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Harvey v. Commonwealth

Supreme Court of Virginia

June 27, 2019




         PRESENT: All the Justices



         The 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 an expert.


         Jack Harvey

         Harvey 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.

         Harvey 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 children congregate."

         On 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.

         Three 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.

         On 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 from deteriorating."

         Harvey 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.[1] 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 (the "Department").[2]

         John Wesley Thomas, II

         Among 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.

         Thomas 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 offender.
• 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 "reasonable suspicion."
• 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 officer.
• 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.

         At a minimum, any home plan should meet the following minimum conditions.

(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 ...

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