A bill

to amend THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTIONS 44-48-115 AND 44-48-180 SO AS TO PROVIDE FOR THE RIGHT TO CHALLENGE COMMITMENT TO THE SEXUALLY VIOLENT PREDATOR TREATMENT program BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL AND TO GIVE PRIORITY STATUS TO SEXUALLY VIOLENT PREDATOR CASES FOR PURPOSES OF SCHEDULING COURT PROCEEDINGS RESPECTIVELY; BY AMENDING SECTIONS 44-48-30, 44-48-40, 44-48-50, 44-48-80, 44-48-90, 44-48-100, 44-48-110, 44-48-120, 44-48-130, 44-48-150, AND 44-48-160, ALL RELATING TO THE SEXUALLY VIOLENT PREDATOR ACT, SO AS TO ADD DEFINITIONS FOR "QUALIFIED EVALUATOR" AND "RESIDENT" AND CHANGE THE DEFINITION OF "LIKELY TO ENGAGE IN ACTS OF SEXUAL VIOLENCE", TO ESTABLISH EFFECTIVE DATES FOR THE GRANTING OF SUPERVISED REENTRY, TO REQUIRE MULTIDISCIPLINARY TEAMS TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE A PERSON IS A SEXUALLY VIOLENT PREDATOR, TO PROVIDE FOR THE USE OF COURT-APPOINTED QUALIFIED EVALUATORS AND TO ESTABLISH CERTAIN TIMELINES FOR EVALUATIONS, TO ALLOW FOR THE USE OF INDEPENDENT, QUALIFIED EVALUATORS IN CERTAIN CIRCUMSTANCES, TO REQUIRE COURTS TO CONDUCT A NONJURY HEARING BEFORE RELEASE OF A PERSON FOUND INCOMPETENT TO STAND TRIAL, TO ESTABLISH CERTAIN BENCHMARKS FOR ADDITIONAL REVIEWS OF MENTAL CONDITIONS, TO ESTABLISH CERTAIN REQUIREMENTS REGARDING EVALUATORS IN PROCEEDINGS ON PETITIONS FOR RELEASE, TO ALLOW ACCESS TO SEALED COURT RECORDS BY THE ATTORNEY GENERAL AND OTHER COUNSEL OF RECORD, TO MAKE CONFORMING CHANGES, AND FOR OTHER PURPOSES; AND BY AMENDING SECTION 24-21-32, RELATING TO REENTRY SUPERVISION, SO AS TO MAKE INMATES DETERMINED TO BE SEXUALLY VIOLENT PREDATORS INELIGIBLE FOR REENTRY SUPERVISION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1.   Chapter 48, Title 44 of the S.C. Code is amended by adding:

   Section 44-48-115.   (A) A resident committed to the South Carolina Sexually Violent Predator Treatment Program shall have the right to challenge the commitment and subsequent periodic reviews based on the ineffective assistance of counsel during the resident's commitment trial or periodic review proceedings. The resident shall have the burden of proof to establish ineffective assistance of counsel in accordance with applicable law.

   (B) Petitions shall be filed in the original jurisdiction of the South Carolina Supreme Court under the South Carolina Appellate Court Rules within thirty days of the date that any appeals from the commitment or periodic review proceedings are final. Upon the receipt of the petition, the Clerk of Court of the Supreme Court shall issue an order designating a circuit court or appellate court judge as a referee to make appropriate findings of fact and conclusions of law and shall report the findings and conclusions to the Supreme Court. The designated judge shall have the statewide authority to issue orders as necessary.

   (C) Except as provided in this chapter, the South Carolina Rules of Civil Procedure and the South Carolina Rules of Evidence apply to cases filed pursuant to this section, in evidentiary hearings before the designated hearing judge.

   (D) The named respondent shall be the Department of Mental Health. A copy of the petition shall be served on the Department of Mental Health and the South Carolina Office of Attorney General.

   (E) Upon the filing of a petition alleging that the resident is indigent and desires appointed counsel, the designated judge shall appoint an attorney to represent the resident. Counsel shall be appointed from the contract attorney list of postconviction counsel maintained by the South Carolina Commission on Indigent Defense, or such other list of attorneys as the Executive Director of the South Carolina Commission on Indigent Defense shall designate to the court. If no attorney is available from this list, then the designated circuit court judge shall appoint an attorney from the Appointment of Lawyers for Indigents. The designated judge shall not appoint an attorney who previously represented the resident in any prior criminal proceedings underlying the commitment or state postconviction relief proceedings or appeals from those proceedings, in the original sexually violent predator civil commitment proceeding or appeal from that proceeding, or in any previous or present periodic reviews or appeals from those reviews.

   (F) The designated judge shall authorize by court order to the particular county clerks of court the disclosure of any pleadings, evidence, transcripts, or other documents filed in any circuit court or appellate court clerk's office of this State in any case in which the resident was a defendant, respondent, or party to a criminal action or an action under the Sexually Violent Predator Act that was ordered sealed. These materials shall be unsealed for the limited purpose of providing items to the appointed counsel for the resident or the resident himself, if he elects to proceed pro se, and to the Department of Mental Health and its attorneys.

   (G) Regardless of whether the resident indicates that he has served the Department of Mental Health, the Clerk of Court of the South Carolina Supreme Court shall forward the filed petition and all accompanying papers to the Department of Mental Health's Office of General Counsel, as the agent for the service of process for the Department of Mental Health, and a copy to the Office of Attorney General. The Department of Mental Health, through the Office of Attorney General acting as its representative, shall file its responsive pleading within thirty days of the receipt of the order appointing counsel, or within thirty days of the receipt of the petition, if counsel is retained, or the receipt of the petition, if the resident is proceeding pro se without a request for counsel at the time of the filing.

   (H) In the event that a habeas petition alleging ineffective assistance of counsel claims relating to the resident's commitment or periodic review is filed before the conclusion of the resident's appeal from such proceeding, the Clerk of the Supreme Court shall dismiss the petition without prejudice and without requiring a response from the Department of Mental Health.

   (I) Within thirty days of an assignment, the designated judge shall issue a scheduling order, including a discovery schedule, and shall set a hearing within not more than one hundred eighty days from the filing of the petition. A final report to the Supreme Court shall be submitted within thirty days from the conclusion of the hearing, including findings of fact and conclusions of law as to whether there is evidence of ineffective assistance of counsel and a reasonable probability that the ineffective assistance of counsel, if established, altered the results of the proceeding. This does not preclude the designated judge from recommending to the Supreme Court that the petition be denied on the basis of the pleadings without a hearing, if appropriate, upon a motion by the Department of Mental Health.

   (J) Upon receipt by the Supreme Court of the findings and conclusions of the designated judge, the Clerk of the Supreme Court may set forth an appropriate briefing schedule. The clerk may consider expediting the matter to determine whether the writ of habeas corpus should be granted with the appropriate relief. The court also may issue, as appropriate, orders relating to whether intervening and on-going statutory status review proceedings or appeals from the proceedings are affected in any manner by the habeas corpus actions in its original jurisdiction.

SECTION 2.   Chapter 48, Title 44 of the S.C. Code is amended by adding:

   Section 44-48-180.   All cases pursuant to this chapter shall be given priority status for the purposes of scheduling any hearings or trials.

SECTION 3.   Section 44-48-30 of the S.C. Code is amended by adding items to read:

   (13) "Qualified evaluator" means an individual who has education, training, and experience in sex offender evaluations and who is:

      (a)   a psychiatrist or psychologist licensed in this State; or

      (b)   a trainee of the Department of Mental Health Fellowship Program who is working under the supervision and license of a Department of Mental Health psychiatrist or psychologist and who is approved for exemption by the Department of Mental Health Fellowship Program.

   (14) "Resident" means a person who has been committed as a sexually violent predator for the purposes of long-term control, care, and treatment.

SECTION 4.   Section 44-48-30(9) of the S.C. Code is amended to read:

   (9) "Likely to engage in acts of sexual violence" means the person's propensity to commit that a person is predisposed to engage in acts of sexual violence and more probably than not will engage in acts of sexual violence is of to such a degree as to pose a menace to the health and safety of others.

SECTION 5.   Section 44-48-40(B) of the S.C. Code is amended to read:

   (B) If a person has been convicted of a sexually violent offense and the Board of Probation, Parole and Pardon Services or the Board of Juvenile Parole intends to grant the person a parole or the South Carolina Department of Corrections or the Board of Juvenile Parole intends to grant the person a conditional release or supervised reentry, then the parole, or the conditional release, or supervised reentry must be granted to be effective one hundred eighty days after the date of the order of parole, or conditional release, or supervised reentry. The Board of Probation, Parole and Pardon Services, the Board of Juvenile Parole, or the South Carolina Department of Corrections immediately must send notice of the parole, or conditional release, or supervised reentry of the person to the multidisciplinary team, the victim, and the Attorney General. If the person is determined to be a sexually violent predator pursuant to this chapter, then the person is subject to the provisions of this chapter even though the person has been released on parole, or conditional release, or supervised reentry.

SECTION 6.   Section 44-48-50 of the S.C. Code is amended to read:

   Section 44-48-50.   (A) The Director of the Department of Corrections must appoint a multidisciplinary team to review the records of each person referred to the team pursuant to Section 44-48-40. These records may include, but are not limited to, the person's criminal offense record, any relevant medical and psychological records, treatment records, victim's impact statement, and any disciplinary or other records formulated during confinement or supervision. The team, within thirty days of receiving notice as provided for in Section 44-48-40, must assess whether or not there is probable cause to believe the person satisfies the definition of a sexually violent predator. If it is determined that the person satisfies the definition of a sexually violent predator probable cause does exist, then the multidisciplinary team must forward a report of the assessment to the prosecutor's review committee and notify the victim. The assessment must be accompanied by all records relevant to the assessment. Membership of the team must include:

      (1) a representative from the Department of Corrections;

      (2) a representative from the Department of Probation, Parole and Pardon Services;

      (3) a representative from the Department of Mental Health who is a trained, qualified mental health clinician with expertise in treating sexually violent education, training, or experience in assessing, examining, or treating sex offenders;

      (4) a retired judge appointed by the Chief Justice who is eligible for continued judicial service pursuant to Section 2-19-100; and

      (5) an attorney with substantial experience in the practice of criminal defense law to be appointed by the Chief Justice to serve a term of one year.

   (B) The Director of the Department of Corrections or his designee appointed pursuant to item (1) subsection (A)(1) shall be the chairman of the team.

SECTION 7.   Section 44-48-80(D) of the S.C. Code is amended to read:

   (D) If the probable cause determination is made, then the court must direct that, upon completion of the criminal sentence, the person must be transferred to a local or regional detention facility pending the conclusion of the proceedings under this chapter. The court must further direct that the person be transported to an appropriate facility of the South Carolina Department of Mental Health for an evaluation as to whether the person is a sexually violent predator and must order the person to comply with all testing and assessments deemed necessary by a court-