This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kevin Goodno, Commissioner of Human Services,
Filed October 31, 2006
Toussaint, Chief Judge
Judicial Appeal Panel
Mike Hatch, Attorney General, Jonathan Geffen, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127; and
Richard W. Jackson, Jr., Houston County Attorney, 304 South Marshall Street, Room 201, Caledonia, MN 55921 (for respondent)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
The judicial appeal panel denied appellant’s petition for transfer, provisional discharge, or full discharge from his commitment as mentally ill and dangerous. Because the judicial appeal panel’s findings are supported by the evidence and because we conclude that appellant does not meet the statutory requirements for discharge, we affirm.
D E C I S I O N
1985, appellant Nevada Silverpony, a/k/a Jerry D. Ekker, was convicted of
attempted criminal sexual conduct after hitting and attempting to rape a woman. He was sent to prison for five years. In 1990, appellant was convicted of attempted
criminal sexual conduct in the first degree after stabbing a woman. He was incarcerated at
1995, appellant was diagnosed with major depression, chemical dependency, and
antisocial personality disorder. He was civilly committed to the
In June 2003, a doctor removed appellant’s diagnoses of panic disorder with agoraphobia and major depression because appellant admitted that he lied about his symptoms. He is now diagnosed with polysubstance dependence and antisocial personality disorder. In January 2004, appellant was assigned the maximum sex offender risk level of three. In March 2004, appellant attempted to escape and was physically restrained by staff; in May 2004, he ingested drugs in an attempt to appear ill and prompt a move to a less secure facility.
In 2005, appellant filed a petition for transfer to a non-secure facility, provisional discharge, or full discharge. After a hearing, the special review board denied his petition. He petitioned the judicial appeal panel for rehearing and reconsideration of the denial. After another hearing, the judicial appeal panel dismissed his petition. He now challenges that dismissal, arguing that the judicial appeal panel’s findings are not sustained by the evidence and that he meets the statutory criteria for discharge.
1. Judicial Appeal Panel Findings
In reviewing a decision of the judicial
appeal panel, the appellate court must determine from an examination of the
record if the evidence as a whole sustains the panel’s findings. Piotter
v. Steffen, 490 N.W.2d 915, 919 (
The judicial appeal panel found that appellant “is appropriately diagnosed with Paraphilia, sexual sadism.” Appellant argues that this finding is not sustained by the evidence because he was originally committed as mentally ill and dangerous and cannot now be diagnosed with paraphilia.
But the judicial appeal panel relied for its finding on two psychologists who examined and diagnosed appellant in 1994-95 and again in 2003. They explained the discrepancy between appellant’s original mentally ill and dangerous classification and his current diagnosis as paraphiliac. One psychologist testified that, in 1994-95, “My ultimate conclusion was that [appellant] was maybe a better fit for mentally ill and dangerous” but added: “If I was doing this evaluation again today, I would not have opined that way . . . . I would have given an opinion that he was a sexually dangerous person.” The psychologist explained that, in 1994-95, “I was clear about his sex offending. I wanted to be sure for community safety . . . that he would have to have sex offender treatment, and that’s why I felt the [mentally ill and dangerous] was an appropriate thing to do to give him a chance.” When asked if appellant had the major mental illness that led to his mentally ill and dangerous classification in 1994-95, the psychologist said, “[When] I saw him in ‘94, I felt he did. But what I learned is that he was faking. He was postulating, he was posturing himself. . . . He knew what was up, so he certainly thought that a [mentally ill and dangerous] commitment would be a much better shot [than a sexually dangerous person commitment] for him.”
The other psychologist submitted a written report stating that
[Appellant] was well aware of [the likelihood of civil commitment after release from prison] and had ample time to arrange a response. In my opinion, his response was to attempt to change the potential commitment from that of a sex offender to one of [mentally ill and dangerous]. I believe he thought this would result in placement in a “preferred facility.”
. . . .
It is my opinion that [appellant] presents the symptoms of whatever illness he believes would be beneficial to him at the moment. Perhaps it is true that he should have been committed as a sex offender in 1995. However, as a result of his own choosing (and with my support) he instead was committed as [mentally ill and dangerous].
The judicial appeal panel’s finding that appellant is appropriately diagnosed with paraphila is sustained by the evidence.
The judicial appeal panel also found: “Until [appellant] successfully completes treatment for this disorder, he remains extremely dangerous to the public.” Again, the testimony of a psychologist who examined appellant in 1994-95 and in 2003 provides support for this finding. He testified that appellant “has not completed the type of sexual offending programming that is absolutely required to even consider whether or not he should be released to an open hospital” and that “all of the psychologists and psychiatrists agree that [appellant] needs sex offender treatment, and that equates to he is still a danger to the community.”
Evidence sustains the judicial appeal panel’s findings that appellant is correctly diagnosed with paraphilia and will be dangerous to the public until he completes sex-offender treatment.
2. Statutory Criteria for Discharge
court reviews de novo whether a set of facts meets statutory criteria.
A. Transfer Out of Secure Facility
to be considered in determining whether transfer out of a secure facility is
appropriate include (1) clinical progress and treatment needs; (2) need for
security to accomplish treatment; (3) need for continued institutionalization;
(4) facility that can best meet treatment needs; and (5) safety of the
The record shows that appellant needs and has repeatedly failed to complete sexual offender treatment and that he is not now willing to be enrolled in a sexual offender program. He has repeatedly escaped from the secure facility to which he was committed and has demonstrated that he is unable to refrain from the use of chemicals or to control his sexual impulses, from which medical professionals inferred his need for continued institutionalization and his potential danger to the public. Appellant does not meet the criteria for transfer to a less secure facility.
B. Provisional Discharge
to be considered in determining whether provisional discharge is appropriate
include continuing need for treatment and supervision in the current treatment
setting and safety of the public and successful adjustment to the community
provided by the provisional discharge plan.
As one psychiatrist noted in his report,
Twice in the past four years [appellant] has demonstrated he is unable to effectively function outside of a controlled setting. Twice he has escaped and engaged in the risky behavioral combination of drug use and sexual activity. In my opinion it is likely that the combination of these elements presents a significant risk of future harmful behavior for [appellant].
. . . .
In my opinion, [appellant] is not capable of making an adjustment to open society and continues to be in need of inpatient treatment and supervision. As a result, he continued to present a danger to the public.
Appellant’s escapes and his conduct during those escapes demonstrate that he remains a danger to the public and does not successfully adjust to the community. He does not meet the criteria for provisional discharge.
C. Full Discharge
Criteria to be considered in
determining whether full discharge is appropriate are “whether specific
conditions exist to provide a reasonable degree of protection to the public and
to assist the patient in adjusting to the community.”
that full discharge is appropriate, appellant relies on language from the risk
appraisal done by two psychologists before the judicial appeal panel hearing. “Concerning mitigating factors, [appellant]
has not engaged in serious assaults, either violent or sexual, while at
Appellant does not meet the statutory criteria for transfer to a less secure facility, provisional discharge, or full discharge.
Appellant also raises due process and equal protection issues, but these issues
are not properly before us because appellant did not raise them to the judicial
appeal panel. See Roby v. State, 547 N.W.2d 354, 357 (
is defined as socially prohibited sexual practices; among its features are
behaviors involving the suffering or humiliation of one’s partner. See B.M.B.
v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 820 n.3 (
 Appellant raises the issue of whether he is “mentally ill and dangerous to the public” within the meaning of Minn. Stat. § 253B.02, subd. 17 (2004). But appellant was committed under this classification 11 years ago. The issue now is whether he meets the criteria for any type of discharge.