In re Merryfield

353 P.3d 472 (Table)

In the Matter of the Care and Treatment of Dustin J. MERRYFIELD.

112,972.

Court of Appeals of Kansas.

July 31, 2015.

Review Denied Dec. 14, 2015.

Donald R. Snapp, of Newton, for appellant.

Natalie Chalmers, assistant solicitor general, of Office of the Kansas Attorney General, for appellee.

Before BRUNS, P.J., Hill and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Dustin J. Merryfield appeals the district court's determination that he failed to establish probable cause that his antisocial personality disorder has so changed as to warrant advancement in the Kansas Sexual Predator Treatment Program (SPTP) or to be placed in transitional release. He contends that the district court was obligated to appoint an independent examiner on his behalf as well as to hold a separate hearing to determine if the licensed clinical psychotherapist who conducted his annual review was an expert witness. But the plain and unambiguous language of both K.S.A.2014 Supp. 59–29a08(a) and K.S.A.2014 Supp. 60–457(b) indicate that such decisions are discretionary with the district court. Furthermore, Merryfield has failed to show that he has a constitutional right to an independent examiner under the circumstances presented.

Merryfield also asserts that the report of his annual review was irrelevant and that it was inappropriate for the district court to rely on the report. We find, however, that the report was relevant to establish the current state of Merryfield's personality disorder as well as the progress—or lack thereof—he made in the SPTP. Moreover, we do not find that the district court relied on inadmissible hearsay evidence in making its probable cause determination. Lastly, we find that Merryfield failed to carry his burden at the probable cause hearing to establish that his antisocial personality disorder has so changed as to warrant advancement in the SPTP or to be placed in transitional release. Thus, we affirm.

Facts

In 2000, Merryfield was found to have suffered from an antisocial personality disorder and was civilly committed to the SPTP. On December 3, 2013, Merryfield received an Annual Notice of Right to Petition for Release from Treatment over the Secretary's Objection. See K.S.A.2014 Supp. 59–29a08(a). At the time, Merryfield was in phase three of a seven-phase program—the final phase of the SPTP is also known as transitional release.

Attached to the notice was a report prepared by Keri Applequist, M.S., LCP—a licensed clinical psychotherapist employed at Lamed State Hospital. Her report detailed Merryfield's progress in the SPTP between November 2012 and November 2013. Ultimately, Applequist found that Merryfield had made only “slight progress” during the previous year. Accordingly, she concluded that Merryfield continued to suffer from a mental abnormality or personality disorder that made it likely that he would engage in repeated acts of sexual violence. As such, Applequist recommended that Merryfield not advance to transitional release.

Shortly thereafter, Merryfield filed a pro se petition for annual review, motion for appointment of independent examiner, and motion to be allowed discovery. Through appointed counsel, Merryfield also filed motions in limine seeking to exclude Applequist's report from evidence as well as any testimony related to his progress in the SPTP, claiming that such evidence was not relevant to his petition for annual review. In addition, Merryfield's counsel filed a motion to request a hearing to determine whether Applequist qualified as an expert or to determine whether she could present relevant evidence at the probable cause hearing. Lastly, Merryfield's counsel filed an objection entitled “Respondent's Formal Objection to the Court Setting or Holding an Annual Review,” claiming that Applequist did not conduct a proper examination.

The district court conducted a probable cause hearing on November 3, 2014, at which Merryfield appeared in person and with counsel. Before Applequist testified, the State offered her report into evidence but Merryfield's attorney objected. The district court then took the matter under advisement. Ultimately, the district court denied Merryfield's motions in limine and admitted the report into evidence. The report confirmed that Merryfield was in phase three of the SPTP. The report also stated that Merryfield told a therapist other than Applequist that he was not interested in advancing to phase four of the program, having previously done so.

Applequist testified that she personally interviewed Merryfield on November 13, 2013. During the interview, Merryfield stated that he had been attending group therapy sessions about 80 percent of the time but that he had not been presenting to the group. When asked by Applequist about what he had accomplished in treatment over the previous year, Merryfield replied “ain't really been nothing this past year.” In addition, Applequist testified that therapists emphasize the importance of persons in the SPTP preparing a relapse prevention plan to assist them in transitioning back into society but that Merryfield had not presented one. Accordingly, Applequist concluded that although Merryfield had made slight progress in the SPTP, his personality disorder had not so changed that it would be safe to advance him to transitional release.

Merryfield argued during the hearing that Applequist's report was inadmissible hearsay. In denying Merryfield's motion in limine, the district court found that Applequist's report was based on facts or data reasonably relied upon by professionals in this particular field. In addition, the district court stated that the report was largely based on her interview of Merryfield rather than on inadmissible evidence. The district court also denied Merryfield's other motions filed prior to the probable cause hearing. Lastly, the district court determined that no probable cause existed to believe that Merryfield's antisocial personality disorder had so changed that it was safe to advance him from phase three of the SPTP to transitional release.

Analysis

On appeal, Merryfield raises several arguments. He initially argues that the district court erred by denying his motion to appoint an independent examiner. In addition, he briefly argues that the district court was statutorily required to hold a separate hearing to determine whether Applequist qualified as an expert witness. Merryfield also argues that Applequist's report is irrelevant and that the district court relied on inadmissible hearsay contained in the report when it made its probable cause determination. Lastly, Merryfield generally argues that Applequist's report was somehow insufficient.

Both the Kansas Supreme Court and panels of this court have provided significant overviews of the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq. See In re Care & Treatment of Burch, 296 Kan. 215, 219–22, 291 P.3d 78 (2012) ; In re Care & Treatment of Twilleger, 46 Kan.App.2d 302, 306–07, 263 P.3d 199 (2011) ; In re Care & Treatment of Merryfield, No. 110,529, 2014 WL 2229141, at *2–3 (Kan.App.) (unpublished opinion), rev. denied 300 Kan. –––– (2014). In summary, the SPTP is a seven-phase program, in which the first four phases represent the intensive inpatient treatment portion of the program while the last three phases focus on assisting committed individuals to transition back into society. See Burch, 296 Kan. at 219–20. As indicated above, the last phase of the program—which Merryfield seeks to be placed in—is known as transitional release. At all times relevant to this appeal, however, Merryfield was in phase three of the SPTP.

Appointment of Independent Expert

Merryfield contends that upon his request, the district court was obligated to appoint an independent examiner on his behalf. K.S.A.2014 Supp. 59–29a08(a) —which addresses the procedure for annual review of the mental condition of a person committed to the SPTP—provides that “[t]he person may retain, or if the person is indigent and so requests the court may appoint a qualified professional person to examine such person ....“ (Emphasis added .) Hence, whether an independent examiner should be appointed at the annual review stage should be left to the discretion of the district court. Twilleger, 46 Kan.App.2d at 310 ; see In re Care & Treatment of Miles, 42 Kan.App.2d 471, 474, 213 P.3d 1077 (2009).

Abuse of discretion means that a district court's decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). Merryfield does not attempt to show that the district court's decision not to appoint an independent examiner was arbitrary, fanciful, or unreasonable. Likewise, he does not attempt to show that the district court's decision was based on an error of fact. Instead, he offers only legal arguments to support his interpretation of K.S.A.2014 Supp. 59–29a08.

Initially, Merryfield argues that the Kansas Supreme Court's ruling in Burch, 296 Kan. 215, alters Twilleger and prior caselaw that held that the decision to appoint an independent examiner is within the discretion of the district court. Specifically, Merryfield points to language in Burch stating that “[t]he committed individual also has rights under this section, including (1) the right to retain or, if indigent, to have appointed a qualified professional person to examine such person; and (2) to have such expert or professional person have access to all records concerning the person.” 296 Kan. at 220. Not only is it important to note that our Supreme Court was simply paraphrasing—not quoting—K.S.A.2011 Supp. 59–29a08(a), it is also important to note that the district court in Burch had in fact appointed an independent examiner on behalf of the committed person. See In re Care & Treatment of Burch, No. 102,468, 2010 WL 3324271, at *1 (Kan.App.2010) (unpublished...