PRESENT: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ., 

and Carrico, S.J.

ELLIS LORENZO MILES 

v. Record No. 052568 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 September 15, 2006 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

In this appeal, we consider a statutory requirement that is 

part of the Civil Commitment of Sexually Violent Predators Act, 

Code §§ 37.2-900 through –919 (the Act).1

 We decide the issue 

whether a certain numerical test score specified in Code § 37.2-

903(C), which identifies an inmate for further review under the 

Act, is a condition precedent for additional proceedings against 

that inmate. 

Ellis Lorenzo Miles challenges the circuit court’s 

determination classifying him as a sexually violent predator and 

ordering his civil commitment. In 1995, Miles was convicted of 

rape in the Circuit Court of the City of Richmond and received a 

sentence of 20 years’ imprisonment, with 14 years suspended. 

His criminal history prior to the date of the rape included one 

conviction of contributing to the delinquency of a minor, 

originally charged as statutory rape, and five other convictions 

 1

 The Act, originally located in Title 37.1, was recodified 

effective October 1, 2005. References contained herein are to 

the current Act. 
2

that are not pertinent here because they did not involve 

prohibited sexual conduct. During his incarceration for the 

rape conviction, Miles was convicted of indecent exposure and 

committed 18 disciplinary infractions, seven of which were 

sexual in nature. 

Because Miles was incarcerated for rape, a predicate 

offense under the Act, the Virginia Department of Corrections 

(DOC) evaluated him about 10 months before his scheduled release 

date. The DOC administered the Rapid Risk Assessment for Sex 

Offender Recidivism (RRASOR), an objective testing instrument 

authorized by Code § 37.2-903(C) to identify potential sexually 

violent predators. 

The RRASOR has four categories that yield a maximum total 

score of six. Virginia Criminal Sentencing Commission, 

Assessing Risk Among Sex Offenders in Virginia 29-30 (2001). An 

inmate receives one point if any of his sex offenses have 

involved male victims, one point if his age at release would be 

less than 25, and one point if any victim of his sex offenses is 

not related to the inmate. Id.

The remaining points are assessed based on the number of 

prior sex offense convictions, and prior charges of sex 

offenses, that occurred before the date of the inmate’s 

predicate offense. The inmate is given one point if he has a 

single prior conviction of a sex offense, or if he has one or 
3

two prior charges of sexual offenses. If an inmate has two or 

three prior convictions of sex offenses, or has between three 

and five prior charges involving such offenses, the inmate is 

assigned two points. Finally, an inmate is assessed three 

points when he has four or more prior convictions of sex 

offenses, or has six or more prior charges of that nature. Id. 

According to the analysis performed by the DOC, Miles received a 

score of four on the RRASOR and therefore, under Code § 37.2-

903(C), qualified for further review by the Commitment Review 

Committee (CRC). 

Miles received a mental health examination as part of the 

CRC assessment. Dr. Christine A. Nogues, a licensed clinical 

psychologist, was appointed by the Commissioner of the 

Department of Mental Health, Mental Retardation and Substance 

Abuse Services (Department of Mental Health) to perform the 

examination. Dr. Nogues diagnosed Miles as having “Personality 

Disorder [Not Otherwise Specified] with antisocial features.” 

She determined that Miles was “a sexually aggressive, or 

antisocially personality disordered offender” whose “personality 

disorder appears to predispose him to commit sexually violent 

offenses.” 

During the course of her examination, Dr. Nogues conducted 

various actuarial evaluations to assist in determining Miles’ 

level of risk of committing future sexually violent offenses. 
4

Among those assessments, she independently scored Miles’ RRASOR 

and also assigned him a result of four, which incorrectly 

included “three points for having four or more convictions.” 

The Office of the Attorney General (the Commonwealth) 

reviewed the CRC’s recommendation, together with Miles’ mental 

health examination, institutional history, treatment record, and 

criminal record, and determined that he is a sexually violent 

predator. Accordingly, the Commonwealth filed a petition in the 

circuit court requesting that Miles be classified as a sexually 

violent predator and subjected to civil commitment under the 

Act. 

Miles filed a motion to dismiss, arguing that his correct

RRASOR score was three and, thus, that the circuit court was not 

authorized to conduct further proceedings to determine whether 

he is a sexually violent predator. The circuit court denied 

Miles’ motion. 

At a bench trial, the circuit court heard evidence on the 

issue whether Miles is a sexually violent predator. Dr. Nogues 

testified regarding her examination of Miles and concluded that 

he is likely to commit sexually violent acts in the future. On 

cross-examination, however, Dr. Nogues admitted that Miles’ 

RRASOR score was incorrectly computed. She stated that Miles’ 

correct score was three, not four as originally indicated. 
5

At the conclusion of the testimony, the circuit court 

entered an order finding that Miles suffers from “personality 

disorder [Not Otherwise Specified] with antisocial traits” and 

that he is likely to commit other offenses of a sexually violent 

nature. After hearing evidence from the Commonwealth and from 

Miles during the commitment phase of the trial, the circuit 

court ordered that Miles be involuntarily confined in a secure 

facility pursuant to the Act. This appeal followed. 

Miles argues that the circuit court erred in denying his 

motion to dismiss. He emphasizes that the evidence was 

undisputed that the Commonwealth initiated proceedings against 

him under the Act based on an incorrect RRASOR score computed by 

the DOC. Miles asserts that absent this erroneous score, he 

would not have been identified as a potential candidate for 

classification as a sexually violent predator. Therefore, Miles 

contends that because his correct score was below the baseline 

score established in Code § 37.2-903(C) for further proceedings 

under the Act, the circuit court erred in conducting evidentiary 

proceedings to determine whether he is a sexually violent 

predator and should be committed. 

In response, the Commonwealth argues that its use of an 

inmate’s RRASOR score is a procedural mechanism, rather than a 

requirement for further proceedings under the Act. The 

Commonwealth observes that the Act does not provide an inmate 
6

the remedy of having the proceedings against him terminated when 

the inmate’s RRASOR score has been incorrectly computed to his 

detriment. Therefore, according to the Commonwealth, a RRASOR 

score has no effect on the Commonwealth’s right to proceed under 

the Act but is “merely a convenient, objective way of narrowing 

the prison population who will undergo the civil commitment 

review process.” We disagree with the Commonwealth’s arguments. 

The statutory provision at issue, found in Code § 37.2-

903(C), states in relevant part: 

[T]he Director shall review the database and identify all 

such prisoners who are scheduled for release from prison 

within 10 months from the date of such review who receive a 

score of four or more on the Rapid Risk Assessment for 

Sexual Offender Recidivism or a like score on a comparable, 

scientifically validated instrument designated by the 

Commissioner. Upon the identification of such prisoners, 

the Director shall forward their names, their scheduled 

dates of release, and copies of their files to the CRC for 

assessment. 

Under basic rules of statutory construction, we determine 

the General Assembly’s intent from the words contained in the 

statute. Tucker v. Commonwealth, 268 Va. 490, 493, 604 S.E.2d 

66, 68 (2004); Commonwealth v. Diaz, 266 Va. 260, 264, 585 

S.E.2d 552, 554 (2003). When the language of a statute is plain 

and unambiguous, courts are bound by the plain meaning of that 

language and may not assign the words a construction that 

amounts to holding that the General Assembly did not mean what 

it actually stated. Tucker, 268 Va. at 493, 604 S.E.2d at 68; 
7

Caprio v. Commonwealth, 254 Va. 507, 511-12, 493 S.E.2d 371, 374 

(1997). 

Because proceedings under the Act may result in a 

defendant’s involuntary confinement, he has a substantial 

liberty interest at stake. See Zinermon v. Burch, 494 U.S. 113, 

131, (1990); Townes v. Commonwealth, 269 Va. 234, 240, 609 

S.E.2d 1, 4 (2005). As a result of this liberty interest, we 

apply the rule of lenity normally applicable to penal statutes 

to the Act’s provisions. Id. Under that rule, a statute must 

be strictly construed in favor of a defendant’s liberty and may 

not be extended by implication or construction. See id.; Welch 

v. Commonwealth, 271 Va. 558, 563, 628 S.E.2d 340, 342 (2006); 

Milteer v. Commonwealth, 267 Va. 732, 738, 595 S.E.2d 275, 278 

(2004). 

When strictly construed, the plain language of Code § 37.2-

903(C) subjects only those prisoners who receive a score of four 

or more on the RRASOR to further proceedings under the Act to 

determine whether they should be civilly committed as sexually 

violent predators. The statute is wholly silent concerning the 

Commonwealth’s authority to initiate proceedings under the Act 

against inmates who have received a correct RRASOR score of less 

than four. 

Contrary to the Commonwealth’s argument, we are not 

permitted to construe the statute to imply such authority. 
8

Acceptance of the Commonwealth’s position would require us to 

extend by implication the scope of Code § 37.2-903(C), and to 

hold that the statute permits further proceedings against any

prisoner incarcerated for a predicate offense under the Act 

merely because the statute does not expressly preclude such 

proceedings. Such a construction would violate the rule of 

lenity and principles of strict construction that we must apply 

in a case of this nature. Townes, 269 Va. at 240, 609 S.E.2d at 

4. 

Additionally, we find no merit in the Commonwealth’s 

argument that its proceedings against Miles were proper because 

the Act does not provide a remedy of dismissal for prisoners who 

incorrectly receive a RRASOR score of four. This argument 

similarly asks us to draw an implication from the absence of 

statutory language, which we are not allowed to do in our strict 

construction of Code § 37.2-903(C). Id.

We observe, however, that the Commonwealth’s misapplication 

of this statutory requirement of Code § 37.2-903(C) does not 

affect the circuit court’s subject matter jurisdiction to decide 

cases initiated under the Act. Thus, this requirement may be 

waived by a defendant’s failure to raise a timely and proper 

objection in the circuit court. See Nelson v. Warden, 262 Va. 

276, 285, 552 S.E.2d 73, 77 (2001). However, because the record 
9

before us does not raise such an issue of waiver, we need not 

further discuss this principle. 

Next, we note that the Commonwealth concedes in its brief

that Miles’ correct RRASOR score was three, and that the 

Commonwealth mistakenly computed the score of four that Miles 

initially received. At oral argument in this case, the 

Commonwealth also conceded that it would not have initiated 

proceedings against Miles if he had not received a score of four 

on the RRASOR. By these concessions, the Commonwealth 

effectively refutes its own argument that the RRASOR score 

provision of Code § 37.2-903(C) is purely a procedural screening 

guideline and lacks any substantive effect because but for 

Miles’ erroneous RRASOR score, the Commonwealth would not have 

taken further action against Miles. 

Finally, we observe that the Commonwealth’s position 

is also without merit because it effectively asks us to 

hold that the Commonwealth’s own errors should redound to 

Miles’ detriment. We find no basis for accepting such an 

argument. Accordingly, we hold that, when strictly 

construed, the provisions of Code § 37.2-903(C) require 

that an inmate evaluated under the RRASOR receive a 

correctly computed score of four as a condition precedent 

before the Commonwealth may initiate proceedings to have 
10

the inmate declared a sexually violent predator under the 

Act.2

For these reasons, we will reverse the circuit court’s 

judgment and dismiss with prejudice the Commonwealth’s petition. 

Reversed and dismissed. 

 2

 Based on our holding, we do not reach Miles’ remaining 

assignments of error. We also do not reach the Commonwealth’s 

assignment of cross-error, which addresses issues related to the 

circuit court’s qualification of Miles’ expert witness at trial.