IN THE COURT OF APPEALS OF IOWA
No. 16-0363
Filed April 19, 2017
IN RE THE DETENTION OF
MARVIN ALLEN MEAD
MARVIN ALLEN MEAD,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Marlita A. Greve,
Judge.
Marvin Mead challenges the district court’s denial of his request for a final
review hearing pursuant to Iowa Code section 229A.8 (2015). WRIT
ANNULLED.
Adam C. Gregg, State Public Defender, and Thomas J. Gaul, Assistant
Public Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle P. Hanson and Tyler J. Buller,
Assistant Attorneys General, and Lucas Sterbick, Student Legal Intern, for
appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, Presiding Judge.
Marvin Mead challenges the district court’s denial of his request for a final
review hearing pursuant to Iowa Code section 229A.8 (2015). He argues he
proved by a preponderance of the evidence that there is relevant and reliable
evidence for a final hearing to determine whether he is suitable for discharge or
transitional release.
In 2011, a jury found Mead to be a sexually violent predator, and he was
civilly committed. On January 29, 2016, Mead had his annual review hearing
pursuant to section 229A.8. Both Mead and the State presented evidence from
separately obtained experts who independently evaluated Mead to determine his
suitability for discharge or transitional release. On February 3, the district court
denied Mead’s request for a final review hearing. Mead appealed. The supreme
court treated Mead’s appeal as a petition for writ of certiorari and granted the
petition. See Iowa R. App. P. 6.108.
“We review certiorari actions for correction of errors at law.” Taft v. Iowa
Dist. Ct., 828 N.W.2d 309, 312 (Iowa 2013). In reviewing such actions, “[w]e
‘examine only the jurisdiction of the district court and the legality of its actions.’”
Id. (citation omitted). “Illegality exists when the court’s factual findings lack
substantial evidentiary support, or when the court has not properly applied the
law.” Id. (citation omitted). To the extent constitutional issues are raised, our
review is de novo. See In re Det. of Matlock, 860 N.W.2d 898, 901 (Iowa 2015).
A person committed under chapter 229A is entitled to an annual
examination and review of the committed “person’s mental abnormality.” Iowa
Code § 229A.8(2); see also Taft, 828 N.W.2d at 313. “A report of the results of
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each annual examination must be submitted to the court that ordered the
committed person’s commitment.” Taft, 828 N.W.2d at 313 (citing Iowa Code
§ 229A.8(3)). “A committed person may present evidence including expert
opinions for the court’s consideration in the annual review.” Id. (citing Iowa Code
§ 229A.8(2)). “The court’s annual review of the committed person’s status may
be based ‘only on written records.’” Id. (quoting Iowa Code § 229A.8(3)).
Section 229A.8(1) includes “a rebuttable presumption . . . that the
commitment should continue.” The committed person can rebut the presumption
by proving “by a preponderance of the evidence that there is relevant and reliable
evidence . . . , which would lead a reasonable person to believe a final hearing
should be held.” Iowa Code § 229A.8(5)(e)(1). The committed person must
establish facts sufficient to warrant a final hearing to determine whether “[t]he
mental abnormality of the committed person has so changed that the person is
not likely to engage in predatory acts constituting sexually violent offenses if
discharged,” or “[t]he committed person is suitable for placement in a transitional
release program.” Id. § 229A.8(5)(e)(1)(a), (b). Thus, the “standard for
determining whether a final hearing is required is satisfied if a reasonable person
would find, from the relevant and reliable evidence presented at the annual
review stage, that the committed person has more likely than not generated a
fact question on either of the[se] issues.” Taft, 828 N.W.2d at 318 (citing Iowa
Code § 229A.8(5)(e)(1)(a), (b)). If the court finds the burden has been met, the
court sets the matter for a final hearing. Iowa Code § 229A.8(5)(e)(2).
Here, the district court determined Mead “ha[d] not proved by a
preponderance of the relevant and reliable evidence that a reasonable person
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would believe a final hearing should be held to determine if he is suitable for
placement in a transitional release program or for release.” In making its
determination, the district court pointed out numerous, significant inconsistencies
in Mead’s expert’s report that led to its conclusion the report was not reliable.
The court noted the expert had failed to consider certain facts surrounding prior
sexually violent offenses Mead had committed and had ignored the fact that
Mead’s risk of reoffending based on the administered objective tests was
increasing rather than decreasing.
Further, the court found that, even if Mead’s expert’s report did meet the
threshold level of reliability, the evidence did not raise a factual question
regarding his continued dangerousness or his suitability for transitional release
because it did not unequivocally recommend Mead be discharged. See Taft, 828
N.W.2d at 322. The court noted that, similar to the circumstances in Taft, Mead’s
expert opined, “Mead is most suitable for no longer being termed a sexually
violent predator. If a trier of fact concluded that he somehow continues to meet
criteria for [sexually violent predator] labeling, then it is recommended that he be
placed in a transitional release program.” The court concluded, “This is not an
unequivocal opinion recommending discharge.” We agree. See id. (affirming the
district court’s determination the respondent “failed to satisfy his burden of proof
at the annual review stage on his claim for discharge” when the expert’s “report
did not include an unequivocal opinion that [the respondent] should be
discharged”).
Finally, the court determined Mead was statutorily ineligible for transitional
release because he failed to meet the requirements of Iowa Code section
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229A.8A(2)(a)–(i). See id. The court reiterated the expert’s report showed
Mead’s risk of reoffending had increased rather than decreased and the report
failed to acknowledge certain facts underlying Mead’s original commitment. See
Iowa Code § 229A.8A(2)(a) (“The committed person’s mental abnormality is no
longer such that the person is a high risk to offend.”). The court also noted Mead
had received a major incident report within six months of the review hearing.
See id. § 229A.8A(2)(e) (providing “[a] committed person is suitable for
placement in the transitional release program if the court finds . . . [n]o major
discipline reports have been issued for the committed person for a period of six
months”). Additionally, the court determined Mead failed to meet the requirement
of section 229A.8A(2)(g), which provides, “The committed person is not likely to
engage in predatory acts constituting sexually violent offenses while in the
program,” based on objective test results that Mead’s risk of recidivism is
increasing.
On our review, we agree with the district court’s determination Mead failed
to prove by a preponderance of the evidence that he was entitled to a final
hearing to determine whether he is suitable for discharge or transitional release.
Accordingly, we affirm.
WRIT ANNULLED.
Bower, Judge, concurs; McDonald, Judge, dissents.
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McDONALD, Judge (dissenting)
I respectfully dissent. The legal standard for determining whether a
committed person is entitled to a “final hearing” is set forth in Iowa Code chapter
229A (2015). The relevant standard, as explained in Taft v. Iowa District Court,
is as follows:
[U]nder section 229A.8(5)(e)(1), a committed person is entitled to a
final hearing if the court, upon consideration of all the evidence
presented at the annual review, finds the committed person has
proved by a preponderance of the relevant and reliable evidence
that a reasonable person would believe a hearing should be held to
determine whether (a) the mental abnormality of the committed
person has so changed that the person is not likely to engage in
predatory acts constituting sexually violent offenses if discharged or
(b) the committed person is suitable for placement in a transitional
release program. This standard for determining whether a final
hearing is required is satisfied if a reasonable person would find,
from the relevant and reliable evidence presented at the annual
review stage, that the committed person has more likely than not
generated a fact question on either of the issues enumerated in
section 229A.8(5)(e)(1)(a) or (b).
828 N.W.2d 309, 318 (Iowa 2013). The committed person does not need to
establish a fact question with respect to both (a) and (b). See In re Det. of
Shaffer, No. 12-1815, 2014 WL 1746530, at *3 (Iowa Ct. App. Apr. 30, 2014)
(“Second, the grounds for a final hearing are set forth in the disjunctive. That is,
the committed person establishes an entitlement to a final hearing by generating
a fact question on either of the issues enumerated in section 229A.8(5)(e)(1)(a)
or (b).”)
Dr. Witherspoon’s report is “relevant and reliable” within the meaning of
the statute and Taft. Dr. Witherspoon is a licensed clinical psychologist and sex-
offender evaluator with extensive experience. His methodology is generally
accepted in the relevant community. His report and testimony would be
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admissible pursuant to Iowa Rule of Evidence 5.702. Nothing more is required.
In concluding to the contrary, the district court undertook a thorough analysis of
the credibility and conclusions of the report. This was improper. See Shaffer,
2014 WL 1746530, at *3 (“Chapter 229A does not require a mini-trial on the
evidence presented at the annual review on questions that ultimately will be
decided at a final hearing, if granted. The ultimate weight to be given to the
evidence is for the finder of fact at the final hearing.”).
Mead established by a preponderance of the evidence that he “more likely
than not generated a fact question” on whether “the mental abnormality of the
committed person has so changed that the person is not likely to engage in
predatory acts constituting sexually violent offenses if discharged.” This is not a
high burden. See id. at *2 (quoting Taft, 828 N.W.2d at 318) (stating “the
committed person is not required to generate a question of fact” but instead only
has to show he “more likely than not generated a fact question”). Dr.
Witherspoon explicitly opined Mead’s mental abnormality had changed due to
Mead’s advanced age, infirmity, and years of treatment, among other things.
The report states, “There is no evidence of ongoing antisocial tendencies, other
acting out concerns, or severe psychopathology. His profile was normal.”
Further, “Deviant sexuality does not appear to be an operant component of his
current functioning.” Dr. Witherspoon also explicitly opined Mead is not likely to
engage in sexually violent offenses if discharged. The report stated Mead’s
“projected risk not to reoffend sexually would be estimated at 99% per year.”
(Emphasis added.) The report concludes:
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The upshot, realistically, is that concern about reoffending
risk for Mr. Mead at this point is nearly moot. For him to be legally
termed a sexually violent predator, there would be a need to
demonstrate ongoingly that he is more likely than not to reoffend
sexually. Not only is that not the case, but his estimated
reoffending risk at this point is nearly off the chart in the other
direction.
Chapter 229A does not require a “mini-trial” on the evidence presented at
the annual review on questions that ultimately will be decided at a final hearing.
See Taft, 828 N.W.2d at 317. But that is exactly what happened in this case, and
it was improper. Mead met his burden in establishing an entitlement to a final
hearing by establishing a fact question with respect to section 229A.8(5)(e)(1)(a).
The district court exceeded its jurisdiction and otherwise acted illegally in denying
Mead’s request for final hearing. I would reverse the judgment of the district court
and remand this matter for a final hearing.