IN THE MATTER CIVIL COMMITMENT OF J.H. (SVP 74-00) v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6037-02T26037-02T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.H. (SVP 74-00)

___________________________________

 

Submitted December 5, 2005 - Decided

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-74-00.

Yvonne Smith Segars, Public Defender, attorney for appellant Michael C. Kazer, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Kristen D. Heinzerling and Mary Beth Wood, Deputy Attorneys General, on the brief).

PER CURIAM

Appellant, J.H., appeals from the Law Division's June 27, 2003 judgment ordering his continued commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-72.24 to -27.38. We affirm.

Prior to maxing out of a sentence of fifteen years with a seven-year parole disqualifier, the State filed a petition on May 5, 2000 seeking J.H.'s civil commitment pursuant to the SVPA. After reviewing the State's petition, the court found probable cause to believe that J.H. was a sexually violent predator and issued a temporary commitment order authorizing his commitment to the STU pending a final hearing. A hearing was held on October 2, 2000 and January 4, 2001, and an order was entered on March 12, 2001 continuing his commitment. The court found that the State's evidence established that he was a sexually violent predator. On February 27, 2002 and June 27, 2003, the court again found that J.H. continues to be a sexually violent predator in need of commitment and ordered that he remain confined to the STU, with a review hearing scheduled for June 4, 2004.

J.H. is a sixty-two year old male who pled guilty to two sexually violent crimes, an aggravated sexual assault for molesting a twelve year old neighborhood boy during a burglary by attempting fellatio on him, this having occurred on December 1, 1990, and an earlier sexual assault for raping his brother's wife, this having occurred in 1967. Both sexual assaults occurred when J.H. was heavily inebriated from alcohol and/or cocaine. J.H. has a long criminal history including crimes against property, substance abuse and sexual offenses.

In his February 27, 2002 order, Judge Freedman, although ordering further commitment, directed that a written report be provided as to the availability and feasibility of a residential alcohol and drug treatment program for J.H. As of the June 27, 2003 review hearing, the STU had been unable to locate an inpatient drug treatment program that would also admit sexually violent predators. Notwithstanding Judge Freedman's directive, and based on the fact that Judge Freedman did not affirmatively find that J.H. was a candidate for release into the community in an inpatient drug treatment program, Judge Perretti, on June 26, 2003 determined by clear and convincing evidence that J.H. continues to be a sexually violent predator and ordered his continued involuntary civil commitment.

J.H. presents the following points for our review.

POINT I

THE STATE FAILED TO PROVE THE ELEMENTS FOR COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT BY CLEAR AND CONVINCING EVIDENCE.

A. THE STATE FAILED TO DEMONSTRATE THAT J.H. HAS BEEN CONVICTED OF A SEXUALLY VIOLENT OFFENSE.

B. THE STATE FAILED TO ESTABLISH THAT THE APPELLANT'S PERSONALITY DISORDER AFFECTED HIS ABILITY TO CONTROL HIS SEXUALLY HARMFUL CONDUCT.

C. THE STATE FAILED TO ESTABLISH THAT THE APPELLANT IS LIKELY TO ENGAGE IN FUTURE ACTS OF SEXUAL VIOLENCE.

POINT II

APPLICATION OF THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT TO THE DEFENDANT'S PRIOR CONVICTIONS VIOLATED THE EX POST FACTO CLAUSES OF THE UNITED STATES AND NEW JERSEY STATE CONSTITUTIONS.

I

An involuntary civil commitment can follow service of a sentence or other criminal disposition when the offender "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. "[T]he State must prove that 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 Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

At the June 27, 2003 hearing, the State presented the testimony of Dr. Charles Gnassi, a psychiatrist, and Shantay Brame, a supervisor for J.H.'s treatment team. The judge in reaching her findings relied, in addition to the testimony of Dr. Gnassi and Ms. Brame, on the STU treatment progress notes and the November 22, 2003 Treatment Progress Review Committee (TPRC) report.

Dr. Gnassi, who interviewed J.H. on June 23, 2003, prior to the preparation of his report for the June 27, 2003 hearing, diagnosed J.H. with paraphilia NOS because he has a minimum of two offenses supporting the diagnosis and because his two offenses constitute repeated sexually inappropriate behavior with non-consenting individuals. Dr. Gnassi also diagnosed J.H. with having antisocial personality disorder based on his numerous criminal offenses, which Dr. Gnassi stated J.H. minimizes.

Although some of J.H.'s treatment notes indicate positive accomplishments in his substance abuse group, Dr. Gnassi was concerned, as was noted by Judge Perretti in her opinion, with J.H.'s March 10, 2002 progress treatment note, which states, "It appears that [J.H.] can still be easily influenced by his peers which in my opinion is a high risk for substance abuse relapse." Dr. Gnassi concluded that J.H.'s internalization of his alcohol addiction issues has been inadequate to control himself in terms of drinking behavior.

Dr. Gnassi, based on J.H.'s treatment notes, concluded that J.H. is not participating meaningfully in sex offender treatment, including his declining to participate in arousal reconditioning and polygraph testing. Dr. Gnassi determined that J.H. is in complete denial of his sex offending feelings or fantasies which raises his risk of re-offending. The major risk factor of denial is demonstrated by J.H.'s claim that he never had been involved in a sexual offense with the boy despite his plea of guilty, and J.H.'s failure to take responsibility for the rape of his sister-in-law. J.H.'s unwillingness to discuss his sexual assault of the young boy prevents him from understanding himself. Dr. Gnassi opined to a reasonable degree of medical certainty that J.H.'s lack of insight into the causes of the dynamics of his sexual offenses, his alcohol abuse and history of antisocial personality disorder place him at high risk to re-offend and required his continued custody at the STU for further care and treatment.

Ms. Brame testified primarily to the inability of the STU to locate an in-patient substance abuse treatment for J.H., after exploring six potential placements, because of J.H.'s sex offender history. She also testified concerning the STU progress report that was relied upon by the judge in arriving at her decision.

Judge Perretti concluded, based on Dr. Gnassi's testimony as corroborated by the progress team notes, that J.H. was not participating in a sex offender treatment in process group, he failed to participate in the treatment team review, and that he is in denial of his sexually violent predicate offense. The judge noted J.H.'s progress in process group in the area of attendance, attentiveness, attitude and providing feedback. The judge also noted his gross deficiencies in receiving feed back, taking personal responsibility for his offenses, acknowledging the significance of the destructive impact of the offenses on his victims, developing insight into sex offense related dynamics, understanding his sex offense cycle, and taking the floor, noting that J.H. had not taken the floor in over five months.

Judge Perretti concluded that J.H. "has not been participating at all in his sex offender specific treatment in process group. He has simply not discussed himself, and without that, there is no participation."

The judge concluded that J.H.'s diagnosis of paraphilia NOS coupled with substance abuse and antisocial personality disorder "impacts his volitional, cognitive and emotional capacities and predisposes him to committing sexually violent acts."

The judge stated as her ultimate findings:

I find the proofs on this to be clear and convincing, and I, therefore, find that [J.H.] continues to be a sexually-violent predator suffering from abnormal mental conditions and personality disorders that adversely impact his cognitive, volitional and emotional capacities so as to predispose him to commit sexually-violent acts.

I find that he is highly likely to recidivate. I find that he has difficulty controlling his sexual behavior, and this is borne out of his repetitive acts. The risk is magnified by the combination of diagnoses which act upon each other. The antisocial personality disorders and the substance abuse facilitate the sex offending, and I will, therefore, sign a one-year order.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). See also, In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court's findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

Applying this standard, we are fully satisfied that Judge Perretti's finding that J.H. continued to qualify for SVPA commitment by clear and convincing evidence is amply supported by the record. To be found a sexually violent predator, a person must "suffer[] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence" if not otherwise constrained. N.J.S.A. 30:4-27.26. Under the SVPA, a mental abnormality is defined as "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." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re 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 as has been demonstrated here will suffice to prove a mental abnormality. Id. at 126.

II

J.H. contends that his involuntary commitment under the SVPA violated his state and federal constitutional rights because the SVPA was not enacted when he entered his guilty pleas in 1967 and 1991. J.H. claims that additional punishment is being imposed after he served his bargained-for sentence. However, the SVPA does not violate either constitution's ex post facto clause. Under both the State and federal constitutions, the ex post facto clause cannot be violated without the imposition of punishment. Kansas v. Hendricks, 521 U.S. 346, 366, 117 S. Ct. 2072, 2084 138 L. Ed. 2d 501, 517 (1997); Doe v. Portiz, 142 N.J. 1, 44-45 (1995). Furthermore, the constitutional prohibition against ex post facto lawmaking applies to criminal legislation, not to civil proceedings. Id. at 46-47. As the SVPA is a civil statute providing for treatment of the sexually dangerous, it does not impose punishment. State v. Mumin, 361 N.J. Super. 370, 384-85 (App. Div. 2003), certif. granted and remanded for reconsideration in light of State v. Bellamy, 178 N.J. 127 (2003), 178 N.J. 448 (2004). We therefore, reject J.H.'s arguments.

In upholding the constitutionality of the SVPA, our Supreme Court has commented that the SVPA is essentially the same as the Kansas statute examined and upheld by the United States Supreme Court in Hendricks, supra. In Hendricks, the Supreme Court rejected an ex post facto challenge to the Kansas SVPA and held that the Kansas SVPA did not establish criminal proceedings and that involuntary confinement pursuant to the Act was not punitive. 521 U.S. at 369, 117 S. Ct. at 2085, 138 L. Ed. 2d at 519.

Like the Kansas statute at issue in Hendricks, the New Jersey SVPA does not establish criminal proceedings. Nor is involuntary commitment pursuant to the SVPA punitive. See In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002). The clearly expressed intent of the New Jersey SVPA demonstrates that the statute was enacted to broaden the reach of New Jersey's civil commitment law "to afford protection to society from those sexually violent predators" who pose a danger as a result of a diagnosed mental condition which makes them likely to engage in acts of sexual violence if not confined. In re Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002). The SVPA also provides for treatment of civilly committed sexually violent predators. N.J.S.A. 30:4-27.34. These goals have long been considered to be legitimate non-punitive governmental objectives.

J.H.'s reliance on State v. Bellamy, 178 N.J. 127 (2003) is misplaced. In that case, defendant, a civilly committed sexually violent predator, sought to withdraw his guilty plea to fourth-degree criminal sexual contact. Id. at 133. Bellamy argued that the trial court failed to inform him that his guilty plea would qualify him for SVP commitment and that even if the trial court had no duty to inform him of the possibility of commitment under the SVPA, his attorney was ineffective in failing to do so. Ibid. Although finding that civil commitment pursuant to SVPA was neither penal nor direct, the Court held that fundamental fairness required that the trial court inform a defendant of the possible consequences under the Act. Thus, the Court concluded that "[i]n the future, prior to accepting a plea to a predicate offence under the Act, the trial court should ensure that a defendant . . . [is made aware of the] possibility of future commitment[.]" Id. at 139-40. This new rule would apply only to Bellamy and cases pending "in which the defendant has not yet exhausted all avenues of direct review." Id. at 143. Bellamy, therefore, does not apply to J.H. because J.H.'s 1967 and 1991 convictions are not still subject to direct review.

 
Because of his conviction for a sexually violent offense and the presence of a current mental condition that adversely affects his ability to control his sexual behavior, J.H. was found to be appropriate for civil commitment under the SVPA. We are satisfied, therefore, that the SVPA was properly applied to J.H. Additionally, J.H.'s commitment does not violate the ex post facto clause of either the federal, U.S. Const. art. I, 10, cl. 1, or state, N.J. Const., art. IV, 7, 3, constitutions.

Affirmed.

The judge acknowledged that J.H.'s stated refusal to participate was because J.H., based apparently on J.H.'s misunderstanding of Judge Freeman's Order, was waiting for the court to finalize his conditional release. Judge Perretti noted that "there never was any conditional release nor was any ordered by the court to be prepared."

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A-6037-02T2

RECORD IMPOUNDED

January 3, 2006