816 S.E.2d 290
Va.2018Background
- Giddens, convicted of carnal knowledge and attempted carnal knowledge, scored a five on the Static-99 and was referred for civil commitment under Virginia’s SVP Act.
- The Director forwarded Giddens’ name to the Commitment Review Committee and Dr. Miller evaluated him as an SVP; Giddens did not cooperate with the evaluator.
- Giddens moved to dismiss, arguing the Static-99 was mis-scored because he had allegedly lived with a partner for two years (which would reduce his score to four).
- At the hearing Giddens and his brother testified to the longer cohabitation; Giddens offered no corroborating documentary evidence or testimony from the alleged partners.
- The Director relied on prior records showing shorter cohabitation and prior Static-99 scores of five or higher; the DOC declined to change the score and the Attorney General’s Office did not act.
- The trial court dismissed the petition, concluding the Commonwealth failed to prove correct scoring; the Commonwealth appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a screening-score error requires dismissal | Giddens: his Static-99 was scored incorrectly (should be 4), so he was ineligible for referral | Commonwealth: screening rules are procedural and presumed substantially complied with absent gross negligence or willful misconduct under Code § 37.2-905.1 | Court reversed dismissal: plaintiff must show failure to substantially comply due to gross negligence or willful misconduct; he did not |
| Who bears burden to show noncompliance | Giddens: Commonwealth must prove eligibility | Commonwealth: defendant bears burden to show lack of substantial compliance and gross negligence | Court: Code § 37.2-905.1 places burden on defendant to show failure and gross negligence |
| Whether the Director’s refusal to investigate the score amounted to gross negligence | Giddens: DOC’s failure to investigate equals gross negligence | Commonwealth: DOC relied on documentary evidence and prior consistent scores; no gross negligence | Court: No gross negligence—director acted with due care given records and uncorroborated inmate testimony |
| Whether Shelton remains controlling | Giddens relied on Shelton to require dismissal when score below statutory minimum | Commonwealth: Shelton superseded by 2007 amendment (Code § 37.2-905.1) treating screening as procedural with presumption of substantial compliance | Court: Shelton no longer good law after § 37.2-905.1; statute governs standard |
Key Cases Cited
- Shelton v. Commonwealth, 274 Va. 121 (2007) (prior rule requiring dismissal when minimum screening score not met)
- Commonwealth v. Miller, 273 Va. 540 (2007) (describing Static-99 as a predictor of sex-offender recidivism)
- Commonwealth v. Squire, 278 Va. 746 (2009) (statistical recidivism risk associated with Static-99 scores)
- Riley v. Commonwealth, 277 Va. 467 (2009) (standard for reviewing sufficiency of evidence)
- Cowan v. Hospice Support Care, Inc., 268 Va. 482 (2004) (definition of gross negligence)
- Chapman v. City of Virginia Beach, 252 Va. 186 (1996) (factors and explanation for gross negligence)
- Elliott v. Carter, 292 Va. 618 (2016) (gross negligence requires absence of even scant care)
- Frazier v. City of Norfolk, 234 Va. 388 (1987) (gross negligence ordinarily a fact question but may be ruled as matter of law)