A novel ruling from the S.C. Supreme Court allows sex offenders to complete their probation at the same time they are in a treatment program for violent predators under a civil commitment – meaning they could be released back into the community unsupervised. 
The decision reverses a trial judge and a unanimous three-judge panel at the Court of Appeals, which had found that “the State cannot ensure the public is protected if [a sex offender] is not required to live in the community subject to the conditions of probation.”
But the Supreme Court determined that the trial court had abused its discretion because the law does not specifically allow judges to freeze the probation clock while a defendant is under civil commitment, which would turn what is intended to be treatment into punishment by extending a probationer’s sentence.
“If [the court] had gone the other way it would have had defendants under supervision for longer periods of time than what the General Assembly intended,” said E. Charles Grose Jr., a criminal defense lawyer in Greenwood and past president of the S.C. Public Defender Association. (Grose was not involved in the case.)
The courts can only pause or toll probation when a defendant absconds or commits some other type of violation and can no longer be supervised, according to Justice Donald W. Beatty, who wrote the June 19 opinion.
Past misconduct ‘irrelevant’
Tommy Evans Jr. of the S.C. Department of Probation, Parole & Pardon Services in Columbia had argued that the probationer behind the appellate action, James C. Miller, qualified for tolling because he could not be supervised while he was civilly committed in the sexually violent predator program.
In agreeing with Evans, the Court of Appeals also had concluded that it could suspend Miller’s probation because he’d admitted to misconduct by pleading guilty to sexually assaulting a 1-year-old, “which contributed to the basis for his civil commitment.”
However, the Supreme Court said past misconduct “is irrelevant in this particular analysis, as it would not form the basis for finding a probation violation nor would it support tolling of probation because the conduct occurred before sentencing.”
According to the courts, Miller removed his pants and was leaning over a baby whose diaper had been taken off when the child’s mother walked in on him. He then punched the mother as he left the room.
He pleaded guilty to committing a lewd act on a minor and criminal domestic violence, and was sentenced to 10 years in prison followed by five years of probation. Before his release, he was involuntarily committed as a sexually violent predator and has remained in a Department of Corrections treatment center since 2006.
His attorney, appellate defender David Alexander in Columbia, declined to discuss the case, citing the possibility of the state filing a petition for rehearing. Evans, the state probation department’s attorney, also declined comment.
Legislature’s call
Matthew C. Buchanan, general counsel for the probation department, did not know exactly how many probationers the court’s ruling would affect, but said it would be a relatively small population.
“There’s not a tremendous amount of them,” he said, adding that “if they are released it would be through the Department of Mental Health making a determination that they are no longer a danger to the community.”
In making its decision, the Supreme Court punted to the General Assembly, saying that while it appreciated “the policy considerations that weigh on both sides of the matter,” it will be up to lawmakers to create a tolling exception for sex offenders under civil commitment.
“We will certainly make the legislature aware of this ruling,” Buchanan said, “and if it decides to enact legislation we will be happy to enforce it.”
The 8-page decision is State v. James C. Miller Lawyers Weekly No. 010-075-13. The full text and a digest of the ruling can be found at sclawyersweekly.com.
Follow Phillip Bantz on Twitter @SCLWBantz
OPINION BRIEF
Case name: State v. James C. Miller
Court: S.C. Supreme Court
Judge: Donald W. Beatty with Chief Justice Jean H. Toal and John W. Kittredge concurring, Costa M. Pleicones concurring in result only.
Attorney for state: Tommy Evans Jr. (Columbia)
Attorney for defendant: David Alexander (Columbia)
Issue: Can the court toll or freeze a defendant’s probation time while he is civilly confined under the state’s Sexually Violent Predator Act?
Holding: No, because the law does not authorize tolling while a defendant is under civil confinement, not just for sex offender treatment but also for drug or mental health programs.
Potential effect: The ruling of first impression would allow a sex offender’s probationary term to expire while he or she is civilly confined, meaning the offender could be released into the community free from the conditions of probation.