THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS Steven C.
THE CIRCUIT COURT OF THE CITY OF ROANOKE David B. Carson,
All the Justices
STEPHEN R. McCULLOUGH JUSTICE.
respondents, both previously adjudicated to be sexually
violent predators, were committed to the Department of
Behavioral Health and Developmental Services after a trial
court determined they had violated the terms of their
conditional release. They argue that, because they are
indigent, the Due Process Clause requires the State to
appoint a psychological expert to assist them in a hearing.
The purpose of the hearing is to determine whether the
respondents violated the conditions of their release and
whether these violations render them unsuitable for
conditional release. Hearings must occur on an expedited
basis and a respondent will subsequently be re-evaluated,
upon request, within six months of his recommitment or sooner
depending on the scheduling of the annual review. We conclude
that, in this specific context, given the temporary,
expedited nature of the hearing and the other protections
afforded to the respondents, including the right to counsel,
the Due Process Clause does not require the State to appoint
was convicted of sexual battery in 1983. In 1995, he was
convicted of indecent liberties and solicitation to commit
sodomy. According to the pre-sentence report, Harvey sexually
molested three young boys over a period of several months.
The boys were 8 to 14 years old. One of the victims reported
that Harvey engaged in oral sex with him every other weekend,
placing a pillow over his mouth and threatening to shoot him
in the brain if he told anyone. The second victim testified
that Harvey would lock him in a room and participate in
"sex games" with him. The third boy testified that
Harvey would take his clothes off but he resisted. This boy
reported that he was not molested as much as the other boys
because he was older.
was adjudicated to be a sexually violent predator
("SVP") in 2011 and committed for secure treatment
to the Virginia Center for Behavioral Rehabilitation
("VCBR"). After several years of treatment at VCBR,
he was granted conditional release in November 2014. One of
the conditions of his release was that he "will follow
the Probation and Parole Officer's instructions and will
be truthful, cooperative, and report as instructed." He
was also instructed to "not frequent places where
March 11, 2016, Harvey was the subject of an emergency
custody order for violating the terms of his conditional
release. His probation officer reported that:
On 8/4/15, Harvey admitted to using [a] phone service
"MegaMate" to solicit other males for oral sex.
Reported meeting up and exchanging oral sex with 2 different
men. Harvey is instructed to not use any form of social
networks and that he must disclose his sex offender/SVP
status which he reported that he did not do. He was
instructed not to use this service. On 3/9/16, Harvey
admitted to calling [the phone service] 2-3 times since as
well as using another similar service at least 3 times. He
admitted to attempting to solicit the exchange of oral sex,
however, due to technical difficulties with the system he was
not able to set up these meetings. He further admitted had he
been successful in meeting these men, he did not plan to
advise them he is a sex offender.
days later, Harvey's probation officer submitted a
"Major Violation Report" detailing Harvey's
failure to abide by certain conditions of his release,
notably failing to follow the instructions of his probation
officer and frequenting a place where children congregate.
April 28, 2016, Dr. Glenn Rex Miller, a licensed clinical
psychologist, issued a ten-page report. In preparing his
report, Dr. Miller reviewed court records, treatment notes,
and interviewed Harvey. Among other things, Dr. Miller
detailed Harvey's poor response to community supervision
and his disregard of his probation officer's
instructions. The report concluded that Harvey did not meet
the criteria for conditional release, and that outpatient
supervision and treatment "do not appear appropriate at
this time." Dr. Miller concluded that Harvey "needs
treatment in a secure environment to prevent his condition
filed a motion for the appointment of an expert, arguing that
the Due Process Clause required the state to provide him with
a defense expert. The circuit court denied the
motion. Following a hearing that included
testimony from his probation officer, the circuit court
concluded that Harvey had violated the conditions of his
release and that he was "no longer suitable for
conditional release." The circuit court revoked his
conditional release and committed him to the custody of the
Department of Behavioral Health and Developmental Services
Wesley Thomas, II
other things, Thomas was convicted of carnal knowledge of a
13-year-old girl. He was also convicted of breaking and
entering and sexual battery. While incarcerated, he received
four institutional infractions for inappropriate sexual
behaviors, including exposing himself while masturbating.
was adjudicated as an SVP in 2012. He was granted conditional
release status in May 2015. Thomas was required to comply
with numerous detailed and onerous conditions in order to be
placed on conditional release:
II. Supervision: Persons placed on
conditional release will be supervised by the DOC Office of
Community Corrections, probation and parole. As such, Mr.
Thomas, having been found a sexually violent predator, will
be subject to the following DOC conditions.
• Standard DOC conditions of supervision as a sex
• Mr. Thomas shall abide by the laws of the Commonwealth
of Virginia; conditions of his probation/parole and be of
good behavior; he will follow all
probation/parole/supervising officers' instructions and
will be truthful, cooperative and report as instructed once
released from parole/probation.
• Warrantless searches of person, vehicle, computers, or
real property by law enforcement officers based on
• Will register as a sex offender in Virginia and or the
state of residence.
• Have no contact with his victims or their families,
either directly or by third party, without the permission of
his supervising officer.
• Participation in and successful completion of any
sexual offender assessment, treatment, technological
monitoring to include GPS or other electronic methods, and
polygraphs for treatment use as directed by the DBHDS Office
of SVP Services and the supervising probation and parole
• Report to his assigned supervising officer on the day
he is released from custody.
• Be seen in person by his supervising officer or
designee at least once per week for at least six months from
his release date. After his six month review, the number of
contacts may be reduced with the approval of OSVP Services.
• Receive a minimum of one home visit per month from his
supervising officer or designee.
• Maintain a landline phone for the purpose of GPS
supervision if required by his supervising officer.
• Payment for any fees related to these services is the
responsibility of the individual. The Commonwealth may or may
not be able to provide some financial support for treatment.
• Have no unsupervised contact with minors, defined as
persons physically or mentally younger than 18 years old,
unless by prior approval of his supervising officer, the
OSVP, and the court.
• Keep a log of incidental contact with any minors to be
surrendered to his supervising officer and polygrapher upon
request; he will answer polygraph questions about the
accuracy of his entries.
minimum, any home plan should meet the following minimum
(1) Mr. Thomas will reside at the address approved by his
supervising officer, any moves will be approved by his
supervising officer, who will immediately notify the office
of SVP and OAG of the changes.
(2) He shall live in a home in which no minors are residents,
overnight visitors, or are left under his supervision for any
period of time.
(3) He shall not view or possess any sexually explicit or
suggestive materials, either print, photo, or ...