Interest of M.D. Grosinger

• Citation: 598 N.W.2d 799,1999 ND 160
• Decision Date: 03 August 1999
• Docket Number: 980250
• Parties: IN THE INTEREST OF M.D. Brian D. Grosinger, Petitioner and Appellee v. M.D., Respondent and Appellant1999 ND 160 IN THE SUPREME COURT STATE OF NORTH DAKOTA Filed
• Court: United States State Supreme Court of North Dakota

IN THE INTEREST OF M.D. Brian D. Grosinger, Petitioner and Appellee v M.D., Respondent and Appellant

No. 980250

1999 ND 160

IN THE SUPREME COURT STATE OF NORTH DAKOTA

Filed 8/3/99 by Clerk of Supreme Court

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

AFFIRMED.

Opinion of the Court by Maring, Justice.

Brian D. Grosinger, Assistant State's Attorney, 210 2nd Avenue Northwest, Mandan, ND 58554, for petitioner and appellee.

Wayne D. Goter, P.O. Box 1552, Bismarck, ND 58502-1552, for respondent and appellant.

Maring, Justice.

[¶1] M.D. appeals from an order committing him as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. We affirm.

I

[¶2] In 1993, M.D. pleaded guilty to gross sexual imposition for engaging in sexual acts with a 14-year-old boy. M.D. was sentenced to serve ten years in prison, with five-and-one-half years suspended. M.D. was also ordered to participate in the sex offender treatment program while incarcerated at the state penitentiary. M.D. twice began the treatment program but did not complete it.

[¶3] M.D. was released from the penitentiary in 1996 and placed on supervised probation. The conditions of his probation required him to participate in and complete a sex offender treatment program, to have no contact with children under the age of 18 without adult supervision, prohibited him from purchasing or possessing any pornographic materials, and subjected him to search by his probation officer at any time.

[¶4] On December 10, 1997, M.D.'s probation officer made an unannounced visit to M.D.'s Mandan apartment. M.D. and two boys, ages 15 and 16, were present in the apartment. While the probation officer was there, two other teen-aged boys came to the apartment.

[¶5] The probation officer searched the apartment and found evidence indicating M.D. had written numerous checks to the adult bookstore in Mandan. The officer also found a list of male names. Although this list was designated "coworkers" at the top, subsequent investigation revealed only one was an adult, and the rest were juveniles as young as 13. The officer also found a piece of paper containing the name and telephone number of M.D.'s juvenile victim from his 1993 conviction. The terms of M.D.'s probation prohibited any contact with the victim. The search also uncovered drug paraphernalia, which also violated the terms of probation.

[¶6] Based upon the results of the search, the Morton County Assistant States Attorney filed a petition under N.D.C.C. ch. 25-03.3 for involuntary commitment of M.D. as a sexually dangerous individual. At the preliminary hearing, the district court found there was probable cause to believe M.D. was a sexually dangerous individual and ordered that he be transported to the State Hospital for evaluation under N.D.C.C. § 25-03.3-12. M.D. subsequently requested and received an independent evaluation.

[¶7] At the commitment hearing, the petitioner presented evidence of M.D.'s prior conviction, his two failed attempts at sex offender treatment while in prison, and his failure to complete sex offender treatment after his release. The petitioner also presented evidence of the result of the search of M.D.'s apartment.

[¶8] A clerk from the adult bookstore testified M.D. was a regular customer, and usually rented gay male videos. M.D. had also purchased gay male magazines, condoms, and a pair of handcuffs in the store. The clerk also testified that on one occasion in December of 1997 M.D. entered the bookstore with several "young kids," who the clerk believed to be 16 or 17 years old. When the clerk asked for identification, they claimed they had none and left the store.

[¶9] A clinical psychologist and a psychiatrist who had evaluated M.D. at the State Hospital each testified that M.D. suffered from paraphilia, with fixation on adolescent males. They also diagnosed a personality disorder, with antisocial, borderline, and passive-aggressive features. Both testified it was likely M.D. would engage in sexually predatory conduct in the future.

[¶10] The district court found M.D. was a sexually dangerous individual who was likely to re-offend. The court committed M.D. to the care, custody, and control of the Executive Director of the Department of Human Services for appropriate treatment under N.D.C.C. § 25-03.3-13. M.D. has appealed.

II

[¶11] M.D. argues the district court erred in denying his motion to dismiss the petition for undue delay in the proceedings. Section 25-03.3-13, N.D.C.C., provides in part:

Within thirty days after the finding of probable cause, the court shall conduct a commitment proceeding to determine whether the respondent is a sexually dangerous individual. The court may extend the time for good cause.

[¶12] The finding of probable cause occurred at the preliminary hearing on December 22, 1997. On January 23, 1998, 32 days after the preliminary hearing, the petitioner filed a request for a 30-day extension of time because the evaluating psychiatric expert from the State Hospital had informed the petitioner the 30 days had not been sufficient to evaluate M.D. and because the Assistant States Attorney handling the file had been ill and out of the office for two weeks. The district court granted a 30-day extension on February 2, 1998. The evaluation was completed and, on February 20, 1998, the court ordered M.D. returned to the Morton County Jail where he was to be held under bond on a pending criminal case.

[¶13] On February 24, 1998, a telephonic conference was held, during which the parties stipulated M.D. could remain at the State Hospital until a hearing was held on the petition. M.D. also moved for an independent evaluation under N.D.C.C. § 25-03.3-12. On March 2, 1998, the court ordered that M.D. remain at the State Hospital and granted M.D.'s motion for an independent evaluation. The court further ordered M.D. was to make the report of the independent evaluation available to the petitioner at least five days before the commitment hearing if M.D. intended to offer the report or related evidence at the hearing. The order provided the independent evaluation was to be completed within 30 days, unless further extended by the court.

[¶14] The record does not disclose when the independent evaluation was completed, but on May 27, 1998, a notice of trial setting the commitment hearing for July 1, 1998, was sent to the parties. On the day of the commitment hearing, M.D. moved to dismiss because of the delay in the proceedings beyond 30 days. The court denied the motion, noting that "any delay was necessary or contributed to by [M.D.]."

[¶15] Section 25-03.3-13, N.D.C.C., gives the court discretion to extend the time for the hearing "for good cause." In the closely related context of civil commitment of persons who are mentally ill or chemically dependent, the statutory framework also allows the court to extend the time for the hearing "for good cause." N.D.C.C. § 25-03.1-19. In interpreting that statutory procedure, this Court has upheld extensions of the time for hearing because of scheduling problems in the district court's calendar or illness of an expert witness who had evaluated the committed person. See In re P.L.P., 556 N.W.2d 657, 659-60 (N.D. 1996); In re Nyflot, 340 N.W.2d 178, 181-83 (N.D. 1983). In this case, the original extension was requested by the petitioner because the doctor had not been able to complete his evaluation and the attorney handling the case had been ill and out of the office for two weeks. Under the circumstances of this case, we conclude there was good cause for the first 30-day extension granted by the district court.

[¶16] M.D. also suggests the original extension was improper because the petitioner's motion was made after the 30-day period required in N.D.C.C. § 25-03.3-13 had expired. The statute does not require that the motion to extend be made within the original 30-day period. In a related context, this Court noted in Nyflot, 340 N.W.2d at 182:

If, as the respondent contends, the fourteen-day limit is jurisdictional in nature, September 8 marked the end of the court's authority to order her detained and the end of the court's power to order her involuntary hospitalization and treatment. This would be so regardless of her mental state and the possible danger presented to herself, to others, or to property. We do not believe that such a construction would effectuate the intent of the Legislature as derived from the entire statute. The statute, read in its entirety, reflects a balance between the due process rights of the respondent and the respondent's possible need for treatment and society's interest in ensuring that that treatment is forthcoming.

Similarly, we conclude the petitioner's failure to move for an extension until after the original 30-day period had expired did not deprive the court of authority to consider whether there was good cause to extend the time for the hearing.

[¶17] The evaluation was completed and the case was ready to proceed to a hearing within the first extension when M.D. requested an independent evaluation and concomitant extension of time. The court granted M.D.'s request. M.D. cannot now complain about the delay occasioned by his own request for an independent evaluation.

[¶18] We are, however, concerned about the length of the delay in this case more than six months between the December 22 preliminary hearing and the July 1 commitment hearing. We urge the trial courts to set the hearing date as soon as possible, and to be mindful of the liberty interest of freedom from bodily restraint when determining whether a delay is for "good cause" in this type of case. We agree with the district court that the bulk of the delay in this case was attributable to M.D. and under these circumstances, we conclude the court did not err in denying M.D.'s motion to dismiss the proceedings.

III

[¶19] M.D. asserts the district...