Criminal – SVPA – Civil Commitment – Substantial Compliance

Although the first psychologist who evaluated appellant as a “sexually violent predator” did not satisfy the “treatment” criteria of Va. Code § 37.2-904, the commonwealth promptly substituted a qualified professional for another evaluation and an amended petition and it “substantially complied” with the Sexually Violent Predator Act; the Supreme Court says the trial court did not err by ordering appellant held beyond his release date until a final order was entered on the petition.

Appellant did not argue in the trial court or on brief to this court that the commonwealth engaged in willful misconduct. He maintains the commonwealth’s reliance in its petition on the report of a licensed psychologist, who was not qualified in treatment as required by Va. Code § 37.2-904(B), constituted gross negligence and the commonwealth did not substantially comply with the SVPA and the trial court erred in not granting his motion to dismiss the Attorney General’s petition.

It is clear the commonwealth complied with all aspects of Code §§ 37.2-903, 37.2-904 and 37.2-905, except that Dr. Berman did not have the “treatment” qualification required by Code § 37.2-904. Immediately upon discovering the discrepancy, the AG immediately informed both the trial court and appellant, and sought to replace Dr. Berman with a qualified expert who satisfied the statutory criteria.

Because appellant did not meet his burden of proof in showing the commonwealth’s actions were grossly negligent, the commonwealth – pursuant to Code § 37.2-905.1 – is presumed to have substantially complied with Code §§ 37.2-903, 37.2-904, 37.2-905. The trial court did not err in denying appellant’s motion to dismiss and motion for release.

We hold the trial court did not abuse its discretion by granting the AG’s motion to file a second amended petition and substituting Dr. Nelson’s report for Dr. Berman’s report. Because the AG timely filed the petition to civilly commit appellant as a sexually violent predator when appellant was still incarcerated for a sexually violent offense, and because the commonwealth substantially complied with the SVPA, the trial court did not err by ordering appellant to be held beyond his release date until a final order was entered on the petition.

Judgment affirmed.

Warrington v. Commonwealth (Lemons, J.) No. 092273, Sept. 16, 2010; Richmond Cir.Ct. (Taylor) Jacqueline M. Ford for appellant; Sean J. Murphy, AAG; Kenneth T. Cuccinelli II, AG; Wesley G. Russell Jr., Dep. AG; Pamela A. Sargent, Sr. AAG, for appellee. VLW 010-6-098, 10 pp.