Heard May 21, 2014
Appeal from Cherokee County. Appellate Case No. 2012-213064. J. Mark Hayes, II, Circuit Court Judge.
William G. Rhoden, of Gaffney, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General John Benjamin Aplin, both of Columbia, for Respondent.
JUSTICE PLEICONES. TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.
[408 S.C. 417] PLEICONES JUSTICE
Appellant contends the trial court erred in denying his request for a full evidentiary hearing before the circuit court determined whether appellant's indecent exposure pleas should be classified as sexually violent offenses for purposes of the Sexually Violent Predator Act (the SVP Act). S.C. Code Ann. § § 44-48-10 et seq. (Supp. 2013). Under the facts of this case, we find no error in the circuit court's denial of appellant's request and therefore affirm.
Appellant pled guilty to two counts of indecent exposure in violation of S.C. Code Ann. § 16-15-130 (Supp. 2013) and was [408 S.C. 418] sentenced to two consecutive three-year terms, with credit for 253 days already served. At the plea hearing, the solicitor stated that appellant had repeatedly exposed himself to the two female victims, ages 13 and 15, made numerous phone calls to the victims asking them to " do things of a sexual nature," and committed other acts of a sexual nature in their presence. When asked if he agreed with the solicitor's recitation of the facts, appellant, who had been sworn, acknowledged that he had exposed himself " to both victims one time" and denied the rest of the solicitor's recitation. Appellant then confirmed he was pleading guilty to one count of
indecent exposure to each victim and that his answers were truthful and honest. Appellant also acknowledged that he had a 1994 conviction for lewd act on a minor and that he was on the sex offender registry as a result of that conviction.
Following appellant's affirmations, one of the victims and the girls' parents gave unsworn statements  which described numerous criminal sexual offenses committed by appellant against the girls. The solicitor then asked the judge to exercise his discretion and deem appellant's indecent exposure pleas " sexually violent" offenses pursuant to § 44-48-30(2)(o). This statute permits a judge to designate any offense as sexually violent for purposes of the SVP Act if he " makes a specific finding on the record that based on the circumstances of the case Appellant's counsel contended that the only circumstance of this case which could be considered in making the sexually violent offense decision was that appellant had, on one occasion, exposed himself to each victim. He argued that before making a finding under 2(o), the court must hold a " full evidentiary hearing" including testimony and an opportunity to cross-examine witnesses. He pointed out that the State was relying on the unsworn statements of the victims. In addition, the attorney noted that appellant's status as a registered sex offender was the result of an old conviction. Appellant, [408 S.C. 419] still under oath, admitted his wrongful conduct and apologized, and pointed out he had been " clean" for almost twenty years, and stated, " I'd just like to take [sic] and have some help, be able to get some counseling from somewhere . . . ." He subsequently repeated his request for " some help."
Appellant's attorney reiterated his position that an evidentiary hearing was a necessary prerequisite for the determination whether appellant's offenses should be considered sexually violent under (2)(o). The judge then made this ruling:
I agree with both the State and the defense. I think that if I were going to make factual determinations based upon what the victims have -- or what's said in court, I think the defendant would have a Constitutional Right to cross-examination. However, for purposes of sexual violent predator evaluation, I believe that the defendant's statements alone and also his history puts him into that category where somebody needs to take a look at it. He, himself, is asking me to give him help for his problem, and that's part of what the civil commitment process would do. It would allow professionals to evaluate him to do what type of civil treatment he would need. He may not qualify for that program, but, you know, when they go through that, they have multi-step processes they go through. They have the solicitors committee. They have a prosecutors committee. They have different people take a look at it. It may be that they believe that he does not fall within that definition, ...