Opinion
No. 108,843.
2013-08-30
In the Matter of the Care and Treatment of Floyd R. MONDRAGON.
Appeal from Franklin District Court; Eric W. Godderz, Judge. Forrest A. Lowry, of Bezek, Lowry & Hendrix, of Ottawa, for appellant. Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge.
Forrest A. Lowry, of Bezek, Lowry & Hendrix, of Ottawa, for appellant. Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Before MALONE, C.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Floyd R. Mondragon appeals the denial of his petition for transitional release and the appointment of an expert. Mondragon argues the district court erred in denying his request, pursuant to K.S.A.2009 Supp. 59–29a08, for a court-appointed psychiatric expert to examine him prior to the probable cause hearing. Finding the district court properly exercised its statutory authority to deny Mondragon's request, we affirm.
Facts
On March 29, 2010, Mondragon filed a petition for transitional release and the appointment of an expert, seeking either discharge or transitional release from the Sexual Predator Treatment Program (SPTP) at Larned State Hospital. Mondragon had been at Transitional House Services (THS) on the grounds of the Osawatomie State Hospital, but had been sent back to SPTP for a violation. His petition explicitly requested the appointment of an expert “in order to conduct the psychological assessment” to show his continued improvement since his previous annual review.
While Mondragon's petition was pending, the Secretary of Social and Rehabilitation Services issued two separate notices stating Mondragon had not made sufficient progress in the treatment program for the Secretary to authorize Mondragon to petition for release from the program.
The State opposed the court appointment of an expert to examine Mondragon, stating his progress was “not commensurate” with transitioning out of the program entirely. The State claimed Mondragon had not made a showing of “necessity” for the appointment of an expert to examine him pursuant to K.S.A. 59–29a06. The State submitted In re Care & Treatment of Miles, 42 Kan.App.2d 471, 213 P.3d 1077 (2009), for the position a finding of “necessity” is a prerequisite to the appointment of an expert.
The district court denied Mondragon's request for appointment of an expert, ruling it was “not necessary” after “reviewing the court file, the Annual Reviews ... and hearing the arguments of counsel.” The most recent annual report relied on by the district court stated Mondragon had not disclosed a “fantasy log” and was not honest with staff about his health, prompting the transition board to remove him from THS at Osawatomie and place him back at the SPTP at Larned State Hospital.
The district court subsequently held a probable cause hearing on Mondragon's petition and found he did not qualify for transitional release.
Mondragon timely appeals.
Analysis
Mondragon argues the district court misinterpreted K.S.A.2009 Supp. 59–29a08 when it denied his petition for an appointed psychiatric expert because it did not have any “probable cause to believe [Mondragon's] mental abnormality or personality disorder [had] changed to a degree that transitional release may be a possibility.” The State and Mondragon each have a different opinion on our standard of review. The State argues our standard of review is for an abuse of discretion. Mondragon argues our standard of review is de novo, but he fails to brief the issue. We find our standard of review on errors in law under the Sexually Violent Predators Act, K.S.A. 59–29a01 et seq. , is unlimited. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). Did the District Court Err in Denying Mondragon's Request for Appointment of an Expert?
K.S.A. 59–29a06 requires a district court to appoint an expert when an indigent sexually violent predator “wishes to be examined by a qualified expert or professional person of such person's own choice” and when “the services are necessary.” K.S.A. 59–29a06(b). The district court has to make a “necessary” finding pursuant to instruction from another panel of this court. In re Care & Treatment of Miles, 42 Kan.App.2d at 479–80. The district court here found an expert was “not necessary.”
During the annual review process, K.S.A.2009 Supp. 59–29a08(c)(1) and (3) requires the appointment of an expert if probable cause exists “that the person's mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release,” and the court sets a hearing on transitional release. At other stages of the annual review process, the district court “may” appoint an expert to examine the sexually violent predator. K.S.A.2009 Supp. 59–29a08(a).
Mondragon's petition requested both the appointment of an expert and his transitional release. When considering Mondragon's petition, the district court made an explicit finding that appointment of an expert was not necessary because he lied about his medical conditions and fantasy log. This complies with the statutory requirement under K.S.A. 59–29a06 and avoids the concerns regarding compliance with that statute expressed by this court in In re Care & Treatment of Miles.
The district court also considered whether appointment would be appropriate under K.S.A.2009 Supp. 59–29a08. The district judge stated: “[T]he statute requires that I have to find some probable cause to believe that [Mondragon's] mental abnormality or personality disorder has changed to a degree that transitional release may be a possibility. If I can't find that probable cause I'm not going to appoint an expert and that's what the statute says.” (Emphasis added.) Although Mondragon argues “that is not what the statute says,” the district court accurately reflected the requirements for moving from the discretionary grant of an appointed expert under K.S.A.2009 Supp. 59–29a08(a) to a mandatory appointment under K.S.A.2009 Supp. 59–29a08(c)—namely, that the district court find probable cause to set an evidentiary hearing. Lacking a probable cause finding, the district court was not required to appoint an expert. We find no error in the district court's denial of a court-appointed psychiatric expert for Mondragon.
Affirmed.