A05-1861

Eugene Christopher Banks,

Appellant,

vs.

Kevin Goodno,

Commissioner of Human Services,

Respondent.

Filed February 14, 2006

Affirmed

Worke, Judge

Judicial Appeal Panel

File No. AP049042

Cean F. Shands, 295 Marie Avenue East, West St. Paul, MN 55118 (for appellant)

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127; and

Kerri Stahlecker Hermann, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)

Considered and decided by Worke, Presiding Judge; Willis, Judge; and Minge, Judge.

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

WORKE, Judge

Appellant Eugene Christopher Banks appeals from an order of the Supreme Court Appeal Panel affirming the denial of his petition for a discharge from indeterminate commitment or transfer to an open hospital. Appellant argues that the record does not support the panel’s conclusions of law and that the panel abused its discretion by affirming the findings of the Special Review Board. We affirm.

D E C I S I O N

An appellate court will reverse a judicial appeal panel decision only if the decision is clearly erroneous. Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn. App. 1985). “In reviewing a decision of the appeal panel, the appellate court: is not to weigh the evidence as if trying the matter de novo, but to determine from an examination of the record if the evidence as a whole sustains the appeal panel’s findings.” Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992). The appeal panel denied appellant’s petition seeking discharge from his commitment or transfer to an open hospital.

A person committed as a sexual psychopathic personality may petition the Commissioner of Human Services for discharge. See Minn. Stat. § 253B.18, subd. 5 (2004) (authorizing mentally ill and dangerous persons to petition for discharge); see also Minn.Stat. § 253B.185, subd. 1 (2004) (generally applying procedures for commitment of mentally ill and dangerous persons to sexual psychopathic personality commitments); Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995) (applying the discharge procedure for mentally ill and dangerous persons to persons committed as psychopathic personalities). If the commissioner denies the request, the petitioner may petition for a rehearing and reconsideration by a judicial appeal panel. Minn.Stat. § 253B.19, subd. 2 (2004). In determining whether the discharge should be granted, the appeal panel should consider the discharge criteria set forth in Minn. Stat. § 253B.18, subd. 15 (2004), including whether the person “continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public[.]” Call, 535 N.W.2d at 319.

Persons who are mentally ill and dangerous to the public “shall not be transferred out of a secure treatment facility unless it appears . . . that the transfer is appropriate.” Minn. Stat. § 253B.18, subd. 6 (2004); see also Minn. Stat. § 253B.185, subd. 1 (stating that persons committed as sexual psychopathic personalities or sexually dangerous are generally subject to the same rules/procedures as persons committed as mentally ill and dangerous). Under Minn. Stat. § 253B.18, subd. 6, when determining whether a transfer is appropriate, the following factors are to be considered:

(i) the person’s clinical progress and present treatment needs;

(ii) the need for security to accomplish continuing treatment;

(iii) the need for continued institutionalization;

(iv) which facility can best meet the person’s needs; and

(v) whether transfer can be accomplished with a reasonable degree of safety for the public.

Here, on January 8, 1999, appellant’s September 30, 1988 commitment as a sexually dangerous person was continued for an indeterminate period. Appellant’s history of sexual offenses dates back to the age of nine. The offenses include (1) forcing a five-year-old male cousin to perform oral sex on him, (2) a conviction of criminal-sexual conduct in the first degree after an eight-year history of sexual intercourse with his sister that began when she was age seven and included force or coercion if she resisted; (3) a conviction of criminal-sexual conduct in the second degree after digitally penetrating a 12-year-old girl; and (4) a charge of kidnapping a five-year-old girl who showed signs of being molested, although the charge was dismissed as part of a plea agreement.

In 2004, appellant filed a petition seeking discharge from his commitment or transfer to an open hospital. The Commissioner of Human Services denied appellant’s petition. Appellant then filed a petition for a rehearing and reconsideration before the Supreme Court Appeal Panel. At the hearing on the petition, the independent examiner appointed by the appeal panel testified that appellant’s psychiatric condition has not changed since he was committed. He further testified that appellant continues to need treatment and intense supervision, that he poses a danger to the public, and that he is not capable of making an acceptable adjustment to open society. The expert testified that appellant would engage in sexually dangerous behaviors if he were released. Finally, the expert testified that neither of the nonsecure facilities appellant was seeking transfer to could provide the appropriate level of supervision needed for appellant.

The Supreme Court Appeal Panel found that appellant has been offered sex-offender treatment, chemical-dependency treatment, and various other programming, all of which appellant refused. The panel found that during his commitment, appellant has possessed catalogues depicting children in various dress and swimwear, has contacted young girls on the Internet, has kept the names and addresses of minors without the consent of their parents, and has possessed pornography. In addition, the panel found that appellant has a lengthy history of assaultive, abusive behavior toward staff at the various facilities where he has resided. Further, the panel found that while appellant has requested to be transferred to the Anoka Regional Treatment Center or the Brainerd Regional Treatment Center, neither facility has a sex-offender treatment program. Finally, the panel found that appellant remains a high risk to reoffend sexually because he remains an untreated sex offender.

Based on those findings, the Supreme Court Appeal Panel concluded that appellant failed to meet his burden of proving that a discharge or a transfer was appropriate because he continues to be in need of a highly structured secure setting for treatment as a sex offender, he currently resides at an appropriate facility that meets his needs, he remains at a high-risk to reoffend, he poses a significant danger to the public because he is an untreated sex offender, and it is unlikely that he could make a satisfactory adjustment to society. The record supports the Supreme Court Appeal Panel’s findings and decision to dismiss appellant’s petition for failure to present a prima facie case for discharge or transfer.

Affirmed.