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James Blaxton was convicted in 1989 of rape, forcible sodomy and attempted sodomy. In 2008, the Commonwealth filed a petition seeking Blaxton's civil commitment as a sexually violent predator. The trial court found that Blaxton was a sexually violent predator under the Sexually Violent Predators Act (SVPA). The circuit court subsequently entered an order granting Blaxton conditional release and transferred supervision of Blaxton to the state of Illinois after finding that the SVPA does not prohibit interstate transfers of sexually violent predators. The Supreme Court reversed, holding that the circuit court's judgment was error pursuant to Commonwealth v. Amerson, in which the Court held that the SVPA does not authorize the conditional release of a sexually violent predator outside the Commonwealth. Remanded.Receive FREE Daily Opinion Summaries by Email
Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan
and Powell, JJ., and Lacy, S.J.
COMMONWEALTH OF VIRGINIA
Record No. 102360
OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
March 2, 2012
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
In this case we consider whether a person who is adjudged a
sexually violent predator can be conditionally released for
supervision outside the Commonwealth because he also is subject
to supervised probation for another crime and therefore eligible
for transfer under the Interstate Compact for the Supervision of
Adult Offenders (Interstate Compact).
Code §§ 53.1-176.1, et
James A. Blaxton was convicted in 1989 of rape, forcible
sodomy and attempted sodomy in violation of Code §§ 18.2-61,
18.2-67.1 and 18.2-67.5, respectively.
In June 2008, the
Commonwealth filed a petition seeking Blaxton’s civil commitment
as a sexually violent predator pursuant to Code §§ 37.2-900 et
seq. (the Sexually Violent Predators Act or SVPA).
trial, the jury returned a verdict finding that Blaxton is a
sexually violent predator and the trial court confirmed the
Pursuant to Code § 37.2-908, the circuit court heard
evidence on possible alternatives to civil commitment.
Department of Behavioral Health and Developmental Services
(Department) prepared a conditional release plan which recited
that Blaxton requested a transfer to live with his mother in
The circuit court concluded that the SVPA does not
prohibit interstate transfers of sexually violent predators and
entered an order granting Blaxton conditional release, adopting
the conditional release plan prepared by the Department and
transferring supervision of Blaxton to the state of Illinois
pursuant to the Interstate Compact.
Subsequent to the circuit court’s ruling, we decided
Commonwealth v. Amerson, 281 Va. 414, 422, 706 S.E.2d 879, 884
(2011), in which we held that the SVPA does not authorize the
conditional release of a sexually violent predator outside the
Accordingly, the circuit court’s judgment
adopting the conditional release plan and transferring
supervision of Blaxton’s conditional release outside the
Commonwealth of Virginia was error.
Blaxton argues, however, that the trial court’s judgment
should be affirmed because transfer of his supervision outside
the Commonwealth was appropriate because he is subject to
probation supervision for another crime and therefore qualified
for transfer under the Interstate Compact.
Blaxton did not
argue in the trial court that transfer of his supervision
outside the Commonwealth was permitted under the Interstate
Compact based on his probation status for another criminal
Nevertheless, we address this argument here because
it is a question of law and no further facts must be developed
to resolve the issue raised by Blaxton for the first time in
Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d
431, 436 (2010).
We reject Blaxton’s argument.
First, supervision of
sexually violent predators cannot be transferred outside the
Amerson, 281 Va. at 422, 706 S.E.2d at 884.
Therefore, even if a defendant qualified for transfer under the
Interstate Compact for some other criminal conviction, the
specific restriction on a person adjudicated a sexually violent
predator pursuant to the SVPA cannot be disregarded because the
person may qualify for transfer for other reasons under the
Furthermore, the Interstate Compact does
not specifically recognize a person under supervision pursuant
to a civil commitment as an “offender” subject to transfer.
Under the Interstate Compact an “offender” is defined as
[a]n adult placed under, or subject to, supervision
as the result of the commission of a criminal offense
and released to the community under the jurisdiction
of courts, paroling authorities, corrections, or
other criminal justice agencies.
Code § 53.1-176.2, art. II.
Under this definition, the
supervision is imposed because of the commission of a criminal
offense, not, as in this case, because of a civil adjudication
of sexually violent predator.
Rules adopted by the Interstate
Commission for Adult Offender Supervision (ICAOS) pursuant to
the Interstate Compact, Code § 53.1-176.2, art. VIII, address
transfer of supervision of sex offenders, but these rules
identify a sex offender as one who has been convicted of a
Interstate Commission for Adult Offender
Supervision, ICAOS Rules, Rules 1.101, 3.101-3, available at
http:// www.interstatecompact.org (follow “ICAOS Rules”
hyperlink) (last visited Feb. 17, 2012).
would not qualify for transfer under the Interstate Compact
based on his adjudication as a sexually violent predator.
Amerson, 281 Va. at 422 n.2, 706 S.E.2d at 884 n.2.
For these reasons, the judgment of the circuit court
adopting the conditional release plan prepared by the Department
and transferring Blaxton’s supervision to the state of Illinois
is reversed and the case remanded to the circuit court for
further proceedings regarding whether there is any suitable,
less restrictive, alternative to involuntary inpatient treatment
for Blaxton consistent with the SVPA.
Reversed and remanded.