Gessell v. Jesson
Decision Date | 28 November 2011 |
Docket Number | A11-1101 |
Parties | Michael Lee Gessell, Appellant, v. Lucinda E. Jesson, Commissioner of Human Services, Respondent, Anoka County Social Services, Respondent. |
Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).
Affirmed
Judicial Appeal Panel
Michael C. Hager, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Steven H. Alpert, Assistant Attorney General, St. Paul, Minnesota (for respondent Commissioner of Human Services)
Anthony C. Palumbo, Anoka County Attorney, Janice M. Allen, Assistant County Attorney, Anoka, Minnesota (for respondent Anoka County Social Services)
Considered and decided by Kalitowski, Presiding Judge; Peterson, Judge; and Collins, Judge.*
UNPUBLISHED OPINION
Appellant Michael Lee Gessell challenges the judicial appeal panel's order denying and dismissing his petition for transfer to a nonsecure facility or provisional or full discharge from his indeterminate commitment as a sexually dangerous person. We affirm.
Appellant is 25 years old and has been civilly committed as a sexually dangerous person (SDP) since age 19. Appellant was adjudicated a juvenile delinquent at age 12 after pleading guilty to a charge of criminal sexual conduct in the fifth degree for sexually assaulting his eight-year-old sister. From the time of his offense until age 19, appellant was placed in at least four sex offender correctional and treatment programs, but was transferred or discharged because he failed to make progress in treatment and engaged in inappropriate sexual behavior. This repeated behavior included masturbation, voyeurism, making sexual gestures towards others, engaging in sexual contact with peers, and stalking others in treatment settings. Upon petition by respondent Anoka County, appellant was indeterminately committed as an SDP in 2006. He was committed to the Minnesota Sexual Offender Program (MSOP) in St. Peter and subsequently transferred to the Moose Lake facility.
On July 28, 2009, appellant petitioned the special review board (SRB) for full or provisional discharge from his commitment or transfer to a nonsecure facility. The SRB recommended denial of appellant's petition and appellant sought reconsideration by thejudicial appeal panel. On March 25, 2011, the appeal panel heard his petition. Appellant testified at the hearing, as did his grandfather and Dr. James Gilbertson, Ph.D., an independent court-appointed examiner. Respondents Anoka County and Lucinda Jesson, Commissioner of Human Services, moved to dismiss pursuant to Minn. R. Civ. P. 41.02(b) and the panel granted their motion, concluding that appellant did not establish a prima facie case for transfer to a nonsecure facility or full or provisional discharge. See Minn. R. Civ. P. 41.02(b) ().
In an appeal from the panel's order, this court reviews legal determinations as a matter of law. Coker v. Ludeman, 775 N.W.2d 660, 663 (Minn. App. 2009), review dismissed (Minn. Feb. 24, 2010). Challenges to the appeal panel's findings of fact are reviewed under a clearly erroneous standard. Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn. App. 1985). This court will not weigh the evidence as if trying the matter de novo, but must determine from an examination of the record whether the evidence as a whole sustains the panel's findings. Rydberg v. Goodno, 689 N.W.2d 310, 313 (Minn. App. 2004).
Appellant's burden in a petition for full or provisional discharge is going forward with the evidence, "which means presenting a prima facie case with competent evidence to show that the person is entitled to the requested relief." Minn. Stat. § 253B.19, subd. 2(d) (Supp. 2011). When this burden is met, the opposing party bears the burden of proof by clear and convincing evidence that the discharge or provisional discharge should bedenied. Id. Appellant must proffer "some sworn competent testimony" that would enable a fact-finder to determine that he meets the statutory requirements for discharge. Coker, 775 N.W.2d at 664 (quotation omitted). As to his petition for transfer to a nonsecure facility, appellant is subject to a higher burden and "must establish by a preponderance of the evidence that the transfer is appropriate." Minn. Stat. § 253B.19, subd. 2(d). Appellant's requests for transfer and discharge will be addressed in turn.
Transfer to a nonsecure facility
An individual committed as an SDP may not be transferred out of a secure treatment facility unless the appeal panel determines that the transfer is appropriate. Minn. Stat. § 253B.185, subd. 11(a) (2010). The following factors must be considered: "(1) the person's clinical progress and present treatment needs; (2) the need for security to accomplish continuing treatment; (3) the need for continued institutionalization; (4) which facility can best meet the person's needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public." Id., subd. 11(b).
In addressing appellant's petition for transfer to a nonsecure facility, the appeal panel erroneously applied the lower burden of going forward with the evidence. But because the panel found that appellant failed to meet the lower burden of production, its error was not prejudicial to appellant and will be ignored on appeal. See Minn. R. Civ. P. 61 ().
The appeal panel determined: (1) security is needed to accomplish appellant's treatment; (2) appellant presents a need for continued institutionalization; (3) MSOP isthe facility best suited to meet appellant's needs; and (4) transfer cannot be accomplished while providing a reasonable degree of safety for the public. The panel found that appellant was not engaging in treatment programs and presented a high risk of reoffense. The panel noted that treatment personnel and Dr. Gilbertson did not recommend transfer due to appellant's failure to progress in treatment, and noted appellant's history of problematic sexual behavior while in treatment.
Appellant first argues that transfer is appropriate because, since his juvenile delinquency adjudication, he has matured and undergone treatment for 12 years. He states that his home visits during precommitment outpatient treatment were successful and indicate that relaxed security is now appropriate. But the only evidence proffered to support these assertions is appellant's own testimony and that of his grandfather. And although appellant has been in treatment for years, the record establishes that he has not sufficiently progressed in treatment. Appellant's assertions about home visits are controverted by treatment notes in the record.
Appellant also argues that he poses a low risk of recidivism, based on the report of one of three psychologists involved in his commitment hearing and an article submitted as an exhibit about recidivism rates of intrafamilial sex offenders. But after considering appellant's most recent examination, as well as the article, Dr. Gilbertson concluded that appellant presented a high risk of reoffense.
Appellant argues that the level of security at MSOP is not necessary for his treatment or to protect the public and does not meet his needs, based on Dr. Gilbertson's testimony that a less-restrictive setting would be appropriate. But although Dr.Gilbertson opined that appellant "may not require the high security as present in the current MSOP programming," Dr. Gilbertson also stated that a secure, inpatient treatment facility was necessary for appellant's treatment and public safety and determined that there were no reduced-security inpatient treatment facilities available. In addition, Dr. Gilbertson noted that appellant is in a young-adult treatment unit at MSOP, which is more tailored to his specific needs.
Finally, appellant argues that the support of his family reduces his risk to the public. But the record establishes that it is unlikely appellant would...
To continue reading
Request your trial