                      THE STATE OF SOUTH CAROLINA
                          In The Court of Appeals

              In the Matter of the Care and Treatment of Francis
              Arthur Oxner, Appellant.

              Appellate Case No. 2016-001125



                          Appeal From Lexington County
                    Diane Schafer Goodstein, Circuit Court Judge


                                Opinion No. 5725
                    Heard October 10, 2018 – Filed May 6, 2020


                                   AFFIRMED


              Allen Mattison Bogan and Blake Terence Williams, both
              of Nelson Mullins Riley & Scarborough, LLP, and Chief
              Appellate Defender Robert Michael Dudek and Appellate
              Defender David Alexander; all of Columbia, for
              Appellant.

              Attorney General Alan McCrory Wilson and Senior
              Assistant Deputy Attorney General Deborah R. J. Shupe,
              both of Columbia, for Respondent.


MCDONALD, J.: Francis A. Oxner appeals the circuit court's order requiring
him to submit to an evaluation under the Sexually Violent Predator Act 1 (the Act),
arguing the circuit court erred in finding he meets the definition of a person
"convicted of [a] violent offense" for purposes of the Act. He further contends the
lapse of time between the State's filing of its petition for Oxner's evaluation as a
sexually violent predator and the hearing on the State's petition constituted an

1
    S.C. Code Ann. § 44-48-10 to -170 (2018).
unconstitutional delay. Finally, Oxner asserts the circuit court's conducting of the
hearing while he was incompetent to stand trial violated his right to procedural due
process. We affirm.

Facts and Procedural History

In 1984, Oxner was arrested for assault with intent to kill and driving without a
license. Oxner was diagnosed with schizophrenia while hospitalized at the South
Carolina State Hospital; he was subsequently found incompetent to stand trial. The
record does not indicate when Oxner was released.

On December 11, 2004, Oxner's ten-year-old great-nephew (Victim 1) reported to
the Lexington County Sheriff's Department (LCSD) that Oxner had forced him to
engage in oral sex on multiple occasions. After arresting Oxner for criminal sexual
conduct (CSC) with a minor, investigators learned of other instances of abuse,
including acts Oxner committed against his niece (Victim 2) when she was seven
years old. Victim 2 is Victim 1's mother.

In March 2005, the Lexington County grand jury indicted Oxner for several
offenses: a February 2005 assault with intent to commit first degree CSC upon a
boy under the age of eleven; a January 2005 first degree CSC with a minor for
committing a sexual battery upon a boy under the age of eleven; a January 2005
"exposure of private parts in [a] lewd and lascivious manner" for exposing his
genitals to a fourteen-year-old girl; an assault with intent to commit a sexual
battery upon a seven-year-old girl alleged to have occurred between August 1,
1979, and June 1, 1980; and a 1980 offense of buggery with a pony.

On April 18, 2005, psychiatrist Richard Frierson evaluated Oxner to determine his
competence to stand trial. Dr. Frierson opined Oxner was incompetent but "likely
to become fit to stand trial in the foreseeable future." Following a hearing, the
circuit court found Oxner incompetent, but the court's June 2005 order noted Oxner
might become competent in the future. The circuit court ordered that Oxner
remain hospitalized and receive treatment for up to sixty days in an effort to restore
competence. This effort was unsuccessful, and in a subsequent order, the circuit
court found Oxner incompetent to stand trial and not likely to become competent in
the future. Thus, in December 2005, Oxner's charges were nolle prossed, and he
was admitted to the South Carolina Department of Mental Health's (DMH) secure
inpatient forensic unit for treatment. Each year following Oxner's 2005 admission,
the probate court has ordered that Oxner be involuntarily committed to an inpatient
state mental health facility.
On March 16, 2011, the probate court ordered Oxner to participate in an outpatient
treatment program at a mental health facility for up to twelve months.

In early 2011, Oxner's DMH treatment team recommended he be discharged from
the forensic unit to a structured residential care facility and referred Oxner to a
multidisciplinary team for a determination of whether Oxner was a sexually violent
predator. The multidisciplinary team determined Oxner met the statutory
definition of a sexually violent predator and referred him to the prosecutor's review
committee. The prosecutor's review committee determined there was probable
cause to believe Oxner was a sexually violent predator, and on July 5, 2011, the
State petitioned the circuit court for a probable cause determination.

In August 2011, the circuit court found probable cause existed to believe Oxner
met the Act's criteria for a sexually violent predator. The circuit court determined
the proceedings were subject to Section 44-48-100(B) of the South Carolina Code
because Oxner had been found incompetent to stand trial. Section 44-48-100(B)
provides:

             If the person charged with a sexually violent offense has
             been found incompetent to stand trial and is about to be
             released and the person's commitment is sought pursuant
             to subsection (A), the court first shall hear evidence and
             determine whether the person committed the act or acts
             with which he is charged. The hearing on this issue must
             comply with all the procedures specified in this section.
             In addition, the rules of evidence applicable in criminal
             cases apply, and all constitutional rights available to
             defendants at criminal trials, other than the right not to be
             tried while incompetent, apply. After hearing evidence
             on this issue, the court must make specific findings on
             whether the person committed the act or acts with which
             he is charged; the extent to which the person's
             incompetence or developmental disability affected the
             outcome of the hearing, including its effect on the
             person's ability to consult with and assist counsel and to
             testify on the person's own behalf; the extent to which the
             evidence could be reconstructed without the assistance of
             the person; and the strength of the prosecution's case. If,
             after the conclusion of the hearing on this issue, the court
             finds beyond a reasonable doubt that the person
             committed the act or acts with which he is charged, the
             court must enter a final order, appealable by the person,
             on that issue, and may proceed to consider whether the
             person should be committed pursuant to this chapter.

S.C. Code Ann. § 44-48-100(B). The circuit court ordered:

             A hearing shall be held before the Court within 72 hours
             after Respondent [Oxner] has been taken into custody, if
             he is not already in custody, to require the State to prove
             the elements of the criminal offenses for which
             Respondent has been charged, as provided for in S.C.
             Code Ann. Section 44-48-100(B) . . . and thereafter to
             contest whether probable cause exists to order that
             Respondent remain in custody and be evaluated by an
             appointed expert.

The circuit court also ordered the Lexington County clerk of court to appoint
counsel for Oxner. Oxner's appointed counsel filed a discovery request on
September 20, 2011, but other than this, the record is silent as to any progress on
the State's petition until early 2014.

In March 2014, the Lexington County grand jury reindicted Oxner for assault with
intent to commit CSC with a minor in the first degree for acts against Victim 2
alleged to have occurred from August 1, 1979 through June 1, 1980.

In May 2014, the circuit court ordered that Oxner be evaluated for competence.
On September 8, 2014, Dr. Frierson again evaluated Oxner and opined Oxner
lacked the capacity to stand trial and was "unlikely to gain the capacity to stand
trial in the foreseeable future." Dr. Frierson noted the probate court had continued
to order Oxner's commitment each year since his initial commitment in 2005.

In November 2015, the Lexington County grand jury reindicted Oxner for sexual
battery upon a minor less than eleven years old for acts against Victim 1 alleged to
have occurred "on or about the Summer of 2004." In September 2015, the circuit
court appointed new counsel for Oxner.

On April 21, 2016, the circuit court held a § 44-48-100(B) evidentiary hearing;
Victim 1, Victim 2, and LCSD Lieutenant Eric Russell testified. The circuit court
found "beyond a reasonable doubt" that Oxner committed CSC with a minor, first
degree, upon Victim 1 and assault with intent to commit CSC with a minor, first
degree, upon Victim 2. After setting forth additional findings required by the
statute, the circuit court held "probable cause exists to have [Oxner] evaluated
under the Act to determine whether or not he suffers from a mental abnormality or
personality disorder that makes him likely to engage in acts of sexual violence if
not confined in a secure facility for long-term control, care and treatment."

Standard of Review

"Questions of statutory interpretation are questions of law, which we are free to
decide without any deference to the court below." Buchanan v. S.C. Prop. & Cas.
Ins. Guar. Ass'n, 424 S.C. 542, 547, 819 S.E.2d 124, 126 (2018) (quoting S.C.
Prop. & Cas. Ins. Guar. Ass'n v. Brock, 410 S.C. 361, 365, 764 S.E.2d 920, 922
(2014)); see also In re Manigo, 398 S.C. 149, 157, 728 S.E.2d 32, 35 (2012)
("Statutory interpretation is a question of law subject to de novo review." (quoting
Transp. Ins. Co. v. S.C. Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687,
689 (2010))).

Law and Analysis

I. Statutory Definition

Oxner argues this action must be dismissed because when the State filed the SVP
petition, the sexually violent offenses for which Oxner was indicted had been nolle
prossed. Thus, without a pending charge for a sexually violent offense, the State
could not satisfy the statutory prerequisite that Oxner was a person who "had been
charged" but determined to be incompetent to stand trial for a sexually violent
offense. We disagree.

"The cardinal rule of statutory interpretation is to determine the intent of the
legislature." Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 230, 612
S.E.2d 719, 723 (Ct. App. 2005). "What a legislature says in the text of a statute is
considered the best evidence of the legislative intent or will. Therefore, the courts
are bound to give effect to the expressed intent of the legislature." State v. Jacobs,
393 S.C. 584, 587, 713 S.E.2d 621, 622–23 (2011) (quoting Hodges v. Rainey, 341
S.C. 79, 85, 533 S.E.2d 578, 581 (2000)).

"In interpreting a statute, the language of the statute must be read in a sense which
harmonizes with its subject matter and accords with its general purpose." State v.
Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010). "Courts will reject a
statutory interpretation which would lead to a result so plainly absurd that it could
not have been intended by the Legislature or would defeat the plain legislative
intention." Id. at 351, 688 S.E.2d at 575.

The General Assembly enacted the Sexually Violent Predator Act in 19982 to
create an involuntary commitment process for sexually violent predators, noting:

              The General Assembly finds that a mentally abnormal
              and extremely dangerous group of [sexually violent
              predators] exists who require involuntary civil
              commitment in a secure facility for long-term control,
              care, and treatment. The General Assembly further finds
              that the likelihood these [sexually violent predators] will
              engage in repeated acts of sexual violence if not treated
              for their mental conditions is significant. Because the
              existing civil commitment process is inadequate to
              address the special needs of sexually violent predators
              and the risks that they present to society, the General
              Assembly has determined that a separate, involuntary
              civil commitment process for the long-term control, care,
              and treatment of [sexually violent predators] is necessary.

S.C. Code Ann. § 44-48-20 (2018).

A "sexually violent predator" is defined as "a person who: (a) has been convicted
of a sexually violent offense; and (b) suffers from a mental abnormality or
personality disorder that makes the person likely to engage in acts of sexual
violence if not confined in a secure facility for long-term control, care, and
treatment." S.C. Code Ann. § 44-48-30(1) (2018). Sexually violent offenses
include first degree CSC with a minor, assault with intent to commit CSC, and
buggery. S.C. Code Ann. § 44-48-30(2)(d), (i), (k) (2018).

              "Convicted of a sexually violent offense" means a person
              has:

              (a) pled guilty to, pled nolo contendere to, or been
              convicted of a sexually violent offense;


2
    1998 Act. No. 321.
             (b) been adjudicated delinquent as a result of the
             commission of a sexually violent offense;

             (c) been charged but determined to be incompetent to
             stand trial for a sexually violent offense;

             (d) been found not guilty by reason of insanity of a
             sexually violent offense; or

             (e) been found guilty but mentally ill of a sexually
             violent offense.

S.C. Code Ann. §44-48-30(6) (2018) (emphasis added).

"The conviction requirement [of the Act] is used only for evidentiary purposes to
show the existence of a past mental abnormality and dangerousness that is likely to
recur if left untreated." In re Treatment & Care of Luckabaugh, 351 S.C. 122, 139,
568 S.E.2d 338, 346 (2002) (noting the "the use of the word 'conviction' include[s]
'persons charged but found incompetent to stand trial, those found not guilty by
reason of insanity, and those found guilty but mentally ill'" (quoting In the Care
and Treatment of Matthews, 345 S.C. 638, 649–50, 550 S.E.2d 311, 316 (2001)));
In re Manigo, 389 S.C. 96, 101, 697 S.E.2d 629, 631 (Ct. App. 2010) (recognizing
"[t]he statutes do not use present tense language, rather they state if the person has
committed [a sexually violent] offense and meets the other qualifications set out in
sections 44-48-30 and 44-48-40, then the person should be referred to the
multidisciplinary team. The Act is unambiguous, and we must give meaning to its
terms."), aff'd, 398 S.C. at 149, 728 S.E.2d at 32.

In 2005, the grand jury indicted Oxner for first degree CSC with a minor, buggery,
and assault with intent to commit a sexual battery—all sexually violent offenses.
These charges were nolle prossed after Oxner was found incompetent and not
likely to become competent to stand trial. See Mackey v. State, 357 S.C. 666, 668,
595 S.E.2d 241, 242 (2004) ("A nolle prosequi is an entry by the prosecuting
officer indicating that he has decided not to prosecute a case."); id. ("[I]f the nolle
prosequi is entered prior to the jury being empaneled and sworn, there is no bar to
further prosecution for the same offense because the innocence or the guilt of the
defendant would not have been adjudicated." (quoting State v. Patrick, 318 S.C.
352, 358, 457 S.E.2d 632, 636 (Ct. App. 1995)). The State reindicted Oxner in
2014 and 2015 on some of the sexually violent offenses committed against Victims
1 and 2.
We find the circuit court properly determined Oxner met the statutory definition of
a person "convicted of a sexually violent offense" for purposes of the State's 2011
SVP petition because Oxner had been charged with the predicate offenses and the
statute makes no distinction between pending charges and charges nolle prossed
due to a person's lack of competence to stand trial. See In re Manigo, 389 S.C. at
101, 697 S.E.2d at 631 (noting the Act does not require "the person to be currently
serving an active sentence for a sexually violent offense" to be a sexually violent
predator under the statutory definition). Notably, for purposes of satisfying the
Act's conviction requirement, § 44-48-30 defines "convicted of a sexually violent
offense" to include individuals who have "been charged but determined to be
incompetent to stand trial for a sexually violent offense" as well as persons who
have "been found not guilty by reason of insanity [or] been found guilty but
mentally ill with respect to a sexually violent offense." S.C. Code Ann. § 44-48-
30(6)(c)–(e); see also S.C. Code Ann. § 44-48-20 (finding "a mentally abnormal
and extremely dangerous group of sexually violent predators exists who require
involuntary civil commitment in a secure facility for long-term control, care, and
treatment" and creating a "separate, involuntary civil commitment process for the
long-term control, care, and treatment" for such persons (emphasis added)).
Because the General Assembly contemplated competence issues would arise in
cases involving sexually violent offenders, addressed these issues in the plain
language of § 44-48-30 and § 44-48-100(B), and made no distinction between
pending charges and charges dismissed due to the very competence issues the Act
seeks to address, the circuit court properly declined to dismiss this matter.

II. Unconstitutional Delay

Oxner contends the circuit court erred in finding no unconstitutional delay
occurred between the State's filing of the 2011 petition and the 2016 evidentiary
hearing. Oxner further asserts the circuit court should have dismissed the petition
because a probable cause hearing was not held within the time mandated by the
circuit court's 2011 order. We find these issues unpreserved for appellate review.

Cases involving individuals found incompetent to stand trial are complex and
difficult, as our courts often have no clear mechanism for addressing the varied
questions these cases present. The procedural and constitutional considerations are
problematic, as is coordination among the various state agencies that may be
involved. Still, neither Oxner's original appointed counsel nor his circuit court
hearing counsel moved to dismiss the State's petition for lack of a timely hearing
nor did they raise any prehearing procedural challenges to the speedy hearing
question. Although the clerk of court appointed Oxner's new counsel in September
2015, some seven months before the circuit court's April 2016 hearing, Oxner's
new counsel first raised the question of timeliness halfway through the circuit
court's hearing—after the evidence had been taken. Counsel stated, "So obviously
my concern goes back to my initial constitutional concern is if this was filed in
2011, certainly this hearing wouldn't be timely and I'm just now noticing that
because these were supposed to be held within a certain time frame within the
program."

Because Oxner failed to timely raise this issue, the State did not have sufficient
notice to present evidence addressing the status of Oxner's case and the treatment
issues that arose from 2011 to 2016, the time period which Oxner contends
constituted an unconstitutional delay. 3 However, even if counsel's timeliness
comment were sufficient for us to find Oxner properly raised the issue, the circuit
court did not rule on the timeliness question either at the hearing or in its order, and
Oxner—through his prior counsel—did not file a Rule 59(e), SCRCP motion
seeking a ruling. Therefore, this issue is not preserved for our review. Pye v.
Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006) ("It is well settled
that an issue cannot be raised for the first time on appeal, but must have been
raised to and ruled upon by the trial court to be preserved."); see also Elam v. S.C.
Dep't of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004) (recognizing that in
order to preserve an issue that has been raised to the circuit court, but not ruled
upon, a party must file a Rule 59(e), SCRCP motion).

III. Procedural Due Process

Oxner next argues the circuit court erred in finding his procedural due process
rights were not violated because conducting SVP proceedings under § 44-48-
100(B) while a person is incompetent is similar to trying a criminal defendant
while he is incompetent to stand trial. We disagree.

"Procedural due process imposes constraints on governmental decisions that
deprive individuals of liberty or property interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment of the United States
Constitution." Harbit v. City of Charleston, 382 S.C. 383, 393, 675 S.E.2d 776,
781 (Ct. App. 2009) (citing Mathews v. Eldridge, 424 U.S. 319, 331 (1976)). "Due
Process is not a technical concept with fixed parameters unrelated to time, place,

3
 During this time, Oxner remained committed under the probate court's yearly
orders of commitment.
and circumstances; rather, it is a flexible concept that calls for such procedural
protections as the situation demands." State v. Legg, 416 S.C. 9, 13, 785 S.E.2d
369, 371 (2016). "The fundamental requirements of due process include notice, an
opportunity to be heard in a meaningful way, and judicial review." Kurschner v.
City of Camden Planning Comm'n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008).

In determining what process is due, courts must consider the private interest
affected by the official action, the risk of erroneous deprivation through the
procedures used, the probable value of additional or substitute procedural
safeguards, and the State's interests, "including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement
would entail." Mathews, 424 U.S. at 335.

Considering the Mathews factors, we agree with the circuit court that Oxner's
procedural due process rights were not violated when the court conducted the
evidentiary hearing while Oxner was incompetent to stand trial. Here, the statute
provides procedural safeguards for those deemed incompetent by requiring the
circuit court to first find beyond a reasonable doubt that the person committed the
acts alleged and evaluate the strength of the State's case before an individual may
be committed, thus countering the risk of an erroneous deprivation of his liberty
interest. S.C. Code Ann. § 44-48-100(B). Moreover, the circuit court's findings
under § 44-48-100(B) may be appealed before any determination of whether an
individual is to be committed as a sexually violent predator. Id. Oxner has not
identified any additional or substitute procedural requirements—other than arguing
a person must be competent to stand trial to be subject to civil SVP proceedings—
that would better protect his liberty interest while balancing the State's interest in
seeking an SVP determination.

Undoubtedly, the State has a compelling interest in committing sexually violent
predators for treatment, whether or not issues exist that may affect their mental
competence. As the General Assembly noted, "[A] mentally abnormal and
extremely dangerous group of sexually violent predators exists who require
involuntary civil commitment in a secure facility for long-term control, care, and
treatment . . . the likelihood these sexually violent predators will engage in
repeated acts of sexual violence if not treated for their mental conditions is
significant." S.C. Code Ann. § 44-48-20. We find it significant that the
Legislature considered the interests of incompetent individuals subject to the Act in
codifying the procedures of § 44-48-100(B), including the high standard of proof
mandated therein. This, along with the other procedural safeguards found
throughout South Carolina's Act, provides substantial protection against an
erroneous deprivation of liberty. See In re Det. of Morgan, 330 P.3d 774, 779–80
(Wash. 2014) (en banc) (due process does not require a detainee to be competent
for his SVP trial as "[r]obust statutory guaranties in [the Act] provide substantial
protection against an erroneous deprivation of liberty" and "[i]t is irrefutable that
the State has a compelling interest both in treating sex predators and protecting
society from their actions.") (quoting In re Young, 857 P.2d 989, 1000 (Wash.
1993), superseded by statute on other grounds)).

Like Washington, other jurisdictions have rejected similar due process challenges,
and found mentally incompetent individuals subject to SVP commitment
processes. See Moore v. Superior Court, 237 P.3d 530, 532 (Cal. 2010) (granting
petition "to decide whether the defendant in an SVP proceeding has a due process
right not to be tried or civilly committed while mentally incompetent. Consistent
with the conclusion reached by every out-of-state decision to consider the issue,
the answer is 'no'"); In re Commitment of Weekly, 956 N.E.2d 634, 652 (Ill. App.
Ct. 2011) (collecting cases and "finding it persuasive that every state to consider
the issue has found that there is no due process right to be competent at a
commitment proceeding under that state's version of the Act, with the limited
exception of certain factual scenarios in Florida");4 In re Det. of Cubbage, 671
N.W.2d 442, 448 (Iowa 2003) (rejecting a substantive due process challenge and
denying detainee's request for a pre-trial competency proceeding); In re Sykes, 367
P.3d 1244, 1248 (Kan. 2016) (an individual does not have to be mentally
competent to assist in his own defense in order to be civilly adjudicated a sexually
violent predator under the Kansas Act); Commonwealth v. Burgess, 878 N.E.2d
921, 926 (Mass. 2008) (considering provision similar to South Carolina's § 44-48-
100(B) and finding the provision "expresses an intent, on the part of the

4
 Florida has held a person subject to a SVP proceeding has a constitutional right to
be competent under limited circumstances

             only when the State intends to present hearsay evidence
             of alleged facts that have neither been admitted by way
             of a plea nor subjected to adversarial testing at trial and
             so are subject to dispute and counterevidence. Thus, it is
             the State's trial strategy that will determine whether [a
             respondent] must be competent.

In re Commitment of Branch, 890 So. 2d 322, 329 (Fla. Dist. Ct. App. 2004).
Here, the victims testified at Oxner's evidentiary hearing, and the circuit court
found their testimony credible, articulate, and compelling.
Legislature, that [SVP] commitment proceedings go forward against an
incompetent person, even one who may have limited comprehension of the
proceedings."); State v. Daniel OO., 928 N.Y.S.2d 787, 795 (N.Y. App. Div. 2011)
(joining other jurisdictions in holding that given the State's "strong interest in
providing treatment to sex offenders with mental abnormalities and protecting the
public from their recidivistic conduct, we conclude [the SVP statute] does not
deprive an incompetent respondent of his or her right to due process); In re
Commitment of Fisher, 164 S.W.3d 637, 656 (Tex. 2005) (concluding that because
the Act is civil, "due process does not require, as in a criminal proceeding, that [an
individual] be competent to stand trial").

The Legislature anticipated that some sexually violent predator commitment
proceedings might impact persons deemed incompetent to stand trial and enacted §
44-48-100(B) to provide for both a hearing procedure and appellate review in these
circumstances. South Carolina's Sexually Violent Predator Act includes significant
procedural safeguards that protect an incompetent person from the risk of an
erroneous deprivation of his personal liberty interests, while addressing the State's
compelling interests in providing treatment for sexually violent predators and
protecting the public. Thus, we find no due process violation and affirm the circuit
court's decision to conduct Oxner's evidentiary hearing.

Conclusion

Based on the foregoing, the circuit court's order requiring Oxner to submit to an
evaluation and be detained in an appropriate secure facility pending trial pursuant
to the Act is

AFFIRMED.

KONDUROS and HILL, JJ., concur.
