In re Care and Treatment of Lenny D.

• Decision Date: 12 April 2013
• Docket Number: No. 102,862.,102,862.
• Parties: In the Matter of the Care and Treatment of Lenny D. LOWRY.
• Court: Kansas Court of Appeals

304 P.3d 696

In the Matter of the Care and Treatment of Lenny D. LOWRY.

No. 102,862.¹

Court of Appeals of Kansas.

April 12, 2013.

Syllabus by the court

1. Issues of statutory interpretation and claims involving whether jurisdiction exists raise questions of law over which an appellate court exercises unlimited review.

2. K.S.A. 59–29a04(a) permits the attorney general to file a petition in the county where a person is convicted of or charged with a sexually violent offense, alleging that the person is a sexually violent predator and stating sufficient facts to support the allegation. However, the statute's provisions “are not jurisdictional, and failure to comply with such provisions in no way prevents the attorney general from proceeding.” K.S.A. 59–29a04(b).

3. K.S.A. 59–29a02(a) defines the term sexually violent predator as “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.”

4. Because there is a statutory right to court-appointed counsel in sexually violent predator proceedings, there is a corresponding right to competent, effective counsel.

5. To support a claim for ineffective assistance of counsel, the respondent must prove that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the respondent.

6. The first prong of the test for ineffective assistance of counsel requires a showing that counsel made errors so serious that his or her performance was less than guaranteed to the respondent by the Sixth Amendment to the United States Constitution.

7. Once a respondent has established counsel's deficient performance, under the second prong of the test for ineffective assistance of counsel, the respondent also must establish prejudice by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

8. There is no requirement under the Kansas Sexually Violent Predator Act that the State must establish that a person suffers from a mental abnormality recognized by the DSM–IV before that person can be found to be a sexually violent predator.

9. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, while strategic decisions made after less than complete investigation are reasonable exactly to the extent a reasonable professional judgment supports the limitation on the investigation.

10. The two-step analysis used in criminal cases to judge alleged instances of prosecutorial misconduct claims is inapplicable in sexually violent predator proceedings. Instead, the central consideration for a court reviewing comments made by counsel during a sexually violent predator proceeding is whether the comments deprived the respondent of a fair trial.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, for appellee.

Before STANDRIDGE, P.J., McANANY and ATCHESON, JJ.

STANDRIDGE, J.

A jury determined Lenny D. Lowry was a sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq. Lowry appeals from the jury's verdict, arguing that the district court lacked jurisdiction over him, that he was denied his statutory right to effective assistance counsel, and that the State's attorney committed reversible misconduct during closing arguments. Because we find no merit to any of these arguments, we affirm the jury's verdict.

Facts

Lowry was convicted in 1989 of two counts of aggravated incest. The victim was his 12–year–old son. In 1993, Lowry was convicted of two counts of sexually exploiting a 10–year–old child. The 1993 convictions occurred while Lowry was on parole for the 1989 convictions, after Lowry had completed a sex offender treatment program in prison and contemporaneously with Lowry's participationin an outpatient sexual offender treatment program.

As Lowry's prison term for the 1993 convictions neared its end, the State filed a petition requesting civil commitment of Lowry as a sexually violent predator. The court appointed Mark Sevart to represent Lowry and thereafter conducted a probable cause hearing. The court ultimately found the evidence established probable cause to believe that Lowry was a sexually violent predator and, as a result, ordered Lowry to undergo an evaluation at the Larned State Security Hospital (Larned). Dr. Greg Shannon, under the supervision of Dr. John Reid, evaluated Lowry at Larned. After the evaluation process was complete, Lowry returned to district court for trial so that a jury could determine whether Lowry was a sexually violent predator under the KSVPA.

Prior to trial, the State's attorney and Sevart stipulated to the foundation of a file consisting of 2,338 documents reviewed by the doctors evaluating Lowry. These documents included police reports, records of prior legal proceedings, records from the Kansas Department of Corrections (KDOC), and mental health records. The State described the nature of the stipulation in a document it filed with the court:

“[The State] believes the parties have agreed to stipulate to the foundation for the [2,338 pages of] documents in discovery. Specifically, neither side will be required to produce a custodian of records from Larned State Hospital, the Department of Corrections of Kansas or any other State or jurisdiction, or the criminal clerk of any jurisdiction where [Lowry] is alleged to have committed a crime, to provide foundation for the admission, pursuant to K.S.A. 60–460(m) business records hearsay exception, prior to the admission of said documents. Similarly, neither side will be required to produce a certified shorthand reporter to provide foundation for the use of a transcript from prior testimony of any witness.

“The parties reserve the right to object at the time of trial to the admission of said documents on grounds other than foundation, including but not limited to objections based on hearsay and relevance.”

The parties' stipulation also included an agreement by the parties that the documents would be admitted for the limited purpose of an appellate record and, although any of the documents could be used to question the experts testifying at trial, the jurors would not have access to the documents during their deliberations.

At trial, the State presented the testimony of Drs. Reid and Shannon. Dr. Reid, a psychologist at Larned, testified that he regularly performed evaluations at the hospital in order to determine whether, in his opinion, a particular individual was a sexually violent predator under the KSVPA. Dr. Reid estimated he had performed 40 such evaluations in the past and determined about 50 percent of the time that the individual evaluated was a sexually violent predator. In addition to conducting evaluations, Dr. Reid supervised other staff members at Larned who performed the evaluations. In this case, Dr. Reid supervised Dr. Shannon, the staff member who was assigned to evaluate Lowry. Specifically, Dr. Reid participated in Dr. Shannon's 45–minute interview of Lowry and examined Dr. Shannon's evaluation and report.

Dr. Reid testified that an important component of the evaluation process is a determination regarding whether the individual evaluated has accepted responsibility for his or her past actions. Dr. Reid noted that accepting responsibility for past actions demonstrates the individual has changed his or her behavior and thus is unlikely to reoffend in the future. Dr. Reid testified that during Lowry's 45–minute interview, Dr. Shannon asked Lowry about the circumstances surrounding his 1993 convictions for sexual exploitation of a child. Lowry responded that he was not going to deny that the acts occurred but explained that he had told the children he did not care what they did in his home as long as they did not hurt themselves. Dr. Reid testified Lowry's explanation indicated that Lowry was not willing to take responsibility for his past actions.

Dr. Reid noted that Lowry had been through a sex offender treatment program while incarcerated but found no evidence—based on his interview with Lowry and his review of Dr. Shannon's report—that Lowry had benefitted from the treatment he received. Specifically, Dr. Reid noted that Lowry reoffended in 1993 while on parole from his first convictions after receiving treatment in prison.

Based on his observation of Dr. Shannon's interview with Lowry, his review of Dr. Shannon's report and evaluation of Lowry, and his subsequent discussion with Dr. Shannon about the report and evaluation, Dr. Reid testified he agreed with the conclusions drawn by Dr. Shannon, which diagnosed Lowry as suffering from the mental abnormalities of pedophilia, nonexclusive (attracted to both adults and children) and alcohol dependence in a controlled environment. Dr. Reid testified that he also agreed with Dr. Shannon's conclusion that Lowry suffered from antisocial personality disorder. Finally, Dr. Reid testified that he agreed with the ultimate conclusion in Dr. Shannon's report finding Lowry to be a sexually violent predator.

On cross-examination, Dr. Reid admitted that during the time Dr. Shannon was conducting Lowry's evaluation and completing the report, Dr. Shannon was not licensed as a doctor of psychology in Kansas. Dr. Reid also admitted not knowing whether Dr. Shannon had completed all of the course work necessary to earn a doctorate during the time period in question. Dr. Reid conceded Dr. Shannon's evaluation of Lowry was either the first or second evaluation ever completed by Dr. Shannon and that because Dr. Shannon had performed most of the interviews of Lowry...