Opinion
DOCKET NO. A-2146-12T2
10-03-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF C.H. SVP-642-12.
Alison Perrone, Designated Counsel, argued the cause for appellant C.H. (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief.) Mark Singer, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Argued April 29, 2013 — Decided July 1, 2013
Remanded by Supreme Court April 24, 2014
Reargued September 16, 2014 — Decided October 3, 2014
Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-642-11. Alison Perrone, Designated Counsel, argued the cause for appellant C.H. (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief.) Mark Singer, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief). PER CURIAM
This appeal comes to us on remand from the Supreme Court. In our prior opinion, In re Civil Commitment of C.H., No. A-2146-12 (App. Div. July 1, 2013), we reversed the trial judge's order dismissing the State's petition for civil commitment of C.H., concluding the trial judge erroneously found that C.H. is "not highly likely" to sexually reoffend, and thus was not a sexually violent predator subject to civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. C.H. filed a petition for certification, and, on April 24, 2014, the Supreme Court granted certification and summarily remanded to this court for reconsideration in light of In re the Civil Commitment of R.F., 217 N.J. 152 (2014). In re the Civil Commitment of C.H., 217 N.J. 302 (2014).
Upon reconsideration of our earlier decision, we conclude that the trial court erred by rendering a decision on whether C.H. was highly likely to reoffend. The record was unclear on facts bearing on the court's assessment of the expert testimony, and the court appears to have relied upon information found on an internet website outside of the record. We therefore reverse the order dismissing the State's petition and remand the matter to the trial court to reconsider its decision.
I.
The procedural and factual history are set forth at length in our prior opinion. Therefore, we provide a summary to place this opinion in context. At the time of the commitment hearing in November 2012, C.H. was fifty-five years old. He has been convicted four times for sexual offenses, including a 1994 conviction for second-degree rape in Maryland. He was charged with two other sexual offenses, but those charges were subsequently dismissed. He has also been convicted of crimes of violence, theft, and drug possession. While the record is unclear how much time C.H. served, he has been sentenced to approximately forty years of incarceration.
Most recently, C.H. served eleven years in a Maryland prison on the second-degree rape conviction. Maryland released C.H. on July 20, 2005, with parole to expire on March 31, 2010. C.H. subsequently violated parole on numerous occasions, by failing to attend mandatory sex offender treatment, testing positive for cocaine and alcohol, and failing to register as a sex offender.
Notably, on June 11, 2006, Maryland charged C.H. with second-degree assault, a charge that was subsequently dismissed, and in April 2007, an anonymous woman reported that C.H. was "rough with her when she refused to have sex with him." No charges resulted from this allegation. The record is unclear as to how much time C.H. was incarcerated after his parole was revoked. Between termination of his parole in March 2010, and his present commitment in May, 2012, C.H. had no interaction with law enforcement.
In April 2012, the State moved for civil commitment pursuant to the SVPA. The trial court entered an order temporarily committing C.H., and on May 4, 2012 the State took him into custody. The court held a final hearing on November 29, 2012. The State relied on expert reports and testimony from Roger Harris, M.D., and Nicole Paolillo, Psy.D. C.H. relied upon an expert report and testimony from Timothy P. Foley, Ph.D.
Dr. Harris interviewed C.H. on three separate occasions, between May and November 2012. Dr. Harris found that C.H. attempted to dispute his convictions by providing inconsistent explanations and shifting the blame onto his victims. Dr. Harris found that, although C.H. stated he was remorseful, he did not understand the pattern of behavior that led to his actions, and had learned little from sex offender treatment.
Dr. Harris diagnosed C.H. with paraphilia not otherwise specified, focusing on coercive sex (paraphilia non-consent), antisocial personality disorder (ASPD), and polysubstance abuse. He noted that C.H. failed to conform to social norms, lied, acted impulsively, exhibited a reckless disregard for the safety of others, and lacked a sense of personal responsibility or remorse. Dr. Harris scored C.H. as a five on the Static-99R placing him at moderate to high risk to sexually reoffend. Dr. Harris concluded that C.H. presented a high risk of re-offense, and therefore recommended civil commitment.
According to Dr. Paolillo's report, the Static-99R is a test that provides "an actuarial measure of relative risk for sexual offense recidivism."
Dr. Paolillo interviewed C.H. once on November 26, 2012. Dr. Paolillo also reported significant confusion and inconsistencies in C.H.'s statements. She found that C.H. contradictorily attempted to dispute his sexual offenses by shifting blame onto the victims, and to present himself as remorseful. She characterized these inconsistencies as manipulative. She further observed that C.H. "lacked any meaningful appreciation of sex offender treatment that could have any mitigating influence on his risk."
Dr. Paolillo scored C.H. as a twenty-nine on the Psychopathy Checklist-Revised, Second Edition (PCLR), which is one point short of a diagnosis of psychopathy. Dr. Paolillo diagnosed C.H. with paraphilia non-consent, ASPD, and alcohol dependence. She scored him as a six on the Static-99R, placing him in the upper ninety to ninety-fifth percentile of all sex offenders with regard to likelihood of recidivism, although she admitted that his score would drop two points in June 2017, when he turns sixty. She noted C.H. was impulsive, manipulative, and dishonest, deflecting responsibility and lacking remorse or concern for the wellbeing of others. Dr. Paolillo concluded that C.H. was highly likely to re-offend.
Dr. Foley interviewed C.H. once on November 13, 2012. Dr. Foley found him friendly and cooperative throughout the interview. He attributed C.H.'s inconsistent statements to a poor memory and low intelligence, rather than an attempt to intentionally lie or manipulate. Dr. Foley noted that C.H. had no convictions for sexual misconduct since his release from prison in 2005, and he found that C.H. had aged out of sexually violent behavior.
Dr. Foley scored C.H. as a four or five on the Static-99R, based on uncertainty whether C.H. had lived with a sexual partner for at least three years. He diagnosed C.H. with ASPD, alcohol dependence, and polysubstance abuse. He also found "[t]here [were] no indications of a paraphilic disorder or demonstration that coercive sexual acts were preferred or obligatory." Dr. Foley concluded C.H. lacked a mental illness or personality disorder predisposing him to commit sexually violent acts, and was not highly likely to re-offend.
At the hearing, all three experts provided testimony consistent with their reports. Dr. Harris disputed the beneficial effects of C.H.'s age, noting the early onset of ASPD, ongoing antisocial behavior, repeated sexual offenses, numerous parole violations, and lack of remorse or sense of responsibility all contributed to negate the effect of C.H.'s age. He admitted C.H.'s age made him less likely to reoffend, but described the reduction as insignificant, and refused to quantify it further.
Dr. Foley testified the Static-99R was not useful in evaluating individuals who have not committed a sex offense in over ten years. He stated that every two years in the general public without a new offense decreased the rate of recidivism, and that neither parole violations nor general psychopathy reliably predict sexual violence. Significantly, Dr. Foley recommended "that . . . in an ideal world, [C.H.] should be supervised," but later retreated slightly, stating that supervision was not "absolutely necessary."
Following the hearing, the judge issued an oral opinion, finding the State failed to show C.H. was highly likely to reoffend, and ordered C.H.'s release. The judge found C.H. had committed sexually violent offenses, and accepted the diagnosis of ASPD and polysubstance abuse, predisposing C.H. to sexual offenses. However, the judge found C.H.'s offenses followed a pattern wherein C.H. sought consensual sex, and resorted to violence only after the woman refused. As C.H. did not seek non-consensual sex for its own sake, the judge concluded the record did not support the diagnosis of paraphilia non-consent.
The judge credited Dr. Foley's opinion that C.H.'s advanced age, and lack of recent offenses, reduced his risk of recidivism. He noted that although C.H. was incarcerated for approximately twenty months of his parole, he was not convicted of a violent crime during the seven years since his release in 2005.
The judge conceded there was a risk that C.H. would re-offend, but found that the State failed to present clear and convincing evidence of a high risk. The judge therefore determined the State was not "entitled to commit [C.H.] under the statute."
This appeal followed, and on July 1, 2013, we reversed. C.H., supra, slip op. at 1-2. While we acknowledged "the judge was empowered to accept or reject the various expert opinions and was permitted to evaluate those opinions in light of all the evidence in the record," we concluded "the grounds he articulated demonstrate a mistaken exercise of discretion." Id. at 21-22. At that time, we chose not to remand for further hearing, noting, "C.H.'s commitment will be reviewed periodically pursuant to N.J.S.A. 30:4-27.35." Id. at 25-26. Upon further consideration, we conclude that a remand represents the more appropriate disposition. Our reasons follow.
II.
Under the SVPA, the State can involuntarily commit a sexually violent predator by civil proceeding. The State must show clear and convincing evidence that: (1) the defendant was convicted of a sexually violent offense; (2) the defendant suffers from a mental abnormality or personality disorder predisposing him or her to commit acts of sexual violence; and (3) the defendant has "serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." In re the Commitment of W.Z., 173 N.J. 109, 120-30 (2002).
As noted, our scope of review "of a commitment determination is extremely narrow." D.C., supra, 146 N.J. at 58. We only "reverse a commitment for an abuse of discretion or lack of evidence to support it." In re the Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007). "[C]ommitting judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference." Id. at 226. The trial judge is entitled to the "utmost deference" in balancing societal safety with individual liberty. In re the Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." D.C., supra, 146 N.J. at 58-59.
In R.F., supra, 217 N.J. at 157, the Supreme Court considered the proper standard for appellate review of civil commitments under the SVPA. There, then seventeen-year-old defendant R.F. pled guilty to endangering the welfare of children after engaging in sexual conduct with two underage girls. Id. at 156. He was sentenced to a five-year term at the Adult Diagnostic and Treatment Center at Avenel. Ibid. Before R.F. completed his sentence, the State petitioned to have R.F. civilly committed under the SVPA. Ibid. The State presented testimony from two expert witnesses, and R.F. presented one expert witness. Ibid.
The State's first expert found R.F. was of below average intelligence, and could not plan ahead, but nevertheless argued R.F. had befriended and groomed his victims for several years prior to the incident. Id. at 161-62. He diagnosed R.F. with ASPD and pedophilia despite being unable to determine whether R.F.'s victims were prepubescent at the time of the incident. Id. at 162-63. He concluded that R.F. was at high risk to reoffend. Id. at 163. The State's second expert agreed with the high risk assessment, but based his finding on the ASPD alone. Id. at 164-65.
R.F.'s expert diagnosed him with a conduct disorder, but disagreed with the diagnosis of pedophilia and ASPD. Id. at 165-66. She found that R.F.'s risk of reoffending was "fairly low[,]" and noted that R.F. was subject to lifetime supervision. Id. at 166-67.
The trial judge found R.F. committed predicate sexual offenses and suffered from a personality disorder, concluding the State failed to prove "by clear and convincing evidence that R.F. was highly likely to engage in sexually violent behavior if not civilly committed." Id. at 156. We reversed, finding the record supported the State's position, and faulting the trial court for "'unduly discount[ing] the testimony of the State's expert witnesses,'" whose opinions were "'well-supported by the record.'" Id. at 170-71 (alteration in original).
The Supreme Court granted R.F.'s petition for certification and reversed. Id. at 171. The Court held that we failed to give proper deference to the trial court, and improperly substituted our own findings of fact and credibility. Id. at 175-76. The Court relied heavily upon the fact that R.F. would be subject to lifetime parole supervision. Id. at 179. The Court, therefore, reversed and reinstated the trial court's decision, concluding "we must not second-guess [the findings of the trial judge] unless they are clearly mistaken and unsupported by the evidence." Id. at 182-83.
III.
We have carefully reconsidered our decision in light of R.F., and we conclude that the matter must be remanded to the trial court for further proceedings for several reasons.
First, we note that the trial court admitted this was a close case, noting, "[I]f the standard had remained more likely than not then I would have found that this was a close case and a difficult case. Not that it isn't. . . . [C.H.] certainly is a risk and he certainly could commit another sex offense[.]"
Second, the record, as well as the trial court's opinion, are unclear as to C.H.'s criminal history. The documents in the record indicate when C.H. was convicted, and his sentences, but do not clearly indicate his periods of incarceration. For example, the State argues that C.H. has not aged out of his disorders because he previously went over ten years, between 1980 and 1991, without offending, and then reoffended in 1991. C.H. was sentenced to six years confinement in 1981, and ten years confinement in 1983, but the record does not indicate how much time he served. The amount of time that C.H. was incarcerated during this period would have significant bearing on the State's argument.
Conversely, C.H. argues that because he did not commit any sexually violent offenses after his release in 2005, he is unlikely to reoffend. C.H. violated his parole on numerous occasions between 2005 and 2010, but the record is not clear as to how long he was incarcerated for those violations. The best the trial court could do was to approximate, estimating that "he was locked up for various reasons for [twenty] months out of five [years]." The court acknowledged, however, "[I]t's not totally clear how long he was in." In its decision, the trial court stated, "four years out of . . . five . . . he was out without . . . committ[ing] any additional offenses." If C.H. was incarcerated for more than twenty months, then C.H.'s argument would lack support, seriously undermining a key premise of the trial court's opinion.
Moreover, none of the experts substantively addressed the anonymous 2007 report that C.H. was "rough with [a woman] when she refused to have sex with him." Although C.H. was not arrested or charged for that incident, the allegation could seriously undercut his argument that he has aged out of sexually violent offenses. This incident should be addressed by the experts on remand.
Third, in evaluating the diagnosis of paraphilia, the trial court referenced a "Dr. Frances who runs a blog on a psychology website," that extensively disputes the existence of paraphilia non-consent. Although the court stated that the blog "does not play a part in [its] decision[,]" it is clearly outside of the record, and it appears that the court considered the material in making its decision. See Giordano v. City Com. of Newark, 2 N.J. 585, 589 (1949) ("No determination can be permitted to rest upon undisclosed findings or information [outside] the record."); see also Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960) ("A judge's private knowledge is no substitute for required proof, no matter how accurate such knowledge might prove to be."); State v. LiButti, 146 N.J. Super. 565, 571 (App. Div. 1977) (stating that a "judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer"). Moreover, neither party was afforded the opportunity to review or address the material.
In light of the closeness of this case, and the importance of the issues, balancing, on the one hand, C.H.'s liberty, and, on the other hand, the risk that C.H. will reoffend, we conclude this case should not be decided on the unclear record before us. The parties must have the opportunity to clarify the record, and the trial court must have the opportunity to clarify its decision. Therefore we remand for further evidentiary hearings consistent with this opinion.
On remand, each side should be permitted to obtain updated evaluations of C.H. and to supplement their reports, especially in regards to the anonymous 2007 allegation. The court should also consider: (1) the fact that, unlike R.F., C.H. will not be subject to lifetime parole; (2) the American Psychiatric Association's 2013 release of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, incorporating significant changes to the diagnosis of paraphilia and paraphilic disorders; and (3) due to the significant time that has passed since C.H. was last evaluated, any change in C.H.'s condition or progress in his sex offender treatment.
Remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION