This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-2049
Ricky Lee McDeid, Appellant,
vs.
Lucinda Jesson, Commissioner of Human Services, Respondent.
Filed April 6, 2015 Affirmed; motion granted Cleary, Chief Judge
Aitkin County District Court File No. 01-P4-99-000194
Marvin E. Ketola, McGregor, Minnesota (for appellant)
Lori Swanson, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and
Larkin, Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
Appellant Ricky Lee McDeid is in the Minnesota Sex Offender Treatment
Program (MSOP). He petitioned the special review board (SRB) for transfer to a non- secure Department of Human Services facility. The SRB rejected the petition and
appellant appealed to the judicial appeal panel (panel). The panel granted respondent’s
motion to dismiss appellant’s petition under Minn. R. Civ. P. 41.02(b) and Minn. Stat.
§ 253D.28, subd. 2(e) (2014). Appellant made several arguments regarding the
procedure used by the panel. While none of appellant’s arguments regarding procedure
constitute reversible error or require remand, we do find some of the procedural
irregularities particularly troublesome and will highlight the problems below. Because
the panel did not commit clear error by finding that appellant failed to prove by a
preponderance of the evidence that transfer was appropriate, we affirm.
FACTS
Appellant sexually assaulted four juvenile male victims between 1984 and 1991.
He also admitted to sexually assaulting female and male family members, trading sex for
drugs with a female who looked very young, and coercing a woman into being sexually
active with him after she asked him to stop. Between the ages of four and fifteen,
appellant states that he was sexually abused by numerous family members. Appellant
received a 78-month sentence for the sexual assaults occurring between 1984 and 1991.
In 1996, appellant was placed in a half-way house on work release, with the
condition that he have no direct or indirect contact with juvenile males. After several
months, appellant was terminated from the half-way house for visiting the home of a
female companion who had two juvenile males residing in the house which she failed to
report. During a subsequent release, appellant again began a relationship with a female
companion who had two young sons in violation of his release terms. Appellant
2 participated in sex offender treatment while on supervised release. He did not follow
through with treatment, and his supervised release was finally revoked for continuing to
violate its terms.
In December 1999, the district court indeterminately committed appellant as a
Sexually Dangerous Person (SDP) and Sexually Psychopathic Personality (SPP). He was
diagnosed with pedophilia (sexually attracted to males), narcissistic personality disorder
with antisocial features, and paraphilia. He was also diagnosed with alcohol, cannabis,
and cocaine dependence. After years of making no progress in MSOP, appellant began
making progress throughout 2012, eventually entering phase two of the treatment
program.
Appellant has also had several behavioral incidents over the last several years. In
February 2013, appellant received a behavioral expectation report (BER) for boundary
issues after he was seen rubbing his feet against those of a younger peer. A group
progress note from the same time period states that appellant kissed the same peer on the
back of the neck. Another group progress note describes how appellant criticized the
treatment facility’s policy on clients touching each other as being too harsh. Appellant
said during a treatment session that he feels the treatment requirements were only “hoops
to jump through to get out.” Finally, appellant received a BER for giving another client a
haircut in a janitor’s closet.
Appellant received a sexual violence risk assessment prepared by a MSOP risk
assessor before his hearing in front of the SRB. Appellant was given a “Static-99R,”
which is an actuarial tool used to predict sexual recidivism. Appellant was placed in the
3 low-risk category for the likelihood of sexual and violent recidivism based on the Static-
99R. Appellant was given a “Stable-2007” test. The Stable-2007 examines 13 items and
produces an estimate of risk, assesses treatment needs, and predicts recidivism in sexual
offenders. Appellant scored an 11 on the Stable-2007, which places him in the moderate-
need category.
Based on appellant’s score on the Static-99R and the identified areas in need of
treatment on the Stable-2007, the MSOP risk assessor identified appellant as being in the
low nominal risk category for sexual recidivism, requiring a low level of supervision.
The MSOP risk assessor noted areas of particular concern for appellant: his capacity for
relationship stability, poor problem solving skills, deviant sexual preferences, significant
social influences, lack of concern for others, negative emotionality, sex preoccupation,
and lack of cooperation with supervision. Finally, the MSOP risk assessor gave her
opinion, to a reasonable degree of psychological certainty, that appellant did not meet the
requirements for a transfer into a less secure facility.
Appellant had a clinical interview with a second psychologist for the SRB
treatment report. The psychologist reviewed appellant’s file. The psychologist noted that
appellant received a “need attention” designation on nine out of eleven matrix domains in
an annual treatment report dated April 2013. Based on appellant’s file and the clinical
interview, MSOP recommended that appellant’s petition be denied as premature.
The SRB rejected appellant’s petition for transfer. He petitioned for rehearing and
reconsideration in front of the panel. Appellant did not ask the panel to appoint an
examiner before the hearing. Only two judges participated at the hearing; the third judge
4 was unable to attend due to unexplained complications. The panel gave the parties the
option to have the third judge call in and participate telephonically, or to proceed with a
two-judge panel. Both parties agreed to proceed with a two-judge panel. Appellant did
not call any witnesses at the hearing, even though the panel told appellant that he would
need to present any witnesses at that time if he wanted the panel to consider their
testimony. The panel dismissed the petition for transfer. This appeal followed.
DECISION
I. The panel did not commit clear error by dismissing appellant’s petition for transfer to a non-secure facility
The panel dismissed appellant’s petition for transfer to a non-secure facility under
Minn. R. Civ. P. 41.02(b). Appellant argues that he has proven by a preponderance of the
evidence that he is entitled to a transfer. “[T]he findings of the judicial appeal panel
concerning a petition for transfer are properly reviewed for clear error.” Foster v. Jesson,
857 N.W.2d 545, 548 (Minn. App. 2014). “Findings of fact will not be reversed if the
record as a whole sustains those findings.” Rydberg v. Goodno, 689 N.W.2d 310, 313
(Minn. App. 2004).
A party seeking transfer out of a secure facility under section 253D.29 must
establish by a preponderance of the evidence that transfer is appropriate. Minn. Stat.
§ 253D.28, subd. 2(e). “The preponderance of the evidence standard requires that to
establish a fact, it must be more probable that the fact exists than that the contrary exists.”
City of Lake Elmo v. Metro. Council, 685 N.W.2d 1, 4 (Minn. 2004). The following
5 factors must be considered to determine whether a transfer out of a secure treatment
facility is appropriate:
(1) the person’s clinical progress and present treatment needs; (2) the need for security to accomplish continuing treatment; (3) the need for continued institutionalization; (4) which facility can best meet the person’s needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public.
Minn. Stat. § 253D.29, subd. 1(b) (2014). This court will therefore have to determine
whether the panel committed clear error by finding that appellant did not establish by a
preponderance of the evidence that the transfer was appropriate. Before reviewing the
panel’s findings, we first have to address an evidentiary dispute to determine what
evidence we can properly consider.
Appellant relied on four documents in his arguments to this court that were not in
front of the panel or SRB: (1) a portion of an expert recommendation examining the
MSOP program, (2) appellant’s quarterly progress report from October 2014, (3) an
assessment of appellant’s sexual arousal or sexual interest, and (4) a full disclosure
polygraph report in support of his petition for transfer. We cannot consider these
documents because they were not admitted as exhibits to the SRB or considered by the
panel—the evidence consists of reports not in existence at the time of those hearings—
and we therefore grant respondent’s motion to strike. See Thiele v. Stich, 425 N.W.2d
580, 582-83 (Minn. 1988) (“An appellate court may not base its decision on matters
outside the record on appeal, and may not consider matters not produced and received in
evidence below.”); see also Minn. Stat. § 253D.28, subd. 3 (2014) (“The judicial appeal
6 panel may not grant a transfer or provisional discharge on terms or conditions that were
not presented to the special review board.”). Most of appellant’s arguments to this court
were based on the inadmissible reports. Appellant will have the opportunity to submit
more recent reports in a subsequent petition to the SRB. See Minn. Stat. § 253D.27,
subd. 2 (2014) (establishing that a committed person may repetition the SRB for transfer
six months after the exhaustion of appeals).
Next, we reach the substance of appellant’s argument that the panel clearly erred
by dismissing his petition for transfer to a less secure facility. The first factor to consider
in evaluating whether a transfer is appropriate is “the person’s clinical progress and
present treatment needs.” Minn. Stat. § 253D.29, subd. 1(b)(1). The panel focused on
appellant’s relationship with a peer for this factor. Appellant received a BER for rubbing
feet with a peer and was also observed kissing the back of the same peer’s neck. Instead
of exploring his touching with the younger peer to further his treatment, appellant
criticized the treatment center’s policy on touching. The MSOP risk assessor believes
that appellant can benefit from exploring his relationship with the peer. The MSOP risk
assessor also stated that appellant’s treatment needs would best be met by slowly
reintegrating appellant in the advanced phases of treatment, while keeping him in a
secure perimeter. Appellant notes that he received a score of a low level risk of
recidivism and should be transferred to a less secure facility accordingly. The MSOP risk
assessor considered the low level risk of recidivism when making the recommendation to
keep appellant in a secure perimeter.
7 The second factor is “the need for security to accomplish continuing treatment.”
Minn. Stat. § 253D.29, subd. 1(b)(2). The panel noted that appellant was at a low risk for
sexual recidivism, but relied on the MSOP risk assessor’s report that appellant should
develop a prevention plan and plan of entry into the community so that the level of safety
afforded to the public could be adequately assessed before he is given more liberty.
Appellant’s relationship with a younger peer also weighs in favor of the need for security
to accomplish continuing treatment, along with the several areas in need of treatment
identified in the risk assessment.
The third factor is “the need for continued institutionalization.” Minn. Stat.
§ 253D.29, subd. 1(b)(3). The panel noted appellant has not totally embraced treatment
goals because he stated that he just needed to jump through hoops to get out. The
evidence in the record supports respondent’s argument that continued institutionalization
is appropriate, including the need for further treatment as discussed under the first factor
and the need to protect the public as discussed under the second factor.
The fourth factor is “which facility can best meet the person’s needs.” Minn. Stat.
§ 253D.29, subd. 1(b)(4). The panel found that appellant needs a higher level of
supervision because of appellant’s relationship with a peer and difficulty in
understanding restrictions on physical contact. The MSOP risk assessor said that
appellant needs more time to prepare for the independence provided to individuals in less
secure facilities and emphasized that appellant’s future transition should be gradual. A
second psychologist examined appellant and recommended that he remain in a secure
facility.
8 And the fifth factor is “whether transfer can be accomplished with a reasonable
degree of safety for the public.” Minn. Stat. § 253D.29, subd. 1(b)(5). The panel noted
that appellant needs improvement in the areas of cooperation with rules and supervision,
interpersonal skills, and sexuality. Appellant points to the low nominal risk category for
sexual recidivism he received to demonstrate that he does not pose a significant risk to
the public. However, we must also consider that the psychologist who calculated the low
risk assessment also recommended that appellant remain in a secured facility for the time
being based on appellant’s treatment needs discussed in the third and fourth factors.
After examining the entire record and each factor, we conclude that the panel did
not clearly err in holding that appellant failed to prove by a preponderance of the
evidence that transfer was appropriate. Appellant has clearly made progress towards
achieving his treatment goals, and, if he continues to make progress, he will put himself
in a strong position for transfer to a less secure facility in a subsequent petition.
II. Appellant’s procedural arguments do not require reversal or remand
Appellant makes a series of arguments against the procedures used by the panel.
Although none of the arguments provide a basis for remand or reversal, we are troubled
by the panel’s apparent disregard for proper procedures or timely action on three
occasions: (1) the panel took nearly 11 months to issue an opinion; (2) the panel referred
to a second hearing and indicated there might be a chance for appellant to present
evidence at a later time even though only one hearing was necessary; and (3) two judges
attended the hearing, but three judges signed the order without explanation.
9 In denying appellant’s request to remand the case for further hearings, we are
mindful of the fact that appellant’s best chance at getting a transfer to a less secure
facility is to exhaust his appeal, wait six months, and then file another petition that
includes the evidence we are statutorily barred from considering here. If we were to
remand, the evidence most helpful to his petition would be inadmissible, and appellant
could conceivably be stuck waiting another 11 months for an order from the panel. With
the additional six-month waiting period under Minn. Stat. § 253D.27, subd. 2, a remand
could preclude appellant from filing another petition for 17 months.
A. The panel inexplicably took 11 months to issue an opinion, which adversely affects appellant’s ability to exhaust his appeals and file another petition for transfer
Appellant argues that the amount of time it took to resolve his petition for transfer
constituted reversible error. The initial filing of the petition with the SRB was on
December 26, 2012. After the SRB denied appellant’s petition for transfer, appellant
filed a petition for rehearing and reconsideration on September 16, 2013. The panel had
a hearing on December 20, 2013, which was well within the 180 day window. See Minn.
Stat. § 253D.28, subd. 1(b) (2014) (“The hearing must be held within 180 days of the
filing of the petition unless an extension is granted for good cause.”). The panel issued
its opinion on November 12, 2014, nearly 11 months after the hearing.
Although section 253D.28 does not require the panel to issue an opinion within a
certain time frame, meaning there is no reversible error here, we find the 11 months
troubling. Appellant cannot file another petition for transfer until six months after the
exhaustion of his appeals. Minn. Stat. § 253D.27, subd. 2. By unnecessarily prolonging
10 the appeals process, the panel potentially extended the length of time appellant has to
remain in a restricted facility. If judicial appeal panels are systematically taking such an
unnecessarily long time to issue opinions, we are concerned that patients could begin to
believe that filing petitions for transfer is futile and give up on the treatment process.
B. The panel ambiguously alluded to a second hearing even though a petition for transfer only requires one hearing
Appellant argues that the commissioner’s exhibits should not have been accepted
at the first phase of the hearing. All of the parties and the panel alluded to a second-
phase hearing without considering whether it was necessary given the burdens of
persuasion and production imposed on appellant at the initial hearing. Despite the
ambiguity surrounding a second hearing, the panel told appellant that he should testify
that day: “[w]ell I think today is the day to do that, to offer testimony,” and appellant
chose to submit his case essentially on the record.
Appellant mistakenly relies on Coker v. Jesson, 831 N.W.2d 483 (Minn. 2013) for
support of his argument that the commissioner’s exhibits should not have been admitted
into evidence. Coker dealt with a petition for discharge that only imposes a burden of
production on the petitioner. Coker, 831 N.W.2d at 490-91 (interpreting Minn. Stat.
§ 253B.19, subd. 2(c) which says that a party petitioning for discharge or provisional
discharge “bears the burden of going forward with the evidence”). When considering a
petition for discharge or provisional discharge, the hearing in which the committed
person produces evidence is referred to as the first-phase hearing. Id. at 486. If the
petitioner meets the burden of production, then the opposing party has to prove by clear
11 and convincing evidence that the discharge or provisional discharge should be denied—
this is referred to as the second-phase hearing. Id.
In contrast to a petition for discharge, a petition for transfer imposes the burdens
of production and persuasion on the petitioner. Minn. Stat. § 253D.28, subd. 2(e). A
judicial appeal panel sits as trier of fact to determine whether a petitioner proves by a
preponderance of the evidence that transfer is appropriate. Foster, 857 N.W.2d at 548.
The description of discharge hearings as first-phase and second-phase is therefore
inapplicable to transfer hearings.
Unfortunately, the panel made several references to a phase-two hearing that was
not required. After referencing a potential phase-two hearing, the panel specifically told
appellant that he should testify that day because he would not have another opportunity.
Thus, even though the panel sent ambiguous messages regarding a second hearing, it
made clear to appellant that he had to testify that day. Because appellant had the
opportunity to testify and present evidence, there is no reversible error. See Midway Ctr.
Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (Minn. 1975)
(stating that “error without prejudice is not ground for reversal”). In the future, however,
judicial appeal panels should make it clear to petitioners and attorneys that there only is
one hearing when considering a petition for transfer.
C. There was no reversible error in two judges hearing the case and three judges signing the order
At appellant’s hearing, the parties agreed to proceed with a two-judge panel. The
third judge was unable to attend due to unexplained complications. Three judges
12 eventually signed the November 20, 2014 order dismissing appellant’s petition. The
order said that the case “came on for trial before the undersigned Judges of the Judicial
Appeal Panel.” The order does not address the fact that only two of the undersigned
judges were present at the hearing, nor does it explain what role the third judge took in
the deliberations. Appellant challenges the procedure of two judges attending the hearing
but three judges signing the order. Appellant does not argue that three judges were
required to hear the case.
Minn. Stat. § 253D.28, subd. 1(a) permits a petitioner to request a rehearing and
reconsideration of a recommendation of the SRB by a judicial appeal panel established
under Minn. Stat. § 253B.19, subd. 1 (2014). Section 253B.19 states: “Only three judges
need hear any case.” Id. In contrast to the requirement that only three judges hear a case,
“[a] majority of the judicial appeal panel shall rule upon the petition.” Minn. Stat.
§ 253D.28, subd. 3. The commitment statute requires three judges to hear a case, even
though it only requires two judges to rule on a petition. Appellant does not challenge the
procedure of using a two-judge panel, so we make no ruling on that matter.
Appellant challenges the procedure of three judges signing the order, but only two
judges attending the hearing. The procedure used by the panel is peculiar, and it is
especially worrisome that the panel did not address the third judge’s absence from the
hearing and subsequent signature in its order. Instead of addressing the procedural
irregularity in a memo, the panel stated in its opinion that the case came before all three
of the undersigned judges. Perhaps the third judge did participate in the deliberations by
13 reviewing the transcript. We are left to speculate in the absence of any sort of
explanation.
Despite this procedural irregularity, there was not reversible error. The two judges
who attended the hearing signed the order, which fulfilled the statutory requirement for a
decision on the petition for transfer. Id. (requiring a majority of the panel to rule on a
petition). The procedure did not create a prejudicial error requiring a new hearing. See
Minn. R. Civ. P. 61 (stating that “no error or defect in any ruling or order . . . is ground
for granting a new trial . . . unless refusal to take such action appears to the court
inconsistent with substantial justice”); see also Midway Ctr. Assocs., 306 Minn. at 356,
237 N.W.2d at 78 (stating that “error without prejudice is not ground for reversal”).
Affirmed; motion granted.