In re Swanson, 4-041 / 11-1859
Decision Date | 26 March 2014 |
Docket Number | No. 4-041 / 11-1859,4-041 / 11-1859 |
Parties | IN THE MATTER OF THE DETENTION OF ROBERT E. SWANSON, ROBERT E. SWANSON, Respondent-Appellant. |
Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Black Hawk County, Thomas N. Bower and Jon Fister, Judges.
Respondent appeals the district court orders determining he was not entitled to a final hearing on his annual review and denying his petition for discharge from civil commitment as a sexually violent predator. AFFIRMED.
Alison Werner Smith of Hayek, Brown, Moreland & Smith, L.L.P., Iowa City, for appellant.
Robert E. Swanson, Ayer, Massachusetts, appellant pro se.
Thomas J. Miller, Attorney General, and Linda J. Hines and Susan R. Krisko, Assistant Attorneys General, for appellee State.
Considered by Vogel, P.J., Tabor, J., and Huitink, S.J.* Bower, J., takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
Robert Swanson appeals the district court orders determining he was not entitled to a final hearing on his annual review and denying his petition for discharge from civil commitment as a sexually violent predator. The district court determined that under Iowa Code section 229A.5C(1) (2007), the civil commitment proceedings in Iowa were suspended when Swanson was placed in federal custody, necessitating cancellation of Swanson's final hearing, and he never appealed that order. Contrary to Swanson's assertions, a person may be civilly committed and serve a prison sentence at the same time. Based on the supreme court's order specifically raising the issue of the effect of section 229A.5C(1), we find no error in the court's action. We affirm the decisions of the district court.
Robert Swanson has "a long history of committing sexually violent offenses." In re Det. of Swanson, 668 N.W.2d 570, 573 (Iowa 2003). In 2002, he was determined to be a sexually violent predator (SVP) and was civilly committed under Iowa Code chapter 229A (2001) to the custody of the Iowa Department of Human Services (DHS). His commitment as an SVP was affirmed on appeal. Id. at 577.
In 2007, Swanson filed a request for a final hearing in relation to his annual review under section 229A.8 (2007), which was denied by the district court. Swanson filed a petition for writ of certiorari. The Iowa Supreme Court, in an unpublished decision, determined "Swanson met his burden of presenting admissible evidence that, if believed, could lead a fact finder to find reasonabledoubt on the issue of Swanson's mental abnormality." Swanson v. Iowa Dist. Ct., No. 07-1336, 2009 WL 213020, at *1 (Iowa Jan. 30, 2009). The court sustained the writ of certiorari and remanded the case to the district court for a final hearing. Id. Procedendo was issued on March 4, 2009.
While Swanson's case was pending before the Iowa Supreme Court, on December 17, 2008, Swanson was charged with committing a federal offense by mailing a threatening communication to a federal judge, in violation of 18 U.S.C. § 876(c). See United States v. Swanson, No. CR08-4096-MWB, 2009 WL 1052945 at *1 (N.D. Iowa Apr. 20, 2009). According to Swanson he has been in federal custody since January 22, 2009. He entered a guilty plea to the federal charge. Id. On July 8, 2009, Swanson was committed to the custody of the United States Bureau of Prisons for ninety-six months.
In Iowa, the State filed a motion to cancel the remanded hearing on the ground the proceedings were suspended under Iowa Code section 229A.5C(1). Section 229A.5C(1) provides:
If a person who is detained pursuant to section 229A.5 or who is subject to an order of civil commitment under this chapter commits a public offense, the civil commitment proceedings or treatment process shall be suspended until the criminal proceedings, including any term of confinement, are completed. The person shall also not be eligible for bail pursuant to section 811.1.
"This section provides that, if a person commits a criminal offense during treatment, the treatment process will be suspended until the criminal proceedings, including any term of confinement, are complete." In re Det. of Bradford, 712 N.W.2d 144, 149 (Iowa 2006). The district court cancelled thehearing, which had been scheduled for December 8, 2009. Swanson did not appeal that decision.
On September 30, 2010, Swanson filed a pro se petition challenging the cancellation of the remanded hearing and claiming section 229A.5C(1) was unconstitutional under the Eighth and Fourteenth Amendments. On November 19, 2010, the district court entered an order stating there was no basis for finding section 229A.5C(1) was unconstitutional.
On August 30, 2011, Swanson filed a pro se petition seeking discharge. On September 28, 2011, the district court entered an order denying Swanson's request for dismissal of the civil commitment proceedings under chapter 229A.
Swanson filed several pro se pleadings with the Iowa Supreme Court. The supreme court entered an order determining Swanson had timely appealed, or attempted to timely appeal, the district court's orders of November 19, 2010, (arising from the petition filed on September 30, 2010) and September 28, 2011, (arising from the petition filed on August 30, 2011) and determined those appeals should proceed.1 The case was then transferred to the Iowa Court of Appeals for consideration.
Our review is for the correction of errors at law. In re Det. of Altman, 723 N.W.2d 181, 184 (Iowa 2006). On constitutional issues, however, we review de novo in light of the totality of the circumstances. In re Det. of Betsworth, 711 N.W.2d 280, 289 (Iowa 2006).
As noted above, the district court entered an order on December 2, 2009, cancelling the remanded hearing. On September 30, 2010, Swanson filed a pro se petition raising the following issues: (1) his Eighth Amendment rights had been violated because he could not be both civilly committed and serve a federal sentence; (2) section 229A.5C(1) should not apply to his factual situation; (3) the order cancelling his remanded hearing violated his due process rights; (4) it would cause a conflict if he voluntarily participated in sex offender treatment in the federal system because his treatment had been suspended in Iowa under section 229A.5C(1); and (5) he should have his remanded hearing or the SVP proceedings in Iowa should be dismissed.
The district court issued an order on November 19, 2010, finding Swanson's arguments were without merit. The Iowa Supreme Court specifically noted Swanson had not appealed the December 2, 2009 order cancelling the remanded final hearing, but determined his appeal of the November 19, 2010 order could proceed.
A. Under Iowa Rule of Appellate Procedure 6.101(1)(b), Swanson had thirty days to appeal the district court's order cancelling the remanded final hearing. He did not appeal. Even if the district court's decision to cancel the hearing was incorrect, that decision is not open to collateral attack but can be corrected only by direct review. See Gail v. W. Convenience Stores, 434 N.W.2d 862, 863 (Iowa 1989). Because Swanson did not timely appeal the district court's order of December 2, 2009, cancelling the remanded hearing, he cannot challenge that cancellation. See Morris Plan Co. v. Bruner, 458 N.W.2d 853, 855(Iowa Ct. App. 1990) ( ). Therefore, to the extent Swanson's petition filed on September 30, 2010, is a collateral challenge to the district court's decision cancelling the remanded hearing, those issues will not be considered in this appeal.
B. We note that in addition to asking for the reinstatement of his final hearing, Swanson asked to have the SVP proceedings in Iowa dismissed based on his belief there was an Eighth Amendment violation if he was civilly committed in Iowa and serving a federal sentence at the same time. He does not, however, raise any Eighth Amendment issue on appeal and has waived that issue. See Iowa R. App. P. 6.903(g)(3).
Furthermore, a person may be civilly committed and serve a prison sentence at the same time. In Bailey v. Gardebring, 940 F.2d 1150, 1152 (8th Cir. 1991), Clark Bailey was civilly committed, then transferred to the Minnesota Department of Corrections, but remained under civil commitment, "and thus will be subject to the jurisdiction of the Commissioner of Public Welfare upon finishing his prison sentence." On Bailey's due process challenge, the Eighth Circuit Court of Appeals determined his dual commitment, under the civil commitment statute and under the criminal statutes, did not violate the Due Process Clause. Bailey, 940 F.2d at 1153.
We affirm the decision of the district court denying the claims Swanson raised in his petition filed on September 30, 2010.
On August 30, 2011, Swanson filed a petition seeking discharge from civil commitment. He raised the following issues: (1) the cancellation of the remanded hearing violated his due process rights; (2) he cannot be both civilly committed in Iowa and serve a federal sentence at the same time; (3) the operation of section 229A.5C(1) suspending his treatment for ninety-six months while he serves his federal sentence shows he does not need treatment; and (4) he should have his final hearing or the SVP proceedings in Iowa should be dismissed. On September 28, 2011, the district court denied his petition for discharge.
We have already determined Swanson cannot collaterally challenge the district court order cancelling the remanded final hearing. See Gail, 434 N.W.2d at 863. We have also determined Swanson's claim that he could not be civilly committed and serve a prison sentence at the same time is without merit. See Bailey, 940 F.2d at 1153. He has not appealed on his claim the operation of section 229A.5C(1) suspending his treatment for ninety-six months while...
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