This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-96-883
C4-96-887

John H. Rydberg,
Appellant,

vs.

Maria Gomez, Commissioner of Human Services,
Respondent.

Filed September 10, 1996
Affirmed
Schultz, Judge

1

Judicial Appeal Panel
File No. JAP137

Lisbeth J. Nudell, 3228 Holmes Avenue South, Minneapolis, MN 55408 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Theresa M. Couri, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent Commissioner of Human Services)

Ross E. Arneson, Blue Earth County Attorney, Paige Snover, Assistant County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for Respondent Blue Earth County)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge
The judicial appeal panel denied John Rydberg's petition for discharge from commitment as a psychopathic personality. He appeals and we affirm.
FACTS

In 1993, appellant was committed indeterminately as a psychopathic personality. His commitment was affirmed by this court and the supreme court. In re Rydberg , No. C6-93-830 (Minn. App. Aug. 10, 1993), aff'd (Minn. Feb. 4, 1994).
Appellant then petitioned for discharge from his commitment. At the hearing before the judicial appeal panel, Dr. John Austin, the psychologist who was the court-appointed examiner, diagnosed appellant with personality disorder not otherwise specified with antisocial and schizoid features, and alcohol abuse by history. Dr. Thomas Gratzer, a Minnesota Security Hospital psychiatrist, concurred. Dr. Austin believed appellant was capable of making an acceptable adjustment to society and had no psychological disorder for which he needs treatment. He was unable to predict whether appellant poses a danger to society if released. Dr. Gratzer believed appellant would have difficulty adjusting to open society, that a secure setting would be the best form of treatment, and that he is at significant risk to reoffend.
The appeal panel issued an order on March 7, 1996, affirming the Commissioner's order denying appellant's request for discharge. On April 29, 1996, the panel issued amended findings of fact and order reaching the same result and, in addition, denying appellant's motions. Rydberg appeals from both orders.
D E C I S I O N

1. Appellant first challenges the sufficiency and constitutionality of the basis for his original commitment. The supreme court has held that in a discharge proceeding, the statutory criteria in Minn. Stat. § 253B.18, subd. 15 (1994), apply, rather than the standards for initial commitment as a psychopathic personality. Call v. Gomez , 535 N.W.2d 312, 319 (Minn. 1995).
Appellant argues that the supreme court's reasoning in Call should be readdressed in light of the facts he presented. We disagree and find Call controlling. Further, this court and the supreme court have already considered and rejected appellant's challenge to the merits of his commitment. In re Rydberg , No. C6-93-830 (Minn. App. Aug. 10, 1993) (order op.), aff'd (Minn. Feb. 4, 1994).
2. Appellant argues that continued confinement violates his constitutional guarantee against double jeopardy. The supreme court held that commitment under the psychopathic personality statute is remedial and does not constitute double jeopardy. Call , 535 N.W.2d at 320.
3. Finally, appellant challenges the appeal panel decision that he did not meet the standards for discharge. The appeal panel must determine whether the committed person who seeks discharge
is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.

Minn. Stat. § 253B.18, subd. 15; Call , 535 N.W.2d at 319. This court will review whether the evidence as a whole sustains the appeal panel's findings. Johnson v. Noot , 323 N.W.2d 724, 728 (Minn. 1982). Findings will not be reversed unless clearly erroneous, although no deference will be given to determinations of questions of law. See In re Stilinovich , 479 N.W.2d 731, 734 (Minn. App. 1992) (resolution is a question of fact to be determined by the trial court).
The appeal panel found the Commissioner proved by clear and convincing evidence that appellant is not capable of making an acceptable adjustment to open society, continues to be dangerous to the public, and continues to need inpatient treatment and supervision. The panel found appellant lacks empathy for his victims, which may increase the possibility of reoffending, as does his denial, lack of insight, and refusal to participate in sex offender treatment. Another concern was the fact he has been institutionalized for 17 years. If he were discharged, this would most likely create great stress leading to inappropriate conduct. The panel noted in an attached memo that it has no authority to question the initial commitment and, because in almost all cases the patient has made no change or progress, it was powerless to act.
Appellant contends he made a prima facie showing that he met the standards for discharge, which he argues respondent has not rebutted. He cites testimony regarding his controlled and appropriate behavior during his last 17 years of confinement, as well as Dr. Austin's favorable opinion. Appellant claims his refusal to participate in sex offender treatment did not affect his ability to adjust to society and asserts there is no evidence the treatment would benefit him.
As the panel found, the evidence shows that appellant is virtually unchanged from the time of his initial commitment. Dr. Gratzer testified that appellant did not meet the discharge standards. He explained that appellant's history of alcohol abuse, lack of treatment, personality disorder, and history of long institutionalization would create difficulties in making an acceptable adjustment to society. Appellant's unusual characteristics, including his high number of violent sex offenses, his history of rapidly reoffending upon release from confinement, the unnecessarily violent and sadistic nature of his offenses, and his refusal to participate in treatment, make it likely he will reoffend and be a danger to the public. A secure setting would be the best form of treatment for him. Thus, the evidence as a whole supports the findings, which are not clearly erroneous.
Affirmed.


1
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Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.