Piersee v. Bruffett

1

NOT DESIGNATED FOR PUBLICATION

No. 115,489

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEVEN PIERSEE,
Appellant,

v.

KARI BRUFFETT,
SECRETARY OF THE KANSAS DEPARTMENT ON AGING AND DISABILITY SERVICES,
Appellee.


MEMORANDUM OPINION

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed February 10,
2017. Affirmed.

Steven Piersee, appellant pro se.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., ATCHESON and ARNOLD-BURGER, JJ.

Per Curiam: Steven Piersee has been confined to Larned State Hospital for
treatment as a sexually violent predator since 2009. In June 2015, Piersee filed this
petition for writ of habeas corpus. In it, he alleged that his constitutional and statutory
rights to due process had been violated during his review and recommitment proceedings
in 2010, 2011, 2012, 2013, and 2014, and he asked the court to grant him immediate
release. The district court summarily dismissed the petition. Finding no error, we affirm.


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FACTUAL AND PROCEDURAL HISTORY

Piersee was determined to be a sexually violent predator (SVP) and was
committed to the Sexual Predator Treatment Program (SPTP) at Larned State Hospital in
2009. On June 30, 2015, Piersee filed a petition for writ of habeas corpus, under K.S.A.
2014 Supp. 60-1501, alleging that the district court failed to hold annual review hearings
in 2010, 2011, 2012, 2013, and 2014 and that the district court failed to enter an order
recommitting him to the SPTP in 2011, so his continued confinement is illegal. Piersee's
allegations were not materially disputed by the State.

The district court summarily dismissed Piersee's petition, finding that it was
untimely as to claims of error in the 2010, 2012, 2013, and 2014 proceedings. It further
concluded that any error in the 2011 review proceeding was harmless so that Piersee was
not entitled to relief. Finally, the district court determined that Piersee failed to establish
that he had received ineffective assistance of counsel. Piersee now appeals.

ANALYSIS

The district court did not err when it summarily dismissed Piersee's petition for a writ of
habeas corpus.

In his petition for habeas corpus, Piersee alleged that the proper procedures for
continuing his confinement in the SPTP were not followed in 2010, 2011, 2012, 2013, or
2014; he contended that as a result, his continued confinement was unlawful and asked
the district court to release him immediately. To state a claim for relief under K.S.A.
60-1501, a petition must allege "shocking and intolerable conduct or continuing
mistreatment of a constitutional stature." Johnson v. State, 289 Kan. 642, 648, 215 P.3d
575 (2009). "[I]f, on the face of the petition, it can be established that petitioner is not
entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as
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those recited in a court record, it appears, as a matter of law, no cause for granting a writ
exists," then summary dismissal is proper. 289 Kan. at 648-49. An appellate court
exercises unlimited review of a summary dismissal. 289 Kan. at 649.

Piersee alleges that in 2010, 2011, 2012, 2013, and 2014, the district court failed
to hold hearings as part of his annual reviews as required by K.S.A. 2014 Supp.
59-29a08(a). It appears from the record that in 4 out of the 5 years, the district court
independently reviewed Piersee's case without holding a formal hearing on the record,
came to the conclusion that Piersee's condition had not so changed that a full evidentiary
hearing was necessary, and entered an order recommitting him for another year. In 2011,
however, it seems that Piersee's annual evaluation was completed but that the district
court never entered an order continuing Piersee's commitment.

Piersee has failed to establish manifest injustice to permit the untimely filing of his
petition.

In each of the years at issue Piersee received a mental health evaluation and was
notified of his right to seek release over the objection of the Secretary of the Kansas
Department of Aging and Disability Services (KDADS), though he consistently declined
to do so. Additionally, with the exception of 2011, each year the district court conducted
a timely in-chambers review of Piersee's progress in the program, found that he continued
to be a sexually violent predator in need of commitment, and ordered his continued
confinement. Piersee contends that these orders were invalid because: the district court
did not consider whether to order an independent evaluation of Piersee's mental state; the
district court did not appoint counsel to represent him; and, the district court did not hold
a review hearing.

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The process for conducting annual evaluations of individuals committed under the
Sexually Violent Predator Act (SVPA) is outlined in K.S.A. 2014 Supp. 59-29a08.
According to that statute, committed individuals are entitled to:

"[A] current examination of the person's mental condition made once every year. The
secretary shall provide the committed person with an annual written notice of the person's
right to petition the court for release over the secretary's objection. The notice shall
contain a waiver of rights. The secretary shall also forward the annual report, as well as
the annual notice and waiver form, to the court that committed the person . . . . The
person may retain, or if the person is indigent and so requests the court may appoint a
qualified professional person to examine such person, and such expert or professional
person shall have access to all records concerning the person. The court that committed
the person . . . shall then conduct an annual review of the status of the committed person's
mental condition. The committed person shall have a right to have an attorney represent
the person at the hearing but the person is not entitled to be present at the hearing."
K.S.A. 2014 Supp. 59-29a08(a).

If it was not apparent from the statute, our Supreme Court has clarified that the
district court's annual review of a committed individual's mental condition should occur
during a hearing at which he or she has the right to be represented by court-appointed
counsel. In re Care & Treatment of Burch, 296 Kan. 215, 220, 291 P.3d 78 (2012).

Contrary to Piersee's assertion, K.S.A. 2014 Supp. 59-29a08(a) does not require
the district court to sua sponte order an independent evaluation of an SVP's mental
condition. Instead, if an individual would like an independent evaluation, the onus is on
the individual to request one. K.S.A. 2014 Supp. 59-29a08(a). Additionally, statutory
changes in 2015 make it clear that the district court had no obligation to appoint counsel
to represent Piersee at his annual review hearings absent a request by Piersee for
representation. See K.S.A. 2015 Supp. 59-29a06(f). However, the district court clearly
erred to the extent it failed to hold annual review hearings.

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Unfortunately for Piersee, no relief is available because his petition for habeas
corpus was not timely filed. This court discussed a similar fact pattern in In re Care &
Treatment of Howard, No. 108,552, 2014 WL 113428 (Kan. App.) (unpublished
opinion), rev. denied 301 Kan. 1046 (2014). Howard filed a motion in 2012 alleging that
the district court failed to hold annual review hearings as required by the SVPA in 2005,
2006, and 2007, and seeking immediate release. This court began its analysis by noting
that Howard failed to file direct appeals challenging his continued commitment after each
year's annual review and that fact alone may have been grounds for dismissal of
Howard's petition because a K.S.A. 60-1501 petition should not be used as a substitute
for direct appeal. 2014 WL 113428, at *3. Without deciding whether Howard's petition
should have been dismissed for that reason, the court went on to consider the timing
requirements of K.S.A. 60-1501 and found that Howard failed to timely file his petition.
2014 WL 113428, at *3. This court reasoned:

"In order for Howard's petition to be considered timely under K.S.A. 60-1501, he
needed to file it within 1 year of the termination of appellate jurisdiction. But Howard did
not appeal any of the annual reviews he received from 2005 to 2008; thus, appellate
jurisdiction to review these proceedings expired when he failed to file a notice of appeal
within 30 days from the determination that he remained a sexually violent predator. See
K.S.A. 2012 Supp. 59-2401a(b); K.S.A. 2012 Supp. 60-2103." 2014 WL 113428, at *3.

Additionally, the Howard court made note that, while the time limit to file may be
extended by a showing of manifest injustice, Howard did not allege manifest injustice at
the district court level or attempt to explain on appeal why he waited until years after the
alleged due process violations to seek judicial review. 2014 WL 113428, at *3-4.

Manifest injustice has been interpreted to mean obviously unfair or shocking to the
conscience. Vontress v. State, 299 Kan. 607, 614, 325 P.3d 114 (2014). When
determining whether a petitioner has suffered manifest injustice, courts should look at the
totality of the circumstances, giving special consideration to whether: (1) there are
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"persuasive reasons or circumstances" that prevented the petitioner from timely filing;
and, (2) the petitioner's claim raises "substantial issues of law or fact deserving the
district court's consideration." 299 Kan. at 616. Also, in the context of a 60-1507 motion,
the context in which this test was developed, courts are to consider whether the movant
"sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence." 299
Kan. at 616. All of the factors considered under the totality of the circumstances need not
be given equal weight, and no single factor is dispositive. 299 Kan. at 616. The movant
bears the burden to demonstrate manifest injustice. 299 Kan. at 617.

Piersee, like Howard, failed to appeal the annual review proceedings he now
challenges. Also like Howard, Piersee waited until after the statutory time for filing a
K.S.A. 2014 Supp. 60-1501 petition ran—between 7 months and 4 years—before
challenging the process that was used to continue his confinement. See K.S.A. 2012
Supp. 60-1501(c) (reducing the time limit to file a 60-1501 petition from 1 year to 30
days after an action is final). Thus, Piersee is eligible for relief only if he has shown that
he suffered manifest injustice.

Although Piersee did not allege manifest injustice in his initial K.S.A. 2014 Supp.
60-1501 petition, he did raise the issue before the district court in a memorandum
replying to the State's answer. There, he contended that the district court's failure to abide
by the statutory requirements for conducting an annual review was shocking to the
conscience and should result in a finding that manifest injustice occurred. Additionally,
Piersee argued that it is unfair to apply statutes of limitations to him because he brought
this action pro se, so he should not be expected to conform to the same standards as a
person proceeding with an attorney who has greater knowledge and access to legal
materials. Finally, he alleged that he was never served with notice of the district court's
orders recommitting him so he was unaware when the time periods for bringing an action
began to run.

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So we next examine and apply the Vontress factors to determine if Piersee has
established the existence of manifest injustice in order to save his petition from dismissal
due to untimeliness.

Vontress factor 1, justification for the delay, weighs against Piersee.

The first Vontress factor requires this court to consider whether there are
persuasive reasons justifying Piersee's delay in filing his K.S.A. 2014 Supp. 60-1501
petition. Piersee contends that the reason for the delay is that he was never given notice
that the district court completed his annual reviews so that he did not know when the time
was ripe to file an appeal or a petition for writ of habeas corpus. Appellate courts must
accept as true the allegations in the petition to determine whether the facts alleged—and
the reasonable inferences that can be drawn from them—state a claim for relief. See
Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). If true, this lack of notice is
disturbing. K.S.A. 2010 Supp. 60-258 requires the clerk of the district court in which a
judgment or journal entry is filed to serve copies of the judgment on the attorneys of
record within 3 days of filing; if a party is pro se, he or she should be served the notice
directly. The district court found that copies of the annual reports were sent to Piersee's
court-appointed attorney in 2012, 2013, and 2014 and therefore he had counsel in those
years. Piersee does not claim, in his petition, that he lacked counsel in 2010, but he does
not reveal whether counsel was retained or appointed. Because no annual review was
conducted in 2011, clearly no notice would have been sent to Piersee.

While the district court's failure to notify him seems like a reasonable justification
for some delay in Piersee's filing of a K.S.A. 2014 Supp. 60-1501 petition, it is only a
justification for some delay. See White v. State, No. 114,284, 2016 WL 3202889, at *4
(Kan. App. 2016) (unpublished opinion), petition for rev. filed June 21, 2016. Just as
there is for a criminal defendant awaiting word from his or her attorney on a direct
appeal, there is an "outer limit" as to how long an SVP reasonably might wait to hear
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from his or her lawyer or the district court about the status of an annual review. See 2016
WL 3202889, at *4. Beyond that point, it seems reasonable to hold the SVP responsible
for making an inquiry into the status of his or her own fate.

Because a commitment is only valid for a year, there must be a point at which
each year becomes final for purposes of challenging confinement during that period.
K.S.A. 59-29a01 declares that all time requirements referenced in the SVPA are directory
rather than mandatory. But it is clear that persons confined under the act are entitled to
yearly review and recommitment. See K.S.A. 2014 Supp. 59-29a08. However, because
the SVPA is not clear on issues of timing and allows for some variance regarding the
completion of recommitment proceedings, the date at which a year's commitment
becomes final must be based on something other than a strict calendar year or number of
days. "When statutes have been silent as to a period of time, courts have read in a
'reasonable time' into the statutes." H.T.E., Inc. v. Tyler Technologies., Inc., 217 F. Supp.
2d 1255, 1261 n.9 (M.D. Fla. 2002). Accordingly, it would certainly be reasonable to
conclude that a commitment order for 1 year would be final on the date that a new
commitment order is issued for the ensuing year. It is that act that begins the
recommitment for a new year, making whatever happened in the prior year essentially
irrelevant.

But even before the annual commitment order is entered, a person confined as an
SVP is put on notice that a recommitment order is imminent upon receipt of the written
notice of the right to petition for release. So it would also be reasonable to deem the day
the annual evaluation and notice of right or waiver are filed to be the cutoff for
challenging the prior year's commitment. This ensures that a number of competing
interests are honored. First, it clearly recognizes the need for finality. Second, it ensures
an opportunity for a meaningful remedy. When review and recommitment occurs yearly,
errors need to be addressed quickly for remedies to be meaningful. When, as here, an
SVP challenges a commitment or lack thereof several years in the past, it is difficult to
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fashion a remedy. Simply ordering a hearing at that point is meaningless because even if
the court were to find that during a prior year the SVP's mental condition had improved
such that transitional release was appropriate at that time, the fact that the SVP was
recommitted to a lower level in the program in current year would control and the
individual would remain in full confinement. This is because the SPTP allows for SVPs
to progress and regress in the program—the direction of progress is not linear. See K.S.A.
2014 Supp. 59-29a08(f), (g). Even an SVP who is granted conditional release is subject
to a return to full confinement if it is determined that changes in his or her mental
condition warrant it. See K.S.A. 2014 Supp. 59-29a19.

Here, for instance, perhaps transitional release was appropriate for Piersee in 2011.
Even if Piersee had been moved into transitional release at that time, if he regressed in
2012 he could have been removed from transitional release and placed back at a lower
step in the program. Since Piersee was recommitted in 2012 without the need for a full
hearing in accordance with K.S.A. 2014 Supp. 59-29a08(c) it is safe to assume that if
Piersee had been placed in transitional release in 2011, he would have been withdrawn
from transitional release in 2012. Therefore, a hearing on Piersee's 2011 status after his
2012 recommitment would not have benefited him because his current evaluation would
trump it in terms of his placement within the program.

Moreover, Piersee signed the 2012 annual notice on October 1, 2012. Above his
signature was the following clause, "If I desire to pursue further proceedings in this
matter, I understand that I must initiate those separately from this response." It was filed
with the district court on October 5, 2012. The district court signed an order continuing
Piersee's commitment on November 6, 2012. At this point, absent an appeal of the 2011
annual review and recommitment, the 2011 commitment order became moot. Any
remand for a hearing regarding the 2011 report would serve no purpose. He has received
three subsequent annual reviews. Piersee maintained the ability to challenge his
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continued confinement in subsequent annual reviews but failed to do so in a timely
manner.

Based upon this analysis, all but the 2014 review would have taken place in excess
of a year, and in some cases years, outside the outer limit of excusable delay so that this
factor would clearly weigh against Piersee in the Vontress balancing analysis. The 2014
annual review took place in November 2014, just 7 months before Piersee filed this
action, meaning it was still filed 5 months after the statute of limitations ran for filing an
action under K.S.A. 2014 Supp. 60-1501. See K.S.A. 2014 Supp. 60-2103(a); K.S.A.
2012 Supp. 60-1501; Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, Syl. ¶ 1,
988 P.2d 755 (1999). Although that delay is not as significant as the others, we do not
find it tips the scale in Piersee's favor.

Vontress factor 2, substantial issues of law or fact deserving the court's
attention, weighs in Piersee's favor.

The second factor is whether Piersee's claim raises substantial issues of law or fact
deserving of the district court's attention. Vontress, 299 Kan. at 616. Piersee takes issue
with the procedure that was used to recommit him each year for a number of years. He
asserts that K.S.A. 2014 Supp. 59-29a08 requires an evaluation, appointment of counsel,
and hearing annually, and failure to follow this statutory mandate is shocking, intolerable,
and unconstitutional conduct. He reminds us that in Kansas v. Hendricks, 521 U.S. 346,
364-66, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), the United States Supreme Court
based its holding that the Kansas SVPA did not unconstitutionally impinge on committed
individuals' rights in part on its finding that the act contained sufficient procedural
safeguards to protect SVPs' rights. One such procedure is to limit "[t]he maximum
amount of time an individual can be incapacitated pursuant to a single judicial proceeding
[to] one year." 521 U.S. at 364. This limitation ensures that SVPs are not detained
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indefinitely and that they are not subject to continued confinement when their mental
conditions have changed so that they are no longer a danger to society. 521 U.S. at 364.

Whether the district court had an obligation to hold yearly annual review hearings
and the protections that must be afforded at such proceedings is a question of law
appropriate for the district court's consideration. Whether the district court failed to hold
a hearing in Piersee's case is a factual question that, if resolved in his favor, could entitle
him to some relief, although we take no position on the chances for success of such claim
or what that relief might be.

Thus, this second factor weighs in favor of untimely consideration of Piersee's
claim.
Vontress factor 3, evidence that continued confinement is no longer
necessary, weighs against Piersee.

The third Vontress factor that is considered in the context of K.S.A. 60-1507
motions, is whether the movant made a colorable claim of actual innocence. 299 Kan. at
616. While there is no direct corollary in the context of a K.S.A. 60-1501 petition raised
by an SVP contesting his or her continued confinement, it may be reasonable to require
some showing that there has been a change in the offender's mental or physical health
such that continued confinement is no longer necessary. See 299 Kan. at 610 (noting
Judge Leben's conclusion that the reason for considering this factor is that "a [K.S.A. 60-
1507] motion's merits could establish manifest injustice in some circumstances, e.g., an
inmate showing actual innocence"). Piersee makes no such argument. Rather than
arguing that he was entitled to release because proper proceedings during the challenged
years would have revealed that he was no longer a danger and is entitled to release on
that basis, he argued that he was entitled to immediate release simply because his
procedural rights were violated. Thus, this third factor weighs against finding manifest
injustice here.
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Balancing these results, two out of the three Vontress factors clearly weigh against
finding manifest injustice. Because Piersee has failed to adequately explain his long delay
in challenging the district court's actions and because he makes no claim that release is
necessary based on actual changes to his condition, he has failed to establish that
manifest injustice results from a dismissal of his petition.

We are unable to consider Piersee's claims regarding his right to procedural due process
and equal protection.

Piersee's second issue asks this court to address the merits of his K.S.A. 2014
Supp. 60-1501 petition to find that his statutory right to a timely annual evaluation and
review hearing, as well as his right to procedural due process were violated in each of the
challenged years. Having found that his petition is time barred it is impossible for this
court to provide him relief on the merits.

In addition to contending that his procedural due process rights were violated,
Piersee includes an equal protection argument in his brief on appeal. Piersee did not raise
this issue before the district court. Issues not raised before the trial court cannot be raised
for the first time on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266
P.3d 516 (2011).

Piersee's Claim for Ineffective Assistance of Counsel Was Untimely.

Piersee's claim that counsel was ineffective assistance or nonexistent during the
review proceeding is part of his overarching claim that the procedure was shocking,
intolerable, and unconstitutional. We have already found his claims to be untimely.

But Piersee has also failed to make a sufficient claim to prevail on the merits. Of
course, Piersee is entitled to effective assistance of counsel and he may challenge the
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effectiveness of counsel through a collateral attack using K.S.A. 2014 Supp. 60-1501.
See In re Ontiberos, 295 Kan. 10, 27, 287 P.3d 855 (2012). To prevail on a claim of
ineffective assistance of counsel, one entitled to counsel must establish (1) that the
performance of defense counsel was deficient under the totality of the circumstances, and
(2) prejudice, i.e., that there is a reasonable probability the result would have been
different absent the deficient performance. A reasonable probability means a probability
sufficient to undermine confidence in the outcome. See 295 Kan. at 32.

So even if we were to consider his challenge and assume counsel was ineffective
in all of the claimed years, Piersee is still required to show prejudice by demonstrating
that there is a reasonable probability that, but for counsel's deficient performance, the
result of the proceeding would have been different. Piersee has failed to proffer any
evidence, for any of the challenged years, that the result would have been different. This
is fatal to his claim. Issues not briefed are deemed waived or abandoned. See State v.
Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).

The district court did not err when it failed to appoint counsel to assist Piersee with this
habeas corpus action.

Finally, Piersee argues that the district court erred when it failed to appoint
counsel to represent him in this matter. At the same time, Piersee recognizes that the right
to counsel in a K.S.A. 2014 Supp. 60-1501 proceeding only attaches after the district
court has determined that the petition cannot be summarily dismissed. Because the
district court summarily dismissed Piersee's petition, it was unnecessary for it to appoint
counsel to represent him. See Merryfield v. State, 44 Kan. App. 2d 817, 826, 241 P.3d
573 (2010).

Affirmed.

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* * *

ATCHESON, J., concurring: I concur in the result affirming the dismissal of Steven
Piersee's petition for habeas corpus relief under K.S.A. 2014 Supp. 60-1501. Piersee has
failed to show any legal basis for the relief he seeks—his release from treatment and
detention as a sexually violent predator. See K.S.A. 59-29a01 et seq.