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Commonwealth v. Giddens

Supreme Court of Virginia

July 19, 2018

COMMONWEALTH OF VIRGINIA
v.
TROY LAMAR GIDDENS, SR.

          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS H. Vincent Conway, Jr., Judge Designate

         PRESENT: All the Justices

          OPINION

          STEPHEN R. McCULLOUGH JUSTICE.

         The Commonwealth appeals from a judgment dismissing its petition to have Troy Lamar Giddens, Sr., civilly committed as a sexually violent predator. The Commonwealth argues that the trial court misapplied the relevant statute, Code § 37.2-905.1, and, moreover, that the evidence does not support dismissal. For the reasons noted below, we agree with the Commonwealth.

         BACKGROUND

         Giddens was convicted of carnal knowledge and attempted carnal knowledge, in violation of Code §§ 18.2-26 and 18.2-63. These convictions constitute "sexually violent offenses" under the Civil Commitment of Sexually Violent Predators Act ("SVP Act"). See Code § 37.2-900 et seq. Under the statute in effect at the time, the Director of the Department of Corrections ("Director") was required to forward to the Commitment Review Committee ("CRC") the name of an eligible inmate who "receive[s] a score of five or more on the Static-99." See Code §§ 37.2-903(B), (D) and (E).[1] The Static-99 is a test designed to assess the recidivism risk of adult male sexual offenders that has long been recognized in the Commonwealth. See Commonwealth v. Miller, 273 Va 540, 546, 643 S.E.2d 208, 211 (2007) (observing that "the Static-99 is used to predict sex offender recidivism"); Commonwealth v Garrett, 276 Va 590, 610, 667 S.E.2d 739, 750 (explaining that "the Static-99 [is] one of the standardized tests used by mental health professionals to determine the likelihood of a sex offender to re-offend") (Kinser, J, concurring); Commonwealth v. Allen, 269 Va. 262, 278, 609 S.E.2d 9, 15 (2005) (noting that "the Static-99 [is] an actuarial risk assessment test designed to predict sex offender recidivism"). A score of five on this test instrument correlates with a "statistical risk of re-offending [of] 33% within five years," Commonwealth v. Squire, 278 Va. 746, 750, 685 S.E.2d 631, 633 (2009). Giddens scored a five on the Static-99, and, accordingly, the Director of the Department of Corrections forwarded his name to the CRC. Code § 37.2-903(B). Dr. Glenn Rex Miller, Jr., a licensed clinical psychologist, evaluated Giddens and concluded that he met the criteria of a sexually violent predator. Giddens did not cooperate with Dr. Miller, so Dr. Miller relied on available records in making his recommendation.

         The Commonwealth then filed a petition in the Circuit Court of the City of Newport News pursuant to the SVP Act to have Giddens civilly committed as a sexually violent predator. Giddens responded with a motion to dismiss in which he contended that he was ineligible for referral to the CRC. He grounded his argument on a claim that the Director incorrectly calculated his Static-99 score. The Static-99 instrument considers, among other things, whether the subject of the test has ever, "lived with [a] lover for at least two years." If the test subject has lived with a lover for two years, no points are assigned; if the subject has not, the test assigns one point. Giddens asserted that he lived with a romantic partner for at least two years and, therefore, the Director of the Department of Corrections did not properly score the Static-99. Giddens claimed that, without the erroneously assigned point, he should have received a score of four, rather than five, on the assessment. As a result, he argued, he did not meet the minimum Static-99 score mandating evaluation as a sexually violent predator under Code § 37.2-903(B). Giddens relied on Shelton v. Commonwealth, 274 Va. 121, 645 S.E.2d 914 (2007), in contending that his case should be dismissed.

         The Commonwealth responded that it had substantially complied with the screening provisions of the SVP Act and, further, that the screening statutes are procedural rather than substantive or jurisdictional. Code § 37.2-905.1. Giddens did not allege that the Commonwealth failed to substantially comply with the provisions of Code § 37.2-903, in accordance with Code § 37.2-905.1.[2]

         At a hearing on the motion to dismiss, Giddens and his brother testified that Giddens had lived with two romantic partners, one of whom was his wife, for more than two years each. Neither of the women Giddens claimed to have lived with for this period of time testified, and Giddens offered no other witnesses or corroborating evidence. The Commonwealth challenged this testimony as inconsistent with (1) the record of Giddens's 2012 Sexually Violent Predator Evaluation by Dr. Stephen C. Ganderson, including his interview with Dr. Ganderson, (2) the records of Dr. Miller, who conducted Giddens' 2016 Sexually Violent Predator Evaluation, and (3) the records before the Director in 2012 and 2016. The Commonwealth also noted that Giddens had been scored on the Static-99 four times in the last five years and had scored at least a five on each occasion.

         Giddens also testified that upon learning that he had scored a five on his most recent Static-99 evaluation, he wrote the Sex Offender Screening and Assessment Unit seeking a correction of what he contended was an incorrect score. He did not receive a response. Giddens next filed a formal grievance with the Department of Corrections. The Department of Corrections declined to act on his grievance, telling Giddens it was a matter for the court to decide. Giddens then wrote the Attorney General's Office asking that office to correct his Static-99 score. It does not appear that office took any action in response.[3]

         The trial court granted the motion to dismiss, concluding that the burden was on the Commonwealth to prove that Giddens is eligible for the sexually violent predator program and that the Commonwealth failed to show that the Static-99 was scored correctly. The Commonwealth filed a motion to reconsider, pointing out that, under Code § 37.2-905.1, Giddens bears the burden to prove that the Commonwealth failed to substantially comply with the screening provisions of the SVP Act and, moreover, Giddens must show gross negligence or willful misconduct to prevail. Following argument of counsel, the court denied the motion for reconsideration.

         ANALYSIS

         In Shelton v. Commonwealth, 274 Va. 121, 645 S.E.2d 914 (2007), we dismissed with prejudice proceedings brought against a prisoner under the SVP Act. We did so on the basis that minimum test scores which were - at that time - specifically enumerated in the text of the SVP Act, were statutory requirements, not procedural safeguards, and the prisoner's score on a test fell below the minimum score that qualified an inmate for further evaluation under the SVP Act. Id. at 129, 645 S.E.2d at 918. After Shelton, however, a new provision of the SVP Act went into effect. That amendment, codified at Code § 37.2-905.1, provides as follows:

The provisions of ยงยง 37.2-903, 37.2-904, and 37.2-905 are procedural and not substantive or jurisdictional. Absent a showing of failure to follow these provisions as a result of gross negligence or willful misconduct, it shall be presumed that ...

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