Opinion
110,474.
01-02-2015
In the Matter of the Care and Treatment of Herbert DOWNEY.
Shannon S. Crane, of Hutchinson, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Shannon S. Crane, of Hutchinson, for appellant.
Natalie Chalmers, assistant solicitor general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
LEBEN, J.
Herbert Downey appeals the district court's holding that he received effective assistance of counsel during his civil-commitment proceedings and its decision to commit him under the Kansas Sexually Violent Predator Act. Downey's counsel, Gregory Bell, stipulated to the admission of all of the State's documentary evidence—including hearsay evidence—and to the admission of Downey's expert's report, which was unfavorable to Downey, and then agreed to have the court decide whether Downey should be committed without any witness testimony. Bell made no oral argument on Downey's behalf and didn't submit a brief or proposed findings of law on which the court could have based a decision to release Downey. On these facts, Bell failed to test the State's case through the adversarial process, which constitutes ineffective assistance of counsel. Downey is entitled to a new commitment hearing with adequate representation.
Factual and Procedural Background
Shortly before his release date in 2013, the State petitioned to have Downey classified as a sexually violent predator and involuntarily committed to a hospital for sex-offender treatment. At the time, Downey was serving a 202–month sentence for the rape and aggravated criminal sodomy of a 2–year–old girl, whom he admitted raping anally and vaginally and whom he photographed being forced to give him oral sex. In support of its petition, the State attached a clinical-services report, which contained test scores indicating Downey's likelihood of reoffending (low) and a list of aggravating factors that increased the likelihood that he would reoffend. The clinical-services report recommended that Downey receive intensive supervision and location monitoring after his release.
In response to the State's petition, the district court ordered a probable-cause hearing to determine whether the State had alleged a sufficient basis for having Downey evaluated according to the sexually-violent-predator criteria. After the hearing, the court ordered Larned State Hospital, which houses the sex-offender program, to evaluate him.
The hospital's evaluation concluded that Downey met the criteria to be classified as a sexually violent predator. It supported this conclusion with a forensic evaluation, which included information from an interview with Downey about the abuse he had suffered as a child, his sexual proclivities, and his drug addictions. It also included the results of additional tests conducted to measure Downey's potential for reoffending (low and moderate).
The district court then granted Downey permission to obtain an evaluation of whether he qualified as a sexually violent predator under the criteria of the Kansas Sexually Violent Predator Act. Downey's attorney, Bell, retained psychologist Dr. Stanley Mintz, who concluded that Downey's risk of reoffending was low but suggested that he would benefit from continued sex-offender rehabilitation. In a letter in response to Mintz' report, Bell asked the evaluator for a clear answer on whether Downey met the criteria for a sexually violent predator. Mintz replied in a letter that Downey met the criteria. Bell did not attempt to procure another expert for Downey; instead he disclosed the unfavorable evaluation and reply letter to the State.
On August 15, 2013, Downey waived a jury trial, and Bell proposed that the court decide the case on stipulated facts and documents. Among the stipulated facts the parties agreed to:
• Downey had been convicted of the rape and aggravated criminal sodomy of a 2–year–old and had served a 202–month sentence in the Kansas Department of Corrections.
• While in prison, Downey had completed a sex-offender-treatment program.
• The current legal action had begun when the State had filed a petition to have him evaluated.
• The court had found it had probable cause to believe Downey met the Act's criteria and had ordered an evaluation.
• The hospital's report stated that Downey met the definition of a sexually violent predator, and the evaluator retained by Downey's attorney agreed.
The parties also stipulated to the admission of numerous documents, including the prison's files regarding Downey's incarceration, the hospital's forensic report, Mintz' evaluation, and the accompanying letters between Bell and Mintz. Bell did not submit proposed findings of fact or law on which the court could base a decision to release Downey, and the parties did not present oral arguments on Downey's case.
The court found that Downey qualified as a sexually violent predator under Kansas law. Relying heavily on the two expert evaluations (Downey's and the State's), the court found that Downey “[met] the statutory criteria to be deemed a sexually violent predator and suffers from a mental abnormality or personality disorder which makes it likely for him to engage in repeated acts of sexual violence. Accordingly, the court finds beyond a reasonable doubt that Herbert Downey is a sexually violent offender pursuant to K.S.A. 59–29a01 et seq. ”
The court then committed Downey to the custody of the Kansas Department for Aging and Disability Services to be placed in a secure facility for control, care, and treatment. Downey appealed, and Bell withdrew from representing him.
Downey then moved the court to find that Bell had provided ineffective assistance of counsel. He argued that by agreeing to a trial on stipulated facts and evidence, Bell had failed to explore the positive information in the experts' evaluations and had failed to elicit evidence from witnesses supporting his position that he should not be committed. He also argued that because Bell had stipulated to the admission of the evaluations and because the evaluations relied on records that contained hearsay, the trial court based its finding that he was a sexually violent predator in part on hearsay that would not have been admitted if Bell had not stipulated to the facts and the evidence.
The court held an evidentiary hearing on Downey's ineffective-assistance-of-counsel motion. Downey's new attorney called Bell to testify. Bell testified that his strategy had always been to rebut the allegations that Downey needed care and should be involuntarily committed.
Bell admitted to drafting the stipulated facts on which Downey's hearing was based. He stated that he stipulated to the correctional facility's records because Downey wanted to show the court that he had completed sex-offender treatment. Bell admitted he could likely have introduced only the favorable parts of the facility's records without stipulating to all of them if he had opted to go to trial but stated that he didn't know if doing so would have prevented the State from introducing unfavorable evidence. Bell also said he had requested the evaluator's conclusion on whether Downey should be committed to Larned because he felt it was unclear in the report and he didn't want to hear the answer for the first time in front of a jury, especially if Mintz favored committing Downey. Bell did not testify about why he stipulated to the admission of Mintz' report or to the letter confirming that Mintz believed Downey should be committed.
Bell explained that he opted to pursue the case without a hearing and on stipulated documents because: (1) Downey's underlying offense against the 2–year–old girl was fairly notorious, and he thought a jury would consider it a heinous crime; (2) he didn't want law-enforcement officers providing too many details about Downey's crimes because he thought it would harm Downey's chances of prevailing; and (3) the State had informed him that it would call all witnesses necessary to cure any problems with hearsay in its records.
In its decision denying Downey's motion, the district court noted that Downey had undergone multiple assessments that concluded he met the criteria for a sexually violent predator. It also discussed Bell's testimony that his decision not to have Downey's case tried at a live hearing had been a strategic one. As a result, the court concluded Downey's counsel had not been ineffective.
Downey again appealed. He argues that the district court erred in two ways: (1) by finding that his counsel was effective instead of granting him a new hearing with new counsel; and (2) by finding that he met the criteria for civil commitment without explicitly considering the fourth factor that civil commitment requires—his inability to control his dangerous behavior.
Downey's Counsel Was Ineffective.
Downey first argues that the district court erred by concluding that he had received effective assistance of counsel during his civil-commitment hearing. Under Kansas law, individuals that the State seeks to classify as sexually violent predators are guaranteed an attorney at all phases of the proceeding, including the civil-commitment hearing. K.S.A.2013 Supp. 59–29a06(b). The Kansas Supreme Court has held that inherent in this statutory right to counsel is also another right: the right to competent, effective assistance of counsel. In re Care & Treatment of Ontiberos, 295 Kan. 10, Syl. ¶¶ 1 –2, 25, 287 P.3d 855 (2012).
An individual the State seeks to classify as a sexually violent predator is therefore guaranteed the same level of representation that a criminal defendant is owed under the Sixth Amendment to the United States Constitution, and the same test of a counsel's effectiveness is used in both situations. In re Ontiberos, 295 Kan. 10, Syl. ¶ 7 ; In re Care & Treatment of Lowry, 48 Kan.App.2d 773, 789, 304 P.3d 696 (2013). That two-part test, first announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), asks whether counsel's performance fell below minimum standards and, if so, whether that worked to the prejudice of the defendant (here, the person whose commitment is at issue). In re Ontiberos, 295 Kan. 10, Syl. ¶ 8. Under extremely narrow circumstances, courts may presume prejudice under the second step—for example, when the adversarial process completely breaks down. United States v. Cronic, 466 U.S. 648, 656–57, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
After the evidentiary hearing on this issue, the district court concluded that Downey had failed to satisfy the Strickland test. When a district court conducts an evidentiary hearing on claims of ineffective assistance of counsel, we review the district court's decision in two steps. First, we review its factual findings to see if they were supported by substantial evidence and then we determine if those findings were sufficient to support the district court's legal conclusions. State v. Cheatham, 296 Kan. 417, Syl. ¶ 1, 292 P.3d 318 (2013). Second, we review the legal conclusions (here, application of the Strickland tests) independently, without any required deference to the district court. 296 Kan. 417, Syl. ¶ 1.
1. Bell's Performance Fell Below an Objective Standard of Reasonableness.
We first examine Bell's representation of Downey to determine whether it fell below an objective standard of reasonableness in light of all the circumstances. See Edgar v. State, 294 Kan. 828, Syl. ¶ 2, 238 P.3d 152 (2012). To ensure a fair evaluation of an attorney's effectiveness, our courts make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances under which the attorney made the challenged action or decision, and to evaluate the conduct from counsel's perspective at the time. Edgar, 294 Kan. 828, Syl. ¶ 2.
Several underlying principles come into play during this evaluation of the attorney's work. Because a wide range of strategic decisions may be appropriate in a single case, deliberate decisions based on strategy can't establish ineffective assistance of counsel. Hunt v. State, 48 Kan.App.2d 1023, 1033, 301 P.3d 755 (2013), rev. denied December 27, 2013. Conversely, defense counsel cannot disregard pursuing a line of investigation and call it trial strategy. 48 Kan.App.2d at 1033. Further, counsel may be ineffective for failing to call witnesses to refute the State's witnesses' testimony—even when counsel alleges a strategic reason for doing so—if the decision does not actually further the attorney's strategy for the case. Shumway v. State, 48 Kan.App.2d 490, Syl. ¶ 3, 500–02, 293 P.3d 772 (2013), rev. denied October 1, 2013. For example, in Shumway, our court held that failing to call an alibi witness to refute the State's theory of the crime was not strategic and was below minimum standards when the decision left the State's case unchallenged and when no other evidence advanced the attorney's strategy of proving the defendant's innocence. 48 Kan.App.2d at 501–02, 512.
Downey argues that Bell's performance fell below the constitutional minimum because he stipulated to all of the facts and evidence, including the State's hearsay evidence, and he did not cross-examine the State's witnesses in an attempt to undermine their testimony. The State claimed—and the district court agreed—that all of Bell's decisions in Downey's case were strategic. As a result, the district court deferred to Bell's judgment.
To determine whether Bell's choices furthered some strategy, we must first identify what his strategy was. Bell testified it was “to rebut the allegation that Mr. Downey [wa]s in need of care and treatment as defined in the Sexual Predator Act.” But the State points to nothing that Bell did to further this objective.
As in Shumway, Bell left the State's case unchallenged and failed to present evidence supporting a ruling in his client's favor. Bell did not object to the admission of any of the State's evidence before stipulating to it or reserve the right to object to the stipulated evidence on grounds other than foundation. He did not write proposed findings of fact or law suggesting a way the court could rule in Downey's favor, did not highlight any of the evidence that supported releasing Downey (like his low libido at age 50, the tests that showed he presented a low risk of reoffending, his remorse, his release plan, or his participation in sex-offender or substance-abuse treatment), and did not discredit any of the State's evidence that supported committing him (such as the validity of the test results or the witnesses' credibility). Bell claimed he wanted to rebut the State's allegations that Downey was a sexually violent predator, but other than the fact that the immense record Bell stipulated to contained some evidence—which he didn't highlight or comment on—that supported releasing Downey, Bell made no argument that Downey should not be committed.
We base our decision on an overall appraisal of Bell's work. Many of the deficiencies we have noted, standing alone, might not lead to a finding of ineffective assistance of counsel. For instance, merely stipulating to the State's evidence in a civil-commitment hearing, where the attorney reserves the right to object to the evidence on grounds other than foundation, is not necessarily below minimum standards. See Lowry, 48 Kan.App.2d at 775–76 ; In re Care & Treatment of Chubb, No. 105,570, 2014 WL 278697, at *5–6 (Kan.App.2014) (unpublished opinion), rev. denied June 20, 2014. Nor is agreeing to a bench trial on stipulated facts always an indicator that counsel was ineffective, especially if the client was advised of the consequences of forgoing a trial and agreed that doing so best served his interests for some reason. Scott v. Werholtz, 38 Kan.App.2d 667, 672–73, 171 P.3d 646 (2007), rev. denied 286 Kan. 1180 (2008). But in Downey's case, Bell did not reserve the right to object to the evidence on any grounds; there is no evidence that Downey appreciated the consequences of having a bench trial on stipulated facts, and Bell did nothing to test the State's claims through an adversarial process.
Downey's appellate counsel has not argued that Bell was ineffective for failing to locate a second expert who might have provided a more favorable report. That may be because our court determined in Lowry that an attorney is not automatically ineffective for failing to locate a favorable expert when the first expert provides an unfavorable opinion. Lowry, 48 Kan.App.2d at 794 (citing Sidebottom v. Delo, 46 F.3d 744, 753 [8th Cir.], cert. denied 516 U.S. 849 [1995] ). In our case, of course, Bell not only failed to get a second expert but also decided to disclose Mintz' unfavorable opinion. He was not required to do so. See K.S.A. 22–3213(c)(1) –(2) (defendant only required to disclose medical reports or expert's opinion if defendant requests discovery from the State and plans to call the expert at trial or to use the report as evidence); K.S.A.2013 Supp. 60–226(b)(5)(D) (opposing party in civil litigation generally cannot discover opinions of expert who is not called as a trial witness); In re Care & Treatment of Foster, 280 Kan. 845, 853–54, 127 P.3d 277 (2006) (noting that while a sexually-violent-predator determination is a civil proceeding, it has criminal characteristics); see also People v. Coyne, 2014 IL App. (1st) 123105, ¶¶ 15–16, 19 N.E .3d 55 (holding that unfavorable expert reports made for respondent were not discoverable by the State in sexually-violent-predator proceeding if expert wasn't a trial witness). Bell not only disclosed this information but also stipulated to its admission. When considering Bell's overall work on Downey's behalf, we cannot say that Bell provided effective representation.
One might argue that Mintz' evaluation contained more positive than negative information, but the supplemental letter Mintz wrote to Bell stating that Downey should be committed was in no way positive. The letter harmed Downey's case and was a part of the record only because Bell disclosed it and then stipulated to its admission.
We conclude that Bell's representation of Downey fell below an objective standard of reasonableness. The district court erred by finding that Downey did not meet the first prong of the ineffective-assistance-of-counsel test.
2. Downey's Failure to Prove Prejudice Isn't Fatal Because the Adversarial Process Completely Broke Down, Which Results in Presumed Prejudice.
We must next examine whether Downey was prejudiced by Bell's performance. See Ontiberos, 295 Kan. at 40. To do so, we examine whether there is a reasonable probability that the result of Downey's commitment proceeding would have been different if Bell had performed adequately. Crowther v. State, 45 Kan.App.2d 559, 564, 249 P.3d 1214, rev. denied 293 Kan. 1105 (2011). A reasonable probability that the outcome would have been different means that Bell's errors undermined this court's confidence in the outcome. 45 Kan.App.2d at 564.
The State argues that Downey failed to prove that he was prejudiced by Bell's performance, both at the ineffective-assistance-of-counsel hearing and on appeal. This is true. Downey did not show—with any probability—that the trial's outcome would have been different if Bell had adequately represented him. Though the facts indicate that Downey was likely prejudiced by Bell's representation—Bell shared unfavorable evidence with the State, stipulated to its admission, and made no argument that Downey should not be committed despite tests showing he presented only a low risk of reoffending—a failure to establish prejudice generally precludes the court from granting any relief, such as ordering a new trial.
But there is a narrow exception to the requirement that a defendant show prejudice. That narrow exception is generally referred to as the Cronic exception, based on the United States Supreme Court case in which it was first applied. Cronic, 466 U .S. at 662. It is a very “narrow exception” that applies only “infrequently [when] the ‘surrounding circumstances [will] justify a presumption of ineffectiveness.’ “ Florida v. Nixon, 543 U.S. 175, 189–90, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (quoting Cronic, 466 U.S. at 662 ). The exception is reserved for situations where counsel has “entirely failed to function as the client's advocate,” Nixon, 543 U.S. at 189, and has “ ‘entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing.’ [Citation omitted.]” Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ; accord State v. Sharkey, 299 Kan. 87, 100–01, 322 P.3d 325 (2014) ; State v. Adams, 297 Kan. 665, 669–70, 304 P.3d 311 (2013) ; State v. Fuller, No. 100,026, 2009 WL 4639506, at *2–3 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1098 (2010). As a result, this exception is seldom applied. Nixon, 543 U.S. at 189 ; Edgar, 294 Kan. at 839 ; State v. Davis, No. 108,356, 2013 WL 3867839, at *2 (Kan.App.2013) (unpublished opinion).
This is the rare situation that meets the exception. While Downey may have been committed regardless of what Bell did, Downey was entitled to a defense. The State made its case that Downey should be committed, and Bell did nothing to oppose it, thereby “entirely fail[ing] to subject the [State's] case to meaningful adversarial testing.” Cronic, 466 U.S. at 659–61. There was no way that the trial judge could have ruled in favor of Downey with two experts recommending his commitment—and no attempt to undermine their conclusions through cross-examination. As a leading treatise summarizes the test, “The critical question ... is whether counsel's performance was so deficient that the process ‘lost its character as a confrontation between adversaries,’ producing an ‘actual breakdown of the adversary process.’ “ 3 LaFave, Israel, King & Kerr, Criminal Procedure § 11.7(c) (3d ed.2007) (quoting Cronic, 466 U.S. at 654, 658 ); see State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000) (stating that “the right to the effective assistance of counsel is ... the right ... to require the prosecution's case to survive the crucible of meaningful adversarial testing”). Downey's trial failed that test.
The Cronic exception does not apply whenever the defense counsel enters into some evidentiary stipulations that may make the prosecution's case easier to prove. See Lee v. Ryan, No. CV–04–39–PHX–MHM, at *28 (D.Ariz.2010) (unpublished opinion); Pratt v. State, 134 Idaho 581, 584, 6 P.3d 831 (2000). But here, defense counsel stipulated to all of the State's evidence and did not subject any of it to testing through an adversarial process.
The State had the burden of proof, and its evidence was not tested through an adversarial process. We therefore presume prejudice under Cronic and hold that Downey's counsel was ineffective. Downey is therefore entitled to a new trial.
The District Court Should Make Findings About Each Element the State Is Required to Prove to Civilly Commit a Sexually Violent Predator.
We have already determined that this case requires a new trial, so a second issue Downey raised on appeal cannot affect the result of this appeal. However, we will address it briefly because the issue could arise again on remand.
To classify an individual as a sexually violent predator, the State must establish four elements beyond a reasonable doubt: (1) that the individual has been convicted of or charged with a sexually violent offense; (2) that the individual suffers from a mental abnormality or personality disorder; (3) that the individual is likely to commit repeat acts of sexual violence because of the mental abnormality or the personality disorder; and (4) that the individual has serious difficulty controlling his or her dangerous behavior. K.S.A.2013 Supp. 59–29a02(a) ; K.S.A.2013 Supp. 59–29a07(a) ; In re Care & Treatment of Williams, 292 Kan. 96, Syl. ¶¶ 3–4, 253 P.3d 327 (2011). Downey argues that the district court failed to make any findings regarding the fourth element and that as a result, it applied an erroneous legal standard when deciding to commit him.
The State argues that we should ignore this argument because Downey did not file a motion at the district court requesting it to make findings on the fourth element. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (noting general rule that litigant must object to inadequate findings, giving district court opportunity to correct them, to present issue of findings' adequacy on appeal). But another panel of this court has persuasively foreclosed the State's objection in cases like Downey's noting that when the district court fails to make findings on all of the elements in a case involving the civil commitment of a sexual offender, the argument is not merely about the sufficiency of the findings but about the legal standard the district court applied to its ultimate decision. See In re Patterson, No. 107,232, 2013 WL 2395313, at *4–5 (Kan.App.2013) (unpublished opinion), rev. denied January 29, 2014. Because both civil and criminal courts must apply the correct legal standard when adjudicating a dispute, we may consider whether the district court properly analyzed the fourth required element in Downey's case. See J.N.L.M. v. Miller, 35 Kan.App.2d 407, 416, 130 P.3d 1223 (2006) ; State ex rel. Secretary of Dept. of S.R.S. v. Davison, 31 Kan.App.2d 192, 196–98, 64 P.3d 434 (2002) ; Patterson, 2013 WL 2395313, at *6.
The State argues that because the other three elements of the classification test are statutorily based and the final element is not, the district court does not have to make findings about the final element. But Kansas Supreme Court and United States Supreme Court precedent tell us otherwise. In Crane, the United States Supreme Court clarified that an individual's inability to control dangerous behavior must be proved or commitment under the Kansas Sexually Violent Predator Act is not constitutional: “[T]here must be proof of serious difficulty in controlling behavior.” (Emphasis added.) 534 U.S. at 413. Likewise, the Kansas Supreme Court, in applying Crane, added the fourth factor to its classification test for sexually violent predators. Williams, 292 Kan. 96, Syl. ¶ 3. Under Crane and Williams, the State must prove beyond a reasonable doubt that an individual it wishes to commit has difficulty controlling his or her dangerous behavior. To allow for appropriate appellate review, the district court should make an explicit finding about this fourth element (as well as the others). The State's argument that the district court didn't need to evaluate the fourth factor must fail.
Because Downey did not receive representation meeting minimum standards, we reverse the district court's judgment and remand the case for further proceedings consistent with this opinion.