In re Care and Treatment of Sells

I
                          NOT DESIGNATED FOR PUBLICATION

                                             No. 123,020

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS


                           In the Matter of the Care and Treatment of
                                      WILLIAM E. SELLS.


                                  MEMORANDUM OPINION

       Appeal from Wyandotte District Court; CONSTANCE M. ALVEY, judge. Opinion filed April 2,
2021. Affirmed.


       Christopher Cuevas, of Kansas City, for appellant.


       Jerry C. Edwards, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before SCHROEDER, P.J., MALONE, J., and MCANANY, S.J.


       PER CURIAM: William E. Sells appeals the district court's denial of his request for
an independent examiner and his petition for transitional release under the Kansas
Sexually Violent Predator Act (KSVPA), K.S.A. 2020 Supp. 59-29a01 et seq. Sells
claims the district court abused its discretion by failing to appoint an independent
examiner and the district court erred in finding there was no probable cause to believe
that his mental abnormality or personality disorder had significantly changed to warrant
an evidentiary hearing on whether it would be safe to place him in transitional release.
After carefully reviewing the record and the arguments of the parties, we affirm the
district court's judgment.




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                                            FACTS

       Sells is 81 years old. In 1988, he received a diversion on one count of indecent
liberties with a child, based on sexual conduct with his 13-year-old daughter. In 1993,
Sells was convicted of two counts of aggravated criminal sodomy after admitting to
having sexual contact with the 13-year-old daughter of a man he met while in sex
offender treatment. In 1999, the State filed a petition alleging that Sells was a sexually
violent predator under the KSVPA. The district court committed Sells to the sexual
predator treatment program in 2000.


       In accordance with the KSVPA, Sells received annual examination reports, each
concluding that his mental condition or personality disorder had not significantly changed
so that it would be safe to place him in transitional release. Over the years, Sells filed
many petitions for release that were denied by the district court.


       In March 2018, Sells advanced to tier two of the three-tier program. According to
his 2018 annual report, Sells had difficulty on the tier two outings and either approached
or failed to avoid minors. Sells was placed on probation because he failed to show
appropriate awareness and avoidance actions and he had several instances of
noncompliance with program rules. On October 23, 2019, Sells was reduced back to tier
one because he failed to meet the expectations to remain on tier two. Sells appealed the
tier reduction but the reduction was upheld.


       Sells' most recent annual review, filed in March 2020, again concluded that his
mental abnormality or personality disorder had not significantly changed so that it would
be safe to place him in transitional release. The report confirmed that Sells remained on
tier one, skills acquisition. As for disciplinary action, the report stated that in June 2019,
Sells allegedly violated a program rule by possessing a glass bottle although this violation

                                               2
was dismissed because Sells was not properly served. The report also noted that in May
2019, Sells "took a peer's sandwich."


       On the positive side, Sells obtained the highest privilege level, the "purple" or
"royal" privilege level, by complying with rules and registration requirements and
paperwork, attending 100% of groups and classes, maintaining constant program
advancement and hygiene requirements, and room cleanliness. Because of his privilege
level, Sells was eligible for employment and worked as a laundry porter. Sells attended
13 open leisure sessions, and enrolled in tier two psycho-education courses, including
assertive option and pre-outing courses. The report stated that Sells participated well but
struggled with the pre-outings class.


       As part of the annual examination, Sells completed actuarial risk assessment
instruments. The Static-99R-2003, used to estimate the probability of reoffending, scored
Sells at a "-1" which placed him in the "[b]elow [a]verage [r]isk" category. Sells also
completed the ACUTE-2007, which measures "dynamic factors" and the offender's
general recidivism risk. Sells received a score of "1" which reflected a moderate priority
for recidivism and moderate priority for sex and violence risk. The report noted that his
risk score was impacted by the rejection of supervision. He also completed the STABLE-
2007, which assesses change in intermediate-term risk, assesses treatment needs, and
helps predict recidivism in sexual offenders. He scored a 4 out of 26, placing him in the
moderate treatment needs category due in part to his capacity for relationship stability,
sexual deviant interest, and cooperation with supervision. When all three risk assessments
were considered together, Sells scored in the "[m]oderate risk/need" category.


       The report stated that Sells continued to suffer from pedophilic disorder,
posttraumatic stress disorder, and other specified personality disorders with antisocial and
paranoid traits. It concluded that Sells remained a sexually violent predator and his


                                              3
mental abnormality or personality disorder had not significantly changed so that it would
be safe to place him in transitional release.


       Sells requested an annual review hearing and moved for the appointment of an
independent examiner, and the district court held a hearing on the matter. Sells did not
appear in person but was represented by counsel. Sells' counsel proffered Sells' "side of
the story" in which Sells acknowledged having a problem understanding his surroundings
but said it was because his hearing aids were broken, he has cataracts in his left eye, and
he was almost 81 years old. Sells also commented on his side of the glass bottle incident,
but the court noted that the report revealed that the glass bottle violation was ignored
because nothing was administratively filed. After hearing his statement, the district court
denied Sells' request for the appointment of an independent examiner, finding that
because of his regression from tier two back to tier one, he had not shown sufficient
progress in his treatment to justify the cost of an independent examiner.


       As for transitional release, the district court acknowledged Sells' age and his
hearing and eyesight problems but still found he failed to show probable cause that his
mental abnormality or personality disorder had significantly changed so that it would be
safe to place him in transitional release. In support of its finding, the district court pointed
to Sells' tier reduction, his inability to avoid or identify risks, and his lack of ability to
identify the issues that put him in this position. Sells timely appealed.


Did the district court abuse its discretion by failing to appoint an independent examiner?

       On appeal, Sells first claims the district court abused its discretion by failing to
appoint an independent examiner for his annual review. Under the KSVPA, the
committed person may request that the district court appoint an independent examiner.
K.S.A. 2020 Supp. 59-29a08(c). In deciding whether to appoint an examiner, the district
court must "consider factors including the person's compliance with institutional

                                                4
requirements and the person's participation in treatment to determine whether the person's
progress justifies the costs of an examination." K.S.A. 2020 Supp. 59-29a08(c).


   Sells argues that he complied with institutional requirements as evidenced by his
purple privilege level. He also contends that he was participating in treatment as
evidenced by his purple privilege level, the record of classes and groups he attended over
the past year, his attendance of an individual therapist session quarterly, and his
completion of all requested evaluations and assessments. The State acknowledges that
Sells is participating in his treatment but argues that his progress does not warrant an
independent examiner. The State argues that Sells violated institutional requirements as
evidenced by his tier reduction.


       The appointment of an independent examiner is discretionary. K.S.A. 2020 Supp.
59-29a08(c). Thus, this court reviews the district court's decision on whether to appoint
an independent examiner for an abuse of discretion. In re Care & Treatment of Twilleger,

46 Kan. App. 2d 302

, 310, 

263 P.3d 199

(2011). Judicial discretion is abused if the
judicial decision (1) is unreasonable; (2) is based on an error of law; or (3) is based on an
error of fact. State v. Thomas, 

307 Kan. 733

, 739, 

415 P.3d 430

(2018). The party
asserting an abuse of discretion bears the burden of showing 

abuse. 307 Kan. at 739

.


       The district court denied Sells' request for the appointment of an independent
examiner, finding he had not shown sufficient progress in his treatment to justify the cost
as a result of his tier reduction. The district court's decision was reasonable. While Sells
is correct that he was participating in treatment and complying with the program
requirements necessary to obtain the purple privilege level, the district court had to
consider "whether [Sells'] progress justifie[d] the costs of an examination." K.S.A. 2020
Supp. 59-29a08(c). The district court stated that Sells' tier reduction, because of
unsuccessfully completing his outings, showed he was regressing rather than progressing
in the program. We conclude the district court did not abuse its discretion by failing to

                                              5
appoint an independent examiner. See, e.g., In re Care & Treatment of Merryfield, No.
110,529, 

2014 WL 2229141

(Kan. App. 2014) (unpublished opinion) (finding that the
district court reasonably denied petitioner's request for an independent examination when
he was only on phase three of the then seven phase treatment program).


Did the district court err in finding there was no probable cause to believe that Sells'
condition had changed?

       Next, Sells claims the district court erred when it found there was no probable
cause to believe that his mental abnormality or personality disorder had significantly
changed so that it would be safe to place him in transitional release. The State counters
that the district court correctly denied Sells' petition for transitional release because of his
regression in the program and his struggles while on tier two.


       A person committed under the KSVPA must have an examination of his or her
mental condition once every year. K.S.A. 2020 Supp. 59-29a08(a). A committed person
may request an annual review hearing and petition for transitional release. K.S.A. 2020
Supp. 59-29a08(b). At the annual review hearing, the committed person has the burden
"to show probable cause to believe the person's mental abnormality or personality
disorder has significantly changed so that the person is safe to be placed in transitional
release." K.S.A. 2020 Supp. 59-29a08(d). If the district court previously denied a petition
for transitional release because the person's condition had not significantly changed,
"then the court shall deny the subsequent petition, unless the petition contains facts upon
which a court could find the condition of the petitioner had significantly changed so that
a hearing was warranted." K.S.A. 2020 Supp. 59-29a11(a).


       Appellate courts apply a de novo standard of review over the district court's
decision at an annual review hearing on whether probable cause existed to believe that
the person's mental abnormality or personality disorder had significantly changed so that


                                               6
it would be safe to place the person in transitional release. In re Care & Treatment of
Burch, 

296 Kan. 215

, 223, 

291 P.3d 78

(2012). Because Sells bears the burden of proof,
the court must consider the evidence in the light most favorable to 

him. 296 Kan. at 225

.


       Sells argues that the district court incorrectly focused on the tier reduction, when
"the information that supported this tier reduction was insufficient, and at the very least
contradicting." He argues the reduction was based in part on his alleged noncompliance
with program rules but neither violation stemmed from sexual behavior, instead it was for
the alleged possession of a glass bottle and for taking food. Sells argues that the evidence
showed he did not do or think anything inappropriate. Sells also points to the results of
the Static-99R which revealed he was at below average risk for reoffending. The State
asserts that Sells' tier reduction was because of his struggles on the community outings
and rule violations, which shows he is not ready for transitional release.


       As a preliminary matter, Sells' assertion that he was reduced back to tier one only
because of minor rules violations is not supported by the record. Sells had difficulty on
tier two community outings and either approached or failed to avoid minors. He was
placed on probation and ultimately removed from tier two. In any event, Sells
administratively appealed the tier reduction and it was upheld, so whether there was
sufficient evidence to support the tier reduction is not directly at issue in this appeal.


       Sells points to his "below average risk" score on the Static-99 as supporting a
finding of probable cause. In support of this assertion, he cites In re Care & Treatment of
Sipe, 

44 Kan. App. 2d 584

, 

239 P.3d 871

(2010) for the proposition that a person with a
score of medium risk or below establishes probable cause. But Sipe is distinguishable and
does not stand for the proposition Sells claims. Sipe's annual review report stated that he
remained a sexually violent predator, but the district court appointed an examiner to also
evaluate Sipe. The appointed examiner disagreed and found that Sipe showed no current


                                               7
indications of psychological disorders and presented a medium risk of reoffending. The
appointed examiner recommended transitional release.


       The district court denied Sipe's petition finding he remained a sexually violent
predator, but a panel of this court reversed the 

decision. 44 Kan. App. 2d at 594

. The
panel found that the district court should have taken the evidence in the light most
favorable to Sipe and since there was evidence, from the independent examiner, that he
no longer suffered from a mental abnormality or personality disorder, the district court
should have found probable cause existed to hold an evidentiary hearing.


       Sipe does not stand for the broad proposition that a person with a score of medium
risk or below establishes probable cause for release. And unlike in Sipe, Sells' annual
report revealed that he still suffered from multiple mental abnormalities or personality
disorders including, pedophilic disorder, posttraumatic stress disorder, and other specified
personality disorders with antisocial and paranoid traits. Although Sells had a "below
average risk" score on the Static-99, he disregards the other actuarial results, that when
taken together, placed him in the "[m]oderate risk/need" category.


       Even taking the evidence in the light most favorable to Sells, he fails to show
probable cause to believe his mental abnormality or personality disorder had significantly
changed so that it would be safe to place him in transitional release. While Sells is on the
highest privilege level and is making some progress in the program by taking classes, he
is still only on tier one of the three-tier program. He also continues to suffer from
pedophilic disorder, posttraumatic stress disorder, and other specified personality
disorders with antisocial and paranoid traits. Based on the entire record, we conclude the
district court did not err in denying Sells' request for transitional release.


       Affirmed.


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