Matter of the Care

Decision Date24 September 2010
Docket NumberNo. 102,583.,102
Citation239 P.3d 871
PartiesIn the Matter of the Care and Treatment of David H. SIPE.
CourtKansas Court of Appeals

OPINION TEXT STARTS HERE

[44 Kan.App.2d 584]

Syllabus by the Court

1. A probable cause determination under K.S.A. 59-29a05(a) of the Sexually Violent Predator Act (SVPA) is comparable to a probable cause determination at the preliminary hearing stage of a criminal proceeding.

2. When the district court's probable cause determination at an annual review hearing under K.S.A.2009 Supp. 59-29a08(a) is based on expert reports and arguments of counsel, an appellate court is in the same position as the district court to determinewhether the evidence is sufficient to establish probable cause.

3. When the district court's probable cause determination under K.S.A.2009 Supp. 59-29a08 is based solely on documentary evidence, an appellate court applies a de novo standard of review.

4. Although K.S.A.2009 Supp. 59-29a08 does not assign the burden of proof at an annual review hearing, the burden to establish probable cause lies with the person committed under the SVPA, who is the party affirmatively seeking discharge.

5. Because a sexually violent predator bears the burden to establish probable cause at an annual review hearing under K.S.A.2009 Supp. 59-29a08(c), the district court's task at such a hearing is like that of the trial court at a preliminary hearing in a criminal proceeding, i.e., to determine whether probable cause exists to warrant a trial on the merits.

6.

[44 Kan.App.2d 585]

In making a probable cause determination, the court must consider the evidence in the light most favorable to the committed person and resolve all conflicting evidence in that person's favor.

7. A court's task under K.S.A.2009 Supp. 59-29a08(c) is not to make a final determination on the committed person's petition, but rather to determine whether there is sufficient evidence to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person's mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release.

8. If probable cause exists under K.S.A.2009 Supp. 59-29a08(c), the court is required to conduct an evidentiary hearing on the issue of whether transitional release is appropriate. At that hearing, the State has the burden to prove beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in acts of sexual violence.

Geoffrey Clark, of Wilbert & Towner, P.A., of Pittsburg, for appellant.

No appearance by appellee.

Before McANANY, P.J., CAPLINGER and BUSER, JJ.

CAPLINGER, J.

David Sipe appeals the district court's denial of his petition for discharge from the Sexual Predator Treatment Program at Larned State Security Hospital (Larned). Because we find that Sipe established probable cause entitling him to a hearing on the issue of whether he is safe to be placed in transitional release, we remand to the district court for a hearing pursuant to K.S.A.2009 Supp. 59-29a08(c)(1).

Factual and Procedural Background

In 1994, Sipe was convicted of aggravated criminal sodomy of a child under the age of 14 and aggravated indecent liberties with a child over 14 and under 16. In 2000, Sipe was involuntarily civilly committed to the custody of the Secretary of the Kansas Department

[44 Kan.App.2d 586]

of Social and Rehabilitation Services (SRS) after stipulating he met the statutory criteria of a sexually violent predator under the Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq.

According to his initial examination and report from Larned, Sipe met the criteria for “Pedophilia, Sexually Attracted to Females, Nonexclusive Type; and Antisocial Personality Disorder” and had a “very high risk of reoffending.”

Annually from 2001 through 2007, SRS examined Sipe's mental condition as required by K.S.A.2009 Supp. 59-29a08(a). On each occasion SRS recommended that Sipe continue to be considered a sexually violent predator and remain in SRS custody. Sipe acknowledged receipt of written notice of the SRS reviews and notice of his right to petition for discharge over SRS's objection. Each year, the district court reviewed SRS's reports, noted that Sipe had not petitioned for discharge, and accepted SRS's findings and recommendations.

However, in January 2008, Sipe filed a pro se petition seeking discharge from treatment or discharge to transitional release. In his petition, Sipe alleged he had successfully completed all prerequisite treatments and that his mental condition and personality disorder had sufficiently changed such that it was safe for him to be discharged from treatment or to transitional release. Sipe further alleged he was indigent and requested appointment of an expert to examine him and provide testimony supporting his petition. Sipe also moved for appointment of counsel. The district court appointed counsel and scheduled a hearing to consider Sipe's request for appointment of an expert.

After performing the annual examination of Sipe's mental condition in March 2008, Mayda Nel Strong, Ph.D, found that Sipe had progressed in his treatment program but had been “unable to complete all course requirements” and had maintained satisfactory employment since March 2007. Dr. Strong concluded that Sipe's prognosis was “good but guarded due to his animosity towards the treatment program,” that he remained a sexually violent predator, and that it would not be safe to place Sipe in transitional release. SRS concluded Sipe's mental condition or personality disorder had not sufficiently changed for it to be safe for him to be at large, and

[44 Kan.App.2d 587]

did not authorize Sipe to petition for discharge. In May 2008, SRS forwarded the 2008 annual review to the district court, which then appointed Bruce Nystrom, Ph.D, to examine Sipe.

Dr. Nystrom's testing revealed Sipe had “no indications of a significant psychological disorder.” However, Nystrom noted that the results of one test indicated [s]ome degree of cognitive distortion and justification of his sexual deviance” and he concluded Sipe had “a personality based tendency to be immature, self-centered, and demanding of attention and affection.” Nystrom further concluded Sipe represented a ‘medium’ risk of reoffending and recommended he be transferred to transitional release.

Following a February 2009 hearing at which the district court considered reports from Drs. Strong and Nystrom and heard arguments from counsel, the district court concluded Sipe failed to establish probable cause that his mental condition or personality disorder had sufficiently changed, and denied Sipe's petition to seek discharge. The court stated:

“And the reasons for this finding are going to be from the two reports that have been submitted, specifically, I'll start with Dr. Nystrom's. Dr. Nystrom's report indicates that there is some degree of cognitive distortion and justification of a sexual deviance. He does put in his report that the current psychological test results do not indicate a significant psychological disorder.

“I would agree with the State that the initial confinement of Mr. Sipe was also based on the diagnosis of pedophilia. And Mr. Nystrom's report fails to give the Court any basis-well, any basis to find probable cause that the pedophilia diagnosis has in someway changed.

“In fact, I'm going to read again from Nystrom's report; actuarial risk assessments pointed to a medium risk of future sex offending. That's a concern of the Court's. And in Dr. Nel Strong's report, and I'm actually looking at her conclusion; finds and indicates that Mr. Sipe remains a sexually violent predator.

We've made a record regarding Mr. Sipe's lack or reluctance to complete the progression of the treatment programs. And, quite frankly, I can't see Mr. Sipe ever getting any kind of a favorable report until he either cooperates or whatever the problem is out there. He needs to cooperate, gets the initiative to move through the remaining steps of that program.

“Therefore, under 59-029a08 [ sic ] the Court finds that there's not probable cause existing to believe that his mental abnormality of [ sic ] personality disorder has so changed that he's safe to be placed in transitional release.”

In the journal entry denying Sipe's petition, the district court reiterated that its ruling was based upon Dr. Nystrom's report finding

[44 Kan.App.2d 588]

Sipe to be at medium risk of reoffending. Additionally, the court noted that Sipe was originally diagnosed with pedophiliaand that Nystrom's report did not suggest that he had been cured of that condition.

Application of K.S.A.2009 Supp. 59-29a08

In this appeal of the district court's denial of his petition for discharge, Sipe contends that by impermissibly weighing conflicting expert reports, the district court improperly applied the probable cause standard.

Overview of SVPA

To obtain an order of involuntary civil commitment, the State is required to prove beyond a reasonable doubt that the person it seeks to commit is a sexually violent predator. K.S.A.2009 Supp. 59-29a07(a). A sexually violent predator is “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.” K.S.A.2009 Supp. 59-29a02(a). The term “personality disorder” is not defined in the SVPA, but “mental abnormality” is defined as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” K.S.A.2009 Supp. 59-29a02(b). The term “sexually violent offense” is also defined by statute....

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9 cases
  • In re Burch
    • United States
    • Kansas Supreme Court
    • December 28, 2012
    ...issued its opinion in this case, another Court of Appeals panel considered this same issue in In re Care & Treatment of Sipe, 44 Kan.App.2d 584, 239 P.3d 871 (2010). There, as here, the petitioner argued the district court erred in concluding at his annual review hearing under 59–29a08(c)(1......
  • In re K.E.
    • United States
    • Kansas Supreme Court
    • March 16, 2012
    ...389, Syl. ¶ 2, 153 P.3d 1227 (2007) (party who asserts abuse of discretion bears burden of showing it); In re Care & Treatment of Sipe, 44 Kan.App.2d 584, 592, 239 P.3d 871 (2010) (“[A]s a general rule the burden of proof lies with the moving party or the party asserting the affirmative of ......
  • In the Matter of The Care And Treatment of Johnny D. Twilleger.
    • United States
    • Kansas Court of Appeals
    • August 26, 2011
    ...release, he or she has the burden to establish probable cause for a second hearing on the issue. In re Care & Treatment of Sipe, 44 Kan.App.2d 584, 592, 239 P.3d 871 (2010). Hence, the district court must consider the evidence in the light most favorable to the committed person to “determin......
  • In re Care and Treatment of Clements
    • United States
    • Kansas Court of Appeals
    • November 13, 2020
    ...person's mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release." Sipe, 44 Kan.App.2d at 592-93. Clements' annual review, the trial court determined that Clements had failed to show probable cause to believe that his mental abn......
  • Request a trial to view additional results

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