In re Ontiberos

Decision Date17 August 2012
Docket NumberNo. 100,362.,100,362.
Citation295 Kan. 10,287 P.3d 855
PartiesIn the Matter of the Care and Treatment of Robert C. ONTIBEROS.
CourtKansas Supreme Court


Syllabus by the Court

1. A person subject to a trial under the Kansas Sexually Violent Predators Act (KSVPA), K.S.A. 59–29a01 et seq., has a due process right to the assistance of counsel.

2. To be meaningful, a right to counsel necessarily includes the right to effective assistance of counsel.

3. Ineffective assistance of counsel for a respondent in a KSVPA trial is a due process violation.

4. A person confined for treatment under the KSVPA may bring a habeas corpus petition under K.S.A. 60–1501 alleging a due process violation such as the ineffective assistance of counsel.

5. When appellate counsel in a case arising under the KSVPA desires to raise an ineffective assistance of counsel issue and that issue has never been ruled upon by the trial court, the respondent may seek a remand of the case to the trial court for an initial determination of the issue. The caveats set out in State v. Van Cleave, 239 Kan. 117, 120–21, 716 P.2d 580 (1986), should be followed.

6. The KSVPA is constitutional even though it contains no specific statute allowing a respondent to challenge the effectiveness of counsel.

7. The two-prong ineffective assistance of counsel test established in criminal cases under Strickland v. Washington, 466 U.S. 668, 686–89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to claims based on deficient performance of counsel in a KSVPA proceeding.

8. To succeed on a claim of ineffective assistance of counsel based on deficient performance in a KSVPA proceeding, a respondent must prove that (a) counsel's performance was deficient; and (b) counsel's deficient performancewas sufficiently serious to prejudice the respondent and deprive him or her of a fair trial.

9. It is improper for counsel to read from or refer to the contents of written material not in evidence for the purpose of impeachment.

10. Counsel must admit extrinsic evidence, either by producing a document or live witness testimony, if a witness denies an impeaching fact.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Marc Bennett, special assistant attorney general, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by BILES, J.:

This appeal arises under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq. A civil jury declared Robert Ontiberos a sexually violent predator and determined he should be committed for treatment until he is safe for release. The Court of Appeals vacated the commitment and remanded for a new trial because it held that Ontiberos received ineffective assistance of counsel and that the State's attorney committed misconduct during the trial. In re Care & Treatment of Ontiberos, 45 Kan.App.2d 235, 255–56, 247 P.3d 686 (2011). The panel rejected Ontiberos' claim that the KSVPA was unconstitutional. Both sides petitioned for review with this court.

We hold that due process guarantees a person facing civil commitment under the KSVPA a right to counsel at trial, and that person may challenge the effectiveness of his or her trial counsel on direct appeal or under K.S.A. 60–1501. Based on those holdings, Ontiberos' constitutional claim lacks merit. We also hold that his trial counsel was ineffective and that the State committed misconduct. These holdings require remand for a new trial.

Factual and Procedural Background

Ontiberos has two convictions for sexually violent offenses as defined by the KSVPA. He was convicted of attempted rape in 1983 and aggravated sexual battery in 2001. Ontiberos was charged with lewd and lascivious behavior in 1991, but that was dropped in exchange for a guilty plea for possession of cocaine. There were also two uncharged incidents of alleged sexual misconduct in 1991 and 1999.

Before Ontiberos was released from prison for the aggravated sexual battery conviction, the State filed a petition alleging he could be a sexually violent predator as defined by the KSVPA and should be civilly committed for treatment. Greg Barker was appointed to represent Ontiberos. The State was represented by a special assistant attorney general appointed from the Sedgwick County District Attorney's Office. The parties stipulated to probable cause, so the matter proceeded to trial.

The Parties' Stipulation

Over 3,500 pages of discovery documents were compiled, but most are irrelevant to the KSVPA proceedings. The pertinent documents include: (1) police reports and witness statements from the three alleged offenses that did not result in convictions; (2) a 2006 discharge summary from a sexual offender treatment program Ontiberos participated in while imprisoned that contained a Static–99 test result concluding Ontiberos was a “lower risk” to reoffend; (3) the results from a penile plethysmograph test administered to Ontiberos in 2005 as part of a sexual offender treatment program; and (4) documents completedby either clinicians or Ontiberos as part of his sexual offender treatment programs. All 3,500 pages of discovery were given a single identifying designation as Exhibit 1.

The parties agree that they orally stipulated as to how Exhibit 1 would be used at trial, but now dispute the scope of what was agreed to, including whether the State was permitted to cross-examine Ontiberos with documents from Exhibit 1. There is no written stipulation. The parties agree they stipulated that all documents within Exhibit 1, including clinicians' reports: (1) could be reviewed by the expert witnesses when forming opinions; (2) could be used to examine those expert witnesses at trial; and (3) would be included in the appellate record. The district court did not take possession of the records comprising Exhibit 1, none of the documents referenced at trial were separated and made into another exhibit for more convenient reference in the record, and none of the documents were provided to the jury for its review.

The Experts' Reports/Testimony

Prior to trial, the district court ordered a state psychologist to evaluate Ontiberos as authorized by K.S.A. 59–29a05(d). Consistent with the parties' stipulation, the state's psychologist, Dr. Deborah McCoy, reviewed all the discovery documents contained within what became Exhibit 1. She also interviewed Ontiberos. She diagnosed him with paraphilia not otherwise specified, with themes of exhibitionism and nonconsent, as well as a personality disorder not otherwise specified, with antisocial features, polysubstance dependence, and sexual abuse of an adult. The “not otherwise specified” diagnosis means the conditions do not fit into specific diagnostic categories found in the Diagnostic and Statistical Manual of Mental Disorders, DSM—IV. Dr. McCoy concluded that Ontiberos met the criteria of a sexually violent predator under the KSVPA based upon two actuarial risk assessment tests she administered—the Minnesota Sex Offender Screening Tool Revised (MnSOST–R) and the Static–99.

The MnSOST test results placed Ontiberos in a moderate risk category. Under that test, 29 percent of individuals with similar risk factors were rearrested for a new sex offense within 6 years. But Dr. McCoy concluded that Ontiberos fell within the high risk category for sexual recidivism under the Static–99. Dr. McCoy testified Ontiberos' chances of reconviction under that test were 39 percent after 5 years, 45 percent after 10 years, and 52 percent after 15 years. In her report, Dr. McCoy noted her results were different than some previously administered Static–99 assessments, and she indicated she did not know what caused the difference. At trial, Ontiberos' counsel did not ask Dr. McCoy about any test results that conflicted with her findings, including the test results from the 2006 discharge summary included in Exhibit 1.

Dr. Robert Barnett, also a clinical psychologist, examined Ontiberos as a defense expert. Dr. Barnett reviewed Ontiberos' records “that were provided to [him] and met with Ontiberos' counsel about the case. Dr. Barnett did not administer the Static–99 or the MnSOST–R because he considered them to be controversial instruments. He explained this by noting that both tests purport to predict the percentage likelihood to reoffend, but if only half of the people like Ontiberos reoffended [t]here's no way—simply no logical way to say which group [Ontiberos] would fall in[to].” Dr. Barnett also testified the Static–99 and MnSOST–R tend to produce different scores, even though they are supposed to measure the same thing.

Dr. Barnett testified that research had shown two tests to be reliable for deviant responses—the penile plethysmograph and the Hare Psychopathy Checklist Revised. And he said that he wished Larned personnel would use the plethysmograph because they have the equipment to conduct that test. Dr. Barnett was apparently unaware that Ontiberos had taken a plethysmograph in 2005, and that the results were contained in Exhibit 1. Ontiberos' attorney did not ask Dr. Barnett about the 2006 discharge summary's Static–99 results that conflicted with Dr. McCoy's test results.

Dr. Barnett also disputed Dr. McCoy's paraphilia diagnosis because he concluded the most “prominent feature of [Ontiberos'] psychological presentation is his chronic and severe polysubstance abuse and dependence.” Ontiberos, he further observed, suffered from a mild “mind cognitive disorder, [and] has a little trouble with confusion, attention and concentration.” Dr. Barnett concluded that Ontiberos did not have any sexual dysfunction diagnosis, i.e., he was not a sexually violent offender.

The jury found Ontiberos was a sexually violent predator. He was committed to State custody for treatment until determined to be safe for release. Additional...

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