In Re the Care and Treatment of Jackie Holtcamp, a/k/a Jackie L. Holtcamp, a/k/a David Lee, a/k/a Jack Holtcamp, a/k/a Jackie D. Holtcamp, a/k/a Louis Holtcamp, a/k/a Lee D. Holtcamp, a/k/a Davi Lee, a/k/a Jackie Hallcamp, a/k/a Jack Louis Holtcamp, Appellant v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: In Re the Care and Treatment of Jackie Holtcamp, a/k/a Jackie L. Holtcamp, a/k/a David Lee, a/k/a Jack Holtcamp, a/k/a Jackie D. Holtcamp, a/k/a Louis Holtcamp, a/k/a Lee D. Holtcamp, a/k/a Davi Lee, a/k/a Jackie Hallcamp, a/k/a Jack Louis Holtcamp, Appellant v. State of Missouri, Respondent. Case Number: WD66661 Handdown Date: 09/18/2007 Appeal From: Circuit Court of Cass County, Hon. Thomas M. Campbell Counsel for Appellant: Emmett D. Queener Counsel for Respondent: James R. Layton Opinion Summary: Jackie Holtcamp appeals a judgment committing him to the custody of the Department of Mental Health as a sexually violent predator. Holtcamp argues the probate court was without jurisdiction to commit him under Missouri's Sexually Violent Predator Act because he was not serving a sentence for a sexually violent offense when the Department of Corrections notified the attorney general he was a sexually violent predator. AFFIRMED. Division Four holds: Missouri's Sexually Violent Predator Act is ambiguous. The plain language of the statute does not inform this court if the Department of Corrections may initiate civil commitment proceedings while an inmate is then serving a sentence for any crime, as the state argues, or only while the inmate is serving a sentence for a sexually violent offense, as Holtcamp claims. Nevertheless, the purpose of the act is remedial and, consequently, we construe it broadly to effectuate its purpose. A suspected sexually violent predator does not need to be incarcerated for a sexually violent offense when the Department of Corrections initiates the action. We, therefore, affirm the judgment.

Citation: Opinion Author: Victor C. Howard, Chief Judge Opinion Vote: AFFIRMED. Ulrich, and Spinden, JJ.(FN1) Opinion: Jackie Holtcamp appeals a judgment of the Cass County Probate Court committing him to the custody of the Department of Mental Health as a sexually violent predator. Holtcamp argues that the probate court was without jurisdiction to commit him under Missouri's Sexually Violent Predator (SVP) Act because he was not incarcerated for a sexually violent offense when the Department of Corrections notified the attorney general that Holtcamp was a sexually violent predator. Background The parties do not dispute the facts of the case. On May 2, 1983, Holtcamp pled guilty to attempted forcible rape. He served his sentence and was released in October of 1985. In June of 1999, Holtcamp pled guilty to second-degree statutory sodomy. The imposition of sentence was suspended and he was placed on five years probation. In 2001, his probation was revoked, and he was incarcerated for the 1999 offense. He was scheduled to be released on August 25,

The State filed its petition to civilly commit Holtcamp under Missouri's SVP Act on August 20, 2004. The petition alleged Holtcamp qualified for commitment under the law because he was convicted of attempted forcible rape in 1983, a sexually violent offense as defined by the SVP Act; would soon be released from a correctional center; and was a sexually violent predator. See Section 632.483.(FN2) Holtcamp filed a motion to dismiss the State's petition arguing the SVP Act was inapplicable to him because he was not, at that time, incarcerated for a sexually violent offense. Therefore, he argued, the probate court did not have jurisdiction to commit him under Missouri's SVP Act. The court denied Holtcamp's motion to dismiss and ordered that he be committed for control, care, and treatment until he was rendered safe to be at large.(FN3) He now appeals that judgment. Missouri's Sexually Violent Predator Law

The Missouri Legislature created a mechanism to civilly commit sexually violent predators, or "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 . . . of a sexually violent offense."(FN4) Section 632.480(5)(a). Sexually violent offenses are "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 [certain types of] abuse of a child." Section 632.480(4). Statutory sodomy in the second degree is not, as defined by statute, a sexually violent offense. See Id. The attorney general may file a petition against a suspected sexually violent predator under two different statutes. Section 632.483 governs initiation of proceedings when the subject is in the physical custody of the department of health or corrections, while section 632.484 governs proceeding initiated against a person who is not in the physical custody of the state. If the department of corrections or department of mental health believes a person in its custody is a sexually violent predator, then the agency may forward written notice to a committee established by the attorney general to determine if the subject is a sexually violent predator. Section 632.483. The notice is provided "[w]ithin three hundred sixty days prior to the anticipated release from a correctional center of the department of corrections of a person who has been convicted of a sexually violent offense." Section 632.483.1(1). Alternatively notice may be forwarded to the attorney general "[a]t any time prior to the release of a person who has been found not guilty by reason of mental disease or defect of a sexually violent offense" or "[a]t any time prior to the release of a person who was committed as a criminal sexual psychopath." Section 632.483.1(2)-(3). Under section 632.484, notice may be provided to the attorney general to initiate proceedings against a suspected sexually violent predator who is not presently in the physical custody of either the department of corrections or mental health. This section originally provided for two means to proceed; however, one has expired as the result of a sunset clause. Under the first option, any law enforcement agency can forward notice to the attorney general when the suspect has committed a recent overt act, which created a reasonable apprehension of harm of a sexually violent nature. Section 632.484.1(1). Under the second, expired option, a law enforcement agency could forward notice to the attorney general any time the suspect "[h]as been in the custody of an agency with jurisdiction within the preceding ten years and

may meet the criteria of a sexually violent predator." Section 632.484.1(2). This option allowed law enforcement to examine people who had been released and still posed a threat to the community as a sexually violent predator. Under either of the two statutory provisions, once the attorney general has notice, he may then "file a petition, in the probate division of the circuit court in which the person was convicted, or committed pursuant to chapter 552 RSMo." Sections 632.486, 632.484.4. The SVP Act provides additional trial procedures and terms of confinement irrelevant to the current appeal. Standard of Review Holtcamp presents a question of law: namely, whether the probate court had jurisdiction to determine if he was a sexually violent predator. Because the facts are uncontested and the only question before us is the interpretation of a statute, we review de novo. Ford Motor Co., v. City of Hazelwood, 155 S.W.3d 795 797-98 (Mo. App. E.D. 2005). See also In re Care & Treatment of Coffman, 225 S.W.3d 439, 442 (Mo. banc 2007). Analysis Before us is a narrow question: Under section 632.483.1 of the Missouri SVP Act, is the attorney general authorized to initiate civil confinement proceedings against an inmate even though the inmate is not currently incarcerated for a sexually violent offense? The parties disagree as to the meaning of a dozen or so words governing the Department of Corrections' authority to notify the attorney general that it suspects an inmate is a sexually violent predator. These disputed words permit notice to be supplied from the Department of Corrections to the attorney general "[w]ithin three hundred sixty days prior to the anticipated release . . . of a person who has been convicted of a sexually violent offense." Section 632.483.1(1). The State argues that SVP proceedings may be initiated against any inmate who, at any time in the past, has been convicted of a sexually violent offense and will soon be released from the State's custody. Holtcamp argues that an agency may initiate proceedings against a person only if that person is currently incarcerated for a sexually violent offense; a past incarceration for a sexually violent offense combined with a current incarceration for a non-sexually violent offense is insufficient under section 632.483.1. Holtcamp reads the words "presently" into the statute so that it would mean a petition may be filed against a person presently confined for a sexually violent offense.(FN5) The State interprets the statute to mean a petition may be filed against a person who ever has been convicted of a sexually violent offense.

We note that "[c]ourts cannot add words to a statute under the auspice of statutory construction." Sw. Bell Yellow Pages, Inc. v. Dir. of Rev., 94 S.W.3d 388, 390 (Mo. banc 2002). "'The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to the intent if possible, and to consider the words in their plain and ordinary meaning.'" In re Care & Treatment of Norton, 123 S.W.3d 170, 172 (Mo. banc 2003) (quoting Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 251 (Mo. banc 2003)). Holtcamp provides a reasonable interpretation of the statute but no compelling justification for construing the statute narrowly. Moreover, the State's interpretation is reasonable yet similarly divines more from the statute than is apparent. The State aptly notes that the legislature did not explicitly limit the initiation of proceeding to the period while the suspected SVP is incarcerated for a sexually violent offense. Because the language of the statute is ambiguous -- its plain language does not answer the current dispute as to its meaning -- we turn to established rules of construction. The current law is remedial in nature.(FN6) It seeks, above all else, the protection of society against a particularly noxious threat: sexually violent predators. See generally Bynum v. State, 545 S.W.2d 720, 721 (Mo. App. 1977) (holding, "The proceeding during which an individual is found to be a criminal sexual psychopath is civil, remedial and curative rather than criminal and punitive." (Emphasis added.)). See also Laura Barnickol, Missouri's Sexually Violent Predator Law: Treatment or Punishment, 4 Wash. U. J.L & Pol'y 321, 322 (2000). We give broad effect to its language, to effectuate the purpose of the legislature. Abrams v. Ohio Pac. Express, 819 S.W.2d 338, 341 (Mo. banc 1991). "[A] remedial statute is a statute enacted for the protection of life and property and in the interest of public welfare." Hagan v. Dir. of Rev., 968 S.W.2d 704, 706 (Mo. banc 1998). "Remedial statutes should be construed liberally to include those cases which are within the spirit of the law and all reasonable doubts should be construed in favor of applicability to the case." State ex rel. Ford v. Wenskay, 824 S.W.2d 99, 100 (Mo. App. E.D. 1992). Furthermore, remedial statues should be construed "'in order to accomplish the greatest public good.'" Hagan, 968 S.W.2d at 706 (quoting City of St. Louis v. Carpenter, 341 S.W.2d 786, 788 (Mo. 1961)). Holtcamp argues that the statue is unambiguous and does not permit the proceedings to begin while he is incarcerated for a non-sexually violent offense. His first means of arguing that the attorney general proceeded without authority under Missouri's SVP Act is to compare Missouri's law to several other jurisdictions applying their own SVP Acts.

Massachusetts, Iowa, Florida, Arizona, and New Jersey have all reached the current issue and disagree on how to proceed. Massachusetts and Iowa require that the subject be currently incarcerated for a sexually violent offense for the state to file its petition for civil commitment. See Commonwealth v. McLeod, 771 N.E.2d 142, 147 (Mass. 2002); In re Detention of Gonzales, 658 N.W.2d 102, 104-05 (Iowa 2003). Florida, Arizona, and New Jersey do not require that the suspected predator be presently confined for a sexually violent offense. See Hale v. State, 891 So.2d 517, 520-21 (Fla. 2004), In re Detention of Wilber W., 53 P.3d 1145, 1152 (Ariz. Ct. App. 2002) (vacated by In re Detention of Wilber W., 62 P.3d 126 (Ariz. 2003)); In re Civil Commitment of P.Z.H., 873 A.2d 595, 598 (N.J. Super. Ct. App. Div. 2005). Holtcamp argues that the Missouri SVP Act operates like that of Massachusetts and Iowa because, like Missouri, their SVP Acts do not expressly provide for civil commitment based on a sexually violent crime committed in another state. He accurately notes that Florida, Arizona, and New Jersey, unlike Missouri, have express provisions in their SVP statutes allowing importation of the predicate sexually violent crime. See Fla. Stat. Section 916.32(8)(g) (Supp. 1998); Ariz.Rev.Stat. Section 36-3701(6)(d) (2005); N.J.Stat.Ann. Section 30:4-27.26(a) (1998). However, to the best of our research, no Missouri court has determined if Missouri allows such an importation even in the absence of explicit statutory authorization. He argues that the venue provisions of section 632.484 ensure that Missouri may not import sexually violent predicate offenses from other jurisdictions. These provisions state: [T]he attorney general may file a petition for detention and evaluation with the probate division of the court in which the person was convicted, or committed pursuant to chapter 552, RSMo, alleging the respondent may meet the definition of a sexually violent predator and should be detained for evaluation for a period of up to nine days. Section 632.484.1. There is no reason, based on the plain language of the venue provisions, why the attorney general would be prohibited from filing a petition in the Missouri county where the subject was convicted for a non-sexually violent offense for which he is presently incarcerated. Likening Missouri to those states which may not import sexually violent predicate offenses committed in other states to commit the suspected predator is inappropriate because it is unclear, at best, if Missouri allows a similar importation.(FN7) At any rate, we do not find a comparison of various other states' SVP Acts useful in resolving the current controversy. Secondly, Holtcamp argues that the language of section 632.483.1(1) can be better understood by comparing it to

what he considers the less ambiguous provisions of section 632.483.1(2) and (3). Provisions of the same statutory scheme must be read together and harmonized if possible. Jones v. Jackson County Circuit Court, 162 S.W.3d 53, 59 (Mo. App. W.D. 2005). Subsection (1) states notice shall be forwarded to the attorney general "[w]ithin three hundred sixty days prior to the anticipated release from a correctional center . . . of a person who has been convicted of a sexually violent offense." Section 632.483.1(1). Subsections (2) and (3) permit notice to be sent, "[a]t any time prior to the release of a person who has been found not guilty by reason of mental disease or defect of a sexually violent offense" or "[a]t any time prior to the release of a person who was committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13, 1980." Section 632.483.1(2), (3). Holtcamp argues, "in this circumstance the commitment to [the Department of Mental Health] is clearly the result of the current sexually violent offense." He continues to argue that the clear meaning of subsections (2) and (3) should be imported to the less clear subsection (1). We find that these provisions subject to the same reading as subsection (1). The plain language of the statute could mean that a person could be found not guilty by reason of mental disease or defect for a sexually violent offense, be released, commit another, unrelated crime, and then at any time prior to release for that second crime be subject to the SVP Act. The statute is silent as to the meaning of the words "prior to the release."(FN8) The plain language does not inform us if it refers to prior to the initial release or any release. It could fairly mean prior to the release of the commitment following the acquittal based on mental disease or defect or it could mean prior to the release for an unrelated crime. The statute is not as clear as Holtcamp posits. Finally, Holtcamp argues that a separate provision of the SVP Act, besides section 632.483, was designed to reach suspected sexually violent predators after they were released from imprisonment for a sexually violent offense. He continues, the sunset clause in this provision indicates clear legislative intent to no longer allow the attorney general to file a petition based on a sexually violent offense for which the defendant has already been released. He argues that if the attorney general files a petition against Holtcamp, he must proceed under section 632.484. Section 632.484 provides that: When the attorney general receives written notice from any law enforcement agency that a person, who has pled guilty to or been convicted of a sexually violent offense and who is not presently in the physical custody of an agency with jurisdiction: (1) Has committed a recent overt act; or

(2) Has been in the custody of [the department of correction or department of mental health] within the preceding ten years and may meet the criteria of a sexually violent predator; the attorney general may file a petition [against him]. Section 632.484.1. Subsection (2) of this statute expired in 2001. Section 632.484.6. The attorney general may no longer file a petition against an individual merely because he has previously been convicted of a sexually violent offense, been in the custody of the State within the last ten years, and meets the definition of a sexually violent predator. Section 632.484.1(2) seems, at first glance, to apply to Holtcamp more than section 632.483.1(1). Before it expired, it applied to individuals who have been released after incarceration for a sexually violent crime. Thus, argues Holtcamp, the State is attempting to impermissibly resurrect the expired 632.484.1(2). The legislature expressly forbade this by including the sunset clause in 632.484.6. Section 632.484.1(2) was not, however, applicable to Holtcamp's situation even before it expired. It begins by limiting the class of people to which it applies. It circumscribes the authority of the attorney general to only file petitions against people who have "pled guilty to or been convicted of a sexually violent offense and who is not presently in the physical custody of an agency with jurisdiction." Section 632.484.1 (emphasis added). The statute employs the conjunctive "and." We, therefore, look at each clause separately. Holtcamp has pled guilty to a sexually violent offense; however, he is presently confined in the physical custody of the department of corrections. Section 632.484.1(2) would not have been applicable to Holtcamp's situation even before it expired. The ambiguous nature of the remedial SVP Act combined with the absence of explicit limitation on the nature of the confinement during which the notice may be forwarded leads us to conclude that notice may generally be filed while confined for any offense. The SVP Act places the responsibility on the Department of Corrections and the attorney general to identify potential sexually violent predators and prevent their release into society. When an inmate appears to meet the definition of an SVP, the Department of Corrections must notify the attorney general, who is then permitted to file a petition if it appears that the person may be a sexually violent predator. Section 632.486. A sexually violent predator includes one who has been convicted of a sexually violent offense and suffers from a mental abnormality making that person more likely than not to engage in predatory act of sexual violence. Section 632.480(5). The statutory language pertaining to mental abnormality focuses on the inmate's present mental condition, not the crime for which he is presently

confined. See Section 632.480(2). It permits a petition to be filed when an inmate, previously convicted of a sexually violent crime, appears to be a SVP irrespective of the reason for his present incarceration. Holtcamp asserts that it makes little sense to permit the State to release a sexually violent predator after a conviction for a sexually violent offense only to civilly commit him years later when briefly incarcerated for an unrelated, less serious crime. However, the statute does not plainly foreclose that interpretation. And, given the remedial nature of the statutory scheme, it makes less sense to require the release of an inmate despite clear and convincing evidence that he is a sexually violent predator. The limitation of the class of persons in section 632.483.1(1) to those who have been convicted of a sexually violent crime rationally limits the class of persons who may be confined under the SVP statute. The original conviction for a sexually violent offense acts as an anchor around which other pieces of evidence may be cemented. It is appropriate for the State to evaluate accumulated evidence of anti-social character traits along with the current mental state of an inmate and then initiate proceedings under the SVP Act when incarcerated for an unrelated crime. Additional evidence may include, as was the case here, sexually deviant acts that did not amount to a criminal conviction for a sexually violent offense and further psychological evaluation. We doubt that the legislature intended that the State ignore this evidence. Conclusion The judgment of the probate court is affirmed. Footnotes: FN1.While Judge Ulrich was a member of this panel when this case was submitted, he has since retired and does not participate in this opinion. FN2.All citations to statutes refer to Missouri Revised Statutes (2000) and the Missouri Revised Statues Cumulative Supplement (2006) unless otherwise noted. FN3.Holtcamp stipulated that he was a sexually violent predator and only contests the jurisdiction issue. FN4.Incarceration as a criminal sexual psychopath can operate as a substitute for conviction for a sexually violent offense. Section 632.480(5)(b). FN5.Holtcamp also insinuates that it may be appropriate to apply this provision to the first "anticipated release" after incarceration for a sexually violent crime. Under this reading, it would be applicable if the predator committed a second crime while in prison and received a consecutive sentence. FN6.Missouri Supreme Court precedent insinuates a break from several other states that apply the rule of lenity to the incarceration portions of their respective sexually violent predator statutes. See Miles v. Commonwealth, 634 S.E.2d 330, 333 (Va. 2006); State v. Harris, 693 P.2d 750, 752 (Wash. Ct. App. 1985). See also Bartley v. Holden, 338 A.2d 137, 142 (Del. Super. Ct. 1975) (stating "No law should be construed to deprive a person of his freedom unless that

result is clearly compelled by the language used."). Traditionally, in Missouri, the rule of lenity has been only applied to criminal and civil-penal statutes. United Pharmacal Co. of Mo., Inc. v. Mo. Bd. of Pharm., 208 S.W.3d 907, 913 (Mo. banc 2006). See also Craig A Sullivan, Statutory Construction in Missouri, 59 J. Mo. B. 120, 123 (2003). The SVP act is not penal -- it does not attempt to punish bad conduct. Nor is the SVP act criminal. We decline to employ the rule of lenity in construing the SVP Act. While the opposite rule may be preferable where a statute creates the power to impair the right to liberty without the full panoply of protections found in a criminal trial, this court is not willing to deviate so grossly from previous Missouri Supreme Court precedent only holding the rule of lenity applicable to criminal and penal statutes. Such a reading, while not conflicting with precedent, would not compliment it. FN7.Today, we make no statement concerning the permissibility of using a conviction for a sexually violent offense in another jurisdiction to proceed under Missouri's SVP Act. It is not a question directly before us, and we only discuss it as dicta encouraged by Holtcamp's argument. FN8.The same can be said of the phrase "was convicted" found in sections 632.484.1 and 632.486. The statute does not tell us if the petition should be filed where the defendant "was convicted" of the original sexually violent offense or "was convicted" of the second, non-sexually violent offense. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.