Rhoten v. Commonwealth

PRESENT: All the Justices
JEFFREY RHOTEN,
a/k/a JEFFREY RHOTON
OPINION BY
v. Record No. 130456 JUSTICE S. BERNARD GOODWYN
October 31, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Harold W. Burgess, Jr., Judge
In this appeal, we consider whether res judicata prohibits
an individual, determined in a prior proceeding not to be a
sexually violent predator pursuant to the Civil Commitment of
Sexually Violent Predators Act, Code §§ 37.2-900 et seq. (SVPA
or the Act), from being subjected to reevaluation and
redetermination of his status as a sexually violent predator at
the conclusion of a subsequent period of reincarceration for
the same sex offenses.
Background
On June 15, 1989, Jeffrey Paul Rhoten (Rhoten) was
convicted in the Circuit Court of Chesterfield County of
aggravated sexual battery and attempting to commit forcible
sodomy. The circuit court sentenced him to twenty years’
imprisonment with five years suspended for the sexual battery
charge and ten years’ imprisonment with ten years suspended for
the attempted forcible sodomy charge. He was released from
custody in 1997 but was reincarcerated almost two years later
due to parole violations. Before Rhoten’s next scheduled
release, the Commonwealth filed a petition to civilly commit
Rhoten pursuant to the Act. On April 14, 2005, the circuit
court found that the Commonwealth had failed to meet its burden
of proof that Rhoten was a sexually violent predator and
ordered that Rhoten be released from custody (2005 proceeding).
The Commonwealth appealed, and this Court dismissed its appeal
on March 24, 2006.
In 2008, Rhoten was found guilty of violating his parole
and was reincarcerated for his 1989 sexual offenses. Prior to
his scheduled release from incarceration, pursuant to the Act,
the Commonwealth filed a second petition on March 25, 2011 to
civilly commit Rhoten as a sexually violent predator (2011
petition). In response, Rhoten filed a motion to dismiss the
2011 petition, arguing that it was barred by res judicata
because the circuit court had found that Rhoten was not a
sexually violent predator in 2005.
After hearing oral arguments on Rhoten’s motion to dismiss
on September 30, 2011, the court denied the motion. Rhoten
noted his objection on the court order.
Rhoten “waive[d] the formal presentation of the evidence”
at trial and agreed “[t]hat the [Commonwealth’s] evidence would
be sufficient to prove, by clear and convincing evidence, that
[he] is a sexually violent predator, as defined in the Act.”
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Rhoten also stipulated “that the case [was] in a procedural
posture that [was] ripe and appropriate for adjudication” and
“[t]hat the [Commonwealth’s] Petition was properly and timely
filed.”
The circuit court found that Rhoten was a sexually violent
predator and ordered that he be committed to the custody of the
Department of Behavioral Health and Developmental Services
after determining that Rhoten did not qualify for conditional
release. Rhoten objected to the final order of the circuit
court because of the court’s failure to grant his res judicata-
based motion to dismiss. Rhoten appeals, claiming that the
circuit court erred in failing to find that the Commonwealth’s
action was barred by res judicata.
Analysis
Rhoten argues that the circuit court erred in denying his
motion to dismiss the Commonwealth’s 2011 petition. Because
the circuit court found he was not a sexually violent predator
in the 2005 proceeding and because he has not committed any new
sexually violent offenses since 1989, Rhoten maintains that the
2011 petition was barred by res judicata. Rhoten asserts that
although he believes Rule 1:6 governs the res judicata issue in
this case, the Commonwealth’s 2011 petition would be barred
under former res judicata law as well.
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Initially, the Commonwealth argues that Rhoten waived his
res judicata argument by stipulating that he is a sexually
violent predator, that the 2011 petition was “properly and
timely filed” and that the 2011 petition was “appropriate for
adjudication.” On the merits of Rhoten’s appeal, the
Commonwealth argues that when it filed the 2011 petition,
Rhoten was serving time in prison for his 1989 sexual offenses,
and the resulting civil commitment proceeding was to determine
his status at that time. It argues Rhoten’s status in 2011 as
a sexually violent predator could not have been determined in
the 2005 proceeding. Additionally, the Commonwealth disagrees
with Rhoten as to the application of Rule 1:6 to this case
because the 2005 proceeding was commenced before July 1, 2006.
The question whether res judicata applies so as to bar
relitigation of a claim is an issue of law this Court reviews
de novo. Caperton v. A.T. Massey Coal Co., 285 Va. 537, 548,
740 S.E.2d 1, 7 (2013). Before considering the merits, we must
address the Commonwealth’s contention that Rhoten waived his
objection to the circuit court’s ruling on his res judicata
argument. Rule 5:25 demands that a party object at the time of
the lower court’s ruling in order to preserve an issue for
appeal. This Court has stated that “[t]he purpose of requiring
timely specific objections is to afford a trial court the
opportunity to rule intelligently on the issues presented,
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thereby avoiding unnecessary appeals and reversals.” Chawla v.
BurgerBusters, Inc., 255 Va. 616, 622, 499 S.E.2d 829, 832
(1998).
Code § 8.01-384(A) controls the interpretation of Rule
5:25. Helms v. Manspile, 277 Va. 1, 7, 671 S.E.2d 127, 130
(2009). According to subsection (A), once a party has made the
court aware of an argument, repeated objections or motions to
preserve the argument for appeal are unnecessary. Code § 8.01-
384(A) further provides that “[a]rguments made at trial via
written pleading, . . . recital of objections in a final order
[or] oral argument reduced to transcript . . . shall, unless
expressly withdrawn or waived, be deemed preserved therein for
assertion on appeal.”
Once a party has preserved an argument for appeal, to
waive the argument under Code § 8.01-384(A), the party must
abandon it or show intent to abandon by the party’s conduct.
Helms, 277 Va. at 6, 671 S.E.2d at 129. There must be “clear
and unmistakable proof” of the intent to waive the argument
before we will find implied waiver. Chawla, 255 Va. at 623,
499 S.E.2d at 833.
We have held that a party’s affirmative statement can
serve as an abandonment of that party’s objection at trial.
See Graham v. Cook, 278 Va. 233, 248, 682 S.E.2d 535, 543
(2009) (party’s statement, “I don’t have a problem with that,”
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indicated party no longer objected to admission of testimony).
However, endorsing a pretrial order as “seen and agreed” after
having previously filed a memorandum of law and orally argued
the contrary position does not evince intent to abandon.
Chawla, 255 Va. at 622, 499 S.E.2d at 832; see also Cashion v.
Smith, ___ Va. ___, ___ S.E.2d ___ (2013) (this day decided).
This Court determined in Shelton v. Commonwealth, 274 Va.
121, 128, 645 S.E.2d 914, 917 (2007), that a stipulation did
not constitute abandonment. There, the defendant filed a
motion to dismiss and orally argued that the Commonwealth’s
petition to civilly commit him under the SVPA should be
dismissed because his initial score on the applicable risk
assessment test was incorrect. Id. at 125, 645 S.E.2d at 915.
After the circuit court denied his motion, the defendant noted
his objection on the court’s final order. Id. at 125, 645
S.E.2d at 916. Although he stipulated to receiving a
qualifying score, he did not stipulate to the score’s accuracy,
which was the precise issue on appeal. Id. at 128, 645 S.E.2d
at 917 (“[T]he evidence at [the defendant’s] trial did not
affect the merit of his earlier argument or result in an
effective abandonment of his claim.”).
Rhoten properly preserved the res judicata issue for
appeal in the present case with his motion to dismiss, his oral
arguments before the circuit court, his objection to the court
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order denying his motion and his stated objection on the final
order. The circuit court had the opportunity to rule
intelligently on the issue of res judicata after Rhoten made
the court aware of his argument.
Rhoten’s agreement to stipulations that streamlined the
trial on the 2011 petition, after his motion to dismiss the
petition was denied, do not clearly and unmistakably
demonstrate an intent to abandon his claim of res judicata.
Therefore, we hold that his stipulations did not affect the
earlier preservation of his argument and that Rhoten did not
waive his res judicata argument in the circuit court. We now
turn to the merits of this appeal.
The SVPA ensures that those who have been convicted of
sexually violent offenses are evaluated before being released
into society when their period of incarceration is over. Cf.
Shivaee v. Commonwealth, 270 Va. 112, 120, 613 S.E.2d 570, 574
(2005) (“[A] State may ‘in certain narrow circumstances
provide[] for the forcible civil detainment of people who are
unable to control their behavior and who thereby pose a danger
to the public health and safety.’”) (quoting Kansas v.
Hendricks, 521 U.S. 346, 357 (1997)). To that end, the Act
charges the Director of the Department of Corrections with
maintaining a database of prisoners incarcerated for sexually
violent offenses. Code § 37.2-903(A). Every month, the
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Director must review the database to identify prisoners
incarcerated for sexually violent offenses who are scheduled
for release in the following ten months. Code § 37.2-903(B).
Such prisoners must undergo an initial mental health screening
to determine whether they “may meet the definition of a
sexually violent predator” under the Act. Code §§ 37.2-903(B)
and (C).
The Act defines a “sexually violent predator” as “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. Those who meet a certain threshold upon
screening are assessed further by a mental health evaluation.
Code §§ 37.2-903(E) and -904. The Commitment Review Committee
reviews the evaluation and, depending on the results,
recommends to the Attorney General that the prisoner be
committed, put in conditional release or not be committed.
Code §§ 37.2-904(B) and (C). Information is forwarded to the
Attorney General to enable the Commonwealth to petition for the
prisoner’s civil commitment pursuant to the Act if the Attorney
General so chooses. Code §§ 37.2-904(C) and -905(A).
The parties disagree about the appropriate res judicata
standard to be applied in this case. However, under either
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standard the result is the same because the 2011 petition was
not based upon the same transaction as the 2005 proceeding and
did not require the same evidence.
The current governing law of res judicata in the
Commonwealth is Rule 1:6. Raley v. Haider, 286 Va. 164, 170,
___ S.E.2d ___, ___ (2013). The rule states:
A party whose claim for relief arising from
identified conduct, a transaction, or an occurrence,
is decided on the merits by a final judgment, shall
be forever barred from prosecuting any second or
subsequent civil action against the same opposing
party or parties on any claim or cause of action that
arises from that same conduct, transaction or
occurrence . . . .
Rule 1:6(a). This rule applies to “judgments entered in civil
actions commenced after July 1, 2006.” Rule 1:6(b).
This Court’s res judicata jurisprudence prior to the
enactment of Rule 1:6 required four elements before res
judicata would bar a claim: “(1) identity of the remedies
sought; (2) identity of the cause of action; (3) identity of
the parties; and (4) identity of the quality of the persons for
or against whom the claim is made.” Caperton, 285 Va. at 549,
740 S.E.2d at 7 (quoting Smith v. Ware, 244 Va. 374, 376, 421
S.E.2d 444, 445 (1992)). To establish identity of cause of
action, a party formerly had to show that the prior and
subsequent claims required the same evidence. Davis v.
Marshall Homes, Inc., 265 Va. 159, 168, 576 S.E.2d 504, 508
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(2003). By contrast, Rule 1:6 explicitly does not rely on a
showing of the same evidence or elements to establish res
judicata. Rule 1:6(a) (“regardless of the legal elements or
the evidence upon which any claims in the prior proceeding
depended”); see also Martin-Bangura v. Commonwealth Dep’t of
Mental Health, 640 F. Supp. 2d 729, 738 (E.D. Va. 2009)
(Virginia’s “transactional” test under Rule 1:6 replaced the
prior “same evidence” test).
In support of his res judicata argument, Rhoten focuses
almost exclusively on the fact that he committed no new
sexually violent offense between the 2005 proceeding and 2011
petition. We note that evaluation is triggered under the Act
by incarceration for a sexually violent offense and impending
release from incarceration, not by conviction of a new sexually
violent offense. See Code § 37.2-903(B) (“Each month, the
Director shall review the database and identify all such
prisoners who are scheduled for release from prison within 10
months.”).
When the Commonwealth filed its 2011 petition, Rhoten was
serving time for a sexually violent offense. See Townes v.
Commonwealth, 269 Va. 234, 240-41, 609 S.E.2d 1, 4 (2005) (“[A]
prisoner must be serving an active sentence for a sexually
violent offense . . . at the time he is identified as being
subject to the SVPA.”). To civilly commit Rhoten, the
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Commonwealth had to prove by clear and convincing evidence not
only that Rhoten has been convicted and incarcerated because of
a sexually violent offense, but also that he suffers from a
“mental abnormality or personality disorder” that makes it
difficult to control his “predatory behavior.” Code §§ 37.2-
900 and -908(C). The statutory language necessitates an
evaluation of the prisoner’s current mental health status. See
Code §§ 37.2-900 (“finds it difficult to control . . . which
makes him likely to engage”) (emphasis added); -908(C) (“The
court or jury shall determine whether, by clear and convincing
evidence, the respondent is a sexually violent predator.”)
(emphasis added). Regarding both the 2005 proceeding and the
2011 petition, Rhoten’s mental health evaluations assessed his
condition and risk of future predatory behavior as of the time
of evaluation. See Code § 37.2-907; see also Code § 37.2-
904(B) (“The licensed psychiatrist or licensed clinical
psychologist shall determine whether the prisoner or defendant
is a sexually violent predator, as defined in § 37.2-900.”)
(emphasis added). ∗
We agree with the Commonwealth that the Act assumes the
mental health of a sexually violent offender may change over
∗
Rhoten stipulated that the Commonwealth’s evidence was
sufficient to prove by clear and convincing evidence that he
was, at the time of the ruling presently on appeal, a sexually
violent predator as defined in the Act.
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time. See, e.g., Code §§ 37.2-910(A), (B) and (D) (outlining a
process for reevaluation after commitment and requiring release
if a court “finds, based upon the report and other evidence
provided at the hearing, that the respondent is no longer a
sexually violent predator”). As the Commonwealth correctly
points out, Rhoten’s mental health condition in 2011 could not
have been litigated in the 2005 proceeding.
The 2011 petition arose as a result of Rhoten’s impending
release from custody after a new term of incarceration for a
sexually violent offense and concerned Rhoten’s mental health
status in 2011. The 2011 petition was not dependent upon the
same evidence as the 2005 proceeding, nor did the 2011 petition
arise from the same conduct, transaction or occurrence.
Therefore, application of res judicata is inappropriate. See
Rule 1:6; Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917,
920-21 (1974) (“A valid, personal judgment on the merits in
favor of defendant bars relitigation of the same cause of
action, or any part thereof which could have been litigated,
between the same parties and their privies.”) (footnote
omitted). The 2011 petition was not barred by res judicata.
Therefore, we hold the circuit court did not err in
denying Rhoten’s motion to dismiss. Accordingly, the judgment
of the circuit court will be affirmed.
Affirmed.
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