In re the Care and Treatment of Burch

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,468

In the Matter of the Care and Treatment
of TIMOTHY J. BURCH.


SYLLABUS BY THE COURT

1.
Under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., once an
individual has been determined to be a sexually violent predator, he or she shall be
committed to the custody of the Secretary of Social and Rehabilitation Services for
control, care, and treatment until such time as the person's mental abnormality or
personality disorder has so changed that the person is safe to be at large. K.S.A. 2011
Supp. 59-29a07(a).

2.
As part of the committed person's treatment, he or she participates in a seven-
phase program in which the final phase is transitional release as defined in K.S.A. 2011
Supp. 59-29a02(i).

3.
Under K.S.A. 2011 Supp. 59-29a08(a), the State has several obligations to anyone
committed under the Sexually Violent Predator Act. The State must conduct an annual
examination of the person's mental condition and provide an annual written notice of the
person's right to petition the court for release over the Secretary's objection. The notice
must contain a waiver of rights, and the Secretary must forward the annual report, as well
as the annual notice and waiver form, to the court that committed the person.

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4.
Under K.S.A. 2011 Supp. 59-29a08(a), the committed individual has the right to
retain or, if indigent, to have appointed a qualified professional person to examine such
person, and such expert or professional person shall have the right of access to all records
concerning the person.

5.
K.S.A. 2011 Supp. 59-29a08(a) provides that the court that committed a person as
a sexually violent predator must conduct an annual review of the status of the committed
person's mental condition. At this hearing, the committed person has the right to attorney
representation, but the person is not entitled to be present at the hearing.

6.
The hearing provided under K.S.A. 2011 Supp. 59-29a08(a) is not an evidentiary
hearing, but subsections (c)(1) and (c)(2) outline two scenarios that warrant a further
evidentiary hearing—one mandatory, the other discretionary. Under K.S.A. 2011 Supp.
59-29a08(c)(1), if the court determines probable cause exists to believe that the
committed person's mental abnormality or personality disorder has so changed that the
person is safe to be placed in transitional release, then the court shall set a hearing on the
issue.

7.
In order to establish probable cause to justify transitional release, a person
committed under the Sexually Violent Predator Act must present facts at the annual
review hearing that are sufficient to cause a person of ordinary prudence and action to
conscientiously entertain a reasonable belief that the person's mental abnormality or
personality disorder has so changed that he or she is safe to be placed in transitional
release.

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8.
Because a person committed as a sexually violent predator bears the burden to
establish probable cause at an annual review hearing under K.S.A. 2011 Supp. 59-
29a08(a), the district court must draw inferences favorable to the committed person from
the evidence presented and resolve all conflicting evidence in that person's favor.

9.
A district court's probable cause determination under K.S.A. 2011 Supp. 59-
29a08(c)(1) is subject to de novo review on appeal and, like the district court, an
appellate court must draw inferences from the evidence presented and resolve conflicting
evidence in the light most favorable to the committed person.

10.
Under K.S.A. 2011 Supp. 59-29a08(c)(2), the district court may order a hearing if
(A) there is current evidence from an expert or professional person that an identified
physiological change to the committed person, such as paralysis, stroke, or dementia, has
rendered the committed person unable to commit a sexually violent offense and this
change is permanent; and (B) the evidence presents a change in condition since the
person's last hearing.

11.
Both conditions set forth in K.S.A. 2011 Supp. 59-29a08(c)(2) must be met before
a district court can exercise its discretion to grant a hearing under subsection (c)(2).

12.
If the district court finds under either K.S.A. 2011 Supp. 59-29a08(c)(1) or (2) that
a committed individual is entitled to a hearing, then the individual is granted an
evidentiary hearing as described in K.S.A. 2011 Supp. 59-29a08(c)(3).

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Review of the judgment of the Court of Appeals in an unpublished opinion filed August 20, 2010.
Appeal from Wyandotte District Court; KATHLEEN M. LYNCH, judge. Opinion filed December 28, 2012.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

W. Fredrick Zimmerman, of Kansas City, was on the brief for appellant.

Robbin L. Wasson, assistant district attorney, Jerome Gorman, district attorney, and Steve Six,
attorney general, were on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: This court granted Timothy Burch's petition for review of the Court
of Appeals' decision affirming the district court's denial of his petition for release or
discharge or transitional release pursuant to K.S.A. 2011 Supp. 59-29a08. Burch contends
the district court erred in finding he failed to show probable cause that his mental
abnormality had changed to the extent that he is safe to be placed in transitional release.

We conclude that we apply a de novo standard of review to the district court's
denial of a petition for discharge or transitional release under K.S.A. 2011 Supp. 59-
29a08. Further, we hold that the petitioner bears the burden of proof on such a petition
and is entitled to have the facts viewed in a light most favorable to the petitioner. Finally,
applying that de novo standard and considering the facts in a light most favorable to
Burch, we conclude Burch failed to establish the requisite probable cause entitling him to
a full evidentiary hearing on his petition for discharge or transitional release under K.S.A.
2011 Supp. 59-29a08. Accordingly, we affirm the Court of Appeals' decision affirming
the district court's probable cause determination.

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FACTUAL AND PROCEDURAL BACKGROUND

In 1989, Burch was convicted of three counts of aggravated sodomy, five counts
of indecent liberties with a child, and two counts of sexual exploitation of a child. In
December 2001, while Burch was still imprisoned on these convictions, the State
instituted proceedings against him under the Sexually Violent Predator Act (SVPA),
K.S.A. 59-29a01 et seq.

Burch stipulated that he was, and the court found him to be, a sexually violent
predator under the SVPA, and he began treatment at the Larned State Hospital in June
2002. As required by K.S.A. 2011 Supp. 59-29a08(a), a State physician reported annually
on Burch's treatment progress. In each report, the physician opined that Burch remained a
sexually violent predator.

In November 2005, Burch filed a petition for discharge or transitional release in
the district court requesting appointment of, and evaluation by, an independent expert.
The district court appointed an expert, Steven E. Peterson, M.D., who met with Burch
and prepared a psychological report.

The Court of Appeals panel summarized the State physician's annual reports from
2005 to 2008 and Dr. Peterson's report as follows:

"In 2005, 2006, and 2007, Dr. Austin T. DesLauriers, clinical director of the Sexual
Predator Treatment Program (SPTP), provided written reports authored by Dr. Mayda
Nel Strong to the Secretary of SRS concerning Burch's mental condition in accordance
with the annual review procedures. In 2005, Strong suggested that Burch's future
progress would depend on his motivation and stated that Burch was maintaining his stage
three status in the seven stage rehabilitation program. In 2006, Strong opined that Burch
had made remarkable progress and had moved from stage three to stage four.
Subsequently, Burch was approved for stage five because of further progress. In 2007,
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Strong opined that Burch's progress over the preceding year was mixed and that the SPTP
staff feedback reflected his up and down progress. Strong concluded at the end of each
evaluation from 2005 through 2007 that Burch remained a sexually violent predator who
suffered from a mental abnormality making him likely to engage in further acts of sexual
violence, and his mental abnormality had not changed to such an extent that it would be
safe to place him in transitional release.

"The 2008 annual report was completed by DesLauriers, who had treated Burch
since 2002. DesLauriers noted that Burch had a difficult year and failed to follow his
treatment plan, resulting in his return to stage four. DesLauriers concluded that Burch
remained a sexually violent predator who suffered from a mental abnormality making
him likely to engage in further acts of sexual violence, and his mental abnormality had
not changed to such an extent that it would be safe to place him in transitional release.

"Peterson's report was also submitted to the district court. Peterson noted that
Burch had been sexually abused as a child and that Burch now understood why he had
developed a sexual disorder. Peterson suggested that Burch's up and down progress was
partially attributable to a treatment impasse as opposed to a resistance to treatment.
Peterson concluded that Burch was unlikely to engage in further acts of sexual violence.
However, Peterson's report failed to expressly recommend that it would be safe to place
Peterson in transitional release." In re Care & Treatment of Burch, No. 102,468, 2010
WL 3324271, at *1-2 (Kan. App. 2010) (unpublished opinion).

Following a hearing in April 2008, the district court denied Burch's November
2005 petition for discharge or transitional release. The Court of Appeals affirmed the
district court's decision, and this court granted Burch's petition for review.

ANALYSIS

Before considering the merits of this appeal, we find it helpful to first describe the
unique statutory process at issue here.

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Statutory background

The legislature enacted the SVPA to provide for long-term control, care, and
treatment of sexually violent predators, as needed, as well as the public's protection.
K.S.A. 59-29a01. Under the SVPA, once an individual is deemed a sexually violent
predator, the person "shall be committed to the custody of the secretary of social and
rehabilitation services for control, care and treatment until such time as the person's
mental abnormality or personality disorder has so changed that the person is safe to be at
large." K.S.A. 2011 Supp. 59-29a07(a).

As part of that commitment, the detainee receives treatment in a seven-phase
program. See In re Care & Treatment of Twilleger, 46 Kan. App. 2d 302, 308-09, 263
P.3d 199 (2011) (discussing the program phases). In Johnson v. State, 289 Kan. 642, 646-
47, 215 P.3d 575 (2009), we summarized the SVPA treatment program:

"The first four phases comprise the intensive inpatient treatment portion of the
program. . . .
"Before a resident can move to the final three phases of the program—the
transition phases—the resident must appear before a transition panel. The panel may
either accept or reject the recommendations of the treating staff. Once it is determined by
the transition panel that the resident is ready to enter the phases of transition treatment,
the resident enters Phase 5 where he or she is escorted at all times and introduced to a
graduated series of experiences on the grounds of Osawatomie State Hospital. From
there, in Phases 6 and 7, the resident gradually becomes more independent by living in a
cottage house on the grounds of Osawatomie, obtaining a job, attending outpatient
therapy, and gaining conditional release for a minimum of 5 years."

The final step of the program, phase seven, is transitional release. In this phase, the
committed person remains in SRS custody but lives independently or in a halfway house
under State supervision. See K.S.A. 2011 Supp. 59-29a02(i); In re Twilleger, 46 Kan.
App. 2d at 308.
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Under K.S.A. 2011 Supp. 59-29a08(a), the State has several obligations to anyone
committed under the SVPA, including (1) to conduct an annual examination of the
person's mental condition; (2) to provide an annual written notice of the person's right to
petition the court for release over the Secretary's objection, which shall contain a waiver
of rights; and (3) to forward the annual report, as well as the annual notice and waiver
form, to the court that committed the person. The committed individual also has rights
under this section, including (1) the right to retain or, if indigent, to have appointed a
qualified professional person to examine such person; and (2) to have such expert or
professional person have access to all records concerning the person.

Once these obligations are met, K.S.A. 2011 Supp. 59-29a08(a) further provides
that the court that committed the person must conduct an annual review of the status of
the committed person's mental condition. At this hearing, the committed person has the
right to attorney representation but the person is not entitled to be present at the hearing.

Although the hearing provided under K.S.A. 2011 Supp. 59-29a08(a) is not an
evidentiary hearing, subsections (c)(1) and (c)(2) outline two scenarios that warrant a
further evidentiary hearing—one mandatory, the other discretionary. First, under 59-
29a08(c)(1), if at the annual review hearing the court determines "probable cause exists
to believe that the person's mental abnormality or personality disorder has so changed
that the person is safe to be placed in transitional release, then the court shall set a
hearing on the issue." (Emphasis added.) K.S.A. 2011 Supp. 59-29a08(c)(1).

In contrast, under 59-29a08(c)(2), the court may order a hearing if:

"(A) There is current evidence from an expert or professional person that an identified
physiological change to the committed person, such as paralysis, stroke or dementia, that
renders the committed person unable to commit a sexually violent offense and this
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change is permanent; and (B) the evidence presents a change in condition since the
person's last hearing." (Emphasis added.) K.S.A. 2011 Supp. 59-29a08(c)(2).

If the court finds under either 59-29a08(c)(1) or (2) that the committed individual
is entitled to a hearing, then the individual is granted an evidentiary hearing as described
in K.S.A. 2011 Supp. 59-29a08(c)(3). "At either hearing, the committed person shall be
entitled to be present and entitled to the benefit of all constitutional protections that were
afforded the person at the initial commitment proceeding." K.S.A. 2011 Supp. 59-
29a08(c)(3). Further, at that hearing the State, represented by the attorney general, has the
right to a jury trial and to have the committed person evaluated by the State's chosen
experts. Similarly, the committed person has the right to have his or her own experts
evaluate the person or, if indigent, to have an expert appointed. Finally, the statute
specifically provides that the burden of proof at this evidentiary hearing—regardless if it
is warranted under either subsection (c)(1) or (2)—"shall be upon the state to prove
beyond a reasonable doubt that the committed person's mental abnormality or personality
disorder remains such that the person is not safe to be placed in transitional release and if
transitionally released is likely to engage in acts of sexual violence." K.S.A. 2011 Supp.
59-29a08(c)(3).


Here, because Burch sought transitional release under 59-29a08(c)(1), the issue for
the court at the annual review hearing was whether probable cause existed to believe
Burch's mental abnormality or personality disorder had so changed that he was safe to be
placed in transitional release. Notably, even if the court had found such probable cause,
Burch would not necessarily have been discharged or transitionally released. Instead, he
would have been provided an evidentiary hearing under K.S.A. 2011 Supp. 59-
29a08(c)(3).

Burch argues the district court erred in finding a lack of probable cause to believe
his mental abnormality or personality disorder had so changed that he was safe to be
10

placed in transitional release and the Court of Appeals panel erred in affirming that
determination.

The district court properly found of a lack of probable cause to believe Burch's mental
abnormality had changed to the extent that he was safe to be placed in transitional
release.


Before considering the merits of Burch's appeal, we must preliminarily determine
(1) the standard of review to be applied to a district court's finding of no probable cause
under K.S.A. 2011 Supp. 59-29a08(c)(1), and (2) which party bears the burden of proof
to show probable cause at that hearing.

The panel properly concluded that a district court's probable cause determination
under K.S.A. 2011 Supp. 59-29a08(c)(1) is subject to de novo review.


The Court of Appeals panel noted the absence of any caselaw determining the
standard of review to be applied in reviewing "a district court's denial of a full evidentiary
hearing pursuant to an annual review petition under K.S.A. 2009 Supp. 59-29a08." In re
Burch, 2010 WL 3324271, at *3. The panel, however, concluded that a de novo standard
of review applied. 2010 WL 3324271, at *3. Both parties appear to agree with that
conclusion.

As the panel noted, the review of the probable cause determination under 59-
29a08(c)(1) can be analogized to a K.S.A. 60-1507 proceeding in which a prisoner
challenges his or her sentence. When the district court summarily dismisses a movant's
60-1507 motion and thus denies the movant an evidentiary hearing, this court applies a de
novo standard of review. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).

Additionally, after the panel issued its opinion in this case, another Court of
Appeals panel considered this same issue in In re Care & Treatment of Sipe, 44 Kan.
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App. 2d 584, 239 P.3d 871 (2010). There, as here, the petitioner argued the district court
erred in concluding at his annual review hearing under 59-29a08(c)(1) that he had not
established probable cause to believe that his mental abnormality or personality disorder
had so changed that he was safe to be placed in transitional release.

The Sipe panel concluded that the probable cause determination made in a SVPA
proceeding is comparable to the probable cause determination made at the preliminary
hearing stage in a criminal proceeding, which an appellate court also reviews de novo.
Further, the panel reasoned that because the district court's probable cause determination
at an annual review hearing under 59-29a08(c)(1) is based on expert reports and
arguments of counsel, an appellate court is in the same position as the district court to
determine whether the evidence is sufficient to establish probable cause. In re Sipe, 44
Kan. App. 2d at 590-91; see also In re Care & Treatment of Miles, 47 Kan. App. 2d 429,
434-35, 276 P.3d 232 (2012) (adopting Sipe panel's reasoning regarding de novo review
of probable cause determination under SVPA); In re Twilleger, 46 Kan. App. 2d at 312
(same). Thus, the Sipe panel applied a de novo standard of review to its review of the
district court's probable cause determination under 59-29a08(c)(1).

We agree with the analysis of the Court of Appeals panel in this case as well as in
Sipe, and therefore we will apply a de novo standard of review to the district court's
probable cause determination under K.S.A. 2011 Supp. 59-29a08(c)(1).

In petitioning for transitional release, Burch bore the burden to show probable
cause that his mental abnormality had changed to the extent that he was safe to be
placed in transitional release.

K.S.A. 2011 Supp. 59-29a08(c)(1) does not explain who bears the burden of proof
when the district court considers a committed person's petition for discharge or
transitional release at the annual review hearing, and the Court of Appeals did not
consider which party bore the burden of proof. Instead, it simply concluded:
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"Considering the fact that the State's four expert reports each specifically concluded that
it would not be safe to place Burch in transitional release and Peterson's report contained
no explicit recommendation that it would be safe to do so," the district court did not err in
finding insufficient probable cause to grant Burch a full evidentiary review. In re Burch,
2010 WL 3324271, at *4.

However, in a Rule 6.09(b) (2011 Kan. Ct. R. Annot. 49) letter to this Court,
Burch points out that the Court of Appeals panel in Sipe concluded the burden of proof at
a 59-29a08 annual review hearing lies with the person seeking transitional release. Burch
contends the district court and the panel erred in this case by failing to take the burden of
proof into account in reviewing the evidence. He specifically suggests that as the person
seeking transitional release, the burden of proof should be on him, and the court was thus
required to view the evidence in a light most favorable to him. We agree.

As the Sipe panel pointed out, in a criminal proceeding the State bears the burden
to prove it has probable cause to prosecute and, in considering the evidence, the district
court reviews the evidence in the light most favorable to the State. 44 Kan. App. 2d at
592; see State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000) (noting that a trial court
must draw inferences favorable to the prosecution from the evidence presented at a
preliminary hearing); State v. Bell, 268 Kan. 764, 765, 1 P.3d 325 (2000) (noting that a
preliminary hearing judge faced with conflicting testimony "must accept the version of
the testimony which is most favorable to the State"). Further, when the State appeals
from a district court's dismissal of a criminal prosecution for lack of probable cause, an
appellate court reviews the evidence de novo, applying the same standards as did the
district court. See State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011); Berg, 270
Kan. at 238.

Similarly, in an SVPA proceeding, the State initially must prove probable cause
that the respondent is a sexually violent predator. See K.S.A. 59-29a05 (discussing initial
13

probable cause determination under SVPA). And we have previously found the initial
probable cause determination under the SVPA to be comparable to the probable cause
determination in a criminal proceeding. In re Care & Treatment of Hay, 263 Kan. 822,
834, 953 P.2d 666 (1998).

But Burch has already been committed as a sexually violent predator and now
seeks a finding from the district court that his mental abnormality or personality disorder
has changed to the extent that he should be placed in transitional release. Because Burch
seeks the affirmative of the issue—i.e., that the court find probable cause—it is logical to
require him to bear the burden to prove his petition. See, e.g., In re K.E., 294 Kan. 17, 23,
272 P.3d 28 (2012) (noting that a movant generally bears the burden of proof on a
motion); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038
(1984) (citing "the general rule that the burden of proof is upon the party asserting the
affirmative of an issue").

Again, we agree with the Sipe panel which reasoned that "because a sexually
violent predator bears the burden to establish probable cause at an annual review hearing,
the district court must consider the evidence in the light most favorable to the committed
person and resolve all conflicting evidence in that person's favor." In re Sipe, 44 Kan.
App. 2d at 592. See also Berg, 270 Kan. at 238; Bell, 268 Kan. at 764-65.

Burch failed to show probable cause that his mental abnormality or personality
disorder had changed to the extent that he was safe to be placed in transitional
release.

Having determined that our standard of review is de novo and that Burch
bore the burden to prove at his annual review hearing that probable cause existed
to believe that his mental abnormality had so changed that he was safe to be
placed in transitional release, we next consider the merits of Burch's appeal.

14

The district court reviewed three reports—the 2007 State report, the 2008 State
report, and Dr. Peterson's report. Dr. Peterson's report concluded, in part, that "Burch has
a relevant mental disorder (mental abnormality) over which he must remain vigilant so as
not to reoffend," that Burch had a reduced likelihood of reoffending based on his new
understanding of his own history of being sexually abused, and that Burch's "new
understanding means he has become so changed that he is unlikely to engage in acts of
sexual violence."

The State's 2007 report generally stated that Burch had progressed through the
program and had moved to phase five of the seven-phase program. The State's 2008
report, however, noted Burch had withdrawn from some of his therapy and, as a result, he
had been returned to phase four of the program. And in contrast to Dr. Peterson's report,
each of the two State reports concluded Burch remained a sexually violent predator who
suffered from a mental abnormality, making him likely to engage in further acts of sexual
violence.

In finding Burch failed to establish probable cause, the Court of Appeals panel
emphasized that Dr. Peterson's report did not explicitly recommend that Burch was safe
to be placed in transitional release. In re Burch, 2010 WL 3324271, at *4. Instead, Dr.
Peterson's report concluded Burch had recently reached a "new understanding" of the
relationship between his childhood sexual abuse and his adult sex crimes. Because of this
new understanding, the report concluded Burch had "become so changed that he is
unlikely to engage in acts of sexual violence."

But contrary to the panel's implication, a finding of probable cause does not
necessarily require that the petitioner proffer a recommendation containing the exact
words used by the statute. Instead, in order to establish probable cause, Burch was
required to show that when viewed in the light most favorable to him, the facts presented
at the hearing were sufficient to cause a person of ordinary prudence and action to
15

conscientiously entertain a reasonable belief that Burch's mental abnormality or
personality disorder had so changed that he was safe to be placed in transitional release.
See In re Sipe, 44 Kan. App. 2d at 592-93.

Nevertheless, even viewing the evidence under this standard, we agree with the
panel's conclusion that the evidence was insufficient to show probable cause with respect
to both of the statutory requirements. Specifically, our examination of Peterson's report
reveals that it fails to establish probable cause that (1) Burch's mental abnormality or
personality disorder had changed; and (2) it had changed to such a degree that he was
safe to be placed in transitional release.

Peterson's report concluded that Burch's actions were consistent with the clinical
definition of pedophilia, although he opined that his actions "are more consistent with
Paraphilia NOS [not otherwise specified]." In addition, Peterson diagnosed Burch with
polysubstance dependence in "Sustained Full Remission"; "Personality Disorder NOS
. . . with Antisocial, Borderline, and Dependent features"; and a "developmental Reading
Disorder."

In the final section of his report, entitled Relevant Mental Disorder, Peterson
concludes that "Burch has a relevant mental disorder (mental abnormality) over which he
must remain vigilant so as not to reoffend." He also suggests that Burch's understanding
of the contributions of his childhood sexual abuse "reduces the likelihood that he will
reoffend." Finally, he suggests that "[e]ven in view of [Burch's] obstreperous style, that
new understanding means he has become so changed that he is unlikely to engage in acts
of sexual violence." (Emphasis added.)

While Burch would like this court to equate Peterson's opinion that he is unlikely
to engage in acts of sexual violence with an opinion that he is "safe to be placed in
transitional release," we simply cannot do so in light of significant omissions in
16

Peterson's opinion. Specifically, Peterson's report fails to specify if Peterson's diagnosis
of pedophilia or paraphilia or any other "mental abnormality or personality disorder" has
changed such that Burch is safe to be placed in transitional release. See K.S.A. 2011
Supp. 59-29a08(c)(3). Instead, Peterson simply concludes "he has become so changed."
(Emphasis added.)

We find Peterson's failure to mention any change in Burch's primary diagnosis
significant, particularly when contrasted with evidence presented in other cases. For
instance, in Miles the Court of Appeals concluded there was probable cause for a
transitional release hearing because two expert reports stated that Miles no longer met the
definition of a pedophile. In re Miles, 47 Kan. App. 2d at 440-41. And in Sipe, the report
stated that the petitioner had "no 'significant psychological disorder'" and included an
explicit recommendation for transitional release. In re Sipe, 44 Kan. App. 2d at 594.
Unlike the expert reports in Miles and Sipe, Peterson's report concludes that Burch still
suffers from a psychological disorder.

Moreover, Peterson's report not only fails to indicate Burch is "safe" to be placed
in transitional release, the remainder of the report seems to steer away from such a
conclusion. For instance, Peterson opines that Burch must "remain vigilant so as not to
reoffend" and that Burch "does not appear currently predisposed to commit acts of sexual
violence." (Emphasis added.) Additionally, Peterson's report recognizes that Burch had
reached an impasse in treatment.

Burch points out that Peterson's report also cautioned that a treatment impasse "is
not the same as resisting treatment." Nevertheless, Burch fails to recognize that Peterson
confirmed this treatment impasse could "lengthen [Burch's] lack of eligibility to
Transition House."

17

Under these circumstances, we must conclude that Peterson's report, even when
viewed in a light most favorable to Burch, would not cause a person of ordinary prudence
and action to conscientiously entertain a reasonable belief that Burch's mental
abnormality or personality disorder had so changed that he was safe to be placed in
transitional release. Therefore, as the Court of Appeals concluded, the district court did
not err in concluding Burch was not entitled to an evidentiary hearing under K.S.A. 2011
Supp. 59-29a08(c)(1).

Finally, we note that in his pro se petition for review, Burch argues the district
court should have granted him an evidentiary hearing under K.S.A. 2011 Supp. 59-
29a08(c)(2)(B). But it appears Burch misreads that section to permit the court to conduct
an evidentiary hearing if there is any evidence that "presents a change in condition since
the person's last hearing." See K.S.A. 2011 Supp. 59-29a08(c)(2)(B). As discussed above,
a thorough reading of the statute reveals that K.S.A. 2011 Supp. 59-29a08(c)(1) requires
the court to conduct an evidentiary hearing if the requirements of that subsection are met.
In contrast, K.S.A. 2011 Supp. 59-29a08(c)(2) permits the district court to conduct an
evidentiary hearing if two conditions are met: "(A) There is current evidence from an
expert or professional person that an identified physiological change to the committed
person . . . renders the committed person unable to commit a sexually violent
offense . . . ; and (B) the evidence presents a change in condition since the person's last
hearing." (Emphasis added.)

It appears that Burch interprets K.S.A. 2011 Supp. 59-29a08(c)(2)(B) as a
separate, stand-alone provision permitting the district court to order an evidentiary
hearing when there is any change in condition since the person's last hearing. But because
Burch fails to suggest that the condition set forth in (c)(2)(A) applies, we conclude the
district court had no discretion to grant a hearing under K.S.A. 2011 Supp. 59-
29a08(c)(2).

18

For all of these reasons, we affirm the Court of Appeals' decision affirming the
district court's determination that Burch failed to show probable cause to believe his
mental abnormality or personality disorder had so changed that he was safe to be placed
in transitional release.

Affirmed.