Gibson v. Commonwealth ( 2014 )

Present: All the Justices
DONALD GIBSON
OPINION BY
v. Record No. 131256 CHIEF JUSTICE CYNTHIA D. KINSER
April 17, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jan L. Brodie, Judge
The Commonwealth filed a petition for the civil commitment
of Donald Gibson as a sexually violent predator pursuant to the
Civil Commitment of Sexually Violent Predators Act (SVPA), Code
§§ 37.2-900 through -921. After the fact finder determined that
Gibson is a sexually violent predator, the circuit court shifted
to Gibson the burden of proof to establish that he satisfies the
criteria for conditional release. Because the burden of proof
does not shift, we will reverse the circuit court's judgment.
RELEVANT FACTS AND PROCEEDINGS
The Commonwealth filed its petition pursuant to Code
§ 37.2-905 and requested the circuit court to hold that Gibson
is a sexually violent predator under Code § 37.2-908 and to find
that no suitable less restrictive alternative to involuntary
secure inpatient treatment is available. See Code § 37.2-
908(D). Following its determination that probable cause existed
to believe that Gibson is a sexually violent predator, see Code
§ 37.2-906(A), the court circuit conducted a two-day jury trial.
Upon the conclusion of the evidence, the jury found that Gibson
is a sexually violent predator as defined in Code § 37.2-900. 1
The circuit court entered an order in accord with the jury's
verdict. Pursuant to Code §§ 37.2-908(D) and (E), the circuit
court ordered that the trial be continued to receive additional
evidence on possible alternatives to commitment and to determine
whether Gibson meets the criteria for conditional release or
should be committed to the custody of the Department of
Behavioral Health and Developmental Services (DBHDS).
At the commencement of the reconvened trial to determine
Gibson's suitability for conditional release, the circuit court
stated: "[W]e go forward with the second phase of this hearing
and I believe [Mr. Gibson], the burden is on you to proceed."
Gibson objected, arguing that the burden was on the Commonwealth
to prove the elements of Code § 37.2-912 are not satisfied.
Gibson stated: "It's the burden of the Commonwealth . . . to
prove by clear and convincing evidence that there is not a
conditional release plan that will meet [the] factors" outlined
in Code § 37.2-912. In response, the Commonwealth,
citing Commonwealth v. Bell, 282 Va. 308, 714 S.E.2d 562 (2011),
argued that the burden is on Gibson to prove by a preponderance
1
In relevant part, the term "[s]exually violent predator
means any person who (i) has been convicted of a sexually
violent offense . . . ; and (ii) because of a mental abnormality
or personality disorder, finds it difficult to control his
predatory behavior, which makes him likely to engage in sexually
violent acts." Code § 37.2-900.
2
of the evidence that he meets the criteria for conditional
release. The circuit court agreed with the Commonwealth.
Relying on Bell and Code § 37.2-912, the circuit court shifted
to Gibson the burden of proof to demonstrate that he satisfies
the criteria for conditional release.
Gibson offered evidence in support of a conditional release
plan, including testimony from his family members who, under the
plan, would be tasked with his supervision if he were
conditionally released. After reviewing the conditional release
plan and hearing the evidence, which included a report from the
Commissioner of DBHDS as required by Code § 37.2-908(E), the
circuit court found that Gibson does not meet the criteria in
Code § 37.2-912(A). The court concluded that Gibson needs
inpatient treatment as a sexually violent predator and that the
conditional release plan does not "provide appropriate
outpatient supervision." The court also doubted that Gibson
"would comply with the conditions specified" and believed that
"he would present an undue risk to public safety." The court
ordered that Gibson be committed to the custody of DBHDS for
appropriate treatment and confinement. See Code § 37.2-908(D).
We granted Gibson's appeal on the sole issue whether the
circuit court erred in holding that Gibson bore the burden of
proof to establish the criteria for conditional release under
Code § 37.2-912(A).
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ANALYSIS
The SVPA sets forth the statutory scheme that permits a
person convicted of a sexually violent offense to be declared a
sexually violent predator and committed to involuntary secure
inpatient treatment in a mental health facility after release
from prison. Although a proceeding under the SVPA is civil, it
nevertheless entails the potential involuntary loss of liberty,
and therefore a respondent subject to such a proceeding is
afforded certain rights typically available in a criminal
proceeding. McCloud v. Commonwealth, 269 Va. 242, 253-54, 609
S.E.2d 16, 21-22 (2005); see Code § 37.2-901. "[I]nvoluntary
civil commitment is a significant deprivation of liberty to
which federal and state procedural due process protections
apply." Jenkins v. Director, Va. Ctr. for Behav. Rehab., 271
Va. 4, 15, 624 S.E.2d 453, 460 (2006); accord Townes v.
Commonwealth, 269 Va. 234, 240, 609 S.E.2d 1, 4 (2005) ("Civil
commitment for any purpose constitutes a significant deprivation
of liberty that requires due process protection.") (internal
quotation marks omitted); see also Foucha v. Louisiana, 504 U.S.
71, 79 (1992) ("'The loss of liberty produced by an involuntary
commitment is more than a loss of freedom from confinement.'")
(quoting Vitek v. Jones, 445 U.S. 480, 492 (1980)).
When a proceeding under the SVPA reaches the trial stage,
the fact finder must determine "whether, by clear and convincing
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evidence, the respondent is a sexually violent predator." Code
§ 37.2-908(C). Upon such a finding, the trial court then
determines whether to commit the respondent or to continue the
trial to receive additional evidence regarding possible
alternatives to commitment. Code §§ 37.2-908(D) and (E). When
the trial court decides to continue the trial to receive such
additional evidence, as the circuit court did in this case, the
court shall "reconvene the trial and receive testimony on the
possible alternatives to commitment." Code § 37.2-908(E). At
the conclusion of such testimony, the court
shall consider: (i) the treatment needs of
the respondent; (ii) whether less
restrictive alternatives to commitment have
been investigated and deemed suitable; (iii)
whether any such alternatives will
accommodate needed and appropriate
supervision and treatment plans for the
respondent, including but not limited to,
therapy or counseling, access to
medications, availability of travel, and
location of proposed residence; and (iv)
whether any such alternatives will
accommodate needed and appropriate regular
psychological or physiological testing,
including but not limited to, penile
plethysmograph testing or sexual interest
testing. If the court finds these criteria
are adequately addressed and the court finds
that the respondent meets the criteria for
conditional release set forth in § 37.2-912,
the court shall order that the respondent be
returned to the custody of the Department of
Corrections to be processed for conditional
release as a sexually violent predator
pursuant to his conditional release plan.
Code § 37.2-908(E).
5
Pursuant to Code § 37.2-912(A), when the trial court
considers a respondent's need for secure inpatient treatment,
it shall place the respondent on conditional
release if it finds that (i) he does not
need secure inpatient treatment but needs
outpatient treatment or monitoring to
prevent his condition from deteriorating to
a degree that he would need secure inpatient
treatment; (ii) appropriate outpatient
supervision and treatment are reasonably
available; (iii) there is significant reason
to believe that the respondent, if
conditionally released, would comply with
the conditions specified; and (iv)
conditional release will not present an
undue risk to public safety. In making its
determination, the court may consider (i)
the nature and circumstances of the sexually
violent offense for which the respondent was
charged or convicted, including the age and
maturity of the victim; (ii) the results of
any actuarial test, including the likelihood
of recidivism; (iii) the results of any
diagnostic tests previously administered to
the respondent under this chapter; (iv) the
respondent's mental history, including
treatments for mental illness or mental
disorders, participation in and response to
therapy or treatment, and any history of
previous hospitalizations; (v) the
respondent's present mental condition; (vi)
the respondent's response to treatment while
in secure inpatient treatment or on
conditional release, including his
disciplinary record and any infractions;
(vii) the respondent's living arrangements
and potential employment if he were to be
placed on conditional release; (viii) the
availability of transportation and
appropriate supervision to ensure
participation by the respondent in necessary
treatment; and (ix) any other factors that
the court deems relevant.
6
If, after considering the factors in Code § 37.2-912(A), the
trial court concludes that there is "no suitable less
restrictive alternative to involuntary secure inpatient
treatment," the court shall "order that the respondent be
committed to the custody of [DBHDS] for appropriate inpatient
treatment in a secure facility." Code § 37.2-908(D).
The issue in this appeal is whether the burden of proof
remains with the Commonwealth during the reconvened trial to
establish by clear and convincing evidence that no suitable less
restrictive alternative to involuntary secure inpatient
treatment exists, or whether the burden of proof shifts to the
respondent to establish that he meets the criteria for
conditional release under Code § 37.2-912(A). That issue is a
question of law reviewed de novo on appeal. Gallagher v.
Commonwealth, 284 Va. 444, 449, 732 S.E.2d 22, 24 (2012).
Recognizing that the SVPA is silent with regard to the
burden of proof regarding the criteria for conditional release
in Code § 37.2-912(A), the Commonwealth asserts that the burden
of proof shifts to the respondent to establish those factors.
The Commonwealth contends that the Court's decision in Bell,
which involved an annual review under Code § 37.2-910, governs
Gibson's reconvened trial because the plain language of Code §
37.2-912(A) requires a trial court to address the criteria for
conditional release "any time the court considers the
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respondent's need for secure inpatient treatment." The
Commonwealth further argues that the "wording" of the four
criteria for conditional release in Code § 37.2-912(A), which
require the trial court to make affirmative findings, indicates
that the burden of proof rests on the respondent.
In Bell, the Commonwealth challenged, among other things,
the sufficiency of the evidence to sustain the trial court's
judgment at the first annual review. 282 Va. at 310, 714 S.E.2d
at 563; see Code § 37.2-910. The trial court found that
although the respondent remained a sexually violent predator, he
nevertheless satisfied the criteria for conditional release in
Code § 37.2-912(A). 282 Va. at 310, 714 S.E.2d at 563. At
trial, the respondent had conceded that it was his burden to
establish the criteria for conditional release, and he made the
same concession on brief to this Court, asserting that his
burden was by a preponderance of the evidence. Id. at 313, 714
S.E.2d at 564. In response, the Commonwealth noted on brief
that this Court had already addressed the burden of proof when
determining whether to civilly commit or conditionally release a
sexually violent predator in McCloud and that the respondent
cited no authority for a different burden of proof depending on
whether that determination was made at an initial sexually
violent predator trial or during an annual review hearing.
Although allocation of the burden of proof was not the subject
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of the Commonwealth's assignments of error in Bell, this Court
stated: "We agree with [the respondent's] allocation of the
burden of proof, and recognize it as the appropriate allocation
on conditional release in sexually violent predator cases." Id.
at 313, 714 S.E.2d at 564.
That statement appears to be contrary to our earlier
decision in McCloud. There, we held that "the burden of proving
that there is no suitable less restrictive alternative to
involuntary confinement rests with the Commonwealth, and that
burden cannot be shifted to the [respondent]." 269 Va. at 261,
609 S.E.2d at 26. The Commonwealth argues that Bell tacitly
overruled McCloud on this point, while Gibson argues that Bell
addressed the burden of proof only in an annual review hearing
and that McCloud still governs as to an initial sexually violent
predator trial.
The SVPA expressly addresses allocation of the burden of
proof in only one place. Code § 37.2-910(C) provides that at
the mandatory review hearings conducted periodically after the
initial date of commitment, the Commonwealth must establish "by
clear and convincing evidence that the respondent remains a
sexually violent predator." Code § 37.2-908(C), however,
implicitly addresses the burden of proof by providing that the
fact finder must "determine whether, by clear and convincing
evidence, the respondent is a sexually violent predator." In
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upholding the constitutionality of the SVPA and finding that it
satisfies due process requirements, we have emphasized that the
"individual's interest in the outcome of a civil commitment
proceeding is of such weight and gravity that due process
requires the state to justify confinement by proof more
substantial than a mere preponderance of the evidence" and that
"the 'clear and convincing' evidentiary standard is the minimum
standard that may be used in a civil commitment
proceeding." Shivaee v. Commonwealth, 270 Va. 112, 126, 613
S.E.2d 570, 578 (2005) (quoting Addington v. Texas, 441 U.S.
418, 427, 432-33 (1979)). The burden of proof by clear and
convincing evidence rests on the Commonwealth, not the
respondent, and never shifts. See Dobson v. Commonwealth, 260
Va. 71, 74-75, 531 S.E.2d 569, 571 (2000) (recognizing that an
impermissible shifting of the burden of proof implicates due
process rights).
Thus, we reiterate our holding in McCloud:
[T]he burden of proving that there is no
suitable less restrictive alternative to
involuntary confinement rests with the
Commonwealth, and that burden cannot be
shifted to the [respondent]. However, when
. . . the Commonwealth has adduced evidence
sufficient to satisfy the trial court that
involuntary confinement is necessary and,
thus, less restrictive alternatives are
unsuitable, the [respondent] then has the
burden of going forward with his case if he
is to rebut the Commonwealth's evidence.
10
269 Va. at 261, 609 S.E.2d at 26.
The criteria for conditional release in Code § 37.2-912(A)
must be satisfied "[a]t any time the court considers the
respondent's need for secure inpatient treatment pursuant to
[the SVPA]." (Emphasis added.) We discern no reason to draw a
distinction between an initial sexually violent predator trial
and an annual review hearing in terms of which party bears the
burden of proof on the issue whether there are no suitable less
restrictive alternatives to involuntary confinement. 2 In both
instances, when the Commonwealth presents a prima facie case
showing that there is no suitable less restrictive alternative
to involuntary commitment, the respondent then has the burden to
produce evidence to rebut the Commonwealth's case by showing
2
In Bell, the question as to which party had the burden of
proof to establish the criteria for conditional release was not
at issue and thus our statement regarding the burden of proof
was dicta. But, to the extent Bell is contrary to our holding
today, it is overruled. We are mindful of the doctrine of stare
decisis and the critical role it serves in ensuring stability in
the law. However, stare decisis "'is not an inexorable
command.'" Home Paramount Pest Control Cos. v. Shaffer, 282 Va.
412, 419, 718 S.E.2d 762, 766 (2011) (quoting McDonald v. City
of Chicago, 561 U.S. ___, ___ 130 S. Ct. 3020, 3063, (2010)
(Thomas, J., concurring). And thus, when warranted, "we have
not hesitated to reexamine our precedent in proper cases and
overrule such precedent." Nunnally v. Artis, 254 Va. 247, 253,
492 S.E.2d 126, 129 (1997). "[S]tare decisis cannot possibly be
controlling when" the rule at issue "does not serve as a guide
to lawful behavior" and "has been proved manifestly erroneous."
United States v. Gaudin, 515 U.S. 506, 521 (1995).
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that the respondent meets the criteria for conditional release
in Code § 37.2-912(A). 3
CONCLUSION
For the foregoing reasons, we conclude that the circuit
court erred by requiring Gibson to bear the burden of proof to
establish that he satisfies the criteria for conditional release
in Code § 37.2-912(A). We will reverse the circuit court's
judgment and remand the case for further proceedings consistent
with this opinion.
Reversed and remanded.
3
The burden of proof is not to be confused with the burden
of going forward to produce evidence. The burden of proof, also
referred to as the burden of persuasion, never shifts. Vahdat
v. Holland, 274 Va. 417, 424, 649 S.E.2d 691, 695 (2007); Darden
v. Murphy, 176 Va. 511, 516, 11 S.E.2d 579, 581 (1940); see also
Bacon v. Bacon, 3 Va. App. 484, 488 n.1, 351 S.E.2d 37, 40 n.1
(1986). When a plaintiff presents a prima facie case, the
burden of producing evidence to overcome that prima facie case,
also referred to as the burden of going forward, then shifts to
the defendant. Darden, 176 Va. at 516, 11 S.E.2d at 581. The
same is true in a criminal prosecution. See Neal v.
Commonwealth, 124 Va. 842, 848, 98 S.E. 629, 631 (1919) (holding
that "[t]he evidence may shift from one side to the other," but
Commonwealth always has the burden to prove a defendant's guilt
beyond a reasonable doubt).
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