This opinion will be unpublished and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

C7-96-1242

Jesse L. Lee, petitioner,

Appellant,

vs.

Commissioner of Human Services,

Respondent.

Filed October 22, 1996

Affirmed; motion granted

Kalitowski, Judge

Washington County District Court

File No. C4944073

David Essling, 1217 West Seventh Street, St. Paul MN 55102 (for Appellant)

Hubert H. Humphrey III, Attorney General, Steven J. Lokensgard, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.

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

KALITOWSKI, Judge

Appellant Jesse Lee challenges the constitutionality of the district court's decision to dismiss his petition for a writ of habeas corpus, contending (1) neither the evidence nor the trial court's findings met the applicable standard for commitment as a psychopathic personality, and (2) the transcript from the review hearing for his commitment is unavailable. He also argues his dual commitment violates equal protection and the prohibition against double jeopardy. We affirm and grant appellant's motion to accept his pro se brief.

D E C I S I O N

Findings of a trial court considering a petition for habeas are entitled to great weight. State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991). Issues of law may be decided de novo. See id.

The district court indeterminately committed Lee as a psychopathic personality in June 1976. At that time, the definition of a psychopathic personality was set out in Minn. Stat. § 526.09, subd. 1 (1974), as narrowed by State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939) (establishing criteria limiting the reach of the statutory language), aff'd, 309 U.S. 270, 60 S. Ct. 523 (1940).

A committed person has the right to petition for a writ of habeas corpus. Minn. Stat. § 253B.23, subd. 5 (1994); see Minn. Stat. § 589.01 (1994) (person restrained of liberty may petition for writ of habeas corpus). The only issues open to review in a habeas action are

whether the court had jurisdiction of the subject matter and the person; whether the judgment was authorized by law; and whether the relator was denied fundamental, constitutional rights. The writ may not be used as a substitute for an appeal or a motion to correct, amend, or vacate.

State ex rel. Hartmann v. Lund, 277 Minn. 398, 410, 152 N.W.2d 514, 523 (1967), cert. denied, 390 U.S. 967 (1968), overruled on other grounds, Keiser v. Sheppard, 292 Minn. 214, 217-18, 194 N.W.2d 286, 288 (1972).

I.

Lee argues that his commitment is unconstitutional because the committing court did not tailor its findings to the Pearson criteria, which he contends is required under In re Kunshier, 521 N.W.2d 880, 885 (Minn. App. 1994). We disagree.

In Kunshier, the district court lacked the guidance of several very recent supreme court cases that serve as a reminder that the psychopathic personality commitments must be based on the Pearson standard. Kunshier, 521 N.W.2d at 885; see In re Linehan, 518 N.W.2d 609, 613-14 (Minn. 1994); In re Blodgett, 510 N.W.2d 910, 917 (Minn. 1994), cert. denied, 115 S. Ct. 146 (1994). Because neither the testimony nor the evidence showed the Pearson elements had been applied, the matter was remanded to determine whether the facts supported commitment in light of Pearson. Kunshier, 521 N.W.2d at 885; cf. Blodgett, 510 N.W.2d at 917 (supreme court saw no need to remand for further findings because the record indicated Pearson had been considered although findings followed statutory language). Following Blodgett, we conclude Kunshier does not require a remand merely because the findings do not specifically cite Pearson.

II.

Lee argues that his commitment is unconstitutional because the commitment record does not show the Pearson factors were proven. The district court considering the habeas petition held that the transcript of the initial hearing before the committing court showed establishment of the Pearson factors by clear and convincing evidence. We agree.

Pearson's first prong requires that the person display a "habitual course of misconduct in sexual matters." 205 Minn. at 555, 287 N.W. at 302. Lee contends this factor was not met because the record establishes only two rapes.

Lee pleaded guilty in 1972 to the charge of aggravated rape and in 1976 to charges of kidnapping and aggravated sodomy. Lee admitted to Dr. Carl Schwartz, one of the court-appointed examiners, that in the short time he was out of prison after the 1972 conviction, he attempted rape on five occasions; he was able to "control" himself twice. He explained it was lucky one of his intended victims was able to escape, because otherwise he would have raped and killed her. Lee also told Dr. Schwartz he could only achieve sexual gratification by injuring his sexual partner. Comments to other psychiatrists were consistent; one indicated Lee "was subject to a life-long pattern of sexual deviancy[,] sado-masochistic in type." A "habitual course of misconduct" is demonstrated by sexual acts, not just convictions. See In re Monson, 478 N.W.2d 785, 789 (Minn. App. 1991). We conclude the evidence clearly supports a finding that Lee meets this first factor.

Pearson's second prong requires that the persons exhibit an "utter lack of power to control their sexual impulses." 205 Minn. at 555, 287 N.W. at 302. Lee contends that the transcript from the initial hearing contains only passing references to lack of control, which is insufficient to meet the Pearson standards. See Linehan, 518 N.W.2d at 613-14 (supreme court reversed psychopathic personality commitment even though trial court explicitly made findings as to utter lack of control, where expert testimony at trial did not properly distinguish between uncontrolled and uncontrollable impulses). He also cites examples of instances where he was able to control himself and refrain from raping.

The psychiatrists testified as to Lee's loss of control when the urges come over him and his very highly impulsive nature. There was ample testimony that Lee had an utter lack of power to control his sexual impulses. See In re Irwin, 529 N.W.2d 366, 375 (Minn. App. 1995) (discussing expert testimony from which trial court concluded utter lack of power to control sexual impulses shown), review denied (Minn. May 16, 1995).

The third prong requires a showing that the individual is "likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire." Pearson, 205 Minn. at 555, 287 N.W. at 302. Lee did not challenge the applicability of this prong. We conclude the committing court had clear and convincing evidence that commitment was constitutional under Pearson.

III.

Lee argues his commitment must be vacated because neither the transcript nor the court reporter's notes from the review hearing held on June 9, 1976, are available.[1] We disagree.

A transcript is important to, but not always essential for, a meaningful appeal. See Hoagland v. State, 518 N.W.2d 531, 535 (Minn. 1994). In this case, the district court had access to a transcript from the initial hearing with substantive testimony as to the Pearson factors, as well as the 60-day review report from the hospital. There is no indication Lee was misled as to his right to appeal or that the missing transcripts were destroyed for improper reasons. We therefore decline to vacate the commitment based on the missing review hearing transcript.

IV.

We grant Lee's motion to accept his pro se brief in which he claims that his criminal conviction and his commitment violate the prohibition against double jeopardy. The Minnesota Supreme Court has rejected the double jeopardy argument:

[O]ur decision in Blodgett clearly establishes that commitment under the psychopathic personality statute is remedial and does not constitute double jeopardy because it is for treatment purposes and is not for purposes of preventive detention.

Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995); see In re Blodgett, 490 N.W.2d 638, 647 (Minn. App. 1992), aff'd on other grounds, 510 N.W.2d 910 (Minn.), cert. denied, 115 S. Ct. 146 (1994). These cases are dispositive of Lee's double jeopardy claims.

Lee also contends that the dual commitment violates equal protection because his rights to treatment as a committed patient have been denied due to his criminal conviction. Dual commitment does not violate equal protection. Bailey v. Gardebring, 940 F.2d 1150, 1153 (8th Cir. 1991), cert. denied, 503 U.S. 952 (1992). Minnesota law currently requires a person committed as a psychopathic personality to serve the prison term before being transferred to the custody of the Commissioner of Human Services. Minn. Stat. § 253B.185, subd. 2(b) (1994). Further, evidence in the record indicates Lee has received some treatment while imprisoned. Lee has not shown his right to equal protection has been violated. See In re Martenies, 350 N.W.2d 470, 473 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984).

Affirmed; motion granted.

[ ]1 Although it appeared that the transcript from the initial commitment hearing was missing as well, a copy was discovered during the pendency of the first appeal from the district court's denial of the petition for a writ of habeas corpus. This court remanded for the district court to consider the transcript. The district court reached the same conclusion, and Lee filed this appeal.