Divided State Supreme Court finds right to counsel cannot be 'superficial'
By Heath Hamacher
BridgeTower Media Newswires
COLUMBIA - Persons committed under South Carolina's Sexually Violent Predator Act have a right to effective assistance of counsel and may challenge that effectiveness via habeas corpus proceedings, a divided Supreme Court held Feb. 15.
In this novel issue of law, appellant Jeffrey Chapman, committed indefinitely after several sex-related convictions and testimony from a psychologist opining that he posed a high risk of reoffending, argued that because the Act provides him a right to assistance of counsel during all stages of the civil commitment proceedings, he also has a right to effective assistance of counsel.
Writing for the court, Justice Kaye Hearn noted that because of the "substantial liberty interests at stake," those subject to SVP proceedings are entitled under the 14th Amendment and the state constitution to counsel.
"Lest the right ring hollow, we further hold this right to counsel is necessarily a right to effective counsel," Hearn wrote.
Chapman also argued that there was no avenue in which those committed under the Act could raise ineffective assistance of counsel claims, and that he should be able to do so on direct appeal. The state argued that Chapman could assert such a claim through a common law habeas proceeding.
The court agreed that there is no statutory procedure in place for such a hearing, but held that rather than on direct appeal - where the record rarely contains a factual basis for ineffective assistance claims - evidentiary hearings such as post-conviction relief proceedings afforded criminal defendants would be better suited to explore counsel's actions and omissions during an SVP trial.
It also noted that since there generally is no right to counsel in habeas proceedings, someone committed as an SVP would typically be required "to assert an ineffective assistance of counsel claim in a habeas proceeding without the assistance of counsel."
"We find this result would be not only inequitable, but also the functional equivalent of denying SVPs the right to effective assistance of counsel," Hearn wrote.
Chapman's appellate attorney, David Alexander of the South Carolina Commission on Indigent Defense in Columbia, did not immediately return an email seeking comment.
Deemed a threat
In 2005, Chapman received a 15-year prison sentence (suspended to time served and five years' probation) after pleading guilty to committing a lewd act on a 10-year-old girl. About five years later, his probation was revoked for violations including failure to comply with curfew and GPS monitoring requirements. He was sent back to prison.
In 2013, with Chapman still behind bars, prosecutors, citing several prior sexual assault convictions, filed a petition under the Act to have him committed as an SVP.
At Chapman's commitment trial, psychologist Dr. Marie Gehle, a court-qualified expert in forensic and clinical psychology and SVP mental health evaluations, testified that she reviewed Chapman's incarceration records, criminal history, and military records. She also interviewed Chapman and performed psychological testing, she said, including the Static-99R risk assessment tool.
In Gehle's opinion, Chapman was "impulsive and violent." He bore no responsibility for his actions, according to Gehle, who diagnosed Chapman with substance abuse disorder, anti-social personality disorder, and biastophilia, a condition in which sexual arousal is achieved by acts or fantasies involving nonconsenting persons. Chapman, Gehle concluded, posed a high risk for reoffending.
On Chapman's behalf, several acquaintances testified to his good character, saying that he changed his life after attending church. Chapman blamed drug and alcohol abuse for his bad acts.
Another psychologist and court-certified expert, Dr. David Price, testified and disagreed with Gehle's diagnosis and interpretation of the psychological tests Chapman completed. The Static 99-R test, he said, had been discredited to some degree in professional circles.
The jury found that Chapman was an SVP and the court ordered his commitment.
Chapman appealed. Court records show that during the two-day trial, Chapman's attorney made no motions and objected but once, during Price's voir dire.
Not 'superficial'
The court ultimately held that the right to counsel the General Assembly provided SVPs "cannot be merely a superficial right."
It also addressed Chapman's argument that the ordinary standard for granting habeas relief - only in cases where they has been a violation that constitutes a denial of fundamental fairness shocking to the universal sense of justice - should not apply to ineffective assistance of counsel claims from SVP proceedings.
The court agreed with Chapman, finding that the two-prong standard developed in the U.S. Supreme Court's 1984 ruling in Strickland v. Washington would be more appropriate, since an SVP's "right to counsel arises from a constitutional right to due process similar to the rights attendant to a criminal trial."
In Strickland, the court held that to establish an ineffective assistance of counsel claim, a criminal defendant must show that counsel's performance fell below an objective standard of reasonableness and that if counsel had performed adequately, the result likely would have been different.
The Strickland standard is the one most familiar to judges and attorneys, Hearn wrote, "and thus results in a more consistent application in our state courts."
Since trial counsel failed to object to any alleged errors, Chapman's claims were not preserved for appellate review. As such, the court affirmed his commitment as an SVP but found that he could reassert those claims during a future habeas proceeding.
Overstepping?
In his dissent, Justice John Few opined that the majority projected the court beyond its jurisdiction, "writing procedural and substantive rules of law that have nothing to do with any error of law made by the trial court."
The new rules, Few wrote, do not concern the trial court's handling of this trial or govern how a future SVP trial will be conducted, but they establish a scheme for resolving a different category of lawsuits that have never been filed.
"It requires no justification for a court to honor the constitutional limitation on judicial power - it is the law," Few wrote.
Few added that the purpose of habeas corpus is to test the legality of a prisoner's detention and the only legal remedy that can be granted is release from custody because the courts lack the power to grant a new trial. Moreover, according to few, the court's finding that the court must appoint and the state must pay counsel to represent the SVP violates state law that reads, "A judge, court, or court official shall not appoint an attorney to represent a party in a civil action unless the authority to make the appointment is provided specifically by statute."
In a footnote, the court said that Few would have the court disregard both parties' recognition that habeas corpus is available to anyone wishing to challenge the legality of his or her confinement. Few's opinion "mistakenly portrays" the majority as improperly invading the legislature's role.
"We would respectfully remind the dissent that this Court is tasked with interpreting and applying the law as adopted by the legislature," Hearn wrote.
Few responded: "I am satisfied that I do understand this duty, and further that I understand we must exercise that duty within the constitutional limitations on our power."
Published: Mon, Feb 27, 2017
