NOT DESIGNATED FOR PUBLICATION
No. 123,458
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of CHRISTOPHER V. STRAITH, a/k/a DUSTIN J.
STRAIT.
MEMORANDUM OPINION
Appeal from Brown District Court; JAMES A. PATTON, judge. Opinion filed July 9, 2021.
Affirmed.
Dustin J. Strait, appellant pro se.
Jerry C. Edwards, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., GARDNER and ISHERWOOD, JJ.
PER CURIAM: Christopher V. Straith, also known as Dustin J. Strait, a patient in
the Kansas Sexually Violent Predator Treatment Program, requested an independent
evaluation after his annual report recommended that he was not ready for transitional
release from the program. The district court denied Straith's request, finding that Straith's
progress in the program did not justify the cost of an independent examination. Because
we find that the district court did not abuse its discretion in denying an independent
examination, we affirm the district court's decision.
Straith also asserts, for the first time on appeal, that his court-appointed attorney
was ineffective. But we find that Straith had no statutory right to a court-appointed
attorney to file a request for an independent evaluation and, even if he did, he is unable to
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establish that his attorney was ineffective or that he was prejudiced by his attorney's
conduct.
FACTUAL AND PROCEDURAL HISTORY
Straith was admitted to the Sexual Predator Treatment Program (SPTP) in March
2001. His admission was the result of his conviction for one count of aggravated indecent
liberties with a child after sexually assaulting a nine-year-old boy he had just met at a
swimming pool.
On March 18, 2020, Straith acknowledged receiving his annual notice of right to
petition for release from treatment over the Secretary of Corrections' objection. The
notice informed him that clinicians concluded that his mental abnormality or personality
disorder had not so changed that he would be safe to be placed in transitional release. The
annual report, Secretary's notice, and Straith's acknowledgement were sent to the district
judge assigned to the case.
The report, prepared by Scott Wilson, a licensed clinical psychologist, and Marc
Quillen, a psychologist, stated that Straith admitted to having approximately 22 victims
ranging from the age of 3 to 12—although in his most recent interview Straith reported
49 victims. According to the report, Straith was on Tier Two of the SPTP, which seeks to
begin the process of moving from the highly structured inpatient program toward
independent living. While in Tier Two, Straith obtained the highest levels of privileges
available to a resident.
Straith was diagnosed with pedophilic disorder, a mild stimulant use disorder, and
narcissistic personality disorder. According to his therapist, within the last year Straith
participated in both an advanced relapse prevention and an emotional regulation
supplemental therapeutic group. He also attended all of his groups and classes and
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provided appropriate excuse slips when unable to do so. He participated minimally to
moderately in group discussions and provided insightful feedback to other group
members. His journal and fantasy logs included no deviant fantasies. He also participated
in at least one individual therapy session each quarter and requested additional sessions
as needed.
In the last year, Straith had no documented disciplinary issues. He had one minor
verbal altercation with a peer, but it was quickly resolved and there was no punishment
involved.
Wilson administered the Static-99R-2003, an actuarial instrument which seeks to
estimate the probability that a convicted adult male sex offender will reoffend in the
future, on Straith. The Static-99R-2003 indicated that Straith had an above average risk
for reoffending. The ACUTE-2007, another risk assessment tool which measures factors
that may change rapidly, indicated that Straith had a low priority for general recidivism
and a low priority for sex and violence risk. The STABLE-2007, which seeks to assess
change in intermediate-term risk status, assess treatment needs, and help predict
recidivism, placed Straith in a moderate treatment need category. The three tools
combined placed Straith in a low risk or need category.
The report also utilized the MMPI-2-RF, a broad-band test designed to assess
major patterns of personality and psychological disorders. According to the report,
Straith's "response style produced an [i]nvalid profile, suggesting excessive and
inconsistent false responding on the instrument items."
In his interview before the report was created, Straith was questioned about some
of his artwork. Apparently, his treatment team did not think that he had "processed the
appropriateness of [his] artwork enough." Straith indicated that he did not think the
treatment team was correct and that his artwork was not a problem. When asked about his
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plans for the upcoming year, Straith said that he wanted to reach an understanding with
the administration regarding his artwork. Straith reported that he was a "'sadomasochist, I
enjoy pain, I enjoy giving it out, to a point. I enjoy the masochistic part more. I have not
engaged in any of that since before this program.'" He indicated that his artwork "falls
into the category of epic adventure fantasy, hack and slash fantasy and high fantasy,
meaning a group of characters go on some adventure, use swords, axes and other
weapons in fighting some evil creature and use magic." He claimed that staff members
have erroneously classified his artwork as sadistic and his character résumés as sexually
explicit. These include a picture of an elf and human sword fight, "a Borg Drone . . . and
a Terminator fighting" in which "the Terminator had a hold of the Drone by his throat
and had a gun to his head," as well as files containing pictures he has drawn of weapons
or clipped out of magazines. He believes he has proven that his artwork is not
inappropriate for him, and regular use of the polygraph would prove that he is not using
the artwork for an inappropriate purpose.
Ultimately, the report concluded that Straith remained a sexually violent predator
as defined by Kansas law.
On May 7, 2020, Straith filed a pro se petition seeking an independent
examination.
On June 5, 2020, the district court denied Straith's petition without a hearing. The
district court noted that it appeared that Straith "complies with the rules and regulations
when he deems it advantageous to him" and that his responses to the MMPI-2-RF
"resulted in an invalid profile." The court reasoned that while Straith was compliant and
successful in some aspects of his treatment, his overall behavior and performance did not
merit an independent examination and the cost of an independent examination was not
justified.
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Straith timely appeals.
ANALYSIS
A person committed under the Kansas Sexually Violent Predator Act (KSVPA) is
entitled to a current examination of his or her mental condition once every year—the
annual report. K.S.A. 2020 Supp. 59-29a08(a). After said examination, a person "must
file a request for an annual review hearing within 45 days after the date the court files the
annual written notice." K.S.A. 2020 Supp. 59-29a08(b). Failure to do so waives the
person's right to a hearing until the next annual report. K.S.A. 2020 Supp. 59-29a08(b).
"A contested annual review hearing for transitional release shall consist of consideration
about whether the person is entitled to transitional release." K.S.A. 2020 Supp. 59-
29a08(b). As part of the annual review hearing, the committed person may ask the court
to appoint an independent examiner. The appointment is discretionary with the court. In
making the decision, the court considers several factors, including the person's
compliance with institutional requirements and the person's progress in treatment. K.S.A.
2020 Supp. 59-29a08(c). At the annual review hearing, the burden of proof is on the
patient "to show probable cause to believe that person's mental abnormality or personality
disorder has significantly changed so that the person is safe to be placed in transitional
release." K.S.A. 2020 Supp. 59-29a08(d).
Straith raises two issues on appeal. First, he argues that the district court abused its
discretion by not appointing an independent examiner for his annual review hearing.
Next, he argues that his appointed counsel was ineffective.
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The district court did not abuse its discretion in denying Straith's request for an
independent examiner.
District courts have discretion to determine whether to appoint an independent
examiner for an annual review hearing. K.S.A. 2020 Supp. 59-29a08(c). In making the
decision, the court considers several factors, including the person's compliance with
institutional requirements and the person's progress in treatment. K.S.A. 2020 Supp. 59-
29a08(c). We review a district court's decision on whether to appoint an independent
examiner at the annual review stage for abuse of discretion. In re Care & Treatment of
Twilleger, 46 Kan. App. 2d 302, 310, 263 P.3d 199 (2011). A judicial action constitutes
an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an
error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469,
430 P.3d 931 (2018).
Upon reviewing the record, we cannot say that the district court abused its
discretion by denying Straith's request for an independent examiner. Although the
ACUTE-2007 and STABLE-2007 placed Straith at a low risk of reoffending, the Static-
99R-2003 placed him in an above average risk of reoffending category. And, as the
district court noted in its decision, there were indications that Straith was not entirely
honest in his psychological testing. Moreover, there was a continued problem with the
appropriateness of Straith's artwork.
While there are indications that Straith is making good progress in the treatment
program, there remain areas of concern. Because there is no allegation that the district
court made an error of fact or an error of law when it reached its decision, the question
before this court is whether the district court's decision to deny Straith's request for an
independent examiner was arbitrary, fanciful, or unreasonable. See Ingham, 308 Kan. at
1469. Given the record before us, we cannot find that it was. Thus, the district court did
not abuse its discretion.
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Straith was not denied the effective assistance of counsel.
For the first time on appeal, Straith claims that his attorney, William R.
McQuillan, was ineffective because he failed to send Straith any of the State's filings and
failed to notify him that there were errors in his pro se request for an independent
evaluation.
Our standard of review is unlimited.
We must first determine if Straith had a statutory right to an attorney in filing his
request for an independent examiner. Statutory interpretation presents a question of law
over which appellate courts have unlimited review. Nauheim v. City of Topeka, 309 Kan.
145, 149, 432 P.3d 647 (2019). If he had such a right, we then review whether counsel
was ineffective using the standards set out in In re Care & Treatment of Ontiberos, 295
Kan. 10, 20-21, 287 P.3d 855 (2012).
Straith did not have a statutory right to counsel in his request for an independent
examiner.
The Kansas Supreme Court "has held that when there is a right to counsel there is
necessarily a correlative right to effective counsel—regardless of whether the right
derives from a statute or the constitution." In re Ontiberos, 295 Kan. at 20. Straith's right
to counsel here is—at most—a statutory one. See K.S.A. 2020 Supp. 59-29a08(e) ("The
person shall have a right to have an attorney represent the person at the annual review
hearing to determine probable cause."). The section of the KSVPA pertaining to the
annual review—K.S.A. 2020 Supp. 59-29a08—does not provide the right to an attorney
at any other stage of the annual review hearing proceeding.
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Straith's petition dealt only with the request for an independent evaluation. The
focus was on his belief that the persons that completed his review were improperly
viewing his artwork as evidence that he was not ready for transitional release. He
believed an independent evaluator "would state something along the lines of, 'I may not
agree with the nature of his artwork, but as long as he is passing his polygraph
examinations, that shows he is being truthful about it.'" The statutory right to court
appointed counsel does not attach to a request for an independent evaluation—only to a
probable cause determination at the annual hearing. There was never a probable cause
determination or an annual hearing here so his statutory right to counsel did not attach.
But even if he had such a right, Straith fails to show that he availed himself of
court-appointed counsel and that counsel's performance was deficient.
Straith cannot succeed on a claim of ineffective assistance of counsel when he
elected to proceed pro se.
"[A] finding of ineffective assistance of counsel based on deficient performance in
a KSVPA proceeding requires a determination that (1) counsel's performance was
deficient; and (2) counsel's deficient performance was sufficiently serious to prejudice the
respondent and deprive him or her of a fair trial." In re Ontiberos, 295 Kan. at 31. Straith
bears the burden of proof. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
The parties agree that Straith had an appointed attorney available to advise him. In
2016, William R. McQuillan was appointed to represent Straith after he filed a pro se
petition for discharge or transitional release. McQuillan continued to represent Straith
through an appeal of the district judge's denial of his request for an independent
examiner. See In re Care & Treatment of Strait, No. 116,767, 2017 WL 2403351 (Kan.
App. 2017) (unpublished opinion). He continued to appear on Straith's behalf at the 2018
annual review hearing. Later in 2018, Straith filed another pro se petition for discharge or
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transitional release. At the same time, Straith filed a request for court-appointed counsel.
The court noted that "McQuillan remains appointed." McQuillan appeared on Straith's
behalf at the hearing on his petition. The court also noted that all of Straith's filings
should be provided to McQuillan "so all legal requirements are met." The district court
denied Straith's request for an independent examiner and denied his request for
transitional release.
Straith also had an attorney, Gerald G. Wells, representing him in a K.S.A. 60-
1501 appeal to this court. Strait v. State, No. 120,496, 2020 WL 288540 (Kan. App.
2020) (unpublished opinion).
Following receipt of the 2020 annual review, Straith filed a pro se "Petition for
Independent Evaluation." The record does not reflect that he sent a copy of the motion to
McQuillan or that he filed a request for court-appointed counsel as he had in the past. The
State pointed this out in its response to Straith's petition.
"The Respondent filed his Petition pro-se, however [after] a review of the record it
appears he is currently represented by counsel. Courts have stated that '[w]hile a party has
a right to represent himself or herself or be represented by counsel, he or she does not
have the right to hybrid representation.' State v. Homes, 278 Kan. 603, 620[, 102 P.3d
406] (2004) citing State v. McKessor, 246 Kan. 1, 12[, 785 P.2d 1332] (1990)."
The State asked that Straith's petition be struck because he was not entitled to
hybrid representation. The district court did not strike the petition but denied Straith's
request for an independent evaluation based on the written filings and court record. A
copy of the court's order was mailed to Straith.
Straith claims that attorney McQuillan was ineffective because he failed to send
Straith any of the State's filings and failed to notify him that there were errors in his pro
se request for an independent evaluation. We first examine whether McQuillan's
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representation was deficient. "A court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance." State v.
Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004).
The only State filing related to Straith's petition was the State's response to his
petition. The record reflects that a copy of the State's response was "served on all counsel
of record through the Court's electronic filing system." There is no indication that Straith
ever received a copy of the State's response, even though it was clear he was proceeding
pro se. But there is also no indication that Straith ever requested any assistance from
McQuillan or even advised him of his pro se filing as the district court had ordered him to
do two years earlier. We cannot find McQuillan's representation to be deficient when
there is no indication in the record on appeal that McQuillan ever knew of or was given
the opportunity to approve Straith's pro se filing. Straith chose to file his petition pro se
knowing—based on prior hearings—that the court considered McQuillan a continuing
appointment as his attorney. Once he made that election, he cannot now claim McQuillan
was ineffective for not providing advice to him.
Straith does not show that he was prejudiced by McQuillan's representation.
Next, even if we were to find McQuillan's representation deficient, Straith must
still show that he was prejudiced by McQuillan's deficient performance. Straith only lists
two specific claims of prejudice (1) "if appellant would have been aware of the [State's]
response, the appellant could have responded accordingly"; and (2) "I filed an
independent evaluation, which I messed up on. At no time after filing [it] did my court
appointed lawyer contact me that my filing was wrong, or messed up." Straith does not
indicate how he would have responded to the State's response had he known about it and
why it would have been a successful argument. Second, he does not indicate how his
initial request was "messed up." The district court did not point to any deficiencies in the
request itself, only that it was not persuaded that an independent evaluation was merited.
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So even if we were to find McQuillan's representation deficient, Straith has failed to carry
his burden to show he was prejudiced by it.
For these reasons, we affirm the decision of the district court denying Straith's
request for the appointment of an independent examiner.
Affirmed.
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