel initially asked the assistant attorney general for "suggested dates" within the 90-day period. 1 J.A. at 77. The parties eventually settled on January 8, 2016, as the most convenient and mutually available date.

         In an email to the assistant attorney general and to a circuit court docket clerk, Rickman's counsel acknowledged that she was available on January 8, 2016, but advised that she "[would] need to note an objection" if the circuit court set the hearing beyond the 90-day period. Id. at 87. However, at no point prior to the expiration of the 90-day period did either party file a motion for a continuance to extend the time for a hearing beyond 90 days or otherwise seek the intervention of the court.

         Less than two weeks after the expiration of the 90-day period, Rickman filed a motion to dismiss the SVPA petition, claiming that the circuit court had violated Code § 37.2-906(A)(ii). The circuit court initially granted the motion to dismiss but later, upon the Commonwealth's motion for reconsideration, denied it on the ground that Rickman had acquiesced to a hearing date beyond the 90-day period by failing to file an objection or motion to dismiss with the circuit court before its expiration. The circuit court's letter opinion suggested that, had there been no such acquiescence, the only appropriate remedy for the scheduling violation would be to dismiss the SVPA petition. Id. at 280 (reasoning that "[i]f [the statute] is mandatory, the [c]ourt must determine if [Rickman] acquiesced to a date beyond the 90 days"); see also id. at 134.

         Over the course of several hearings, the circuit court found probable cause that Rickman was a sexually violent predator and subsequently addressed the merits of the SVPA petition. Upon reviewing the factors set forth in Code § 37.2-912(A), the circuit court determined that Rickman needed secure inpatient treatment "and that his conditional release [would] present an undue risk to public safety." 2 id. at 547-48. The circuit court civilly committed Rickman, finding "no suitable less restrictive alternative to involuntary, secure inpatient treatment." Id. at 548.

         II.

         Rickman argues on appeal that the SVPA petition should have been dismissed with prejudice because the circuit court set the probable-cause hearing beyond the 90-day period required by Code § 37.2-906(A)(ii). Denying that he waived this statutory right and pointing out that the circuit court never entered a continuance order, Rickman contends the "plain language of the statute" required that "the action filed should be dismissed." Appellant's Br. at 14. Any other view, Rickman ...


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