This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2370

 

 

In the Matter of the Civil Commitment of:

Thomas Edward Kittrell.

 

 

Filed May 23, 2006

Affirmed

Willis, Judge

 

Steele County District Court

File No. P9-05-96

 

Warren J. Maas, 7964 Brooklyn Boulevard, #107, Brooklyn Park, MN  55445 (for appellant Thomas Edward Kittrell)

 

Mike Hatch, Attorney General, Matthew Frank, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges an order for his initial commitment and an order for his indeterminate commitment as a sexually dangerous person and a sexual psychopathic personality.  He argues that the district court lacked personal jurisdiction “for the purpose of civil commitment” and that it failed to order the least-restrictive available treatment program.  Because we conclude that (1) the district court had personal jurisdiction over appellant and (2) the district court did not clearly err by determining that appellant failed to establish that a less-restrictive treatment program was available that could meet appellant’s needs and the requirements of public safety, we affirm.

FACTS

In March 1998, appellant Thomas Edward Kittrell was in Minnesota on business when he was arrested for assaulting two women.  Kittrell hid in the back of a van in the Owatonna Wal-Mart parking lot.  Two women returned to the van.  After they started the vehicle and began to drive, Kittrell, with a knife in his hand, came toward the front of the van making a stabbing motion with the knife.  The women jumped out of the moving van.  Kittrell then got out of the van, and the victims pointed him out to a police officer. 

            Kittrell was charged with two counts of attempted kidnapping and two counts of second-degree assault.  See State v. Kittrell, No. C9-01-2182, 2002 WL 31500759, at *1 (Minn. App. Nov. 12, 2002).  He pleaded guilty to both counts of second-degree assault, and the state dismissed the attempted-kidnapping charges.  Id.  Kittrell was sentenced to 84 months in prison and 42 months of supervised release.  Id. 

The district court reviewed a stipulated record that included Kittrell’s criminal history and concluded that Kittrell is a patterned sex offender.  Id.  Kittrell has sexually assaulted women in California, Arizona, and Michigan, his state of residence at the time of his arrest in Minnesota.  The district court ordered Kittrell to provide a DNA sample, register as a sex offender, and pay restitution; and it sentenced him under the Patterned Sex Offender Statute, Minn. Stat. § 609.108 (1998).[1]  Id. 

Kittrell appealed the district court’s determination that he is a patterned sex offender and the component of his sentence based on that determination.  Id.  This court affirmed the district court’s determination but modified the mandatory conditional-release term under Minn. Stat. § 609.108, subd. 6, to 42 months to make it contemporaneous with the supervised-release term.  Id.at *3-5.  After a remand from the Minnesota Supreme Court, this court vacated Kittrell’s conditional-release term because it violated his constitutional rights as defined in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), by increasing his sentence beyond the statutory maximum based on the judicial finding that Kittrell is a patterned sex offender.  State v. Kittrell, No. C9‑01-2182, 2003 WL 22289900, at *2 (Minn. App. Oct. 7, 2003).

            While in prison, Kittrell participated in the Minnesota Sex Offender Program.  Before his prison term expired, the Minnesota Attorney General’s office, on behalf of Steele County, filed a petition for civil commitment, alleging that Kittrell is a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP).  The district court found that Kittrell is an SDP and SPP, ordered initial commitment in June 2005, and ordered indeterminate commitment in October 2005.  Kittrell appeals.

D E C I S I O N

Kittrell first argues that because he is not a Minnesota resident and he committed no sex crimes here, Minnesota lacked personal jurisdiction over him for the purpose of committing him as an SDP and SPP. 

The existence of personal jurisdiction is a question of law, which this court reviews de novo.  Wick v. Wick, 670 N.W.2d 599, 603 (Minn. App. 2003).  Personal jurisdiction requires (1) an adequate connection between the state and the party over whom jurisdiction is sought, and (2) a form of process invoking the jurisdiction of the district court that satisfies the requirements of due process and the Minnesota Rules of Civil Procedure governing the commencement of civil actions and the personal service of process.  Id.; see also In re Ivey, 687 N.W.2d 666, 670 (Minn. App. 2004), review denied (Minn. Dec. 22, 2004).  There is an adequate connection between the state and a person to support personal jurisdiction when the person is in the legal custody and under the control of the commissioner of corrections (DOC).  See Ivey, 687 N.W.2d at 670 (holding that the district court had personal jurisdiction for civil-commitment proceedings involving the appellant, who was imprisoned in Germany, because the commissioner of corrections maintained supervisory power over the appellant while he was serving the ten-year conditional-release term of his sentence).

            When the petition to commit Kittrell as an SDP and SPP was filed in January 2005, he was in the custody of the DOC at the Moose Lake correctional facility.  At the time of the civil-commitment trial, Kittrell was on supervised release, although he was being held at the state security hospital in St. Peter.  In Ivey, this court noted that prisoners on supervised release remain “in the legal custody and under the control of the commissioner.”  Id.(quoting Minn. Stat. § 243.05, subd. 1(b) (2002)).  Because Kittrell was in the legal custody of and under the control of the commissioner of corrections, we conclude that the district court had personal jurisdiction over Kittrell. 

Kittrell relies on Minn. Stat. § 543.19, subd. 1 (2004), the statute setting forth the requirements for personal jurisdiction over nonresidents in civil matters, to argue that the state lacked personal jurisdiction to commit him as an SDP or SPP because his sexual conduct outside Minnesota did not cause injury or harm in Minnesota.  But section 543.19, subdivision 1, is inapplicable here.  Because Kittrell was residing in a Minnesota correctional facility at the commencement of the civil-commitment proceeding, he was not a nonresident for purposes of personal jurisdiction.  Further, the civil-commitment statute does not require that the acts supporting a determination that a person is an SDP or SPP occur in Minnesota.  See Minn. Stat. §§ 253B.02, subds. 18b, 18c, .185 (2004).  The civil-commitment statute allows a county attorney to prepare a petition to commit a person as an SDP or SPP if the county attorney is satisfied that good cause exists.  Minn. Stat. § 253B.185, subd. 1.  And the fact that Kittrell was not convicted of a sex crime in Minnesota does not affect the jurisdiction of the district court to commit him as an SDP or SPP. 

Finally, Kittrell argues that because he was “approved for placement in Wayne County Michigan,” the district court erred by failing to order the least-restrictive available alternative when it committed Kittrell to the Minnesota Sex Offender Program (MSOP).  If a district court finds a person to be an SDP or SPP, “the court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient’s treatment needs and the requirements of public safety.”  Id.  “In reviewing whether the least restrictive treatment program that can meet the patient’s needs has been chosen, an appellate court will not reverse a district court’s finding unless clearly erroneous.”  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

Kittrell bases his assertion that he has been “approved for placement in Wayne County Michigan” on his wife’s affidavit.  But the district court found that Kittrell’s wife “had no specific information regarding specific treatment plans available to . . . Kittrell in the event he would return to the state of Michigan.”  And the district court found Kittrell’s wife’s testimony “to be understandably biased toward [Kittrell] and of little probative value.”  We defer to the district court’s credibility determinations.  Minn. R. Civ. P. 52.01. 

The initial commitment order noted that “Kittrell has not presented any evidence that there is a less restrictive treatment program available that is consistent with his needs and the requirements of public safety.”  The district court concluded that MSOP could meet Kittrell’s needs and the requirements of public safety and that no less-restrictive treatment program could do so.  In its order for indeterminate commitment, the district court noted that Kittrell “produced no evidence at the review hearing concerning the appropriateness and availability of placements other than MSOP.” 

Because Kittrell had the burden of proving the existence of and availability of less-restrictive treatment programs and failed to do so, the district court did not clearly err by committing Kittrell to a secure treatment facility in Minnesota.

Affirmed.