In re Chapman

419 S.C. 172

796 S.E.2d 843

In the MATTER OF the Care and Treatment of Jeffrey Allen CHAPMAN, Appellant.

Appellate Case No. 2014-001181

Opinion No. 27705

Supreme Court of South Carolina.

Heard May 17, 2016

Filed February 15, 2017

Appellate Defender David Alexander, of Columbia, for Appellant.

Attorney General Alan M. Wilson and Senior Assistant Deputy Attorney General Deborah R.J. Shupe, both of Columbia, for Respondent.

JUSTICE HEARN :

A Greenville County jury found Jeffrey Chapman met the statutory definition of a sexually violent predator (SVP) as set forth in South Carolina's Sexually Violent Predator Act (the Act),¹ and the trial court subsequently signed an order to civilly commit Chapman. In this direct appeal, Chapman presents a novel issue of law related to the right to counsel in SVP proceedings. We hold that persons committed as SVPs have a right to the effective assistance of counsel, and they may effectuate that right by seeking a writ of habeas corpus. Therefore, although we affirm Chapman's commitment on issue preservation grounds, he may reassert his ineffective assistance of counsel claims in a future habeas proceeding.

FACTUAL/PROCEDURAL BACKGROUND

In 2005, Chapman pled guilty to one count of lewd act on a minor, involving a ten-year-old female. He was sentenced to fifteen years' imprisonment, suspended to time served and five years' probation. Approximately five years later, Chapman's probation was revoked due to "technical violations," including a failure to comply with his curfew and GPS monitoring requirements, and a circuit court judge ordered him imprisoned for five years of his original sentence.

In 2013, prior to Chapman's release from prison, the State filed a petition under the Act seeking Chapman's commitment as an SVP. In support of its petition, the State cited Chapman's four prior convictions involving sexual assaults on women, as well as the conviction for lewd act on a minor.

At Chapman's commitment trial,² the State presented testimony from Dr. Marie Gehle, the chief psychologist at the South Carolina Department of Mental Health, who the court qualified as an expert in forensic and clinical psychology and SVP mental health evaluations. Dr. Gehle testified she reviewed Chapman's incarceration records, military records, and criminal history, including investigation summaries, witness statements, Chapman's statements, and sentencing sheets. Additionally, Dr. Gehle testified she interviewed Chapman and performed psychological testing, which included completing the Static-99R actuarial risk assessment tool.³

In explaining her findings, Dr. Gehle detailed the facts surrounding Chapman's prior sex offenses, including two sexual assault convictions in Florida in 1986, an attempted second-degree rape conviction in North Carolina in 1991, a third-degree criminal sexual conduct conviction in South Carolina in 1992, an indecent exposure conviction in South Carolina in 1997, and a lewd act on a minor conviction in South Carolina in 2005. Dr. Gehle stated Chapman's behavior in each instance appeared to be impulsive and violent. Moreover, she testified Chapman took no responsibility for his actions, instead claiming the convictions were the result of consensual sex or fabrication by the victims.

From her review of Chapman's records, psychological tests, and personal interview, Dr. Gehle concluded Chapman suffered from biastophilia,⁴ anti-social personality disorder, and substance abuse disorder. As a result of the interplay of the characteristics of those diagnoses, Dr. Gehle opined that Chapman posed a high risk of reoffending.

In contrast, Chapman presented testimony from several personal acquaintances, each of whom testified to Chapman's good character. The witnesses stated that after Chapman's last conviction, his life and attitude had changed drastically as a result of him attending church. Chapman testified as well, stating drugs and alcohol had a significant effect on his life since his teenage years, and blaming substance abuse for most of his bad actions.

Chapman's final witness was Dr. David Price, a psychologist, who the court qualified as an expert in clinical and forensic psychology. Dr. Price testified he disagreed with Dr. Gehle's diagnoses of biastophilia and anti-social personality disorder. In part, Dr. Price stated his disagreement stemmed from Dr. Gehle's application and interpretation of the psychological tests Chapman completed, including the Static-99R test, because the test had been discredited to some degree in professional circles.

Throughout the two-day trial, Chapman's counsel did not make any motions, including a motion for a directed verdict or JNOV. Further, Chapman's counsel objected only once, during Dr. Price's voir dire.

Ultimately, the jury found Chapman met the statutory definition for an SVP, and the trial court ordered Chapman's commitment. Chapman appealed, and the Court certified the appeal pursuant to Rule 204(b), SCACR.

ISSUES PRESENTED

I. Does a person committed as an SVP have a due process right to effective assistance of counsel?

II. If a person committed as an SVP has a right to effective assistance of counsel, when during his appeal may he raise his trial counsel's perceived errors?

III. If a person committed as an SVP has a right to effective assistance of counsel, what standard should a court use to evaluate counsel's performance?

IV. Did trial counsel's failure to object to various alleged errors during trial violate Chapman's right to effective assistance of counsel?

STANDARD OF REVIEW

"Questions of statutory construction are a matter of law." Boiter v. S.C. Dep't of Transp. , 393 S.C. 123, 132, 712 S.E.2d 401, 405 (2011). The Court reviews questions of law de novo. Milliken & Co. v. Morin , 399 S.C. 23, 30, 731 S.E.2d 288, 291 (2012).

Moreover, on appeal from a case tried before a jury in an action at law, appellate courts may not disturb the jury's factual findings "unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings." Townes Assocs., Ltd. v. City of Greenville , 266 S.C. 81, 85, 221 S.E.2d 773, 775 (1976). Thus, this Court's jurisdiction in those cases extends only to the correction of errors of law. In re Care & Treatment of Gonzalez , 409 S.C. 621, 628, 763 S.E.2d 210, 213 (2014).

LAW/ANALYSIS

I. RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

Chapman argues because the Act provides him a right to assistance of counsel during all stages of SVP proceedings, he necessarily has a right to effective assistance of counsel during the proceedings. We agree.

The United States Supreme Court "repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas , 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ; accord Vitek v. Jones , 445 U.S. 480, 491–92, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (plurality opinion). Moreover, the Supreme Court found that to satisfy due process, prisoners suffering from a mental disease or defect requiring involuntary commitment must be provided with independent assistance during the commitment proceeding. Vitek , 445 U.S. at 496–97, 100 S.Ct. 1254 ; id. at 500, 100 S.Ct. 1254 (Powell, J., concurring). In accordance with these directives, section 44-48-90 of the South Carolina Code provides, "At all stages of the proceedings under [the Act], a person subject to [the Act] is entitled to the assistance of counsel, and if the person is indigent, the court must appoint counsel to assist the person." S.C. Code Ann. § 44-48-90(B).

We have previously recognized section 44-48-90 provides a statutory right to counsel distinct from the Sixth Amendment right to counsel afforded in criminal proceedings. In re Care & Treatment of McCoy , 360 S.C. 425, 427, 602 S.E.2d 58, 59 (2004) ; In re Care & Treatment of McCracken , 346 S.C. 87, 96, 551 S.E.2d 235, 240 (2001). However, given the significant due process implications inherent in civil commitments, we find section 44-48-90's right to counsel is not merely a statutory right, but also a constitutional one arising under the Fourteenth Amendment and the South Carolina Constitution.⁵ Cf. Vitek , 445 U.S. at 496–97, 100 S.Ct. 1254 ; In re Care & Treatment of Ontiberos , 295 Kan. 10, 287 P.3d 855, 864–65 (2012) (examining the three due process factors espoused in Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and concluding there is a constitutional right to counsel arising under the Fourteenth Amendment and the state constitution with regards to SVP commitment proceedings); Jenkins v. Dir. of the Va. Ctr. for Behavioral Rehab. , 271 Va. 4, 624 S.E.2d 453, 460 (2006) (holding that because of the "substantial liberty interest at stake in an involuntary civil commitment based on Virginia's [SVP] Act," persons subject to SVP proceedings have a constitutional right to counsel arising under the Fourteenth Amendment and the state constitution).⁶ Lest the right ring hollow, we further hold this right to counsel is necessarily a right to effective counsel. Accord Smith v. State , 146 Idaho 822,203 P.3d 1221, 1232–33 (2009).⁷

Accordingly, because the Act provides Chapman with a right to counsel, he consequently has a right to effective assistance of that counsel during his SVP proceedings.

II. TIMING OF RAISING INEFFECTIVE ASSISTANCE CLAIMS

Chapman next asserts as the Act currently stands, there is no avenue in which persons committed as SVPs may raise ineffective assistance of counsel claims. Therefore, he argues, he should be able to raise his ineffective assistance claims on direct appeal. In response, the State contends Chapman may assert an ineffective assistance claim through a common law habeas proceeding. We agree with the State that, as with all unlawful confinement claims, Chapman may assert his claims that he is improperly in custody—whether due to his counsel's ineffectiveness or otherwise—via a future habeas proc...