Opinion
No. 108,798.
2013-06-7
Timothy J. BURCH, Appellant, v. Kathleen M. LYNCH, Twenty–Ninth Judicial District Judge, et al., Appellees.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge. Timothy J. Burch, appellant pro se. Stephen Phillips, assistant attorney general, for appellee Kathleen M. Lynch.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.
Timothy J. Burch, appellant pro se. Stephen Phillips, assistant attorney general, for appellee Kathleen M. Lynch.
Kimberly M.J. Lynch, senior litigation counsel of the Kansas Department for Aging and Disability Services, for appellees Office of the Kansas Attorney General, the State of Kansas, and the Kansas Department for Aging and Disability Services.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Timothy J. Burch appeals the summary dismissal of his petition for writ of habeas corpus filed pursuant to K.S.A. 60–1501. Burch is a sexually violent offender committed to the Larned State Security Hospital (Larned). His challenges involve rulings in 2009 and 2010 that resulted in his continued confinement.
In 1989, Burch was convicted of three counts of aggravated criminal sodomy, five counts of indecent liberties with a child, and two counts of sexual exploitation of a child. In May 2002, the Wyandotte County District Court placed Burch in Social and Rehabilitation Services (SRS) custody under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq. , and committed him to Larned.
In 2008, Burch filed a petition in Wyandotte County District Court for transitional release. The court found that Burch's mental condition had not changed sufficiently to justify placement into transitional release at that time. A panel of this court affirmed the district court's decision. See In re Care & Treatment of Burch, No. 102,468, 2010 WL 3324271 (Kan.App.2010) (unpublished opinion). The Kansas Supreme Court granted a petition for review in May 2011 and entered a decision affirming the district court and Court of Appeals on December 28, 2012. The Supreme Court held Burch had failed to establish the requisite probable cause entitling him to a full evidentiary hearing on his petition for discharge or transitional release. In re Care and Treatment of Burch, 296 Kan. 215, 225–29, 291 P.3d 78 (2012).
In the meantime, the State had issued a status report and a notice of the right to petition for release over SRS secretary's objection in July 2009 and August 2010. The Wyandotte District Court subsequently issued orders for continued confinement in July 2009 and August 2010 as well. It does not appear that Burch filed any motions in response to the 2009 ruling. However, in his petition filed in 2011, Burch states that on September 27, 2010, he filed the following documents: (1) Respondent's Pro Se Motion for Relief From Judgment; (2) Respondent's Memorandum of Law in Support of His Motion for Relief From Judgment with Attachments; (3) Respondent's Petition for Transitional Release, Conditional Release, or Final Discharge; (4) Respondent's Objection to Annual Report; (5) Respondent's Memorandum of Law in Support of Objection to Annual Report; (6) Respondent's Motion for Independent Evaluation; (7) Respondent's Motion for Protective Order; and (8) Respondent's Memorandum of Law in Support of Motion for Protective Order.
On September 27, 2010, and May 20, 2011, the Wyandotte District Court sent Burch letters informing him that while appellate review of his case was pending, the appellate court had exclusive jurisdiction. Consequently, the court stated it was without jurisdiction to hear any motions in the case until a substantive ruling from the appellate court. Burch did not appeal from any of the district court rulings or decisions that it lacked jurisdiction to consider his various motions for release.
In 2011, while the Kansas Supreme Court was considering Burch's appeal in the 2008 case, he continued his litigious filings in the district court. On June 28, 2011, Burch filed a petition for writ of habeas corpus under K.S.A. 60–1501 in Wyandotte County. Burch argued he was being unconstitutionally confined at Larned in Pawnee County. The district court summarily denied Burch's petition on July 13, 2011. Burch appealed to this court. On March 2, 2012, we did not address the merits of his arguments and held that Burch filed his petition in the wrong county; pursuant to 60–1501, he should have filed his petition in Pawnee County where he was confined. See Burch v. Lynch, No. 106,612, 2012 WL 718991 (Kan.App.2012) (unpublished opinion).
On March 19, 2012, Burch filed his petition for writ of habeas corpus in Pawnee District Court as summarized below. In his K.S.A. 60–1501 motion, Burch alleged:
1. Judge Lynch signed the order for continued custody on July 29, 2009, only 4 days after the State submitted its paper work. Burch claims a due process violation for not having 21 days to respond under K.S.A. 60–212(a) (20 days to file defenses and objections to petition). He also claims the judge's orders were accepted and signed ex parte—because he received no notice—and they failed to include sufficient findings and conclusions under Kansas Supreme Court Rule 165 (2012 Kan. Ct. R. Annot. 262) and K.S.A. 60–252.
2. Judge Lynch's order for continued confinement on August 26, 2010, did not list any reasons for denial of Burch's request for an independent examination. Burch also raised similar due process arguments that he was denied time to respond to the State's paper work before Judge Lynch entered her order.
3. The proposed journal entries submitted by SRS in 2009 and 2010 with their recommendation to continue confinement were not properly before the court and denied Burch the right to be heard.
4. Judge Lynch erred in finding that the district court did not have jurisdiction to grant an annual review or the myriad of motions he filed on September 27, 2010, due to the pending appeal in Burch's 2008 annual review and the decision that Burch failed to show probable cause to believe his mental abnormality or personality disorder had so changed that he was safe to be placed in transitional release. Judge Lynch also sent Burch letters on September 27, 2010, and May 20, 2011, stating the district court had no jurisdiction while his 2008 annual review was pending.
5. Judge Lynch allowed the State to file all the documents supporting a continuation of his commitment, but she then unfairly denied him an annual review because the 2008 case was still pending in the Kansas Supreme Court.
6. The SRS reports submitted in 2009 and 2010 did not list any mental abnormality or personality disorder that Burch currently had at the time of the report and also failed to list appropriate details under K.S.A. 60–235(b).
7. The annual review of his case meant that he was on a yearly commitment and if SRS did not file the appropriate documents within a calendar year, he was serving an illegal confinement.
8. Judge Lynch ordered the file stamp on his 2010 objections to be whited-out in order for it to read September 27, 2010, instead of the original date of September 23, 2010.
On September 10, 2012, the Pawnee District Court summarily dismissed Burch's 60–1501 petition, finding he had failed to appeal any of the orders of the Wyandotte District Court for which he now complains and he had not raised any allegations sufficient to establish shocking and intolerable conduct by the defendants. The Pawnee District Court specifically found that Burch had been advised on multiple occasions by the Wyandotte District Court that the appellate courts had exclusive jurisdiction in his civil commitment case and that during the appellate process the Wyandotte District Court was without jurisdiction to hear his motions. The Pawnee District Court concluded:
Under the circumstances expressed in this action as the same relate to Case No. 01PR412, the Petition fails to allege continuing mistreatment of a constitutional stature in that the District Court of Wyandotte County, Kansas has rightfully acknowledged that exclusive jurisdiction in the Wyandotte County case presently rests with the Appellate Court. There is no evidence before the Court that the Petitioner appealed that Order, or otherwise attempted to request partial remand of the Wyandotte County proceedings from the Appellate Court to the District Court of Wyandotte County, Kansas.
The issue of Judge Lynch not being a proper defendant in Burch's K.S.A. 60–1501 proceeding was not raised by the defendants, including the Attorney General, below. Further, they did not file a cross-appeal from any ruling by the district court either. The fact that this 60–1501 case has been to this court before with the same defendants and this is the first challenge to Judge Lynch as a defendant furthers an argument that we should not address the issue. See State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007) (as a general rule, absent exceptional circumstances, appellate courts do not consider issues on appeal that were not raised by the parties); see also Douglas v. Lombardino, 236 Kan. 471, 490, 693 P.2d 1138 (1985) (appellee's failure to cross-appeal deprived court of jurisdiction to consider appellee's briefed issues). The Attorney General attempts to skirt the issue of whether this issue is properly on appeal by arguing that dismissal as to Judge Lynch was the right result, but for a different reason than expressed by the district court. The Attorney General then insists that we can apply a right for the wrong reason standard to the question. See State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012) (if a district court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision).
The Pawnee District Court did not dismiss this case against Judge Lynch. Instead, the court found that Burch had failed to directly appeal any of the 2009 and 2010 issues he now raises on appeal and that he failed to alleged shocking and intolerable conduct by the defendants. The defendants' failure to raise the issue below precludes our review. Judge Lynch's status as a defendant should have been challenged by the defendants when Burch filed his K.S.A. 60–1501 petition in Wyandotte County in 2011 and refiled it in Pawnee County in 2012.
Burch argues that he has a protected liberty interest in the State conducting an annual review of his mental condition. See K.S.A.2012 Supp. 59–29a08. He argues the denial of an annual review is a violation of his constitutional rights. He claims that while the 2008 proceedings were on appeal, the district court was not prevented from conducting future annual reviews. Burch insists that it is shocking and intolerable conduct for the district court to continue to confine him, inform him that the court would not consider any motions in his case because of the appellate review, but then grant the State's motions/documents supporting continued confinement. He also argues the orders continuing his confinement were issued ex parte and thus unappealable. Consequently, he maintains K.S.A. 60–1501 is his only recourse.
We first address the jurisdictional caveat from the Wyandotte District Court. The court acted under the principle that when a case is appealed, the district court loses jurisdiction until resolution of the appellate case. There are few if any exceptions to the general rule that district courts lose jurisdiction over a matter once the appeal has been docketed. Court rules and case law make it clear that once the appeal is docketed in the appellate courts, the district court loses jurisdiction. City of Kansas City v. Lopp, 269 Kan. 159, 160, 4 P.3d 592 (2000). While Burch appealed the Wyandotte District Court's decision in the 2008 hearing continuing his confinement, the issues of that appeal were limited to the 2008 proceedings. We understand the Wyandotte District Court's logic, but find its position to be erroneous because the individual annual review hearings present an appealable situation under the KSVPA. We liken the situation to a parole inmate who appeals the denial of parole. If the appellate process carries on until the next parole hearing, the hearing would not be postponed simply because the infirmities of the prior hearing are still on appeal.
The Wyandotte District Court, as affirmed by the Pawnee District Court, erred in finding that it had lost jurisdiction over Burch's KSVPA proceedings when he appealed the denial of his petition for release or discharge or transitional release in 2008. The Kansas statutes are clear on the requirement for annual review proceedings for those individuals who continue to be confined as sexually violent predators. The annual proceedings are not based on whether an individual under the KSVPA custody has appealed a prior ruling that release or transitional release is denied.
Once involuntarily committed, a sexually violent predator is entitled to an annual review of his or her mental condition. Following the review, the Secretary of the SRS is required to provide the committed person with written notice of the person's right to petition for discharge over SRS's objection and a form to waive that right. The committed person may retain, or if indigent may request appointment of, a professional to perform an independent examination. SRS is required to forward a copy of the annual review, including a copy of the written notice and waiver form, to the district court that initially committed the person. K.S.A.2012 Supp. 59–29a08(a).
The district court must then determine whether continued commitment is warranted. The KSVPA contemplates a court hearing for that determination. The committed person is not entitled to be present at the hearing but has a right to be represented by counsel at the hearing and may petition for discharge during the hearing. K .S.A.2012 Supp. 59–29a08(a), (b); In re Care & Treatment of Miles, 42 Kan.App.2d 471, 474, 213 P.3d 1077 (2009). At the annual review hearing, [i]f the court ... determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, then the court shall set a hearing on the issue. K.S.A.2012 Supp. 59–29a08(c)(1).
If the district court makes a probable cause determination and sets a second hearing, the State is required 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. K.S.A.2012 Supp. 59–29a08(c)(3). At the second hearing, the committed person is afforded the same rights as he or she was entitled to during the initial commitment proceeding. K.S.A.2012 Supp. 59–29a08(c)(3). If, after the hearing, the court or jury is convinced beyond a reasonable doubt that the person is not appropriate for transitional release, the court shall order that the person remain in secure commitment. Otherwise, the court shall order that the person be placed in transitional release. K.S.A.2012 Supp. 59–29a08(d). Armed with the same rights he or she had in the original confinement proceeding, the committed person can appeal to the Court of Appeals after denial of release after an annual review. See In re Care & Treatment of Burch, 296 Kan. 215, Syl. ¶ 9. (appellate court applies a de novo standard of review to the district court's denial of a petition for discharge or transitional release).
The problem faced by Burch in this case is that he failed to appeal the Wyandotte County District Court's decision to continue his confinement in 2009 and 2010 or even the decision that it did not have jurisdiction. He claims that he did not file any additional motions with the Wyandotte County District Court at that time because it would have been fruitless due to Judge Lynch's letters stating that she would not consider any motions filed in his confinement case until the appeal was resolved. All of the issues raised by Burch in his 60–1501 petition involved procedural/statutory requirements under the KSVPA and a claim that failure to follow the statutes resulted in a due process violation.
In the context of K.S.A. 60–1507 proceedings, habeas corpus proceedings cannot replace a direct appeal. Supreme Court Rule 183(c) (2012 Kan. Ct. R. Annot. 274) states that a proceeding under K.S.A. 60–1507 ordinarily may not be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. However, [m]ere trial errors must be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appeal. (2012 Kan. Ct. R. Annot. 275). Our Supreme Court has defined exceptional circumstances as ‘unusual events or intervening changes in the law.’ Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009). Burch should have filed a direct appeal from the Wyandotte District Court's failure to grant an annual review and similar statutory requirements under the KSVPA.
There are several cases dealing with K.S.A. 60–1501 in the context of sexually violent predators confined under the KSVPA. K.S .A. 60–1501 is certainly the vehicle by which sexually violent predators can challenge the conditions of their confinement. See Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009) (Johnson challenged issues of his confinement and the sexual predator treatment program, not the procedural irregularities or procedural due process of the confinement or annual review proceedings.); Watkins v. Siedlecki, No. 107,809, 2012 WL 4680158, at * 2, 5 (Kan.App.2012) (unpublished opinion) (Watkins filed his K.S.A. 60–1501 proceeding in Pawnee County. The court held Watkins had failed to demonstrate facts of shocking and intolerable conduct or continuing mistreatment of a constitutional nature.'); Bailey v. Howard, No. 106,573, 2012 WL 1072816 (Kan.App.2012) (unpublished opinion) (A confined sexually violent predator, located in Larned, alleged various violations of the Fourth Amendment and his right to be free from unlawful searches and seizures.).
The Kansas Supreme Court has also discussed ineffective assistance of counsel issues during a confinement hearing and concluded that K.S.A. 60–1501 is the proper vehicle to address those issues as well. In In re Care & Treatment of Ontiberos, 295 Kan. 10, 287 P.3d 855 (2012), Ontiberos was civilly committed to Larned by a jury as a sexually violent predator. He timely appealed the ruling to the Court of Appeals and when new counsel was appointed, counsel filed a motion alleging ineffective assistance of trial counsel at the commitment hearing. The Court of Appeals remanded for an evidentiary hearing on the ineffective assistance claim pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). The district court found that Ontiberos had received effective assistance of counsel. The Court of Appeals reversed the district court and concluded that Ontiberos was denied a fair trial because of trial counsel's errors and remanded for a new trial. In re Care & Treatment of Ontiberos, 45 Kan.App.2d 235, 255–56, 247 P.3d 686 (2011).
The Supreme Court found that Ontiberos had a constitutional right to counsel in KSVPA commitment proceedings, 295 Kan. at 24–25, and that a person detained under the KSVPA may raise an ineffective assistance of trial counsel claim on direct appeal using the Van Cleave remand procedure or through a collateral attack using K.S.A. 60–1501. 295 Kan. at 27. Much of the procedural discussion in Ontiberos involved the application of K.S.A. 60–1501 to the KSVPA proceedings. In 2012, the legislature cleared up all doubt with the enactment of K.S.A.2012 Supp.60–1501(c), which made 60–1501 expressly applicable to KSVPA proceedings:
c) Except as provided in K.S.A. 60–1507, and amendments thereto, a patient in the custody of the secretary of social and rehabilitation services pursuant to K.S.A. 59–29a01 et seq. , and amendments thereto, shall file a petition for writ pursuant to subsection (a) within 30 days from the date the action was final, but such time is extended during the pendency of the patient's timely attempts to exhaust such patient's administrative remedies.
See L.2012, ch. 90, sec. 2; effective July 1. The Ontiberos court agreed with the Court of Appeals and remanded for a new trial for Ontiberos based on ineffective assistance of counsel. 295 Kan. at 31–42.
We pause to comment on the proper venue for K.S.A. 60–1501 proceedings under the KSVPA and an inherent conflict. Original commitment proceedings of sexually violent predators occur in the county where the person was convicted of or charged with a sexually violent offense. K.S.A.2012 Supp. 59–29a04(a). Annual review under the KSVPA of the status of a committed person's mental condition occurs in the court that committed the person, K.S.A.2012 Supp. 59–29a08(a). However, the proper venue for all K.S.A. 60–1501(a) petitions is in the county of confinement. See K.S.A.2012 Supp. 60–1501(a). It appears the legislature's intent of keeping all the procedural issues involving a sexually violent offender's commitment in the county of conviction is undercut by 60–1501 proceedings in the county of confinement. Typical confinement-type issues and mistreatment issues under the KSVPA are contemplated by 60–1501 habeas proceedings. But the burden of all 60–1501 proceedings involving the KSVPA will fall on Pawnee County because the sexual predator treatment program is located at Larned. The burden of Ontiberos opening all ineffective assistance of counsel issues in KSVPA proceedings and other due process violations to a 60–1501 proceeding will fall squarely on the shoulders of Pawnee County.
The court in Merryfield v. State, Nos. 103,611, 103,612, 103,613, 2010 WL 5490743 (Kan.App.2010) (unpublished opinion) touched on the limit of the application of K.S.A. 60–1501 to the KSVPA. In K.S.A. 60–1501 proceedings in Pawnee County, Merryfield raised multiple confinement-type issues involving his constitutional rights under the KSVPA. Merryfield also raised a claim under the Uniform Mandatory Disposition of Detainer Act. The court stated:
Although Merryfield's argument is confusing, we are unable to discern any way in which any of Merryfield's constitutional rights have allegedly been violated based on any provision of this statute [the Detainer Act]. K.S.A. 60–1501 provides a method to raise claims that a person's confinement of conditions or confinement violate the individual's constitutional rights, not to raise claims that some right granted by statute has been infringed. See Johnson, 289 Kan. at 648–49. (Emphasis added.) 2010 WL 5490743, at *3.
In any event, K.S.A. 60–1501(a) states that any person in this state who is detained, confined, or restrained of liberty on any pretense whatsoever ... may prosecute a writ of habeas corpus. To determine whether a 60–1501 petition states a claim for relief, the court examines the allegations in the petition and the contents of any attachments to determine if the petition alleges shocking and intolerable conduct or continuing mistreatment of a constitutional nature. Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). Appellate courts must accept as true the allegations in the petition to determine whether the facts alleged—and the reasonable inferences that can be drawn from them—state a claim for relief. 285 Kan. at 679.
The United States Supreme Court has explained that in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Unfortunately conscience shocking is not always an easily applied test: While the measure of what is conscience shocking is no calibrated yard stick, it does ... ‘poin[t] the way.’ [Citation omitted.] 523 U.S. at 847.
We do not construe Burch's K.S.A. 60–1501 petition as making any allegation of shocking and intolerable conduct. In essence, Burch disagrees with the Wyandotte District Court that it lost jurisdiction over his KSVPA case when he appealed the denial of his petition for release or discharge or transitional release in 2008. As stated previously, we understand the Wyandotte District Court's logic based on standard appellate law but find it was erroneous. However, the Pawnee District Court held that Burch's K.S.A. 60–1501 allegations did not rise to a level of shocking or intolerable conduct. Burch was receiving due process at the time, just in the form of an appeal to the Kansas Supreme Court. Any error in the failure to grant Burch an annual review in 2009 and 2010 was lost or waived based on the fact he did not file and pursue direct appeals within 30 days of the Wyandotte District Court's decisions regarding the 2009 and 2010 annual reviews. See K.S.A. 60–2103(a). And furthermore, any error was harmless due to the fact that he will be able to present his arguments for any annual future review by filing a petition under K.S.A.2012 Supp. 59–29a08 that he should be released or start a transitional release from his confinement. See e.g., Walker v. U.S.D. No. 499, 21 Kan.App.2d 341, Syl. ¶ 5, 900 P.2d 850 (In the constitutional sense, error is harmless only if a court can state beyond a reasonable doubt that the error had little, if any, likelihood of changing the result. In the statutory sense, error is harmless only if it does not prejudice the substantive rights of a party.), rev. denied 257 Kan. 1097 (1995); accord State v. Ward, 292 Kan. 541, Syl. ¶¶ 5–6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012) (modifying and clarifying harmless error analysis). However, any future annual review hearings under the KSVPA should occur without regard to an appeal of a prior annual review.
Affirmed.