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IN THE MATTER OF THE ) No. ED101652
CARE AND TREATMENT OF )
WILLIAM MURPHY. ) Appeal from the Circuit Court
) of Marion County
)
)
) Honorable David C. Mobley
)
)
FILED: June 23, 2015
Introduction

Appellant William Murphy (“Murphy”) appeals from the judgment of the Probate
Division of the Circuit Court of Marion County (“the probate court”) committing Murphy to
secure conﬁnement in the custody of the Department of Mental Health as a sexually violent
predator (“SVP”) pursuant to Sections 632.480 through 632.513.' Murphy pleaded guilty to
ﬁrst~degree sexual abuse in 1983 and was sentenced to prison. On April 16, 2013, prior to
Murphy’s scheduled release from prison, the State ﬁled a petition to have Murphy committed as
an SVP. On July 2, 2013, House Bill 215 (“HB 215”) was signed into law amending the

deﬁnition of a “sexually violent offense.” Murphy subsequently ﬁled a motion to dismiss the

1 All statutory references are to RSMo. 2000.

 

State’s petition seeking to commit Murphy as an SVP. Murphy reasoned that at the time the
State’s petition was ﬁled, ﬁrst-degree sexual abuse was not a qualifying offense for purposes of
commitment under Section 632.480. The probate court denied Murphy’s motion to dismiss. On
June 27, 2013, pursuant to a stipulation, the probate court entered a judgment committing
Murphy to the Department of Mental Health as an SVP.

On appeal, Murphy contends the probate court erred in denying his motion to dismiss the
petition because he did not qualify for commitment as an SVP. Speciﬁcally, Murphy argues that
ﬁrst-degree sexual abuse was not a qualifying offense under Section 632-480(4) at the time the
State ﬁled its petition to have him committed. Murphy maintains that the subsequent
amendment to the statute constitutionally could not be applied retroactively because the
amendment was a substantive change in the law affecting his fundamental right to liberty.
Because the legislature clearly intended that the amendments to the SVP statute apply
retroactively, and because the retroactive appiication of the SVP statute is not unconstitutional,
the probate court did not err in applying the amended statute to Murphy’s case. Accordingly, we

afﬁrm the judgment of the probate coult.

Factual and Procedural History

Murphy pleaded guilty to ﬁrst—degree sexual abuse on September 20, 1983, and was
sentenced to prison. Murphy was scheduled to be released from prison on May 2, 2013. On
April 16, 2013, the State ﬁled a petition pursuant to Sections 632.480 through 632.513
(“Missouri's SVP statute”) to civilly commit Murphy as an SVP. The petition stated that
Murphy had been convicted of ﬁrst-degree sexual abuse and suffered from a mental abnormality

that made him more likely than not to engage in predatory acts of sexual violence if released.

In re Care & Treatment of Spencer, 123 S.W.3d 166, 169 (Mo. banc 2003). While the
commission of a qualifying sexually violent offense is a necessary prerequisite to an individual
being civilly committed as an SVP, the statute requires the additional ﬁnding that the individual
“suffers from a mental abnormality which makes the person more likely than not to engage in
predatory acts of sexual violence if not confined in a secure facility.” Section 632.480(5). As a
result, unlike the statute at issue in M, the amendment to Section 632.480 does not impose
any new duties or obligations on Murphy as a result of his prior conviction for first-degree sexual
abuse. We agree with the probate court’s analysis that the statute’s requirement of ﬁnding a
qualifying sexually violent offense “is no more than a predicate portion of the calculus utilized in
determining whether a respondent meets the criteria as a sexually violent predator.”

We do not take lightly the fact that civil commitment as an SVP substantially impacts
Murphy’s fundamental right of liberty. In re Care & Treatment of Norton, 123 S.W.3d 170, 173
(Mo. banc 2003). However, the amendment to Missouri’s SVP statute at issue here simply does
not impose upon Murphy any new obligations or duties solely by virtue of his pre-amendment
Offense. Instead, the amended statute merely looks at Murphy’s prior conduct as a predicate
before the probate court may consider evidence of whether Murphy currently suffers from a
mental abnormality which makes him more likely than not to engage in predatory acts of sexual
violence if not conﬁned in a secure facility. Section 632.480(5). This critical analysis was not
altered in any way by HB 215. Given these facts, we hold that HB 215’s amendment of Section
632.480 to include ﬁrst-degree sexual abuse in the list of sexually violent offenses does not

constitute an unconstitutionally retrospective law.

‘l‘l

Conclusion
Because the legislature clearly intended the amended SVP statute to apply retroactively,
and because the law is not unconstitutionally retrospective, the probate court did not err in

applying the amended SVP statute to Murphy’s case and denying his motion to dismiss. The

Kart S. Odenwald, Presiding Judge

judgment of the probate court is afﬁrmed.

Robert G. Dowd, J12, concurs
Gary M. Gaertner, Jr., concurs

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Missouri's SVP statute establishes the process by which the State may civilly commit a
person determined to be an SVP. Under the statute, an SVP is deﬁned as “any person who
suffers from a mental abnormality which makes the person more likely than not to engage in
predatory acts of sexual violence if not conﬁned in a secure facility and who... [lﬂas pied guilty
or been found guilty in this state or any other jurisdiction. .. of a sexualiy violent offense.
Section 632.480(5). Section 632.480(4) lists a number of offenses that qualify as “sexually
violent offenses.” In April of 2013, when the State ﬁled its petition to commit Murphy as an
SVP, Section 632.480(4) listed only “sexual abuse” among the qualifying offenses.

The probate court held a probable cause hearing on May 1, 2013. Dr. Amy Grifﬁth, a
psychologist with the Department of Corrections who evaluated Murphy, testiﬁed that Murphy
met the criteria of an SVP because: (a) from 1972-2007, Murphy had been arrested or convicted
for sexual offenses involving children on at least six different occasions, including a 1983
conviction in the Circuit Court of Marion County for two counts of ﬁrst-degree sexuai abuse for
subjecting two children less than 12 years of age to sexual contact; (b) he suffered from a mental
abnormality, namely pedophilia; and (0) he was more likeiy than not to sexually re-offend if not
conﬁned to a secure facility due to a combination of high risk scores on the actuarial instruments
and factors unique to Murphy—including his own statements that he would possibly be attracted
to children if released and had “hope” that he would be referred as an SVP because he could “use
the help” to avoid sexually reoffending.

At the hearing, Murphy did not object to first-degree sexual abuse qualifying as a
sexually violent offense under Section 632.480(4). At the conclusion of the hearing, the probate

court entered a ﬁnding of probable cause.

On July 2, 2013, the Governor of Missouri signed HB 215 into law, which, among other
things, amended the deﬁnition of a “sexually violent offense” in Section 632.480(4). Among the
changes made to Section 632.480(4) by HB 215 was the addition of “sexual abuse in the first
degree” to the list of offenses that qualify as sexually violent offenses. In addition, HB 215
included the following language:

It is the intent of the legislature to reject and abrogate earlier case law

interpretations on the meaning of or deﬁnition of “sexually violent offense” to

include, but not be limited to, holdings in: Robertson v. State, 392 S.W.3d 1 (Mo.
App. W.D., 2012); and State ex rel. Whitaker v. Satterfleld, 386 S.W.3d 893 (Mo.

App. SD, 2012); and all cases citing, interpreting, applying, or following those

cases. It is the intent of the legislature to apply these provisions retroactively.

The immediate enactment of HB 215 was deemed “necessary for the immediate preservation of
the public health, welfare, peace, and safety.” Thus, HB 215 became law on July 2, 2013.

On August 21, 2013, Murphy ﬁled a motion to dismiss the State’s petition, arguing that
he lacked a qualifying sexually violent offense under Section 632.480(4). Speciﬁcally, Murphy
alleged that at the time the State ﬁled its petition, first-degree sexual abuse was not a qualifying
sexually violent offense under the SVP statute as a result of the holdings in Robertson and
Whitaker.2 The State ﬁled a response; the motion was argued; and the probate court
subsequently entered judgment denying Murphy’s motion to dismiss.

In denying Murphy’s motion to dismiss, the probate court concluded that the legislature

clearly expressed its intent to apply HB 215 retroactively and abrogate the holdings in Robertson

and Whitaker. The probate court further concluded that HB 215 was not unconstitutionally

2 ln Robertson, the Western District determined that deviate sexual assault in the ﬁrst degree was not a qualifying
sexually violent offense under the original version of Section 632.480(4) because only “deviate sexual assault” was
found among the list of sexually violent offenses. Robertson, 392 S.W.3d 1. In Whitaker, the Southern District
applied the same logic in holding that ﬁrst-degree sexual assault was not a qualifying sexually violent offense under
the original version of Section 632.480(4) because only “sexual assault” was listed. Whitaker, 386 S.W.3d 893.
Applying the same reasoning to sexual abuse and first-degree sexual abuse would mean that first-degree sexual
abuse was not a qualifying sexually violent offense under the original version of Section 632.480(4). However, as
mentioned above, HB 215 speciﬁcaliy abrogated Robertson and Whitaker and amended Section 632.480(4) to
include ﬁrst-degree sexual abuse among the list of sexually violent offenses.

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retrospective because the amended SVP statute “does not attach new obligations or duties.”
Instead, the probate court found that the statute’s requirement that a person be found guilty of a
sexually violent offense “is no more than a predicate portion of the calculus utilized in
determining whether a respondent meets the criteria as a sexually Violent predator.” As a result,
the probate court determined that application of the amended SVP statute to the State’s petition
would not run afoul of the Constitution. Because ﬁrst-degree sexual abuse is one of the
enumerated offenses set out as a qualifying sexually violent offense under the amended version
of Section 632.480(4), the probate court denied Murphy‘s motion to dismiss.

On June 27, 2014, the parties ﬁled a stipulation in which they agreed that Murphy could
be committed as an SVP but that Murphy did not waive any issues preserved in the motions ﬁled
during the course of the proceedings. The probate court accepted the stipulation and entered a
judgment and commitment order conﬁning Murphy to the custody of the Department of Mental
Health as an SVP. This appeal follows.

Point on Appeal

In his sole point on appeal, Murphy argues that the probate court erred in denying his
motion to dismiss because he did not qualify for commitment as an SVP. Murphy posits that at
the time the State ﬁled its petition to have him committed, ﬁrst-degree sexual abuse was not a
qualifying offense under Section 632.480(4), and that the retroactive application of HB 215 to
Murphy violates his constitutional rights because HB 215 was a substantive change in the law
that affected his fundamental right to liberty.

Standard of Review
Ordinarily, a denial of a motion to dismiss is not considered a ﬁnal judgment and is not

appealable. In re O.J.B., 436 S.W.3d 726, 728 (Mo. App. W.D. 2014). However, an order

denying a motion to dismiss can be considered as part of the appeal from a ﬁnaljudgment. m. at
728—29. Here, Murphy appeals from the judgment committing him as an SVP. Murphy argues
that the judgment was in error because he had not committed a qualifying sexually violent
offense. We must determine whether ﬁrst-degree sexual abuse constituted a sexually violent
offense under the relevant law, which is a question of law. Thus, our review is de novo and no
deference is given to the trial court’s opinion. Boulevard Inv. Co. v. Capitol Indem. Corp, 27
S.W.3d 856, 858 (Mo. App. ED. 2000). Whether the retroactive application of the statutory
amendment is constitutional is also a matter of law, which we review de novo. State v. Richard,
298 S.W.3d 529, 531 (Mo. banc 2009).
Discussion

Missouri's SVP statute establishes the process by which the State may seek civil
commitment of an SVP. Under the statute, an SVP is deﬁned as “any person who suffers from a
mental abnormality which makes the person more likely than not to engage in predatory acts of
sexual violence if not conﬁned in a secure facility and who... [h]as pled guilty or been found
guilty in this state or any otherjurisdiction. .. of a sexually violent offense. Section 632.480(5)
(emphasis added).

In April 2013, when the State ﬁled its petition to commit Murphy as an SVP, Section
632.480(4) deﬁned a “sexually violent offense” as:

the felonies of forcible rape, rape, statutory rape in the ﬁrst degree, forcible

sodomy, sodomy, statutory sodomy in the ﬁrst degree, or an attempt to commit

any of the preceding crimes, or child molestation in the ﬁrst or second degree,

sexual abuse, sexual assault, deviate sexual assault, or the act of abuse of a child

as deﬁned in subdivision (1) of subsection 1 of section 568.060, RSMo, which

involves sexual contact, and as deﬁned in subdivision (2) of subsection 1 of
section 568.060, RSMO. (emphasis added)

 

On July 2, 2013, HB 215 went into effect, which amended Section 632.480(4) to deﬁne a
“sexually Violent offense” as:

the felonies of rape in the ﬁrst degree, forcible rape, rape, statutory rape in the

ﬁrst degree, sodomy in the ﬁrst degree, forcible sodomy, sodomy, statutory

sodomy in the ﬁrst degree, or an attempt to commit any of the preceding crimes,

or child molestation in the first or second degree, sexual abuse, sexual abuse in

the ﬁrst degree, rape in the second degree, sexual assault, sexual assault in the

first degree, sodomy in the second degree, deviate sexual assault, deviate sexual

assault in the first degree, or the act of abuse of a child involving either sexual

contact, a prohibited sexual act, sexual abuse, or sexual expioitation of a minor, or

any felony offense that contains elements substantialiy similar to the offenses

listed above.
Section 632.480(4) (emphasis added). The pertinent difference between the two versions of the
statute is that the original statute included only “sexual abuse” in the list of sexually violent
offenses, while the July 2013 amendment lists both “sexual abuse” and “first—degree sexual
abuse” as sexually violent offenses. Murphy pleaded guilty to ﬁrst~degree sexual abuse in 1983.

Murphy contends that first-degree sexual abuse was not a qualifying sexually Violent
offense under the version of Section 63248004) in effect at the time the State ﬁled its petition,
and therefore, he did not commit a qualifying sexually violent offense under the statute.
Accordingly, Murphy argues that he was not eligible for civil commitment as an SVP. Murphy
also argues that the amendment to Section 632.480(4) adding ﬁrst-degree sexual abuse as a
sexually violent offense came into effect only after the State ﬁled its petition to seek civil
commitment of Murphy as an SVP, and may not constitutionally be applied retroactively to him.
Respondent maintains that the amendment to Section 632.480(4) can and should be applied
retroactively to Murphy’s case, making Murphy'eligible for civil commitment as an SVP.
Respondent reasons that the amendment to Section 632.480(4), which was enacted While the

State’s petition was pending and prior to Murphy’s motion to dismiss, was expressly intended by

the legislature to be applied retroactively, and is not unconstitutionally retrospective.

 

The main issue before us is straightforward: whether the amendment to Section
632.480(4) adding first-degree sexual abuse as a sexually violent offense may be constitutionally
applied retroactively to Murphy. If we answer in the afﬁrmative, the judgment of the probate
court must be afﬁrmed.3 In determining whether a statute may be applied retroactively, we are
required to undertake a two-step analysis. First, we must determine whether the law was
intended to operate retroactively. If so, then we must determine whether the law is
unconstitutionally retrospective.4 State ex rel. Schottel v. Harman, 208 S.W.3d 889, 892 (Mo.
banc 2006)

I. The legislature expressly intended HB 215 to apply retroactively.

Under Section 1.150, new statutes are presumed to operate prospectively unless
"otherwise expressly provided.” Section 1.150. Thus, statutes are presumed to operate
prospectively “unless the legislative intent that they be given retroactive application clearly
appears from the express language of the act or by necessary or unavoidable implication.” Egg;
of Soc. Servs. v. Villa Capri Homes, Inc.,

684 S.W.2d 327, 332 (Mo. banc 1985) (internal quotations omitted).

Here, the express language of HB 215 reveals a clear legislative intent to apply the
provisions of the bill retroactively. HB 215 included speciﬁc language declaring that “[i]t is the
intent of the legislature to apply these provisions retroactively.” The legislature was also careful
to include language in HE 215 expressly abrogating the holdings of Robertson and Whitaker,

thus explicitly stating its disagreement with these courts” interpretations of Section 632.480(4)

3 Murphy does not dispute the probate court’s ﬁnding that he suffers from a mental abnormality making him more
likely than not to engage in predatory acts of violence if not conﬁned. Instead, Murphy disputes the other required
ﬁnding for civil commitment as an SVP, that he has pled guilty or been found guilty of a “sexually violent offense.”
Section 632.4806).

4 The terms “retroactive law” and “retrospective law" are used synonymously. SQ Black's Law Dictionary (9th ed.
2009).

 

 

and reafﬁrming its intent to apply HB 215 retroactively. As the legislature expressly provided
for retroactive application of the amended statute, the presumption of prospective operation is
overcome.

II. The amended SVP statute is not unconstitutionaliy retrospective.

Having determined that the legislature expressly intended the provisions of HB 215 to
apply retroactively, we turn to the second step of the analysis, which requires us to consider
whether the retroactive application of the statutOIy amendment to Section 632.480 is
unconstitutional. We note that a law “will not be invalidated unless it ‘clearly and undoubtedly’
violates some constitutional provision and ‘palpably affronts fundamental law embodied in the
constitution.” Bidird, 298 S.W.3d at 531 (quoting Board of Educ. of City of St. Louis v. Stat ,
47 S.W.3d 366, 368—69 (Mo. banc 2001)). Moreover, the party challenging a statute’s
constitutionality bears the burden of proving that the statute is unconstitutional. State v. Young,
362 S.W.3d 386, 390 (Mo. banc 2012). Yet, while statutes are presumed to be constitutional, we
are guided by Article 1, Section 13 of the Missouri Constitution which expressly prohibits
retrospective laws. Lat.

A law is unconstitutionally retrospective if it “creates a new obligation, imposes a new
duty, or attaches a new disability with respect to transactions or considerations already past.”
Doe v. Phillips, 194 S.W.3d 833, 850 (Mo. banc 2006). However, a law will not be considered
unconstitutionally retrospective if the law “relates to prior facts or transactions but does not
change their legal effect, or because some of the requisites for its action are drawn from a time
antecedent to its passage, or because it ﬁxes the status of an entity for the purpose of its

operation.” Schottel, 208 S.W.3d at 892.

Missouri courts grappling with this distinction are guided by the Missouri Supreme
Court’s reasoning in Doe V. Phillips. In M, the Court held that a new statute requiring
individuals to register as sex offenders based solely on guilty pleas and convictions which
occurred prior to the enactment of the law was “truly. .. retrospective in its operation.” £h_il_l_i_p§,
194 S.W.3d at 852. The basis for the Court’s conclusion was that the registration requirement
looked “solely at [appellant’s] past conduct” — offenses committed prior to the enactment of the
law — and used that conduct “not merely as a basis for future decision-making by the state,” but
rather, to require an individual to fulﬁll new obligations and duties based solely on pre-act
offenses. id. Thus, because the registration requirement imposed a new duty or obligation on
individuals based solely on offenses which occurred prior to the enactment of the statute, the
Court held the statute to be unconstitutionally retrospective.

The guiding instructive principle espoused in P_hili1§ is that a retroactive law is
unconstitutionally retrospective if it imposes an afﬁrmative obligation or duty on an individual
based solely on conduct preceding the effective date of the law, but is not unconstitutionally
retrospective if the statute considers that past conduct only “as a basis for future decision—making
by the state.” Id. Here, the amendment to Section 632.480 embodied in HB 215 does precisely
the latter. The primary effect of HB 215 was to amend and clarify the deﬁnition of “sexually
violent offense” found in Section 632.480(4). The amended statute did not impose upon Murphy
any new duties or obligations solely based on his prior offense. Instead, the amended statute
merely considers Murphy’s past conduct “as a basis for future decision-making by the state,”
speciﬁcally, the SVP civil commitment process:

The function of the SVP civil commitment process is to assess the mental state of the

sexual offender and the likelihood that he will commit future acts of predatory sexual violence.

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