Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan, and Powell, JJ., and Koontz, S.J.
REGINALD SHELLMAN OPINION BY v. Record No. 120261 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR. November 1, 2012 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Marcus D. Williams, Judge
In this appeal, we consider whether Code § 37.2-910(A),
which permits the annual hearing to assess the need for secure
inpatient treatment for a respondent previously determined to
be a sexually violent predator to "be conducted using a two-
way electronic video and audio communication system,"
conflicts with the respondent's due process and statutory
rights. We also consider whether in this particular case the
order determining that the respondent remained a sexually
violent predator in need of secure inpatient treatment
accurately reflects the findings of the circuit court.
BACKGROUND
Reginald Shellman was convicted of aggravated sexual
battery in the Circuit Court of Fairfax County on February 21,
2001. Prior to his scheduled release from his term of
incarceration for this offense on July 15, 2009, the
Department of Corrections determined that Shellman qualified
for review as a potential sexually violent predator and referred these findings to the Commitment Review Committee,
which subsequently referred the matter to the Office of the
Attorney General. Code §§ 37.2-903 to 37.2-905.
On June 1, 2009, the Commonwealth filed a petition in the
Circuit Court of Fairfax County seeking to have Shellman
civilly committed as a sexually violent predator. Following
the mandated procedures of Code §§ 37.2-906 to 37.2-908, a
probable cause hearing and trial were conducted, following
which the circuit court, in an order dated March 23, 2010,
determined that Shellman met the criteria for being a sexually
violent predator. The court further determined that there was
no suitable alternative to secure inpatient treatment and
ordered that Shellman be committed to the custody of the
Department of Behavioral Health and Development Services. In
the commitment order, the court scheduled an annual assessment
hearing of Shellman's status, pursuant to Code § 37.2-910, for
March 7, 2011.
For procedural reasons, including the court-approved
withdrawal from the case of Shellman's original counsel, the
assessment hearing was delayed from its initial date multiple
times. In an order dated June 21, 2011, the circuit court,
noting Shellman's objection, indicated that when held, "in
accordance with Code § 37.2-910(A)" the assessment review
hearing would "if practicable, be conducted by two-way
2 electronic video and audio communications." The order further
stated that Shellman's new counsel could file a further
objection to conducting the hearing by video conference, if
desired.
On September 20, 2011, Shellman's counsel filed a motion
requesting that Shellman be permitted to attend the assessment
hearing in person. Shellman contended that appearing by video
conference rather than being physically present in the same
room during the hearing "stifles [private] communication
between the client and counsel," because the procedure for
permitting such communication was cumbersome. Shellman
further contended that "[w]hen there is not adequate
communication between the client and counsel during the
hearing [a respondent] is denied his right to effective
assistance of counsel, his right to be heard, [and] his right
to cross-examine and present evidence." Thus, Shellman
asserted that the "whenever practicable" standard of Code
§ 37.2-910(A) is unconstitutional because it is never
practicable to conduct a hearing by video conference without
violating a respondent's due process rights.
The Commonwealth opposed Shellman's motion to attend the
hearing, contending that "[a]ll the process due to Shellman at
his annual review hearing can be adequately provided while he
participates by video[ ]conference. He can see, hear, and
3 confront the witnesses against him, participate in person to
an appropriate extent, and confer privately with counsel upon
simple request."
Shellman's assessment hearing was held on October 26,
2011. Present in the circuit courtroom along with the trial
judge were counsel for the Commonwealth, Shellman's counsel,
and Shellman's mother. Shellman appeared by video conference
from the Virginia Center for Behavioral Rehabilitation in
Burkeville (Burkeville Center), where Dr. Mario Dennis, a
clinical psychologist and Director of Forensic Services at
Burkeville Center, was also present as a witness for the
Commonwealth. At the outset of the hearing, Shellman's
counsel noted that the circuit court had denied the motion for
Shellman to be physically present at the hearing and noted an
objection to that ruling. 1
During the course of the hearing, minor issues occurred
with the video conference system in regard to sound quality.
At one point, the video feed was lost both in the courtroom
and at Burkeville Center, and the hearing had to be suspended
for a short time while the connection was reestablished.
However, at no time during the hearing did Shellman or his
1 The record does not indicate in what manner the circuit court initially communicated the denial of the motion to Shellman's counsel; however, this ruling was subsequently memorialized in an order entered November 2, 2011.
4 counsel indicate that they could not follow the proceedings,
nor was any request made for a private communication to be
made between them.
At the conclusion of the hearing, the circuit court found
that Shellman remained a sexually violent predator, and
further ruled that he should remain in secure inpatient
treatment. The court confirmed this ruling in an order dated
November 1, 2011, finding that Shellman's "mental
abnormalities and personality disorder have not so changed
that he no longer presents an undue risk to public safety, and
he thus remains a sexually violent predator." Shellman's
counsel endorsed the order as "[s]een and exceptions noted as
stated in the record." This appeal followed.
DISCUSSION
With specific application to the Sexually Violent
Predator Act (SVPA), Code §§ 37.2-900 et seq., we have held
that "involuntary 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).
Accordingly, we have recognized that there are "certain
minimal standards" to which the Commonwealth is required to
adhere in order to afford the "due process guarantee[d] to a
respondent in an involuntary civil commitment proceeding."
5 Id. Chief among these minimal standards is the right to a
"hearing at which evidence is presented and the respondent is
provided a chance to be heard and to present documentary
evidence as well as witnesses." Id. We have further held
that "the due process protections embodied in the federal and
Virginia Constitutions mandate that the subject of the
involuntary civil commitment process has the right to counsel
at all significant stages of the judicial proceedings." Id.
at 16, 624 S.E.2d at 460. Without question, the mandatory
annual assessment to determine a respondent's continued need
for secure inpatient treatment is a significant stage of the
judicial proceedings relevant to the respondent's liberty
interests.
Likewise, the SVPA contains statutory requirements for
the conduct of such hearings. As relevant to this appeal,
Code § 37.2-901 provides that
[i]n hearings . . . held pursuant to [the SVPA], respondents shall have the following rights:
. . . .
2. To be represented by counsel.
4. To be present during the hearing or trial.
5. To present evidence and to cross-examine witnesses.
6 Code § 37.2-910(A) further provides that "[w]henever
practicable, the [annual assessment] hearing . . . shall be
conducted using a two-way electronic video and audio
communication system that meets the standards set forth in
subsection B of [Code] § 19.2-3.1." Code § 19.2-3.1(B)
provides, in relevant part, that when any two-way electronic
video and audio communication system is used "[t]he persons
communicating must [be able to] simultaneously see and speak
to one another."
With respect to the standard of review we should apply in
this appeal, Shellman contends that by not allowing him to be
physically present at the hearing along with counsel, the
circuit court created a "structural error" in the proceedings.
Thus, Shellman asserts that he need not show actual prejudice
resulting from the court's decision that it was practicable
for him to appear by video conference, as a structural error
in a proceeding "defies harmless error review."
The Commonwealth contends that Shellman does not assert a
structural error because he does not allege a complete denial
of the right to be present or a complete deprivation of the
assistance of counsel. Accordingly, the Commonwealth asserts
that Shellman must establish that he was actually prejudiced
by not being physically present at the assessment review
7 hearing such that the outcome of the proceeding would have
been different.
In Morrisette v. Warden of the Sussex I State Prison, 270
Va. 188, 613 S.E.2d 551 (2005), we explained that "[a]
'structural error' is a 'defect affecting the framework within
which the trial proceeds, rather than simply an error in the
trial process itself.' " Id. at 192, 613 S.E.2d at 556
(quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
Based on the record in this case, we hold that Shellman's not
being physically present at the hearing did not constitute a
structural error in the proceedings. Rather, the use of the
video conference was authorized by statute as a proper
procedure for conducting the assessment hearing if
practicable. Accordingly, we hold that Shellman must show
actual prejudice arising from the circuit court's decision to
have him appear at the assessment review hearing by video
conference.
Shellman further contends that the court's application of
Code § 37.2-910(A) would be subject to a de novo review in
this Court as a question of statutory construction. However,
the language of the statute is in no way ambiguous. A plain
reading of the statute makes it clear that the determination
of whether it was practicable for Shellman to appear by video
conference was a matter committed to the court's sound
8 discretion. Accordingly, we will review Shellman's
constitutional claims de novo and the court's decision to
conduct the hearing by video conference under an abuse of
discretion standard.
On the merits, Shellman contends that by conducting the
assessment hearing by video conference rather than permitting
Shellman to be physically present in the courtroom, the
circuit court violated his due process rights, as well as his
statutory rights under Code § 37.2-901, 2 because there was no
adequate means for Shellman and his counsel to confer
privately during the hearing. Thus, Shellman maintains that
he was deprived of his right to competent representation by
counsel.
The record indicates that at no point during the hearing
did Shellman or his counsel express a desire or need to
communicate privately with the other. Shellman recognized in
2 On brief of this appeal, the Commonwealth asserted that Shellman's claim that his statutory rights were violated had been procedurally defaulted because the motion requesting that he be permitted to attend the hearing did not expressly reference the application of Code § 37.2-901. However, with respect to the arguments raised by Shellman in this appeal, the statutory rights he relies upon – the right to be present at the hearing, the right to effective assistance of counsel, and the right to confront and cross-examine witnesses – are concomitant to and subsumed within identical considerations of due process. Thus, for purposes of this appeal, the determination whether the use of the video conference satisfied due process would apply equally to whether it comported with Code § 37.2-901.
9 his motion that any such request would be honored, maintaining
only that the manner in which such private communications
would occur "stifles communication between the client and
counsel." Thus, he contended that "[t]here is no effective
way for [a respondent] and his counsel to interact during the
course of the proceedings if they are not in the same room."
However, Shellman's counsel conceded during oral argument of
this appeal that nothing in Code § 19.2-3.1 or Code § 37.2-910
would prohibit a respondent's counsel from joining his client
in the video conference facility at Burkeville Center, opining
only that it might be inconvenient for counsel to do so or
that by not being present in the courtroom, it might inhibit
counsel's ability to interact with the judge and the
witnesses.
The mere fact that an authorized manner for conducting a
proceeding under the SVPA may not provide for optimal
circumstances for the respondent and his counsel to
communicate privately does not mean that the respondent has
been deprived of due process. Rather, the Court must consider
whether the limitations of the authorized procedure constitute
a fair balance between the rights of the respondent and the
interest of the government in conducting the proceeding in an
efficient and effective manner.
10 Previously, we have not been called upon to consider what
factors should be used in determining whether conducting a
hearing by video conference is "practicable" under Code
§ 37.2-910(A) or under any similar statutorily authorized
proceeding. See, e.g., Code § 19.2-82(A) (providing for an
accused to be brought before a magistrate by video
conference). However, in United States v. Baker, 45 F.3d 837
(4th Cir. 1995), the United States Court of Appeals for the
Fourth Circuit addressed the issue in the context of a
competency commitment hearing of a prisoner by video
conference. The federal court's discussion of the factors to
be considered in balancing the interests of the respondent and
the government is instructive for the similar circumstances of
this case. The court first noted that
[t]he Supreme Court has identified . . . three factors to consider in determining those procedural safeguards due a person whose interests are to be adversely affected by government actions:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
11 Id. at 843 (quoting Mathews v. Eldridge, 424 U.S. 319,
335 (1976)).
In Baker, the court recognized with regard to the first
element of the Mathews balancing test that because the
potential "deprivation [of the respondent's liberty] is great
. . . the government's interest in conducting the hearings by
means of video conferencing technology must be great, and the
risk of an erroneous deprivation of liberty small for the
government to prevail." Id. at 844. Contrasting a commitment
hearing with a criminal trial, where observation of the
demeanor of the defendant and the witnesses by the trier of
fact is a major concern, the court observed that
the goal of a commitment hearing is far different: [to determine] whether the respondent is mentally competent. This determination is made by the court and is based primarily upon the opinions of experts proffered by the government and the respondent. The expert opinions will not differ factually but only in their theoretical premises. As a result, to whatever extent the opinions are delivered by way of oral testimony, the court will determine which experts' opinions it finds more persuasive based not upon the demeanor of the experts while testifying, but upon the qualifications of the experts, and the substance and thoroughness of the opinions offered.
Id. at 844-45 (internal citation omitted)
Thus, the court opined that in a civil commitment hearing
"[t]he aim of cross-examination is changed accordingly: its
goal is not to 'poke holes' in the testimony of a witness, but
to test the expert opinion given and determine its basis and
12 its limits." Id. at 845. The court concluded that under the
second element of the Mathews test use of video conferencing
technology "runs far less risk of erroneous deprivation of
liberty [to the respondent in a commitment hearing] than would
affording similarly limited rights to criminal defendants."
Id.
Applying the third element of the Mathews balancing test
that "fiscal and administrative concerns [of the government]
are properly taken into account," the court concluded that
given the expense and security concerns related to the
transportation of respondents to court, "the government
interests in the use of the video conference technology at
civil commitment hearings are both apparent and substantial."
Id. at 847. Thus, the court held that "in light of the slight
risk of erroneous committal and the substantial government
interests," conducting a commitment hearing by video
conference did not violate considerations of constitutional
due process. Id.
We find the reasoning of Baker to be persuasive and
applicable to the present case. Unlike the initial trial in
which a respondent is determined to be a sexually violent
predator, the purpose of the annual assessment hearing is to
determine whether, in light of the treatment received in the
preceding year, the respondent remains a sexually violent
13 predator and, if so, whether there is a less restrictive
alternative to continued secure inpatient treatment. These
matters are almost entirely to be determined by the court
through consideration of expert opinion. To the extent that
the circumstances of a community-based treatment plan must be
evaluated in part through lay witness testimony, the
credibility of the witnesses would not be a significant factor
in determining the appropriateness of the plan. Accordingly,
we hold that the provision in Code § 37.2-910(A) for
conducting annual assessment hearings under the SVPA by video
conference is neither unconstitutional facially nor
unconstitutional as applied in Shellman's case.
Shellman further contends that even if conducting an
assessment hearing by video conference is constitutionally
permissible, the manner in which his hearing was conducted
interfered with the ability of his counsel to provide
effective representation and that "technical problems [with
the video conference] made the situation even worse." While
conceding that the circuit court "[made] a good[]faith effort"
to provide a consistent quality of audio and video reception
and transmission, he contends that the record shows that
technical problems effectively negated the requirement of Code
§ 19.2-3.1 of the parties "seeing and speaking to one
another[] from being fully implemented," impairing his right
14 to counsel and to confront the Commonwealth's witness in
violation of his rights afforded by Code § 37.2-901.
The "technical problems" which Shellman alludes to in
almost every instance did not involve problems with the video
conferencing equipment itself. Rather, as the record plainly
demonstrates, it was merely a question of whether the
participants were sufficiently close to the microphones so
that their voices would register on the audio feed, and that
the inability of the parties to hear one another was
immediately rectified. In the one instance where the video
feed actually failed, the record shows that the problem was
immediately noted and that the proceedings were suspended
until the problem was corrected. Thus, at no point material
to the proceedings were the parties prevented from seeing and
speaking to one another.
The record in this case amply demonstrates that Shellman
and his counsel were able to participate fully in the
proceedings, including the ability to see and hear the judge,
opposing counsel, and the witnesses and to cross-examine Dr.
Dennis. Moreover, in the absence of any evidence that
Shellman and his counsel sought to communicate privately or
that such a request would not have been honored, we conclude
that use of the video conference procedure resulted in no
detrimental effect on the ability of counsel to provide
15 Shellman with competent representation. Thus, we hold that
Shellman has not demonstrated he was deprived of any statutory
right afforded him under the SVPA.
Shellman further contends that even if the use of the
video conference did not violate his statutory and due process
rights, it was nonetheless not "practicable" for him to appear
by video conference where he had made an express request to be
physically present. In effect, he contends that the right to
be present at the hearing cannot be satisfied by an appearance
through a video conference if the respondent objects to that
process and asserts the right to "be present during the
hearing," provided by Code § 37.2-901(4), because that right
is in conflict with the "practicability" of conducting the
hearing by video conference permitted by Code § 37.2-910(A).
Thus, Shellman contends that the circuit court abused its
discretion as a matter of law in denying his motion to be
physically present at the assessment hearing. There is no
merit to this contention.
"[W]hen two statutes seemingly conflict, they should be
harmonized, if at all possible, to give effect to both."
Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609
(1998); see also Gilman v. Commonwealth, 275 Va. 222, 230, 657
S.E.2d 474, 477 (2008). A plain reading of the two statutes
at issue here, however, shows that Code § 37.2-901(4) and Code
16 § 37.2-910(A) are not in conflict. Rather, it is apparent
that by providing for the conduct of an assessment hearing by
video conference "[w]henever practicable," the General
Assembly intended for this procedure to satisfy the
requirement of Code § 37.2-901(4) because the respondent would
"be present during the hearing" by video conference. There
being no conflict in the two statutes, and no evidence in the
record that the conduct of the hearing by video conference was
impracticable, we hold that the circuit court did not abuse
its discretion in denying Shellman's motion to be physically
present at the hearing. 3
Finally, Shellman contends that the recommitment order
entered by the circuit court on November 1, 2011 was erroneous
in that it recited that Shellman suffered from "mental
abnormalities and [a] personality disorder" (emphasis added),
whereas Dr. Dennis opined that Shellman's status as a sexually
violent predator was based solely on the "mental abnormality"
of pedophilia and not that Shellman suffered from any
"personality disorder." On brief, the Commonwealth concedes
that no evidence was offered to show that Shellman suffers
3 Because we find the circuit court did not commit error in conducting the assessment hearing by video conference, it is unnecessary for us to address the Commonwealth's argument that Shellman has not demonstrated prejudice arising from the manner in which the hearing was conducted.
17 from a "personality disorder" that contributes to his
inability to control his predatory behavior. However, the
Commonwealth contends that the court's summation of the
evidence clearly shows that it relied solely on Dr. Dennis'
testimony concerning Shellman's pedophilia in concluding that
Shellman met the criteria of a sexually violent predator. In
sum, the Commonwealth contends that the additional language of
the recommitment order may be viewed as surplusage or a
scrivener's error, and its mistaken inclusion does not
constitute a reversible error as the record as a whole shows
that Shellman received a fair hearing on the merits and
substantial justice has been reached. Code § 8.01-678. We
agree.
The language of the November 1, 2011 order essentially
tracks statutory criteria for determining whether a respondent
is a sexually violent predator. However, it is not necessary
for the trier of fact in an SVPA proceeding to find that the
respondent suffers from both a mental abnormality and a
personality disorder which makes it difficult for him to
control his predatory behavior. As the record in this case
demonstrates that the circuit court limited its consideration
of Shellman's status as a sexually violent predator to Dr.
Dennis' testimony concerning Shellman's mental abnormality as
a pedophile, we hold that the mistaken inclusion of the
18 additional language in the final order does not constitute
reversible error. However, in order that the record may
"speak the truth," see Jefferson v. Commonwealth, 269 Va. 136,
140, 607 S.E.2d 107, 110 (2005), we will remand the case so
that the surplus language, "and a personality disorder," may
be struck from the order nunc pro tunc. Code § 8.01-428(B).
CONCLUSION
For these reasons, we will affirm the judgment of the
circuit court that Shellman remains a sexually violent
predator in need of secure inpatient treatment, and we will
remand the case for correction of the final order as indicated
herein.
Affirmed and remanded.