In re Schiller

In the Matter of the Civil Commitment of: Alan Joseph Schiller.

A18-1026

STATE OF MINNESOTA IN COURT OF APPEALS

January 14, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Bratvold, Judge

Sibley County District Court

File No. 72-PR-17-9

Daniel P. Repka, Repka Law, LLC, St. Paul, Minnesota (for appellant)

Keith M. Ellison, Attorney General, John D. Gross, Assistant Attorney General, St. Paul, Minnesota; and

David Schauer, Sibley County Attorney, Winthrop, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and Bratvold, Judge.

UNPUBLISHED OPINION

BRATVOLD, Judge

On appeal from his civil commitment, appellant raises two challenges. First, he contends that his indeterminate commitment as a sexually dangerous person and sexual psychopathic personality must be reversed because the evidence is insufficient. Second, he argues that the district court erred in denying his motion for a new trial based on ineffective assistance of counsel. Because we view the evidence in the light most favorable to the district court's decision, and expert testimony in the record established that appellant is highly likely to engage in harmful sexual conduct in the future and lacks the ability to control his sexual impulses, we conclude that the district court did not err when it found, by clear and convincing evidence, that appellant is sexually psychopathic and dangerous to other persons as defined by the applicable statutes. We also conclude that the district court did not err in denying appellant's request for a new trial because appellant established neither that (a) his trial counsel's representation fell below the objective standard of reasonableness, nor (b) a reasonable probability that, but for counsel's unprofessional errors, the outcome would have been different. Thus, we affirm appellant's civil commitment and its order denying appellant a new trial.

FACTS

In June 2008, J.O. spoke to a sheriff's deputy at the Cozy Corners Campground in Eden Lake Township, Minnesota, and reported that appellant Alan Joseph Schiller had sexually assaulted her 13-year-old son, D.L. J.O. stated that they had met Schiller the previous summer and Schiller was "very friendly" to J.O. and D.L. When D.L. did not return after he left to watch a movie at Schiller's camper, J.O. walked to the camper and saw D.L.'s underwear and pants on the floor. J.O. "pounded on the door" and Schiller came to the door. J.O. screamed, pushed passed Schiller, and saw D.L. come out of the bedroom wearing a shirt and holding clothing over his crotch. Schiller said he was sorry. J.O. left with D.L. and called police.

D.L. told police that he and Schiller took a boat ride and then went inside the camper to watch a movie. D.L. told Schiller that he had a stomach ache and Schiller rubbed D.L.'s stomach for about five minutes. Schiller then began rubbing D.L.'s "crotch" and took off D.L.'s pants and underwear; Schiller took D.L. to his bedroom and made him lay down on the bed, and Schiller started to "suck on [D.L.'s] penis." D.L. told Schiller he felt uncomfortable and asked him to stop, but Schiller told him that "it was okay." This lasted for about 30 seconds when D.L.'s mother arrived. When the police arrived, Schiller initially denied touching D.L. inappropriately and told officers that he had been drinking most of the day and did not remember details of the incident.

Schiller was 56 years old at the time of his arrest; he grew up on a farm, graduated from high school, and attended vocational school. He married in 1976, had two daughters, and was divorced in 1986. Schiller had both anger and alcohol problems after his divorce. At the time of his arrest, Schiller was active in the community, both at church and in other organizations.

Schiller was charged with one count of third-degree criminal sexual conduct. Schiller pleaded guilty to the charge and testified that he touched and put his mouth on D.L.'s penis. In August 2009, the district court convicted Schiller, stayed imposition of the guidelines sentence, and placed Schiller on probation for 15 years, with conditions that included completing outpatient sex-offender treatment and having no unsupervised contact with minors.

Schiller entered an outpatient sex-offender treatment program in May 2010. While in treatment, Schiller disclosed that he had sexually abused at least 15 victims beginningin 1969, when Schiller, at age 17, sexually abused a ten-year-old male. Schiller's admitted offenses occurred throughout the 39 year period examined during his commitment trial. Schiller was not previously charged; his other victims were males ranging in age from 10 to 34, but most of his victims were 12 to 14 years old. Schiller knew all but one victim through friends, family, or neighbors. Schiller committed many offenses either at his family farm or in his residence and committed one offense in a public bathroom. His offenses included fondling, oral sex, and anal sex.

Schiller's outpatient sex offender treatment program terminated him in August 2010 for failure to make adequate progress. From 2013 to 2015, Schiller violated probation conditions several times: he had unsupervised contact with minors, failed to re-enroll in treatment, enrolled in and was terminated from treatment, and refused to return to sex offender treatment due to a medical condition. Because of his probation violations, the district court executed Schiller's 36-month sentence in November 2015 and he was committed to the Minnesota Correctional Facility (MCF) in Lino Lakes.

On August 2, 2017, respondent Sibley County filed a petition to civilly commit Schiller as a sexually dangerous person (SDP) and sexual psychopathic personality (SPP). The district court appointed an attorney to represent Schiller in the commitment proceedings. The district court also appointed Dr. Linda Marshall, as the court's expert examiner. At Schiller's request, the court appointed Dr. Anne Pascucci as a second court examiner. The court-appointed psychologists interviewed Schiller and conducted independent assessments, their testimony and written recommendations were entered into evidence during the commitment trial.

Dr. Marshall's report, filed with the district court in November 2017, summarized Schiller's sexual history and sexual offenses. Dr. Marshall stated that, although Schiller is "a level two offender" and needs to continue with treatment, "there is insufficient criteria to commit [Schiller] as a Sexually Dangerous Person and Sexual Psychopathic Personality." Dr. Pascucci also filed a report, which stated that "Schiller does not meet the statutory requirements as a Sexually Dangerous Person and as a Sexual Psychopathic Personality. While he presents with a significant history of harmful sexual behavior and a sexual disorder, the results of the risk assessment . . . are indicative of an individual who is appropriate for treatment in the community."

The county retained a third psychologist, Dr. Rosemary Linderman, to review the record. Previously, Dr. Linderman had provided a pre-petition opinion that Schiller met the criteria for commitment. Dr. Linderman also interviewed Schiller. Her report supported Schiller's commitment as a SDP and SPP and was also received into evidence at trial.

The district court held a three-day trial on the commitment petition, starting on January 4, 2018. First, the state called Schiller to testify regarding his history of sexual behavior. Even after years of treatment, Schiller testified that D.L. became aroused when Schiller rubbed his stomach and that led him to abuse D.L. He also testified that D.L. seemed attracted to him and that Schiller believed, if he had not been drinking, he does not think he would have offended against D.L. When asked at trial about his community involvement and whether he was leading a double life, Schiller replied, "To a certain extent I think so."

Dr. Linderman acknowledged that she had been retained by the county to testify as an expert and testified that she "found evidence to support [Schiller] meeting the criteria" to be committed as a SDP and SPP. Dr. Linderman described Schiller's grooming pattern with victims, history of chemical dependency, lack of adequate control over his sexual impulses, and history of not complying with probation supervision. She opined that he was highly likely to sexually re-offend because he has a "lifelong proclivity to seek out minor males to engage in sexual behavior" with them. She also testified that Schiller cannot be safely released into the community.

Dr. Pascucci and Dr. Marshall testified consistent with their reports that Schiller did not meet the statutory criteria for commitment as either a SDP or SPP. Dr. Pascucci testified that she did not read any records before she interviewed Schiller and admitted that some of this information may have affected her assessment of his overall risk to reoffend. Dr. Marshall testified that five out of six factors increased Schiller's risk to re-offend, but she did not think that Schiller met the highly-likely-to-reoffend standard. All three examiners opined that Schiller had engaged in a habitual course of sexual misconduct and has one or more conditions that render him irresponsible for personal conduct with respect to sexual matters.

Sara Robinson, a social worker at the MCF-Lino Lakes, testified regarding Schiller's two-year participation in the sex-offender program, which she described as in the "primary phase." Robinson testified that Schiller was evasive regarding his uncharged victims. Robinson also explained that because Schiller's outpatient program did not share information with MCF, Schiller was able to "either deny or minimize his sex offenses" andhad a "persistent behavioral trait" of doing so "until confronted with documentation (or evidence) that contradicts his position." Robinson testified that Schiller's...