IN THE MATTER OF THE CIVIL COMMITMENT OF G.P.

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

CIVIL COMMITMENT OF G.P.

SVP-627-11.

_______________________________

October 30, 2014

 

Submitted September 29, 2014 - Decided

Before Judges Lihotz and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-627-11.

Joseph E. Krakora, Public Defender, attorney for appellant G.P. (Andrew R. Imperiale, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Vicki A. Mangiaracina, Deputy Attorney General, on the brief).

PER CURIAM

G.P. appeals from a June 19, 2012 order requiring his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A.30:4-27.24 to -27.38. G.P., age fifty-three, has been in custody for approximately twenty-five years in New Jersey and Pennsylvania prisons for various sexual and nonsexual offenses, including the 1986 rape of a six-year-old girl and indecent assault of an eleven-year-old girl. In November 2011, shortly before G.P.'s scheduled discharge from prison for a 2007 sexual assault of an eight-year-old girl, the State petitioned for G.P.'s civil commitment under the SVPA. Following an evidentiary hearing, Judge Philip M. Freedman concluded the State had proven by clear and convincing evidence G.P. was diagnosed with pedophilia and antisocial personality disorder, his uncontrolled sexually violent behavior made it highly likely he would reoffend if released, and his involuntary civil commitment for treatment as a sexually violent predator was required.

On appeal G.P. argues he was denied a fair trial as Judge Freedman's conclusion was against the weight of the evidence and counsel was ineffective. After due consideration of the record and applicable legal standards, we affirm, substantially for the reasons expressed by Judge Freedman in his oral opinion rendered on June 19, 2012.

G.P.'s criminal behavior began in 1981, when at age twenty, he was charged with shoplifting. In 1983, he pled guilty to three counts of burglary, two counts of theft and three counts of criminal conspiracy, for which he received a custodial sentence. Within a year of his October 1985 release for those offenses, G.P. was charged with the 1986 assaults, his first sexually violent offenses.

On November 12, 1986, a Lancaster County, Pennsylvania jury convicted G.P. of statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure and corruption of minors relating to his interactions with both the six-year-old and eleven-year-old victims. The younger victim was G.P's girlfriend's daughter, who reported he repeatedly raped her between 1985 and 1986, during parental visitation in G.P.'s home. The older victim was sexually assaulted in January 1986. She accused G.P. of taking her into his bedroom, and inserting his penis into her vagina. When the child tried to scream, he put his hand over the girl's mouth and grabbed her arm to keep her from running away, causing a bruise. G.P. was sentenced on both matters to nine to eighteen years' incarceration in Pennsylvania state prison.

On November 18, 1986, G.P. was found guilty of defiant trespassing and theft, arising from an incident that occurred in February 1986. For these offenses, the court imposed a one year probationary sentence, to be served concurrently with G.P.'s sentences for the 1986 sexual assaults. G.P. was released in 2004, after being incarcerated for eighteen years.

The predicate offense, for which G.P.'s civil commitment was sought, relates to a 2007 guilty plea for sexually assaulting an eight-year-old girl, who resided in the Vineland apartment complex where G.P. lived with his mother. G.P. saw the child playing outside and invited her, her brother and another boy into his apartment to play video games. The girl reported that while the boys played video games, G.P. took her into his bedroom, told her to lay face down on the bed and then laid on top of her for a few seconds. She recounted feeling a "bulge" against her buttocks over her clothes. When she asked G.P. to stop, he did, but told her not to tell anyone what happened. During the investigation, G.P. admitted he "had a problem liking young girls" and had "lur[ed the girl] into his apartment because he wanted her around him." G.P. was charged with second degree sexual assault, third degree luring and third degree endangering the welfare of a child. In accordance with the terms of a negotiated plea agreement, he pled guilty to second degree sexual assault, for which he was sentenced to five years imprisonment, and the State agreed to dismiss the other charges.

At the time of his 2007 arrest, police discovered G.P.'s prior sexual assault convictions in Pennsylvania and that G.P. failed to register with New Jersey authorities under Megan's Law when he moved to Vineland. N.J.S.A. 2C:7-1 to -19. He was separately charged and pled guilty to failure to register. The court imposed a five-year sentence to be served concurrently with his sentence for the second degree assault.

Following a presentencepsychological evaluation, G.P. was found ineligible for sentencing under the New Jersey Sex Offender Act (SOA), N.J.S.A.2C:47-1 to -10, as there was no clear finding G.P. had a "repetitive and compulsive sexual pathology," which is required for sex offender treatment under the SOA. Donald Moorehead, Psy.D., explained

[T]his case presents diagnostic difficulty. If [G.P.] is culpable for both offenses, then the behavior was repetitive because there were two incidents and two victims.

However, there is insufficient evidence that [G.P.] was compelled to perform the behavior. He claimed innocence of the first offense, and he maintained that there were false allegations issued out of revenge. With the current offense, [G.P.] claimed that the contact was accidental . . . . If he is culpable, then his behavior can be attributed to being antisocial, impulsive, opportunistic, and hedonistic, with a need for dominance, power, and control. Therefore, for statutory purposes, [G.P.]'s behavior cannot be considered to fill the requirements of repetitive and compulsive.

G.P. was remanded to serve his sentence in state prison, not the Adult Diagnostic and Treatment Center (ADTC). The record does not reflect G.P. was cited for any disciplinary incidents while in prison.

On June 10, 2009, G.P. was transferred to the ADTC, likely because of overcrowding. It is not clear G.P. was aware he could participate in sex offender treatment programs; however, he did not engage in such treatment while confined to the ADTC. In October 2011, G.P. was cited for indecent exposure, when an ADTC teacher hosting a group session reported she observed G.P. "with his penis fully exposed out of his pants, masturbating." G.P. pled guilty to the indecent exposure charge and was sanctioned.

In June 2011, G.P. was interviewed in preparation for his scheduled discharge from the ADTC. Jonathan M. Riley, Ph.D., evaluated G.P., and based upon that interview recommended the State petition for G.P.'s civil commitment as a sexually violent predator. G.P.'s score of 6 on the Static-99R test, which measures the relative risk for sexual offense recidivism, showed G.P. was a high risk to sexually reoffend, and Dr. Riley recommended G.P. needed sexual offender specific treatment. Specifically, Dr. Riley noted G.P. minimizes events, and

accept[s] little responsibility for, or ha[s] any awareness of, his role regarding having young girls in his apartment, let alone his bedroom. [G.P.] externalizes blame to the victim[s] for coming into his apartment uninvited and for climbing onto his bed. He blames the police for "making something out of nothing and trying to confuse [him] into admitting things [he] didn't do." [G.P.] exhibited no insight into his situation, viewed himself as being without risk and, therefore, not needing to be held accountable, given he [wa]s "an innocent man."

[G.P.'s] account of his prior charges in Pennsylvania were equally convoluted. He absolutely denied any wrongdoing and insisted that he was only convicted one time, stating the charge with the 11-year-old was dismissed upon physical examination of the victim.

After receiving Dr. Riley's July 7, 2011 evaluation, G.P. participated in two psychiatric evaluations to assess the appropriateness of his civil commitment. The results of these evaluations were consistent with Dr. Riley's findings and conclusions.

First, on November 3, 2011, Terita Collins, D.O., evaluated G.P. and executed a clinical certificate concluding G.P. was a sexually violent predator. Dr. Collins found G.P.'s Static-99R score of 5 reflected a moderate high risk to sexually reoffend. She noted G.P. "does not feel he needs treatment and continues to deny his guilt" despite having admitted to the police that he is attracted to young girls. G.P. insisted his ex-girlfriend fabricated the charges relating to her daughter and suggested he accidentally "brushed up" against the 2007 victim. Dr. Collins concluded "[G.P.] has serious difficulty controlling his sexually inappropriate impulses, and based on my evaluations, to date, he is highly likely to sexually reoffend."

Next, Nicole Dorio, D.O., offered her expert assessment, and also executed a clinical certificate concluding G.P. was a sexually violent predator. Dr. Dorio reached many of the same conclusions as Dr. Collins, though she additionally noted G.P.'s non-verbal intelligence was in the fifth percentile, meaning he "functions at the level of a 7-year-old."

As a result of these evaluations, at the expiration of his criminal sentence, the State petitioned for G.P.'s civil commitment to the STU for treatment as a sexually violent predator. A commitment hearing was held on June 11, 2012, before Judge Freedman. The State presented two forensic experts: Howard Gilman, M.D., a psychiatrist, and Debra Roquet, Psy.D., a psychologist. Additionally, twenty-one documents were introduced into evidence without objection, understanding the judge would not consider any imbedded hearsay; including experts' reports and testing results, G.P.'s ADTC disciplinary report, prior convictions and court transcripts. G.P. presented no witnesses or evidence.

Dr. Gilman testified regarding his findings and conclusions following two one-hour examinations of G.P. in 2011 and 2012. Dr. Gilman diagnosed G.P. with pedophilia and borderline intellectual function. He concluded this combination of conditions predisposed G.P. to commit acts of sexual violence. Although his report had recorded G.P.'s Static-99R score as 4, Dr. Gilman testified this was an error and the actual score was 5. Nevertheless, either score suggests G.P. is a moderate high risk to sexually reoffend.

Dr. Gilman explained his pedophilia diagnosis, which included evaluation of G.P.'s prior sexual assaults of young girls. He noted pedophilia is a "sexual disorder where the drive of sexuality is towards pre-pubescent children." The condition does not "go away" as the sex drive is "a pretty enduring feature of our functioning throughout life, and stays with us." Further, Dr. Gilman opined the facts surrounding the 2007 assault, in which G.P. lured the girl to his apartment and became aroused after laying on top of her, showed G.P. suffers from pedophilic arousal.

He also elaborated on his diagnosis of borderline intellectual functioning, which means G.P. is "kind of in a borderline area where, at times, [he] may function more like someone with a mild mental retardation, and at other times may function like someone with a normal IQ." Dr. Gilman noted G.P.'s conversation was "somewhat illogical." For example, G.P. maintained he had not committed the 2007 sexual assault, despite his guilty plea. When Dr. Gilman asked why he pled guilty to a crime he did not commit, G.P. suggested he entered a plea because "he shouldn't have had her in his apartment, or his house." Dr. Gilman continued

And then he talked about how, well, they were lying together on the bed watching television, and they both go up at the same time, and he accidentally brushed against her. So, that he really was guilty. But it . . . was illogical. It didn't make sense, because on the one hand he was saying that he wasn't guilty, and on the other hand he was saying that he was . . . .

So, I -- I thought that that . . . showed a certain illogicality . . . to his overall thinking.

I also thought that that was a product of what he has been tested to have previously, which is a borderline intellectual functioning, that there was a certain kind of simplicity, and concreteness to his thinking . . . .

Dr. Gilman testified G.P. could not name any friends outside of his family and had difficulty elaborating on his sexual experiences, merely recounting "he would have sex, and they'd be done, and that was it." From this he "got the sense the world happened to him as opposed to [how] he interacted, and chose things, you know, in his relations with the world." Further, Dr. Gilman opined G.P. had a lack of awareness and an inability to admit fault or acknowledge responsibility for his problems.

Dr. Roquet, a psychologist, examined G.P. for approximately two hours on May 21, 2012, resulting in her diagnosis G.P. suffered from pedophilia, antisocial personality disorder and borderline intellectual functioning. She found G.P. scored a 6 on the Static-99R, placing him at high risk of sexual recidivism.

During the interview with Dr. Roquet, G.P. denied doing anything sexually inappropriate with any of his victims and offered excuses similar to those given to Dr. Gilman. Dr. Roquet concluded G.P.'s pattern of sexually assaulting young girls, after establishing relationships with them, supported the pedophilia diagnosis, a condition that does not go away. Further, the commission of the 2007 offense shows G.P.'s desire for pre-pubescent girls stayed with him despite extended incarceration. According to Dr. Roquet, this "indicates a sexual pathology involving a . . . compelling, strong sexual interest in an arousal to pre-pubescent females, and it also demonstrates that he has a great deal of difficulty controlling the urges that he experiences."

Dr. Roquet could not say whether the ADTC offense was sexually motivated because G.P. maintained he was merely scratching himself and not masturbating. However, noting the conduct occurred within mere weeks of his discharge date, she concluded it displayed "wildly inappropriate high risk" behavior and showed a significant "lack of self-control." Also, given the ADTC offense occurred in a controlled environment, Dr. Roquet concluded it militated against concluding G.P. was amenable to supervision upon discharge.

Dr. Roquet supported her antisocial personality disorder diagnosis based upon G.P.'s long history of disorder and his inability to conform to social norms and lawful behavior. During her evaluation, Dr. Roquet explained she found G.P. was "to some extent, being deliberately evasive, and deceptive in some instances." Dr. Roquet stated the antisocial personality disorder condition predisposes G.P. to commit sexual offenses because the antisocial personality traits manifest in criminal sexual behaviors.

Dr. Roquet opined parole supervision for life would not prevent G.P. from reoffending, as illustrated by his commission of the 2007 offense while living with his mother. She also noted G.P. had no plans for discharge, exhibited a poor employment history and demonstrated "marginal functioning in the community" all of which were unlikely to change. She concluded the dual diagnoses of pedophilia and antisocial personality disorder made it very difficult for G.P. to control his sexual offending behavior, making G.P. highly likely to sexually reoffend.

On June 19, 2012, Judge Freedman issued his oral opinion concluding clear and convincing evidence in the record required G.P. be subject to civil commitment under the SVPA. Crediting the testimonial evidence of the State's forensic experts he explained

I am satisfied to find, by clear and convincing evidence, that this record clearly is sufficient to support the findings that [the State's experts] reached. I credit the testimony of these two experts, and I find, based on that, and based on my review of the record . . . .

[G.P.] does suffer from antisocial personality disorder as diagnosed by Dr. Roquet, and both doctors diagnosed pedophilia, and that both these diagnoses, individually, and particularly in combination, clearly predispose [hi]m to engage in acts of sexual violence, as his record clearly shows over time, and that if he were released he would have serious difficulty controlling his sexually violent behavior to such a degree that he would be highly likely to engage in acts of sexual violence in the reasonably foreseeable future.

Judge Freedman entered the June 19, 2012 order for G.P.'s involuntary civil commitment at the STU. G.P. appeals.

"'The scope of appellate review of a commitment determination is extremely narrow.'" In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014) (quoting In re D.C., 146 N.J. 31, 58 (1966)). An appellate court should give a hearing judge "'special deference,'" as these judges are "'specialists'" in SVPA matters. Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). We may not overturn the commitment court's ruling because we would have come to a different conclusion if considering the matter in the first instance, as the trier of fact. R.F., supra, 217 N.J. at 175. Rather, our review is confined to determine "whether sufficient credible evidence in the record supports [the committing judge's findings]." Id. at 157. "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). We reverse a trial court's determination regarding whether to commit an individual only when "'the record reveals a clear mistake.'" R.F., supra, 217 N.J. at 175 (quoting In re D.C., supra, 146 N.J. at 58).

"The Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators." In re Commitment of J.M.B., 197 N.J. 563, 570-71 (citing N.J.S.A. 30:4-27.25), cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). The SVPA allows the civil commitment of any person who requires "continued involuntary commitment as a sexually violent predator," N.J.S.A. 30:4-27.32(a), recognizing the danger posed to the health and safety of others, were the proposed committees returned to society. N.J.S.A. 30:4-27.25(c).

To this end, the State must present evidence that the offender (1) "has been convicted . . . for commission of a sexually violent offense"; (2) "suffers from a mental abnormality or personality disorder"; and, as a result, (3) is "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.

The SVPA defines a "[s]exually violent predator" as a person "who has been convicted . . . of a sexually violent offense, . . . and 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. Succinctly, commitment under the SVPA requires clear and convincing proof "of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct." State v. Bellamy, 178 N.J. 127, 136 (2003).

A "mental abnormality" is one that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. One is likely to reoffend if he poses a danger to himself and others because of his present difficulty in controlling his dangerous sexual behavior. In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002); see also id. at 129 ("[T]he legislature intended to insure that every individual who has a substantial inability to exercise control over sexually violent behavior would be within the Act's reach.").

The "ultimate [commitment] determination is 'a legal one, not a medical one, even though it is guided by medical testimony.'" R.F., supra, 217 N.J. at 174 (quoting In re D.C., supra, 146 N.J. at 59). Following an evidentiary hearing, the court must evaluate whether the State's proofs clearly and convincingly show the person needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32(a). Understandably, such

findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

Having considered the evidential record, we reject G.P.'s claim the State's proofs failed to satisfy its burden supporting his civil commitment as a sexually violent predator. Challenging "the mental abnormality or personality disorder" required by N.J.S.A. 30:4-27.26, G.P.'s principal argument contests the reliability of the State's experts and suggests they were neither clear nor convincing, as they never treated him and spent mere hours on their evaluations. Such assertions are rejected.

Here, despite more recent factual developments, it is not challenged that in 1986, G.P. was convicted of the sexually violent offenses of statutory rape and involuntary deviate sexual intercourse. See In re Commitment of P.C., 349 N.J. Super. 569, 575-76 (App. Div. 2002) (concluding the Pennsylvania offense of involuntary deviate sexual intercourse satisfies N.J.S.A. 30:4-27.26). Nor does G.P. refute his conviction in 2007 for second degree sexual assault, which serves as the predicate offense.

We agree with Judge Freedman the expert evidence offered by Drs. Gilman and Roquet clearly showed G.P. suffers "from a mental abnormality or personality disorder." N.J.S.A. 30:4-27.26. 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." Ibid. "Personality disorder" is not defined by the SVPA. Ibid. The New Jersey Supreme Court has emphasized "the mental condition must affect an individual's ability to control his or her sexually harmful conduct" but "need not include a diagnosis of 'sexual compulsion.'" W.Z., supra, 173 N.J. at 127, 129.

Both mental health professionals diagnosed G.P. with pedophilia and Judge Freedman found compelling Dr. Roquet's conclusion G.P. also suffered from an antisocial personality disorder. Moreover, the expert opinions were grounded on facts established through the evaluation of G.P. or the documentary evidence admitted at trial. Neither expert relied on inaccurate or misleading information to form the basis for the expressed opinion. G.P.'s suggestion that each expert seemed confused at some point when testifying is unavailing. While both considered their responses to various questions, and at times appeared to "think out loud," a close reading of the entire transcript reveals Drs. Gilman and Roquet both held a thorough understanding of the facts of the case and their diagnoses are unmistakable.

Defendant's challenge suggesting the evaluators spent insufficient time to support their opinions is rejected. First, defendant's interview was only one portion of the expert assessment. The State's experts each identified the voluminous documents reviewed when forming their opinions. Second, no evidence supports defendant's suggestion the experts' evaluations were not thorough. Moreover, neither defendant nor his expert identify an area of deficiency. Accordingly, defendant's claim is meritless.

Further, we are not persuaded Dr. Moorehead's presentence evaluation report was improperly ignored. Believing Dr. Moorehead concluded G.P. was not a sexually violent predator, G.P. argues insufficient weight was given to his report. This argument ignores the purpose of Dr. Moorehead's evaluation and his conclusion, which were unrelated to the purpose of civil commitment.

Dr. Moorehead was assessing G.P.'s eligibility for sentencing under the SOA, not the SVPA. "In reviewing the [SOA] and the SVPA, it becomes obvious that the issues in sentencing a sex offender are significantly different from the issues in civilly committing a sexually violent predator[,]" and the Appellate Division has specifically rejected that the State is collaterally estopped from committing an individual under the SVPA where that individual was previously found ineligible for sentencing under the SOA. In Re Commitment of J.S.W., 371 N.J. Super. 217, 222-24 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005).

The final element to support civil commitment under the SVPA requires the State to prove the identified mental abnormality or personality disorder "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. "'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.; see R.F., supra, 217 N.J. at 173 ("[T]o comport with substantive due process concerns, th[e] Court interpreted the third statutory element as requiring the State to show that a person is 'highly likely,' not just 'likely,' to sexually reoffend." (quoting W.Z., supra, 173 N.J. at 130)).

Support for Judge Freedman's finding the State proved this element includes: the objective test results such as G.P.'s Static-99R scores ranging from 5 to 6 showing a moderate to high risk G.P. would reoffend; G.P.'s longstanding history of criminal sexual and other violent offenses; his repeated victimization of children specifically girls as young as six; that nearly two decades of incarceration did not deter G.P. from violent sexual conduct, as he reoffended after his release from custody; G.P.'s consistent denial of harm and rejection of any notion he victimized those children he assaulted, instead projecting guilt on others; G.P.'s demonstrated lack of impulse control shown by his commission of the disciplinary sexual offense within weeks of possible release from the ADTC; and G.P.'s failure to acknowledge the need for treatment to avoid hurting other children. The evidence clearly and convincingly satisfies the statutory requisite and shows G.P. was highly likely to reoffend if released.

Having considered and rejected G.P.'s attack on the evidence presented, we conclude the record amply supported Judge Freedman's findings and his conclusion that this evidence clearly and convincingly proved each element of the SVPA, establishing G.P. was a sexually violent predator in need of civil commitment.

We turn to G.P.'s next argument, maintaining his Sixth Amendment right to counsel was prejudiced because of his attorney's ineffective assistance. He argues counsel failed to present opening or closing statements and "expert witnesses should have been subpoenaed and called," identifying Dr. Moorehead as essential to refute evidence G.P. was a sexually violent predator. Further, G.P. contends the reports of Drs. Collins, Dorio, and Riley differed from each other and from the trial experts, Drs. Gilman and Roquet. He also states "numerous records should have been subpoenaed on behalf of G.P." to show he had not reoffended for a period of twenty-one years.

Following our review we conclude these arguments lack merit. See R. 2:11-3(e)(1)(E). We add these brief comments.

An individual subject to involuntary commitment under the SVPA has the right to counsel at the commitment hearing. N.J.S.A. 30:4-27.29(c) and -27.31(a); see also In re Commitment of D.Y., 218 N.J. 359, 384 (2014). Generally, the right to counsel requires counsel to provide effective assistance in rendering legal representation and this court has reviewed ineffective assistance of counsel claims by committees. See, e.g., In re Commitment of A.X.D., 370 N.J. Super. 198, 203 (App. Div. 2004).

The absence of opening and closing statements in a bench trial, particularly one in which the State also waived such present arguments, hardly warrants a finding of ineffective assistance. The transcript reveals, during counsel's cross-examinations, he sought to impeach each witness and questioned the bases for the diagnoses. He asked thoughtful, relevant questions, demonstrating a thorough knowledge of the case, and attempted to expose weaknesses in the experts' conclusions. Counsel also challenged the credibility of the victims, a strategy consistent with G.P.'s prior statements to the evaluators denying culpability.

Counsel's alleged failure to call prior evaluating physicians is unfounded. The psychiatrist and psychologist who evaluated G.P. both diagnosed him as a pedophile. Each doctor also concluded he had a personality disorder; though they differed as to the exact nature of the disorder. We have discussed how Dr. Moorehead's report was inapposite to the issues determined and trial. Overall, we fail to understand how any of this allegedly omitted evidence, if presented, would refute the State's very strong case. Similarly, the notion that the transcript from G.P.'s Pennsylvania trial for raping a six-year-old and assaulting an eleven-year-old would defeat the expert diagnoses of pedophilia is specious.

Finally, the record contained evidence of G.P.'s period of incarceration and that he had no disciplinary offenses until he was confined at the ADTC. That G.P. did not sexually assault children or others while incarcerated is not dispositive of his ability to refrain from sexually violent conduct. Indeed, it is the proximity between G.P.'s release from prison after the eighteen-year sentence for sexual offenses and the 2007 sexual assault, not the prior 1986 assaults, that Judge Freedman and the forensic experts found troubling.

Having considered G.P.'s clams, we find no support leading to the conclusion counsel was ineffective or his omissions prejudiced the outcome of the proceeding. Accordingly, the June 19, 2012 judgment of civil commitment under the SVPA will not be disturbed.

Affirmed.