In re Webber
| Decision Date | 18 March 2019 |
| Docket Number | A18-1815 |
| Parties | In the Matter of the Civil Commitment of: Thomas Ladon Webber. |
| 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This opinion will be unpublished and may not be cited except as provided by Minn.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 (2018).
Affirmed
Judicial Appeal Panel
Michael C. Hager, Minneapolis, Minnesota (for appellant)
Keith Ellison, Attorney General, Brett O'Neill Terry, Assistant Attorney General, St. Paul, Minnesota (for respondent Commissioner of Human Services)
Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, Minneapolis, Minnesota (for respondent county)
Considered and decided by Reilly, Presiding Judge; Bratvold, Judge; and Kalitowski, Judge.*
UNPUBLISHED OPINION
Appellant challenges a judicial appeal panel's dismissal of his petition for a reduction in custody and argues that the Minnesota Commitment and Treatment Act violates his constitutional rights. We affirm.
Appellant Thomas Ladon Webber (Webber) is indeterminately committed as a Sexual Psychopathic Personality (SPP) and a Sexually Dangerous Person (SDP). Webber has a history of violent sexual offenses against female adolescents (ages 13 to 17).
In 1991, Webber was charged with two counts of third-degree criminal sexual conduct after a 15-year-old female reported that Webber pinned her to the floor in her home and raped her. Webber pleaded guilty to third-degree criminal sexual conduct and received an 18-month prison sentence that was stayed on conditions of probation for five years.
In 1993, Webber was charged with first-degree criminal sexual conduct after a 17-year-old victim reported that Webber put his arm around her throat, knocked her unconscious, carried her to his car, drove her to a lake and raped her. A medical examination of the victim confirmed contusions and bruises on her body and abrasions in her vaginal area. Webber pleaded guilty to third-degree criminal sexual conduct, the stay of his 18-month sentence from 1991 was revoked, and the district court sentenced him to 64 months in prison.1
Early in his prison term, Webber was interviewed for admission to sex offender treatment at the Lino Lakes prison. Because he refused to discuss his offenses, he was considered unamenable to treatment and was not admitted. Webber later entered thetreatment program and apparently began to progress, passing into "Phase II" and eventually "Phase III" of the program. He continued treatment until his release in March 1997.
In 2001, Webber was charged with third-degree criminal sexual conduct for sexually assaulting another 17-year-old girl,2 and two counts of fourth-degree criminal sexual conduct for inappropriately touching the inner thigh and vagina of a 13-year-old girl, and for touching the vagina of a 14-year-old girl. The district court found Webber guilty of four crimes: (1) third-degree criminal sexual conduct for the incident with the 17-year-old victim; (2) fourth-degree criminal sexual conduct for the incident with the 13-year-old victim; (3) false imprisonment for the incident with the 14-year-old victim; and (4) failure to register as a sex offender. The district court sentenced Webber to prison for a total of 88 months. Because Webber refused to discuss the offenses and denied committing them, he was not admitted to sex offender treatment during his incarceration.
In May 2007, the district court committed Webber to the Minnesota Sex Offender Program (MSOP), concluding that he satisfied the requirements for commitment as a SDP and SPP. The district court later granted the state's petition for indeterminate commitment. In 2009, Webber appealed his indeterminate commitment, and this court affirmed the district court's determination.
In 2017, Webber petitioned the special review board (SRB) for a transfer to community preparation services (CPS), provisional discharge, or full discharge. The SRBrecommended denying provisional discharge and full discharge but granting transfer to CPS. The Commissioner of Minnesota Department of Human Services (Commissioner) and Hennepin County (county) filed a timely petition for rehearing and reconsideration of the SRB Findings of Fact and Recommendation that recommended transfer. Webber was permitted to file a late petition for rehearing and reconsideration of the SRB's recommendation to deny provisional or full discharge.
In June 2018, the Judicial Appeal Panel (appeal panel) held the hearing. During Webber's case-in-chief, he called three witnesses to testify: (1) Sharon Green, CEO of Peace of Hope, Inc.3; (2) Cheryl Bradford, Webber's mother; and (3) Dr. Adam Gierok, the court-appointed examiner. Dr. Gierok evaluated Webber and believed that Webber met criteria for (1) other specific paraphilic disorder based on his offending against individuals who were nonconsenting, and (2) other specific personality disorder based on the presence of fairly significant antisocial traits. Based upon his assessments and observations, Dr. Gierok testified that Webber did not meet the statutory criteria for provisional or full discharge. However, due to Webber's scores on multiple risk assessments and his participation and engagement in treatment, Dr. Gierok testified that Webber met the statutory criteria for transfer to CPS. Dr. Gierok admitted that Webber continues to disagree with his offending history and denies using force. Dr. Gierok explained that an indication of deception on two of Webber's polygraphs "shows the development of apattern or a persistence of an inability to acknowledge or to apparently be open about certain aspects of his offending history." Dr. Gierok admitted that the recommendation for transfer was a "close call."
At the close of Webber's case-in-chief, the Commissioner moved to dismiss the petition for provisional discharge and discharge pursuant to Minnesota Rule of Civil Procedure 41.02(b) and Minnesota Statutes section 253D.28 (2018), and the county joined in the motion. The appeal panel granted the Commissioner's motion, finding that Webber did not meet his prima facie burden of production.
The Commissioner then proceeded to present its case-in-chief on the issue of transfer. The Commissioner called three witnesses during its case-in-chief including Michelle Sexe, Operations Manager of CPS; Peter Puffer, Clinic Director of Moose Lake MSOP; and Dr. Jennifer Tippett, a forensic evaluator for the Minnesota Department of Human Services. Sexe testified that the CPS facility is designed to provide MSOP clients with reintegration opportunities before living in the community. The CPS facility is not secure and does not have razor wire, locked doors, or security cameras in the clients' rooms. Puffer testified that MSOP does not support Webber's petition for transfer to CPS because Webber is in the middle of Phase II of the three-phase treatment program and self-monitoring, thinking errors, and sexuality all remain areas of need. Puffer explained that Webber had remaining treatment needs in the area of sexuality, including the completion of a penile plethysmograph (PPG) and Webber indicated deception on his full disclosure of sexual history polygraph. Though Webber has been using daily journals, Webber hasnot completed iceberg journals4 as preferred by MSOP. Dr. Tippett evaluated Webber, spoke to Webber's primary therapist, reviewed medical records, and used actuarial tools to complete a sexual violence risk assessment (SVRA). Dr. Tippett testified that Webber does not meet the statutory criteria for transfer to CPS.
On October 5, 2018, the appeal panel issued an order denying Webber's petition in its entirety. The appeal panel determined that Webber did not establish, by a preponderance of the evidence, that a transfer was appropriate under Minn. Stat. § 253D.28, subd. 2(e).
Webber now appeals.5
The Minnesota Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities (MCTA), Minn. Stat. §§ 253D.01-.36 (2018), governs discharge proceedings of a person committed as SDP or SPP. A person who is committed as an SDP or SPP may petition the SRB for a reduction in custody. Minn. Stat. § 253D.27, subd. 2. The term "reduction in custody" includes a provisional discharge, a full discharge, or a transfer out of a secure treatment facility. Id., subd. 1(b). If the SRB recommends a reduction in custody, the county attorney of the county from which the person would becommitted or the Commissioner may petition the judicial appeal panel for reconsideration of the SRB's recommendation. Id. at § 253D.28, subd. 1(a).
A person who is committed as an SPP or SDP may be transferred to CPS only if "the transfer is appropriate." Id. at § 253D.29, subd. 1(a). In determining whether a transfer is appropriate, a judicial appeal panel must consider five factors:
Id., subd. 1(b). If a committed person requests a transfer to CPS, he bears both "the burdens of production and persuasion . . . at the hearing before the judicial appeal panel." Foster v. Jesson, 857 N.W.2d 545, 548 (Minn. App. 2014); see also Minn. Stat. § 253D.28, subd. 2(e) ().
Generally, this court reviews decisions by a judicial appeal panel for clear error, "examin[ing] the record to determine whether the evidence as a whole sustains the appeal panels' findings" and not "weigh[ing] the evidence as if trying the matter de novo." Larson v. Jesson, 847 N.W.2d 531 (Minn. App. 2014) (citing Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn....
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