This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of:

Alexander Mark Martinelli.

Filed February 23, 1999


Halbrooks, Judge

Hennepin County District Court

File No. P8-96-60565

Gregory R. Solum, 5275 Edina Industrial Boulevard, Suite 105, Edina, MN 55439; and

Thomas Bennett Wilson III, Gayle Gaumer, Wilson Law Firm, 7600 France Avenue South, Suite 558, Edina, MN 55435 (for appellant Martinelli)

Amy Klobuchar, Hennepin County Attorney, Peter J. Stiehm, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Halbrooks, Presiding Judge, Crippen, Judge, and Willis, Judge.



Alexander Martinelli appeals from his indeterminate commitment as a sexually dangerous person, raising various constitutional challenges and issues relating to treatment. We affirm.


Shortly before appellant's release date from prison, a petition was filed to commit him as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). At the hearing, evidence was presented as to appellant's criminal sexual history with minors that resulted in convictions. In May 1994, appellant pleaded guilty to two separate counts of criminal sexual conduct in the third degree. In October 1994, appellant pleaded guilty to another count of third-degree criminal sexual conduct.

Before appellant was sentenced for the latter conviction, he fled to Canada. As a result of an incident with five juvenile runaways, he was charged in Canada with four counts of sexual assault and two counts of assault that are still pending. One of these juvenile victims testified at the commitment hearing, and the district court found appellant had committed criminal sexual conduct in the second degree. Another victim from Minnesota testified, providing the basis for the court's conclusion that appellant had committed third-degree criminal sexual conduct and attempted criminal sexual conduct in the third degree on this victim.

Four psychologists testified, offering varying opinions as to appellant's diagnosis and whether he met the criteria for commitment as an SPP or an SDP. Based on this evidence, the district court dismissed the petition for commitment as an SPP, but committed appellant as an SDP to the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC).

Martinelli appealed the initial commitment, and this court affirmed. On November 24, 1998, the supreme court granted his petition for review with respect to the issue of whether the SDP act is unconstitutional, denied the petition in all other respects, and stayed the proceedings pending final disposition in In re Linehan, 557 N.W.2d 171 (Minn. 1996), vacated and remanded, 118 S. Ct. 596 (1997).

A review hearing was held on the indeterminate commitment. Anita Schlank, Ph.D., the clinical director of the MSPPTC treatment program, testified as to appellant's condition and treatment plan. Dr. Schlank offered her opinion that appellant's condition had not changed since the initial commitment and that he needed treatment at the St. Peter or Moose Lake facility. She testified that no less restrictive alternative was available.

Roger Sweet, Ph.D., who had also testified at the initial hearing, restated his opinion that appellant did not meet the standards as a sexually dangerous person. If appellant were committed, Dr. Sweet recommended a stay of commitment with treatment at Alpha House. He did not know whether Alpha House would accept appellant on a stay of commitment. Dr. Sweet did not believe that appellant needed the intense level of monitoring provided at Moose Lake or St. Peter.

The district court made appellant's commitment to the MSPPTC as an SDP indeterminate. Martinelli appeals.


Appellant first contends that the sexually dangerous person statute, Minn. Stat. § 253B.02, subd. 18c(a) (Supp. 1997), unconstitutionally deprives patients of due process rights. The Minnesota Supreme Court upheld the SDP law against a due process challenge, but the United States Supreme Court vacated and remanded the case for reconsideration in light of Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). In re Linehan, 557 N.W.2d 171, 184 (Minn. 1996), vacated and remanded, 118 S. Ct. 596 (1997). The supreme court has accepted Martinelli's petition for review from this court's decision upholding his initial commitment only as to the issue of the constitutionality of the SDP law. We decline to rule the statute unconstitutional here.

Appellant next argues that the commitment is fundamentally unfair because it was based on three felony offenses for which he served full sentences and three felony offenses for which he was never convicted. Appellant's challenge appears to focus on the district court's conclusions of law in the initial commitment, in which the court stated that appellant "has committed six felony sex offenses; three for which he has been convicted and three for which this court has found him guilty by clear and convincing evidence." Appellant contends he cannot be found guilty of offenses to which he never pleaded guilty or was convicted of by a jury. Appellant's challenge as to findings from the initial commitment were raised in his appeal from that commitment, and he may not raise them again in this appeal.

Appellant complains he did not receive treatment during the time he was at the Minnesota Sex Offender Program prior to his initial commitment, a period of more than one year. First, it appears this should have been raised in the appeal from the initial commitment. In any event, appellant apparently waived the requirements of a hearing within 44 days of the filing of the petition. See Minn. Stat. § 253B.08, subd. 1 (Supp. 1997) (providing hearing shall be held within 14 days of filing of petition and court may extend additional 30 days for good cause). Further, as appellant acknowledges, he was not participating in treatment at the time of the review hearing when he had the opportunity to do so.

Appellant contends that he should not be coerced by continued confinement into discussing alleged criminal behavior that could result in convictions in violation of his right against self-incrimination. We decline to address this issue when appellant does not assert his rights have in fact been violated. See In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (holding court will only decide actual controversies and will not issue advisory opinion).

Next, appellant contends that the treatment program is ineffective. He bases this assertion on Dr. Schlank's testimony that there are only two patients who have completed the treatment program and are close to discharge, and that she does not yet have statistics as to the effectiveness of the program. Appellant's argument does not show the program is ineffective, particularly where he has not yet engaged in treatment. Further, Dr. Schlank explained that because the current program was revised five or six years ago and requires a minimum of four years to complete, she does not yet have outcome data. Finally, even if treatment is problematic, so long as the committed person receives treatment and review, due process standards are met. In re Blodgett, 510 N.W.2d 910, 916 (Minn.), cert. denied, 513 U.S. 849 (1994).

Appellant next contends he has not received meaningful, periodic review because the evidence at the review hearing did not specifically address the issue of whether he met the criteria for commitment as a sexually dangerous person. The Minnesota Supreme Court has addressed the scope of the review hearing in an SDP commitment. In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996), vacated and remanded, 118 S. Ct. 596 (1997). The court there indicated it was hesitant to confer res judicata status on the initial commitment based on due process considerations, and resolved the issue as follows:

We therefore hold that evidence considered at the review hearing is properly limited to: (1) the statutorily required treatment report; (2) evidence of changes in the patient's condition since the initial commitment hearing; and (3) such other evidence as in the district court's discretion enhances its assessment of whether the patient continues to meet statutory criteria for commitment.


Dr. Schlank testified that appellant's condition had not changed since the time of the initial commitment, that he continued to need treatment, and that no less restrictive alternative was available. She addressed in more detail his diagnosis, the reasons that she believed he might be likely to reoffend, and the necessity for treatment. Dr. Sweet testified as to his opinion that appellant did not meet the standards for commitment, and appellant also testified. The type of evidence received at the review hearing met due process standards for review. Id.

Finally, appellant contends that to the extent the district court was not required to determine the least restrictive alternative treatment, the SDP act is unconstitutional. This argument is based on the supreme court's recent decision that the relevant statutory provisions do not require that an SPP/SDP commitment must be to the least restrictive alternative treatment. In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998). It is unnecessary to reach appellant's constitutional argument because the district court here determined that the least restrictive appropriate placement available was indeterminate commitment to the MSPPTC at Moose Lake.