IN THE MATTER CIVIL COMMITMENT OF M.E.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5923-05T25923-05T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

M.E.H. - SVP-354-04.

______________________________

 

Argued November 5, 2007 Decided

Before Judges Parrillo, Sabatino and

Alvarez.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

SVP-354-04.

Joan Van Pelt, Assistant Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney; John S. Furlong, on the brief).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Albano, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

M.E.H. appeals from a judgment entered May 5, 2006, committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record in light of the contentions advanced on appeal, we affirm.

M.E.H. contends that the commitment court erred because it based its decision to civilly commit him on "unproven allegations of misconduct." M.E.H. also asserts that the due process clause requires proof beyond a reasonable doubt for SVPA involuntary civil commitments. In his pro se brief, M.E.H. further contends that he was denied the effective assistance of counsel, and that the SVPA is unconstitutional because it does not require jury trials and violates the prohibition against ex post facto laws.

The scope of appellate review of a judgment of civil commitment is exceedingly narrow. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). We "only reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have also recognized that "committing judges under the SVPA are specialists in the area, and [that] we must give their expertise in the subject special deference." In re Civil Commitment of T.J.N., supra, 390 N.J. Super. at 226. An appellate court should give the "'utmost deference'" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., supra, 339 N.J. Super. at 459 (App. Div. 2001) (quoting Fields, supra, 77 N.J. at 311). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. (citing Fields, supra, 77 N.J. at 311). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

On April 7, 1997, M.E.H., who is presently forty-six years old, pled guilty to second-degree sexual assault resulting from the rape of A.P. He was sentenced to ten years in prison. Pursuant to the plea agreement, unrelated first-degree charges as to the rape of a second victim, T.M., were dismissed. Initially, both sets of charges were for first-degree aggravated sexual assaults. M.E.H. disputes the charge as to T.M. and claims she was a prostitute with whom he had a disagreement as to price, although T.M. had no criminal history. The assault on A.P. occurred May 1, 1996, when she experienced car trouble on the Garden State Parkway. M.E.H. drove by her disabled vehicle and offered her a ride as they were headed in the same direction. The disputed attack on T.M. occurred about two months later on June 27, 1996. M.E.H. would have completed the sentence imposed on the sexual assault on A.P. on January 15, 2004, and been released, but for the State's petition for his civil commitment. The hearing was delayed for some time at the request of his attorney.

Previously, on September 25, 1990, M.E.H. entered a guilty plea to a charge of criminal sexual contact and established as the factual basis that he forcibly touched the victim's breasts, vagina and buttocks. He was sentenced to three years probation and ordered to pay restitution. In that case, the victim, a former girlfriend, claimed that approximately one year after the parties' relationship ended, M.E.H. offered to work on her car. When she went to his home for that purpose, on October 14, 1988, M.E.H. physically restrained and raped her.

On October 24, 1985, M.E.H. was arrested and charged in Massachusetts on two counts of rape of a child, and five counts of indecent assault and battery on a child. The alleged victims were a nine-year-old and a twelve-year-old. During the police investigation, M.E.H. admitted having sex with the twelve-year-old and admitted to police that the child screamed when he penetrated her. All charges involving the children were ultimately dismissed. Earlier, on June 11, 1982, M.E.H. was arrested for attempted sexual assault; on August 26, 1982, he pled guilty to a downgraded plea of simple assault.

As Judge Perretti correctly found, defendant's convictions for sexual assault in 1997 and criminal sexual contact in 1990 are the predicate offenses necessary for commitment under the SVPA. N.J.S.A. 30:4-27.26. "The Act defines 'sexually violent predators' in terms of the type of crime the person has committed, and does not limit the definition in relation to when the person committed the crime." In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 463 (App. Div. 2005).

At the commitment hearing, the State must also prove the individual poses:

a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . . by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.

[In re Civil Commitment of W.Z., 173 N.J. 109, 132 (2002).]

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.25(c).

Judge Perretti reasonably relied upon the State's experts, a psychologist and a psychiatrist, in making the requisite findings. They concluded that M.E.H. suffers from paraphilia NOS, and prior substance abuse. The psychologist also determined that M.E.H. suffers from a personality disorder, including antisocial personality. The psychiatrist diagnosed him as suffering from a personality disorder NOS and impulse control disorder NOS. The psychiatrist interviewed defendant a total of seven hours; the psychologist tested and interviewed defendant over three hours. Both relied, in addition to their interviews of M.E.H., on his prior charge history, statements he made to institutional personnel, and statements he made to police during the course of his various arrests. Their reliance on these materials is now challenged as improper use of hearsay information. Psychologists and psychiatrists, however, are entitled to rely upon hearsay information in formulating an opinion as to mental conditions, consistent with the reliance of others in their respective fields. State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001); see also N.J.R.E. 703.

Significantly, the State's psychologist testified M.E.H. was a person at high risk to recidivate because of his serious difficulty in controlling his sexually offending behavior. The State's psychiatrist viewed the risk factor as "very, very high" as a result of M.E.H.'s trajectory of increasingly violent sexually assaultive behavior. Although Judge Perretti considered M.E.H.'s prior history of arrests and of downgraded charges, she did so only to the extent the history was relied upon by the State's experts in formulating their opinions. The prior history enabled her to better determine whether to accept the experts' opinions, and the weight to be accorded to them.

As Judge Perretti noted, M.E.H.'s own expert, who testified at the commitment hearing, misconstrued New Jersey's statutory standard in evaluating M.E.H. He repeatedly stated, for example, that he could only rely upon "clear and convincing" materials in formulating his clinical conclusions. Judge Perretti properly discounted M.E.H.'s expert's opinion.

As defined by statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Civil Commitment of W.Z., supra, 173 N.J. at 127. A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 126-27 (citing Kansas v. Crane, 534 U.S. 407, 409, 122 S. Ct. 867, 869, 151 L. Ed. 2d 856, 861 (2002)). The conclusions of the State's experts established the requisite impaired ability to control sexually dangerous behavior.

On this appeal, M.E.H. further contends that the standard used in SVPA proceedings must be proof beyond a reasonable doubt. That claim has long since been rejected. State v. Bellamy, 178 N.J. 127, 136 (2003) (citing N.J.S.A. 30:4-27.25; In re Civil Commitment of W.Z., supra, 173 N.J. at 120). Similarly, the SVPA has never required trial by jury or has been viewed as in violation of the prohibition against ex post facto laws. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 606, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

M.E.H. also raises a claim of ineffective assistance of counsel, both at the hearing and on this appeal. The focus of his arguments relate to the purported unconstitutionality of the SVPA. Given the established state of the law, these claims are entirely without merit. M.E.H. also objects that his trial counsel did not properly investigate his case, a claim also lacking in merit. He has not identified a single specific professional error of either trial or appellate counsel, much less the manner in which any purported errors prejudiced the outcome of the commitment proceedings.

Judge Perretti concluded that M.E.H. was:

a sexually violent predator, suffering from abnormal mental conditions and personality disorders, that adversely influence his cognitive, emotional and volitional capacities so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sex offending behavior, as he has demonstrated by his repeated sexual offending behavior.

Thus, it is highly likely that he will recidivate if not confined for treatment as a sexually violent predator.

We have conducted our own review of the record. Judge Perretti's findings are firmly supported by substantial and credible evidence and the legal conclusions she reached are consistent with controlling legal principles. We affirm substantially for the reasons stated by Judge Perretti in her comprehensive oral opinion of May 5, 2006. There is no doubt that M.E.H. "has serious difficulty controlling his . . . harmful sexual behavior such that it is highly likely that [he] will not control his . . . sexually violent behavior and will reoffend." In re Civil Commitment of W.Z., supra, 173 N.J. at 133-34.

Affirmed.

 

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A-5923-05T2

RECORD IMPOUNDED

February 27, 2008