June 11, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF R.G.E. SVP-415-05.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-415-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2008
Before Judges Wefing and Parker.
R.G.E. appeals from a judgment entered on April 27, 2006 committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.
A summary of the facts relevant to this appeal is as follows. Between December 1982 and February 1983, defendant was charged with the forcible rape of two women and attempted rape of another. He pled guilty to all three offenses in 1983 when he was twenty-four years old. A pre-sentence report prepared by the Adult Diagnostic and Treatment Center (ADTC) in 1983 did not recommend that he be sentenced to Avenel because "the pattern of behavior does not reflect an aberrant compulsive type of psychosexual pathology and, thus, the individual would not qualify under the purview of the New Jersey Sex Offender Act." The report, however, specifically stated that "[t]he subject does not reveal any memory of his sexual offenses and, thus, it is difficult to elicit the psychodynamics of the [A]ct." On January 13, 1984, R.G.E. was sentenced on the three offenses to an aggregate term of twenty years subject to ten years parole ineligibility.
Defendant was released after serving his sentence for the 1982-83 offenses. In September 1996, defendant was charged with first degree robbery and fourth degree unlawful possession of a weapon. He pled guilty to the charges and was sentenced on April 21, 1997 to a term of fifteen years subject to five years parole ineligibility. The robbery victim was a forty-four-year-old woman that R.G.E. struck in the mouth and attempted to cut with a razor. The offense occurred in an elevator and ended when the victim set off the elevator alarm button and other people came to her rescue and detained him until police arrived.
In July 2001, R.G.E. was evaluated for parole on the robbery charge. Because of his impulse control issues, limited insight, self-indulgence and history of violent behavior, he was considered "at best, a poor to fair candidate for parole." He was re-evaluated in 2002 and again in 2004, but was not recommended for parole either time. The 2004 evaluation stated that he "has been unable to express remorse for his crimes in any of [the evaluator's] three interviews with him;" he demonstrated "poor judgment, poor impulse control and poor insight . . . . [H]e continues to be a man with very poor coping skills."
Appellant was scheduled to complete his maximum term in December 2005. In July 2005, he was evaluated and, based upon his scores on the Static 99 and MnSOST-R evaluations, he was rated at high risk for recidivism for sexual offenses. His history of substance abuse, in conjunction with the sexual offenses, and relapse after release from the earlier incarceration placed him at high risk for relapse as well. He continued to deny memory of his sexual assaults and blamed heavy drug use for his offenses, but in his many years of incarceration, availed himself of minimal drug abuse programs and no sex offender treatment.
In November 2005, the State filed its petition for civil commitment under the SVPA. The court found probable cause and appellant was temporarily committed to the STU pending a final hearing. At the final hearing in April 2006, the State presented the testimony of Michael McAllister, D.O., a psychiatrist, and Natalie Barone, Psy.D., a psychologist, in support of appellant's commitment. Dr. McAllister testified that R.G.E. refused to be interviewed in March 2006. Accordingly, Dr. McAllister made his diagnosis from historical data and records. He diagnosed R.G.E. with conditional or provisional paraphelia NOS, based upon the three sexually-motivated crimes in 1982-83. The diagnosis was provisional because the three offenses were committed within three months, rather than the usual six-month time period required for a diagnosis of sexual perversion. The record indicates that R.G.E. had been charged with a sexual offense in 1981, but that it was no-billed before the Grand Jury. Dr. McAllister did not take that offense into consideration but testified that if R.G.E. had, in fact, committed a sexual offense in 1981, it would fall within the six-month diagnostic period. Even though the 1996 offense was not overtly sexual, Dr. McAllister believed that it had the same coercive overtones against a female victim.
In addition to the conditional provisional paraphilia diagnosis, R.G.E. was diagnosed with opiate dependence, alcohol and cocaine abuse and antisocial personality disorder because of his lengthy history of incorrigible and illegal behaviors since early adolescence. In Dr. McAllister's opinion, the diagnoses demonstrated mental abnormality and personality disorder predisposing him to sexually re-offend.
R.G.E. also refused to be interviewed by Dr. Barone. She rendered her report from appellant's history and records. In her view, R.G.E. had a significantly elevated psychopathic deviant and mania scale. His score on the Bumby Cognitive Distortion Scale indicated a fundamental cognitive distortion regarding rape. On the Static 99, he scored 5. She explained that the score resulted from the facts that (1) he was sentenced for the three sexual offenses under one indictment so they were considered one offense; (2) the victims were strangers to defendant; and (3) defendant was single. Nevertheless, she diagnosed him with antisocial personality disorder because of his criminal record dating back to early adolescence, his aggressiveness, impulse control problems and lack of remorse for his crimes. Substance abuse raised his risk level. Dr. Barone testified that his serial rapes were motivated by sexual pathology rather than opportunity. He has not participated in sex offender treatment while incarcerated and has difficulty controlling his impulsive behavior. In Dr. Barone's opinion, R.G.E. was at significant risk to sexually re-offend if not committed for treatment.
R.G.E. did not present any evidence in his own behalf. After hearing the testimony, Judge Serena Perretti rendered a decision on the record on April 27, 2006, during which she found that the State had established by clear and convincing evidence that all of the criteria for commitment under the SVPA had been met. She found that R.G.E. is "highly likely to recidivate by commission of additional sexually violent acts if not confined for further care."
R.G.E. appealed and argues:
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.E. WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR
R.E.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATED THE EX POST FACTO CLAUSES OF THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE I, AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3
Defendant contends that Dr. McAllister's diagnosis of provisional or conditional paraphilia does not meet the standard for commitment under the SVPA. Dr. McAllister's diagnosis was qualified by the relatively short period of time during which the three sexual offenses were committed. He indicated that if defendant committed the 1981 offense, which was no-billed, he would clearly qualify for a full diagnosis, rather than a provisional or conditional one.
R.G.E. further argues that while both experts agreed that he has an antisocial personality disorder, that is insufficient for commitment under the SVPA. In that respect, he is correct, if that were the only diagnosis.
Under the SVPA, the standard for commitment is whether the committee suffers from a mental abnormality that adversely impacts his volitional, emotional and cognitive functioning such that it predisposes him to commit sexually violent acts. N.J.S.A. 30:4-27.26. Both Dr. McAllister and Dr. Barone were unequivocal in their opinion that he did. Although R.G.E. repeatedly states that the 1996 robbery offense was not sexual in nature, the manner in which the offense was committed -- by overpowering a woman with a knife and robbing her -- was similar in nature to the sexual offenses. The State clearly and convincingly demonstrated that R.G.E. is a sexually violent predator subject to commitment under the SVPA.
Defendant next argues that the commitment was ex post facto because it occurred twenty-four years after the sexual offenses when R.G.E. had been incarcerated for most of that time and not treated as a sexual offender. Defendant could have been treated at Avenel for the 1983 offenses but claimed that he did not remember the offenses and could not, therefore, be diagnosed under the New Jersey Sex Offender Act. Our New Jersey Supreme Court has held that the SVPA applies to sexual offenses committed before the Act was adopted in 1999. In re Commitment of W.Z., 173 N.J. 109, 127 (2002); In re Commitment of P.Z.H., 377 N.J. Super. 458, 463 (2005) (holding that SVPA "authorize[s] the commitment of any person who has committed a sexually violent offense, without regard to when the offense was committed."). In short, although defendant was not incarcerated for a sexual offense in 2005 when the State filed its petition, there was a sufficient basis for the State to seek commitment under the SVPA.
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