This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-748

 

In the Matter of:

Alexander Mark Martinelli.

 

Filed September 12, 2000

Affirmed

Parker, Judge^*

 

Hennepin County District Court

File No. P89660565

 

Brian C. Southwell, 701 Fourth Avenue South, Suite 500, Minneapolis, MN  55415 (for appellant Martinelli)

 

Amy Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, A-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent Hennepin County)

 

            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Alexander Martinelli, a sexually dangerous person, appeals his indeterminate commitment as amended after remand.  He contends that the district court applied an incorrect standard to determine whether he lacked the necessary control over his sexual impulses, that after remand he was entitled to a new hearing on the issue of lack of control rather than decision on the existing record, and that the district court erred in failing to reconsider the issue of whether he was highly likely to reoffend.  We affirm the district court.

D E C I S I O N

An appellate court will not reverse the district court’s findings of fact unless they are clearly erroneous.  In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).  Issues of law will be reviewed de novo.  In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).

            A petition was filed to commit Martinelli as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP).  See Minn. Stat. § 253B.02, subds. 18b, 18c(a) (1998) (defining SPP and SDP).  After a hearing, the district court committed him as an SDP, but dismissed the petition for commitment as an SPP, finding insufficient evidence that he exhibited an utter lack of power to control his sexual impulses.

            Martinelli appealed his initial commitment and this court affirmed.  In re Martinelli, No. C6-98-569 (Minn. App. Sept. 15, 1998).  He then petitioned for review from the supreme court, which granted the petition only as to whether the SDP statute was unconstitutional because it did not require proof of “an utter lack of control” over his sexual impulses; it denied the petition in all other respects.  In re Martinelli, No. C6-98-569 (Minn. Nov. 24, 1998).  The supreme court stayed the matter pending final determination in the then-pending case of In re Linehan, 594 N.W.2d 867 (Minn.), cert. denied, 120 S. Ct. 587 (1999), in which it was to resolve the same issue.

            The district court then held a review hearing and made Martinelli’s commitment as an SDP indeterminate.  Martinelli appealed and this court affirmed.  In re Martinelli, No. C0-98-1684 (Minn. App. Feb. 23, 1999).  Martinelli sought review of this decision from the supreme court, which again granted review as to the constitutionality of the SDP law on the issue of utter lack of control and stayed the matter pending the release of Linehan.  In re Martinelli, No. C0-98-1684 (Minn. Apr. 28, 1999).

            After releasing Linehan, 594 N.W.2d at 876, in which it affirmed the constitutionality of the SDP law as clarified, the supreme court then remanded Martinelli’s appeals for determination in light of Linehan.  In re Martinelli, No. C0-98-1684 (Minn. July 2, 1999); In re Martinelli, No. C6-98-569 (Minn. July 2, 1999).  This court consolidated the appeals and remanded to the district court for determination of whether Martinelli met the standards for commitment as SDP as clarified in Linehan.  In re Martinelli, No. C6-98-569 (Minn. App. Aug. 2, 1999).

When the matter returned to the district court, Martinelli moved for a new trial, contending that even though the court had considered the issue of utter lack of control for an SPP commitment, he was entitled to a new hearing to address whether he continued to meet the standards for commitment as SDP as clarified in Linehan.  The district court issued an amended order without taking additional evidence, ruling that, on the existing record, Martinelli met the standard for commitment as an SDP as clarified in Linehan.

            Under Minn. Stat. § 253B.02, subd. 18c(a), commitment as an SDP requires proof that the person engaged in a course of harmful sexual conduct, manifested a sexual, personality, or other mental disorder, and, as a result, is likely to engage in acts of harmful sexual conduct in the future.  The statute, differentiating the SDP law from the SPP law, specifically provides that an inability to control sexual impulses need not be proven for an SDP commitment.  Minn. Stat. § 253B.02, subd. 18c(b) (1998).  It was this latter provision that was the subject of the constitutional challenge.  See Linehan, 594 N.W.2d at 875.

            The supreme court clarified that the state does not need to prove an “utter” inability to control for an SDP commitment, but required a showing of some lack of control.  Id.

                        [T]he Minnesota SDP Act requires a finding of future dangerousness, and then links that finding to the existence of a “mental abnormality” or “personality disorder” that makes it difficult, if not impossible, for the person to control his dangerous behavior.  * * *

 

                                    * * * We now clarify that the SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

 

Id. at 875-76 (emphasis added) (quotation and citations omitted).

            In this appeal, Martinelli argues that the district court erroneously used the standard of whether he was unable to adequately control his sexual impulses, rather than whether it was difficult, if not impossible, to control his sexual impulses.  But Linehan uses the term “adequately.”  Id. at 876.  We think the issue is better analyzed by addressing whether the district court properly applied Linehan as clarified.

            In the initial and indeterminate commitment hearings, the district court considered a petition for commitment as SPP and SDP.  The expert witnesses provided extensive and conflicting testimony as to whether Martinelli met the SPP standard of having an utter lack of power to control his sexual impulses, as well as the other SPP and SDP factors.  After considering the experts’ opinions, the court held that Martinelli should not be committed as an SPP because he “has not evidenced an utter lack of power to control his sexual impulses, to the degree necessary to commit him as an SPP, as defined in the statute and interpreted in caselaw,” but determined he did meet the standards for commitment as an SDP.

            On the remand, the district court painstakingly reviewed the record and its earlier findings to determine whether Martinelli met the standards for commitment as an SDP as clarified.  Id. at 875-76.  The court cited specific findings previously made as to Martinelli’s impulsivity and lack of adequate control over his sexual impulses.  This included extensive testimony by two experts that he displayed an utter lack of control, based on factors in In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 513 U.S. 849 (1994).  The court also cited the testimony by the second court-appointed expert who, although he did not support commitment, testified as to Martinelli’s impulsivity and “sexually addictive” behavior.  Finally, the court considered the 60-day report and evidence at the review hearing as to his lack of adequate control.  The evidence and materials considered support the district court’s determination that Martinelli continues to meet the standards for commitment as an SDP as clarified in Linehan, 594 N.W.2d at 875-76.

            Martinelli also argues that the district court erred in relying on the existing record rather than taking additional evidence as to lack of control on remand.  The district court must execute the appellate court’s mandate on remand “strictly according to its terms.”  Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982) (citation omitted).  The district court may not “alter, amend, or modify” the mandate it receives.  Id. (citation omitted).  But if the appellate court does not provide specific direction on how to proceed, the district court “has discretion in handling the course of the cause to proceed in any manner not inconsistent with the remand order.”  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (citation omitted).

            We must first examine the scope of the remand to determine whether the district court acted within the scope of permissible discretion.  In the remand order, this court stated:

                                    Remand is necessary for the district court to determine whether Martinelli meets the standard for commitment as an SDP as clarified in Linehan.

 

In re Martinelli, No. C6-98-569 (Minn. App. Aug. 2, 1999).  Without directing whether or not the district court should take new evidence, this court “remanded for further proceedings in accordance with this opinion.”  Id.  Thus, whether a new hearing was necessary was within the discretion of the district court.

            The district court had originally been asked to decide whether Martinelli met the standards for commitment as an SPP, as well as an SDP.  One of the elements for commitment as an SPP required a determination of whether Martinelli evidenced “an utter lack of power to control [his] sexual impulses.”  Minn. Stat. § 253B.02, subd. 18b; see Blodgett, 510 N.W.2d at 915 (setting out factors for district court to consider in assessing person’s predatory sexual impulse and lack of power to control it).  The issue of control was raised and extensively addressed, with conflicting testimony from experts on the topic.  The district court was well within permissible discretion on this record to make the decision on remand, without taking additional evidence on the issue.

            Martinelli also contends the district court erred in failing to reconsider the issue of whether he was “highly likely to reoffend.”  See Minn. Stat. § 253B.02, subd. 18c(a)(3) (setting out this factor in SDP definition).  An issue that has already been decided in a first appeal may not be relitigated on remand or in a second appeal.  Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987).  In this case, the supreme court accepted review and ordered the remand solely on the lack of control issue, precluding reexamination of the future harm issue.

            Martinelli contends that an exception to this rule, which arises when there is “an intervening change of controlling law,” applies here.  McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn. App. 1986) (citation omitted), review denied (Minn. Nov. 17, 1986).  He argues that he is entitled to retrial on whether he is highly likely to offend, because determination of that issue was affected by the supreme court’s intervening decision, clarifying the standards for commitment as an SDP, in Linehan, 594 N.W.2d at 876.  In Linehan, however, the supreme court did not feel compelled to review the other elements for an SDP commitment, because they had been fully reviewed in the earlier appeal, In re Linehan, 557 N.W.2d 171, 189-91 (Minn. 1996).  Instead, the court addressed only whether the appellant demonstrated a lack of adequate control over his sexually harmful behavior based on the district court’s findings.  Linehan, 594 N.W.2d at 876.  Likewise, when the issue of the likelihood of future harm has already been reviewed on a previous appeal and was not within the scope of the remand, Martinelli is not entitled to another review of the issue.

            Affirmed.