NOT DESIGNATED FOR PUBLICATION
No. 123,949
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
IN THE MATTER OF THE CARE AND TREATMENT OF
DUSTIN J. MERRYFIELD.
MEMORANDUM OPINION
Appeal from McPherson District Court; JOHN E. SANDERS, judge. Opinion filed October 7, 2022.
Affirmed.
Dustin J. Merryfield, appellant pro se.
Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: Dustin J. Merryfield has a long and varied history with our court. In
this most recent chapter, he mainly challenges the district court's denial of his petition to
be returned to transitional release under the Kansas Sexually Violent Predator Act
(KSVPA), K.S.A. 2021 Supp. 59-29a01 et seq. but also takes issue with various other
rulings entered by the district court. He contends he endured equal protection and
procedural due process violations, the district court acted outside the scope of its
jurisdiction, the KSVPA is constitutionally infirm, and counsel rendered deficient
representation. While our resolution is varied in that we find Merryfield is not entitled to
relief on the merits of his claim that he should be returned to transitional release and that
he waived or failed to properly preserve other claims, overall, we detect no errors. The
decision of the district court is affirmed.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2000, Dustin J. Merryfield was classified as a sexually violent predator and
committed to the Sexual Predator Treatment Program (SPTP). Under that program an
individual must progress through three separate tiers of inpatient services, followed by
two levels of supervised treatment—transitional release followed by conditional
release—before becoming eligible to petition for final release. See K.S.A. 2021 Supp. 59-
29a02(i),(k).
In early June 2018, Merryfield was approved to advance to the third tier of the
SPTP which contemplates preparation for transitional release as part of its rubric.
Achievement of that status enabled Merryfield to relocate from Larned State Hospital
(LSH) to Maple House, a reintegration facility on the grounds of Parsons State Hospital.
Patients in the separate transitional release phase of the program also reside at Maple
House. Together with the regular tier three treatment protocol, patients in the
reintegration program are also required to "maintain responsible behavior and
communication with staff at the reintegration facility . . . and demonstrate a satisfactory
degree of transparency in [his or her] lifestyle."
In December 2018, the Secretary of the Kansas Department for Aging and
Disability Services (KDADS) filed with the district court its annual report and "Annual
Notice of Right to Petition for Release From Treatment Over the Secretary's Objection"
as required by K.S.A. 2018 Supp. 59-29a08, concerning Merryfield. Included within that
filing was a signed acknowledgment by Merryfield that he received the notice, but not
that he waived the right to pursue further proceedings. Yet Merryfield never filed a
request for a hearing.
Roughly one year into the program at Maple House, a staff member reported that
Merryfield made sexually inappropriate remarks to her. Specifically, Merryfield
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complimented her on her physical appearance, asked if she was planning to party and
play over the weekend in a manner that insinuated sexual activity, wanted to know
whether her morals were like that of the girls in a television program about underage
pregnancy, and asked whether she ever had to consider using the morning after pill.
Consequently, the Progress Review Panel (PRP) demoted Merryfield to the first tier of
the SPTP and transferred him back to LSH.
In December 2019, KDADS filed its 2019 annual report and Notice related to
Merryfield which was again accompanied by a signed acknowledgment of receipt from
Merryfield. At the end of that month, assisted by appointed counsel, Merryfield filed a
"Request for a Hearing and Order to Put Respondent Back in Transitional Release." In
the motion, Merryfield asserted that his placement at Maple House fell within the reach
of the statutory definition of transitional release, so he could only be demoted and
returned to secure confinement at LSH by court order following a hearing.
The State filed a response objecting to Merryfield's motion and explained that
Merryfield misstated both the fact that he was previously ordered to transitional release,
as well as the legal procedure governing such release. Thus, Merryfield was asking the
court to act in a manner that exceeded both its statutory authority and jurisdiction.
In January 2020, Merryfield filed a pro se request for a hearing on his 2019 annual
report along with an affidavit detailing his progress in the SPTP. In the affidavit,
Merryfield acknowledged that a staff member reported him for making inappropriate
comments yet claimed no personal recollection of their occurrence. However, he also
stated that to the extent the remarks were made he was remorseful. Despite his alleged
absence of any recollection, Merryfield also took the position that the staff member bore
culpability for initiating the sexually charged exchange and that he reported as much
upon his return to LSH. He submitted a follow up affidavit a few weeks later and claimed
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a polygraph test showed the veracity of his assertion that he did not engage in the
inappropriate conversations.
On September 29, 2020, the district court issued several orders addressing various
aspects of Merryfield's case. First, it summarily denied Merryfield's request to return to
transitional release. The court explained:
"The record reflects that Merryfield has never been placed in transitional release
by the court. He had been transferred from Larned to Parsons in June 2019, as part of
treatment protocols in preparation of his transfer to transitional release. This transfer has
apparently caused the confusion here. The court, and only the court can authorize
transitional release, either with or without the Secretary of KDADS approval. See K.S.A.
59-29a08(h) and K.S.A. 59-29a10. That has never happened in this case.
"The record further reflects that, while at the Parsons facility, around August 8,
2019, Merryfield engaged in inappropriate sexual conversation with staff. The treatment
personnel deemed such behavior a significant indicator of relapse and he was returned to
secure confinement at Larned. He also received a reduction of tier status. In parallel to
Merryfield's motion here, he has appealed through the grievance process, the staff's
decision to return him to secure confinement (but not the fact that he did anything
wrong). The record shows that his appeal proceedings which go through the Office of
Administrative Hearing have not been fully completed, thus his administrative remedies
are not exhausted. However, reduction in tier status is a different issue from placement
status. This court will not interfere with his treatment providers' judgment in regard to his
placement in secure status as opposed to preliminary protocols involving integration and
preparation for transitional release at such time as it may be ordered by the court.
"Never having been lawfully placed in transitional release by the court in the first
place, the court has no authority to return respondent to such placement. Merryfield's
motion is DENIED."
Likewise, the district court issued an order finding that Merryfield waived the
opportunity to request a review hearing on his 2018 annual report because he failed to
4
timely request a hearing within 45 days of receiving the report as required by K.S.A.
2018 Supp. 59-29a08(b).
In January 2021, the district court issued another order relating to both the 2018
and 2019 annual reports. First, the court reiterated that Merryfield's failure to timely
request a hearing to address his 2018 annual report resulted in a waiver of that right and
therefore any challenges related to that report were moot. The court also noted that it
conducted an in-camera review of the 2018 annual examination and concluded
Merryfield's condition had not improved such that it was safe to elevate him to
transitional release status. The court further found that information in his 2019 annual
report reaffirmed that transitional release was not an appropriate placement given that he
was returned to secure confinement during his 2019 annual review cycle.
On February 8, 2021, Merryfield filed several pro se motions including:
• A "Notice of Prison Mailbox Rule," asserting that he timely submitted a
request for a hearing within 45 days of receiving the 2019 annual report.
• A "Request for Hearing," seeking "the Due Process for which he is entitled"
and an annual review hearing, purportedly related to his 2020 annual report
but also addressing his previous years' reports.
• A "Motion for Change of Assigned Legal Counsel," requesting
appointment of new legal counsel because his current attorney neglected to
ensure that his rights were protected and failed to communicate with
Merryfield since January 2020.
The next day, the district court appointed substitute counsel for Merryfield but
roughly one month later, Merryfield moved the court to remove that individual and
appoint yet another new attorney. In support of his request, Merryfield asserted he had
only recently learned of new counsel's appointment and to date had yet to share in any
5
communication with her. Thus, he either wanted to go forward pro se or with another
attorney.
Merryfield also filed a pro se motion for leave to file notice of appeal out of time,
asserting that Kansas Supreme Court Order 2020-PR-058, effective May 27, 2020,
suspended all statutory deadlines and alternatively that neither of his prior appointed
attorneys informed him about the district court's orders issued on September 29, 2020, or
January 22, 2021. The attached notice of appeal focused on two rulings: (1) the
September 29, 2020 "Order Denying Request to be Returned to Transitional Release";
and (2) the January 22, 2021 "Journal Entry of Annual Review 2019." About three weeks
later, Merryfield filed a second pro se notice of appeal stating his intention to appeal the
district court's September 29, 2020 "Order Regarding 2018 Annual Examination."
Merryfield essentially now presents ten issues for our consideration. Yet many of
his arguments are interrelated and, as such, may be consolidated for resolution.
THE DISTRICT COURT PROPERLY EXERCISED JURISDICTION OVER
MERRYFIELD'S ANNUAL REVIEW HEARINGS
Within this issue, Merryfield raises jurisdictionally based challenges to the district
court's exercise of authority over his 2018 and 2019 annual review hearings. First, he
argues that K.S.A. 60-211(a) requires that all his annual reports be stricken because they
were filed without the Attorney General's signature and the notice of rights and waiver
forms were neither reviewed nor signed by Merryfield's attorney. Next, he essentially
contends the district court's inaction or failure to conduct an in-camera review of his 2018
annual report subsequently deprived it of jurisdiction over his 2019 annual review.
Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. Via Christi Hospitals Wichita v. Kan-Pak, 310 Kan. 883, 889, 451
6
P.3d 459 (2019). Likewise, when an issue requires interpretation of a statute, it also
presents a question of law subject to unlimited review. Nauheim v. City of Topeka, 309
Kan. 145, 149, 432 P.3d 647 (2019).
The annual review process required by the KSVPA is outlined in K.S.A. 2021
"Each person committed under the Kansas sexually violent predator act shall have a
current examination of the person's mental condition made once every year. The secretary
shall provide the 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 under the Kansas sexually violent predator
act. The court shall file the notice and the report upon receipt and forward the file-
stamped copy to the attorney general. The attorney general shall forward a file-stamped
copy of the annual written notice and annual report to the secretary upon receipt." K.S.A.
2021 Supp. 59-29a08(a).
Once those steps are satisfied, one of two things must occur. First, the committed
individual can request an annual review hearing within 45 days after the court files the
annual written notice. K.S.A. 2021 Supp. 59-29a08(b). When such a request is made and
a hearing occurs, the individual bears the burden of showing probable cause to believe
that their mental condition has transformed such that they are safe to be placed in
transitional release. K.S.A. 2021 Supp. 59-29a08(d). The statute allows the person to
have an attorney represent them at the probable cause hearing, but it does not entitle them
to be personally present. K.S.A. 2021 Supp. 59-29a08(e).
The person may also opt to not request a hearing. In those situations, "the court
that committed the person . . . shall then conduct an in camera annual review of the status
of the person's mental condition and determine whether the person's mental abnormality
or personality disorder has significantly changed so that an annual review hearing is
7
warranted. The court shall enter an order reflecting its determination." K.S.A. 2021 Supp.
59-29a08(f).
If, after either the initial hearing or an in-camera review, the district court
determines that probable cause of improvement exists, the court must set an evidentiary
hearing for transitional release. For purposes of that hearing, the burden then shifts to the
State to establish beyond a reasonable doubt that due to the person's mental condition,
transitional release is not an appropriate placement and, if such modification were to
occur, the individual is likely to engage in acts of sexual violence. K.S.A. 2021 Supp. 59-
29a08(g).
a. K.S.A. 60-211(a) does not apply to the filing of annual reports under K.S.A.
2021 Supp. 59-29a08(a).
In laying the foundation for the first of his jurisdictional challenges, Merryfield
highlights K.S.A. 2021 Supp. 60-211(a) which states that "[e]very pleading, written
motion and other paper must be signed by at least one attorney of record." He then
contends that K.S.A. 2021 Supp. 59-29a08(a) contravenes this provision because (1) the
annual reports are not signed by the Attorney General, who represents the state; and (2)
the notice of rights and waiver forms were not presented to or signed by Merryfield's
attorney. Therefore, the district court had the obligation to strike the annual reports, along
with the notice and waiver forms, because of their failure to meet the demands of K.S.A.
2021 Supp. 60-211(a).
In support of his claim, Merryfield directs our attention to Mangiaracina v.
Gutierrez, 11 Kan. App. 2d 594, 595, 730 P.2d 1109 (1986), for the proposition that
"[o]ur legal system cannot function on any basis other than equal treatment of all
litigants. To have different rules for different classes of litigants is untenable." His
argument seems to be that if some of his own pro se filings were stricken during his case
8
because they were submitted without his attorney's signature, then it would be unfair to
allow the State to submit documents to the court that are not signed by the attorney for
the State, i.e., the Attorney General. Merryfield's reliance on the Mangiaracina quote is
misplaced because, when it is reunited with its surrounding context, it actually reflects
that the panel intended to communicate that a pro se litigant is held to the same rules of
procedure and evidence as those who are represented by counsel. 11 Kan. App. 2d at 595-
96.
Merryfield correctly observes that the KSVPA is civil in nature and subject to the
Kansas Rules of Civil Procedure "except as expressly provided elsewhere in the
[KSVPA]." K.S.A. 2021 Supp. 59-29a04(g). At the same time, he misconstrues this
provision to mean that the Rules of Civil Procedure apply unless the KSVPA specifically
excludes them. The plain language of K.S.A. 2021 Supp. 59-29a08(a) reflects the
contrary to be true. That is, the legislature intended that the specific procedures for
submitting the annual report and related documents apply rather than the more general
process for filing pleadings in a civil case. Stated more directly, Merryfield's assertion
that the district court lacked jurisdiction because the annual reports submitted by the
Secretary of KDADs lacked the Attorney General's signature is not persuasive.
Merryfield further contends the notice of rights and waiver forms were likewise
legally infirm given that they were never signed by his attorney as required by K.S.A.
2021 Supp. 60-211(a). But K.S.A. 2021 Supp. 59-29a08(a) plainly directs the Secretary
to simply provide the person with the annual written notice of rights and waiver forms
before submitting the same to the district court. Again, it was the intent of the legislature
that the more specific procedures of that provision control these proceedings over the
more general directives found at K.S.A. 2021 Supp. 60-211(a). That being said, the
absence of Merryfield's counsel's signature from those documents did not strip the district
court of jurisdiction.
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Put simply, Merryfield fails to show that non-compliance with K.S.A. 2021 Supp.
60-211(a) in the filing of the annual reports deprived the district court of jurisdiction.
b. The district court's failure to enter an order after an individual waives their
right to request an annual review hearing does not deprive the court of
jurisdiction to conduct the next year's annual review.
Merryfield's next jurisdictional challenge arises out of the process which occurs
following the filing of the annual report; specifically when a person fails to request an
annual review hearing within 45 days as required by K.S.A. 2021 Supp. 59-29a08(b).
Merryfield concedes that neither he nor his attorney requested an annual review hearing
after the 2018 annual report was filed. Yet he contends the district court violated the
statute by conducting an in-camera review and ultimately issuing an order of its findings
about that report. See K.S.A. 2018 Supp. 59-29a08(f). As a related matter, he challenges
the continued validity of this court's decision in Griffin v. Bruffett, 53 Kan. App. 2d 589,
598, 389 P.3d 992 (2017), which held that the filing of the annual evaluation and notice
of right or waiver is the "cutoff for challenging the prior year's commitment."
To place Merryfield's arguments in the proper context, an overview of the relevant
dates as they relate to his annual examinations is helpful:
• December 19, 2018: The 2018 annual report, along with Merryfield's
signed acknowledgment of receipt and waiver form, is filed in the district
court.
• December 18, 2019: The 2019 annual report, along with Merryfield's
signed acknowledgment of receipt and waiver form, is filed in the district
court.
• January 30, 2020: Merryfield filed a request for an annual review hearing
on the 2019 annual report.
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• July 27, 2020: Merryfield filed a request for a decision on the 2018 annual
report, asserting that the review is still "open and waiting for the Judge to
complete the in-camera review pursuant to K.S.A. § 59-29a08(f)."
• September 29, 2020: The district court entered an order finding Merryfield
waived the right to request a review hearing on the 2018 annual report by
failing to file a request within 45 days of the filing.
• January 22, 2021: The district court entered an order related to both the
2018 and 2019 annual reports.
To begin, as Merryfield notes, this court previously addressed the time limitations
of the KSVPA annual review procedures in Griffin. Although raised in the context of a
habeas petition under K.S.A. 60-1501, Griffin argued that his statutory and constitutional
rights were violated because the district court repeatedly failed to hold annual review
hearings or issue recommitment orders. Our court agreed that such negligence was
"particularly significant and egregious," and resulted in a violation of Griffin's procedural
due process rights. 53 Kan. App. 2d at 596. But it determined that most of the claims
being raised were untimely. 53 Kan. App. 2d at 596-600. In reaching that conclusion, the
panel explained that "[b]ecause a commitment [under the KSVPA] 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." 53 Kan. App. 2d at 597. It went on to conclude that it
was reasonable to set the "cutoff" date for challenging a prior year's commitment as the
date the new annual evaluation and notice are filed in the district court. 53 Kan. App. 2d
at 598-99.
According to Merryfield, the district court lacked the authority to conduct an
annual review hearing based on his 2019 annual report pursuant to the reasoning in
Griffin because that report was filed before the court concluded its review on his 2018
annual report. For clarification, Merryfield incorrectly asserts that the 2018 review
concluded on September 29, 2020. But according to the record the relevant date is
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actually January 22, 2021, which is when the district court entered its order noting that it
conducted its in-camera review of the 2018 annual report and determined that
Merryfield's condition had not significantly changed as to warrant transitional release.
Thus, Merryfield's contention is that the district court's failure to enter an order to
officially "conclude" the 2018 annual review somehow deprived the court of jurisdiction
to begin the 2019 annual review process.
Merryfield's arguments on this point are somewhat contradictory. First, he asserts
that applying Griffin to the facts of his case would mean that his 2019 and 2020 annual
reports needed to be stricken from the record because they were filed before the district
court finalized his 2018 report. He requests that we find "there is no jurisdiction for an
annual review until one year from the date the last re-commitment order was entered, a
date which will not be static and will always change each year." But adopting
Merryfield's proposed jurisdiction rule would run afoul of both the KSVPA and the
United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct.
2072, 138 L. Ed. 2d 501 (1997) (upholding the constitutionality of the KSVPA).
Starting with the KSVPA, Merryfield misconstrues the language of the statutes
governing the annual review process. The only case he cites to support his arguments is
Griffin, but that case did not present precisely the same question as he proposes to us.
While the Griffin panel indeed discussed the time limitations of the KSVPA's annual
review process, those discussions occurred in the context of a habeas proceeding in
accordance with K.S.A. 60-1501(c) (requiring persons committed under the KSVPA to
petition for a writ of habeas corpus "within 30 days from the date the action was final").
We find that the Griffin panel's discussion about the finality of an annual commitment
order is merely instructive and therefore not binding on our analysis of this matter
because: (1) this is not a habeas proceeding, and (2) this court is not bound by decisions
from other panels of this court. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506
(2018).
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Generally, time requirements under the KSVPA are viewed as directory rather
than mandatory. K.S.A. 2021 Supp. 59-29a01(b). Notably, the provision outlining the
procedures for an annual review hearing are silent about any specific time frame during
which a district court must conduct an annual review hearing. See Griffin, 53 Kan. App.
2d at 597 (observing that the KSVPA "allows for some variance regarding the completion
of recommitment proceedings").
Since Merryfield did not request a hearing after his 2018 annual report, K.S.A.
2018 Supp. 59-29a08(f) applies. That statute provides:
"the court that committed the person under the Kansas sexually violent predator act shall
then conduct an in camera annual review of the status of the person's mental condition
and determine whether the person's mental abnormality or personality disorder has
significantly changed so that an annual review hearing is warranted. The court shall enter
an order reflecting its determination." K.S.A. 2018 Supp. 59-29a08(f)
Merryfield asserts that the district court ignored the requirement to do an in-
camera review and essentially concluded no review would be completed given that
Merryfield did not request one. But the district court did conduct an in-camera review,
albeit only confirming that it did so in its January 2021 ruling. Because the statute is
silent about any specific timeline for the district court to conduct the in-camera review or
enter an order, the question turns to what would be a reasonable time.
We choose to align with the Griffin panel's observation that the filing of the annual
report and notice of right or waiver provides an individual with sufficient notice that a
recommitment order is imminent. See Griffin, 53 Kan. App. 2d at 598. This interpretation
of what is reasonable does not pose a risk of indefinite confinement because the State
remains obligated to perform annual examinations and provide notice to individuals
committed under the KSVPA of their right to request an annual review hearing under
K.S.A. 2021 Supp. 59-29a08(a). Thus, the filing of the new annual report and notice
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effectively restarts the clock for an individual committed under the KSVPA to challenge
a prior year's report. Put another way, if an individual fails to timely request an annual
review hearing in one year, they will get another opportunity to request a hearing the next
year when a new annual report is filed.
We also derive support for this conclusion of what constitutes a reasonable time
frame from the plain language of the statute because the right to request an annual review
hearing exists only during a 45-day window after the filing of the annual report. Failure
to do so waives that right "until the next annual report is filed by the court." K.S.A. 2021
Supp. 59-29a08(b). The annual review process reflects the reality that the SPTP is not
entirely linear, meaning that a person's condition can either improve or regress between
years. As the facts here show, the district court can incorporate a determination on a prior
year's annual report when issuing a probable cause ruling on a current request for a
hearing. This is especially true when, as is the case here, an individual waives their right
to contest the annual examination by not requesting a hearing and then raises no
challenges to their confinement until a new annual report is filed.
For these reasons, we reject Merryfield's contention that the district court lacked
jurisdiction to hold a review hearing on his 2019 annual report.
THE DISTRICT COURT PROPERLY DECLINED MERRYFIELD'S REQUEST
TO BE RETURNED TO TRANSITIONAL RELEASE
Merryfield next contends that the district court erred in denying his request for a
return to transitional release on both the 2018 and 2019 annual reports. First, separate
from his jurisdictional challenge, Merryfield argues the 2018 annual report demonstrated
he was entitled to an evidentiary hearing and an order for transfer to transitional release.
As for the 2019 annual report, Merryfield advances two challenges to the district court's
conclusion that he had no right to be returned to transitional release: 1) the PRP lacked
14
the statutory authority to order him to return from the reintegration phase to secure
confinement; and 2) his assignment to reintegration at Maple House falls within the
statutory definition of transitional release, so the district court erred in concluding he
could not be "return[ed]" to that status.
Standard of review
Resolution of these issues involves interpretation of the KSVPA which presents a
question of law subject to de novo review. See Nauheim v. City of Topeka, 309 Kan. at
149.
a. Merryfield was not entitled to an annual review hearing or an order for
transitional release based on his 2018 annual report
Notably, Merryfield repeatedly concedes that he did not request a hearing within
45 days after his 2018 annual report was filed. His contention of error consists of a claim
that the district court "ignored" the statute and failed to conduct an in-camera review as
required. But his claim is unquestionably belied by the record. In its January 2021 ruling,
the district court specifically concluded that Merryfield's condition had not transformed
to warrant transitional release based on the information in the 2018 annual report, a
conclusion that could be reached only following an in-camera review.
Merryfield alternatively argues that even if the district court comprehensively
reviewed the annual report as required, it erred in its interpretation of its substance
because the report accurately reflected that he was moved to a "Transition House," a
facility which would allow him to reintegrate into the community. According to
Merryfield, this proves that his condition had indeed improved enough to warrant
placement in transitional release, or at the very least an evidentiary hearing. Merryfield's
ability to affix a self-serving label to his placement does not then convert his treatment
level to transitional release. Again, the district court was never convinced that the 2018
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annual report showed enough to warrant a probable cause hearing, let alone a full
evidentiary hearing.
The district court did not reach its conclusion in error. Merryfield's 2018 annual
review definitively states that "the clinicians concluded [his] mental abnormality or
personality disorder has not so changed that [he] would be safe to be placed in
transitional release. Therefore, it is not recommended that [he] petition the court for
transitional release at this time." The text of the annual report also explains that
Merryfield was moved to a reintegration facility in June 2018 and was in Tier Three of
the SPTP at the time. While Tier Three and transitional release happen to be located at
the same facility, "[t]he work of Tier Three is preparation for Transitional Release." Put
simply, Merryfield's assertion that he was in "transition" or "transitional release" at the
time of the 2018 annual report is disproven by the record.
Merryfield fails to substantiate his allegations that the district court erred in
finding he was not entitled to an annual review hearing or eligible for transitional release
based on the 2018 annual report.
b. When Merryfield was never on transitional release at any point it cannot be
said the district court erred in finding him ineligible for return to transitional
release.
The next step of our analysis requires consideration of Merryfield's 2019 annual
report. Merryfield contends the district court erred when it found he was never previously
ordered to transitional release and therefore could not be "return[ed]" to that status. The
crux of his argument is that the statutory definition for "transition," or "transitional
release" necessarily encompasses "reintegration" under the KSVPA, and the district court
erred in concluding otherwise.
16
As Merryfield acknowledges, a nearly identical issue was addressed by this court's
decision in In re Care and Treatment of Twilleger, 46 Kan. App. 2d 302, 263 P.3d 199
(2011). In that case, the panel interpreted the KSVPA and concluded that placement in a
transition house under the version of the SPTP in place at the time did not constitute
"transitional release" as defined by the statute because "transitional release" is only
available through an order of the court. 46 Kan. App. 2d at 309.
Merryfield tries to distinguish Twilleger by highlighting the fact the SPTP was
modified from a seven-phase progressive program under the Department for Social and
Rehabilitation Services (SRS), to its current three-tier system run by KDADS. He also
notes that the Kansas Legislature amended the definition of "[t]ransitional release" in
2018 to the current definition, which includes "any halfway house, work release, sexually
violent predator treatment facility or other placement designed to assist the person's
adjustment and reintegration into the community." K.S.A. 2021 Supp. 59-29a02(i). We
do not find either of these points particularly persuasive.
First, any restructuring of the SPTP or legislative changes that occurred since
Twilleger did not materially change the procedural requirements of the KSVPA. The only
way to enter the transitional release phase is, and always has been, exclusively through a
court order. See K.S.A. 2021 Supp. 59-29a08(h), (i); K.S.A. 2021 Supp. 59-29a10(a). See
also In re Care and Treatment of Saiz, 60 Kan. App. 2d 178, 492 P.3d 484 (2021)
(finding district court abused its discretion in ordering immediate release because of the
specific procedural requirements of the KSVPA). Nothing in the record supports
Merryfield's assertion that his progression to Tier Three of the SPTP in June 2018, acted
as the functional equivalent of a court order placing him on transitional release.
Next, Merryfield's suggestion that the legislature added "reintegration" to the
statutory definition of transitional release lacks any solid foundation. The only
modification to that provision in 2018 was the deletion of language at the end of the
17
definition, in particular "once released from commitment." See L. 2018, Ch. 94, § 1. The
term "reintegration" has been a part of the definition since its adoption in 1998. See L.
1998, ch. 198, § 3. Accordingly, we fail to find any error in the district court's refusal to
"return" Merryfield to transitional release given that a court never previously issued an
order elevating Merryfield to that phase of the program.
c. The PRP did not act outside the scope of its authority when it removed
Merryfield from reintegration and returned him to secure confinement.
Merryfield next argues that the PRP lacked authority to remove him from
reintegration and return him to secure confinement in August 2019. As he points out, the
KSVPA was amended in 2018 to define the "progress review panel" as "individuals
appointed by the secretary for aging and disability services to evaluate a person's progress
in the sexually violent predator treatment program." K.S.A. 2021 Supp. 59-29a02(m).
According to Merryfield, this definition only gives the PRP the authority to evaluate his
progress in the SPTP. It does not correspondingly vest it with the authority to take any
steps it finds prudent as a result of its evaluation. Thus, his demotion to secure
confinement was unlawful.
While Merryfield is correct about the defining language in the provision, a
longstanding rule precludes an award of relief on this point. As this court recently stated,
"courts should defer to the judgment of mental health professionals on the treatment staff
of the SPTP about which treatment methods are appropriate for a particular person." Saiz,
60 Kan. App. 2d at 186-87; see also In re Twilleger, 46 Kan. App. 2d at 309 (citing
Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S. Ct. 2452, 73 L. Ed. 2d 28 [1982]);
and Merryfield v. State, 44 Kan. App. 2d 817, 821, 241 P.3d 573 (2010) (same). Put
simply, Merryfield fails to show why this court should not defer to the judgments of the
mental health professionals comprising the PRP, who concluded that Merryfield's actions
warranted demotion from reintegration back to secure confinement. It is noteworthy to
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mention that to accept Merryfield's assertions about the PRP as true would mean that his
advancement from previous tiers to reintegration was similarly unlawful.
Our collective analysis of the various challenges Merryfield advanced against the
district court's refusal to "return" him to transitional release convince us that error did not
occur in this regard. The decision of the district court is affirmed.
THE QUESTIONS OF WHETHER THE DISTRICT COURT VIOLATED MERRYFIELD'S EQUAL
PROTECTION AND DUE PROCESS RIGHTS ARE NOT PROPERLY BEFORE US.
Merryfield argues that he endured an equal protection violation when the district
court held his annual review hearing without him present. Thus, according to Merryfield,
the KSVPA is constitutionally infirm because it allows those review hearings to be held
in abstentia, while other hearings contemplating either civil or criminal confinement
generally require the person's presence. In a somewhat related vein, he contends the
district court violated his right to due process because his return to secure confinement
deprived him of a liberty interest given that placement in that tier is accompanied by
significantly greater restrictions.
Our first obligation is to determine whether these issues are properly preserved for
our review. Issues not raised before the district court, including constitutional ones,
generally are not properly before an appellate court for its consideration. Bussman v.
Safeco Ins. Co. of America, 298 Kan. 700, 729, 317 P.3d 70 (2014). But there are several
exceptions, including: (1) the newly asserted theory involves only a question of law
arising on proved or admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights; and (3) the district court was right for the wrong reason. In re Estate
of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1178
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(2009). Merryfield bore the burden to show, in his brief, how one of these exceptions
applies to his case but this he did not do.
The rule requiring identification and discussion of an applicable exception is
consistent with Supreme Court Rule 6.02(a)(5) (2022 Kan. S. Ct. R. at 36) which requires
an appellant to explain why an issue that was not raised below should be considered for
the first time on appeal. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). In
State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), and State v. Godfrey, 301
Kan. 1041, 1044, 350 P.3d 1068 (2015), the Kansas Supreme Court has warned that
Supreme Court Rule 6.02(a)(5) would be strictly enforced, and litigants who failed to
comply with this rule risked a ruling that the issue is improperly briefed, and the issue
will be deemed waived or abandoned. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d
877 (2018).
We acknowledge that Merryfield's equal protection argument does include a very
general "Rule 6.02(a)(5) Statement" that sets forth the recognized exceptions and assures
us that "[w]hen present the argument in the brief will show the reason for the exception."
Yet when discussing this issue, the extent of his explanation for the application of an
exception is that his absence from the annual review hearings prevented him from raising
it below, coupled with a conclusory allegation that his attorney's failure to properly
communicate with him contributed to the failure to present this argument to the district
court. To the extent that it can be considered a contrast, Merryfield's due process claim
fails to include even a cursory mention of the exceptions, not to mention an analysis of
how or which one alleviates his failure to raise the issue below so that we might consider
the merits of the issue.
Stated simply, Merryfield's brief falls short of what is required. Merely identifying
the exceptions is not enough to sustain his burden. He must go one step further and
explain why, under the facts of his case, the exception he relies on paves the way for us to
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review his claims. Without that crucial discussion, we decline to engage in an analysis of
the merits of this issue.
The fact Merryfield is a pro se litigant is not lost on us. But the pro se liberal
construction rule provided for under Kansas law does not mean that pro se litigants are
free to ignore procedural requirements. Instead, "[w]hile pro se pleadings are to be
liberally construed so that relief may be granted if warranted by the facts alleged, this
simply means that the substance of the pleading controls over its label." In re Estate of
Broderick, 34 Kan. App. 2d 695, 701, 125 P.3d 564 (2005). As a result, we have
explained:
"'A pro se litigant in a civil case is required to follow the same rules of procedure and
evidence which are binding upon a litigant who is represented by counsel. Our legal
system cannot function on any basis other than equal treatment of all litigants. To have
different rules for different classes of litigants is untenable. A party in civil litigation
cannot expect the trial judge or an attorney for the other party to advise him or her of the
law or court rules, or to see that his or her case is properly presented to the court. A pro se
litigant in a civil case cannot be given either an advantage or a disadvantage solely
because of proceeding pro se.' Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595-96,
730 P.2d 1109 (1986)." 34 Kan. App. 2d at 701.
Thus, while we should liberally construe arguments when properly raised, we are
prohibited from addressing arguments that are not properly before us. See also K.S.A. 60-
2101(a) (explaining this court's limited jurisdiction). Nor can we bolster arguments that
are properly before us but inadequately briefed. See In re Adoption of T.M.M.H., 307
Kan. 902, Syl. ¶ 6, 416 P.3d 999 (2018) (holding that a point raised without pertinent
authority or without analysis explaining why it is sound despite a lack of supporting
authority is inadequately briefed and thus abandoned).
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In summary, Merryfield neglected to follow the proper procedure governing a
litigant's efforts to obtain review of an issue for the first time on appeal. Consequently,
we decline to consider the merits of his equal protection and due process claims.
MERRYFIELD'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM CANNOT BE RAISED FOR
THE FIRST TIME ON APPEAL
Merryfield's final argument is that he received ineffective assistance of counsel
during the proceedings below. First, he contends his initial appointed counsel failed to
communicate with him about the status of his case. Then, when the district court
appointed new counsel, she committed the same transgression.
This issue likewise suffers procedural infirmities which bind our hands. While the
record reflects that Merryfield arguably presented his ineffective assistance claims to the
district court, he did not do so until after the court issued its September 2020 and January
2021 rulings, i.e., the rulings that are the key subject of Merryfield's current appeal.
Notably, those motions remained outstanding when his appeal was docketed. Once that
docketing process was complete, the district court lost jurisdiction to enter a ruling on the
motions challenging counsel's representation. See In re Care & Treatment of Emerson,
306 Kan. 30, 35, 392 P.3d 82 (2017) (district court loses jurisdiction upon docketing of
the appeal).
The district court denied Merryfield's pro se motion for replacement of counsel
and counsel's related request to withdraw in July 2021. But because Merryfield's appeal
was already docketed, that July 2021 judgment was not a valid and effective judgment for
purposes of this appeal. Consequently, Merryfield is effectively raising his ineffective
assistance of counsel claims for the first time on appeal.
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Appellate courts generally will not consider an allegation of ineffective assistance
of counsel raised for the first time on appeal. State v. Salary, 309 Kan. 479, 483, 437 P.3d
953 (2019). The factual aspects of a claim of ineffective assistance of counsel require that
the matter be resolved through either a K.S.A. 60-1507 motion or a remand to the district
court for an evidentiary hearing pursuant to State v. Van Cleave, 239 Kan. 117, 119-21,
716 P.2d 580 (1986). An appellate court may consider a claim of ineffective assistance of
counsel for the first time on appeal only when there are no factual issues, and the two-
prong ineffective assistance of counsel test can be applied as a matter of law based on the
appellate record. Salary, 309 Kan. at 483-84. Merryfield's claims are too factually driven
to be resolved in that manner. Nor did Merryfield request a Van Cleave hearing and,
without any such a request we are under no obligation to enter such a remand order sua
sponte. See Mundy v. State, 307 Kan. 280, 299-300, 408 P.3d 965 (2018).
Because factual issues remain unresolved in the record, we are foreclosed from
applying the ineffective assistance of counsel test as a matter of law. See Wimbley v.
State, 292 Kan. 796, 807, 275 P.3d 35 (2011). Thus, we reject Merryfield's ineffective
assistance of counsel claims as unpreserved.
Affirmed.
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