Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan
and Powell, JJ., and Lacy, S.J.

COMMONWEALTH OF VIRGINIA

v.   Record No. 102360               OPINION BY SENIOR JUSTICE
                                         ELIZABETH B. LACY
JAMES BLAXTON                              March 2, 2012

            FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                       Charles E. Poston, Judge

       In this case we consider whether a person who is adjudged a

sexually violent predator can be conditionally released for

supervision outside the Commonwealth because he also is subject

to supervised probation for another crime and therefore eligible

for transfer under the Interstate Compact for the Supervision of

Adult Offenders (Interstate Compact).    Code §§ 53.1-176.1, et

seq.

       James A. Blaxton was convicted in 1989 of rape, forcible

sodomy and attempted sodomy in violation of Code §§ 18.2-61,

18.2-67.1 and 18.2-67.5, respectively.    In June 2008, the

Commonwealth filed a petition seeking Blaxton’s civil commitment

as a sexually violent predator pursuant to Code §§ 37.2-900 et

seq. (the Sexually Violent Predators Act or SVPA).    Following a

trial, the jury returned a verdict finding that Blaxton is a

sexually violent predator and the trial court confirmed the

jury’s verdict.

       Pursuant to Code § 37.2-908, the circuit court heard

evidence on possible alternatives to civil commitment.      The
Department of Behavioral Health and Developmental Services

(Department) prepared a conditional release plan which recited

that Blaxton requested a transfer to live with his mother in

Illinois.   The circuit court concluded that the SVPA does not

prohibit interstate transfers of sexually violent predators and

entered an order granting Blaxton conditional release, adopting

the conditional release plan prepared by the Department and

transferring supervision of Blaxton to the state of Illinois

pursuant to the Interstate Compact.

     Subsequent to the circuit court’s ruling, we decided

Commonwealth v. Amerson, 281 Va. 414, 422, 706 S.E.2d 879, 884

(2011), in which we held that the SVPA does not authorize the

conditional release of a sexually violent predator outside the

Commonwealth.   Accordingly, the circuit court’s judgment

adopting the conditional release plan and transferring

supervision of Blaxton’s conditional release outside the

Commonwealth of Virginia was error.

     Blaxton argues, however, that the trial court’s judgment

should be affirmed because transfer of his supervision outside

the Commonwealth was appropriate because he is subject to

probation supervision for another crime and therefore qualified

for transfer under the Interstate Compact.   Blaxton did not

argue in the trial court that transfer of his supervision

outside the Commonwealth was permitted under the Interstate
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Compact based on his probation status for another criminal

conviction.   Nevertheless, we address this argument here because

it is a question of law and no further facts must be developed

to resolve the issue raised by Blaxton for the first time in

this Court.   Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d

431, 436 (2010).

     We reject Blaxton’s argument.   First, supervision of

sexually violent predators cannot be transferred outside the

Commonwealth.   Amerson, 281 Va. at 422, 706 S.E.2d at 884.

Therefore, even if a defendant qualified for transfer under the

Interstate Compact for some other criminal conviction, the

specific restriction on a person adjudicated a sexually violent

predator pursuant to the SVPA cannot be disregarded because the

person may qualify for transfer for other reasons under the

Interstate Compact.   Furthermore, the Interstate Compact does

not specifically recognize a person under supervision pursuant

to a civil commitment as an “offender” subject to transfer.

Under the Interstate Compact an “offender” is defined as

     [a]n adult placed under, or subject to, supervision
     as the result of the commission of a criminal offense
     and released to the community under the jurisdiction
     of courts, paroling authorities, corrections, or
     other criminal justice agencies.

Code § 53.1-176.2, art. II.   Under this definition, the

supervision is imposed because of the commission of a criminal

offense, not, as in this case, because of a civil adjudication
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of sexually violent predator.   Rules adopted by the Interstate

Commission for Adult Offender Supervision (ICAOS) pursuant to

the Interstate Compact, Code § 53.1-176.2, art. VIII, address

transfer of supervision of sex offenders, but these rules

identify a sex offender as one who has been convicted of a

criminal offense.   Interstate Commission for Adult Offender

Supervision, ICAOS Rules, Rules 1.101, 3.101-3, available at

http:// www.interstatecompact.org (follow “ICAOS Rules”

hyperlink) (last visited Feb. 17, 2012).   Therefore, Blaxton

would not qualify for transfer under the Interstate Compact

based on his adjudication as a sexually violent predator.    See

Amerson, 281 Va. at 422 n.2, 706 S.E.2d at 884 n.2.

     For these reasons, the judgment of the circuit court

adopting the conditional release plan prepared by the Department

and transferring Blaxton’s supervision to the state of Illinois

is reversed and the case remanded to the circuit court for

further proceedings regarding whether there is any suitable,

less restrictive, alternative to involuntary inpatient treatment

for Blaxton consistent with the SVPA.

                                            Reversed and remanded.




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