Howard v. State

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NOT DESIGNATED FOR PUBLICATION

No. 114,709

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JEREMY J. HOWARD a k a ALAN R. HOWARD, JR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed May 20, 2016.
Affirmed.

Jeremy J. Howard, appellant pro se.

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

Before GARDNER, P.J., LEBEN, J., and HEBERT, S. J.

Per Curiam: After serving prison sentences for indecent solicitation of a child,
Jeremy J. Howard was committed to the custody of the Kansas Department of Social and
Rehabilitation Services (now the Kansas Department for Children and Families [DCF])
as a sexually violent predator. In re Care and Treatment of Howard, No. 108,552, 2014
WL 113428, at *1 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. ___
(December 30, 2014). While there, he was convicted of two counts of attempted battery
on a mental health employee and one count of criminal threat so was transferred to the
Department of Corrections (DOC) to serve his sentences. 2014 WL 113428, at *1. After
being released from the DOC, Howard was returned to treatment.
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Howard then filed a K.S.A. 60-1501 petition alleging that he had been denied due
process during his annual reviews from February 2005 to March 2008, and that his return
to SVP treatment after having been released from the DOC was unlawful since a new
mental evaluation had not been completed. Howard appeals the district court's summary
dismissal of that habeas corpus petition. Finding no error, we affirm.

Did the district court err by summarily dismissing Howard's K.S.A. 60-1501 petiton?

Howard makes several claims of error which we address below. We consider only
those issues which Howard has briefed and not those he has merely mentioned. See State
v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).

A. Standard of Review

A K.S.A. 60-1501 petition states a claim if the petitioner alleges "shocking and
intolerable conduct or continuing mistreatment of a constitutional stature." Johnson v.
State, 289 Kan. 642, 648, 215 P.3d 575 (2009). Summary dismissal is proper "if, on the
face of the petition, it can be established that petitioner is not entitled to relief, or if, from
undisputed facts, or from uncontrovertible facts, such as those recited in a court record, it
appears, as a matter of law, no cause for granting a writ exists." 289 Kan. at 648-49. We
review the summary dismissal of K.S.A. 60-1501 de novo. 289 Kan. at 649. To the extent
that statutory interpretation is required, our review is unlimited. Neighbor v. Westar
Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).

B. Annual Reviews

Howard argues that his past annual reviews were improper because he was denied
counsel and an independent examination. That argument is premised on his contention
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the district court erred by relying on the register of actions report in making its
determination. As Howard acknowledges, this report shows that his annual review
hearings were timely held and that he was represented by counsel at them from 2003 to
2009, encompassing the time period Howard refers to in his petition. Nonetheless,
Howard argues that the report does not show if he was afforded all his constitutional
rights or if his counsel was effective.

Howard has brought this very claim before. In In re Howard, he alleged, among
other matters, that "SRS deprived him of his due process rights in the annual review
process from 2005 onward, i.e., by 'refusing [him] a lawyer, independent evaluation,
[and] probable cause hearing despite [his p]ro se motions/requests for such in 2005, 2006,
and 2007.'" 2014 WL 113428, at *1. We found Howard's claim untimely because he had
filed his petition more than a year after appellate jurisdiction had terminated but had not
alleged manifest injustice. See 2014 WL 113428, at *3-4. Howard's circumstances have
not changed. He did not appeal any of his reviews, thus appellate jurisdiction terminated
30 days after his last review. See 2014 WL 113428, at *3. Although Howard mentioned
"manifest injustice" in his 60-1501 petition, he did not explain why manifest injustice
exists or address the factors relevant to that conclusion. See Vontress v. State, 299 Kan.
607, 616, 325 P.3d 1114 (2014) (providing the nonexhaustive list of factors a court uses
to determine whether manifest injustice exists). Thus, Howard's K.S.A. 60-1501 petition
regarding this claim was untimely, and the district court lacked jurisdiction to consider it.
See 2014 WL 113428, at *3-4.

C. Recommitment to Treatment

While in treatment, Howard was convicted of criminal offenses and was
transferred to the DOC. In re Howard, 2014 WL 113428, at *1. After serving his
sentences, he was returned to SVP treatment, and now claims that he was unlawfully
recommitted.
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We disagree. Kansas law requires a civilly committed person who has been
released from the DOC after serving a criminal sentence to be returned to treatment:

"If any person while committed to the custody of the secretary pursuant to the
Kansas sexually violent predator act shall be taken into custody by any law enforcement
officer as defined in K.S.A. 2015 Supp. 21-5111, and amendments thereto, pursuant to
any parole revocation proceeding or any arrest or conviction for a criminal offense of any
nature, upon the person's release from the custody of any law enforcement officer, the
person shall be returned to the custody of the secretary for further treatment pursuant to
the Kansas sexually violent predator act." K.S.A. 2015 Supp. 59-29a07(d).

Thus when the DOC released Howard, our law required that he be returned to DCF
custody for continued treatment as a sexually violent predator.

Howard previously raised this issue in In re Howard. See 2014 WL 113428, at *4-
5. The panel there found the issue unripe but noted that its resolution depended "upon a
number of unknown circumstances, primarily, Howard's mental state upon his release
from prison and SRS's compliance with statutory mandates upon his return to
[treatment]." 2014 WL 113428, at *4. That language prompts Howard to argue that his
mental state should have been evaluated before he was recommitted.

But the language on which Howard relies was dicta – something said in passing –
and it is not controlling here because that comment was unnecessary to the court's
decision. 2014 WL 113428, at *4-5. Nor do we read the panel's comment to require that a
person's mental state must be evaluated before the person is recommitted to treatment.
Such a requirement is unsupported by the statute which merely states that "the person
shall be returned to the custody of the secretary for further treatment." K.S.A. 2015 Supp.
59-29a07(d). Thus the law does not favor Howard's argument.

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The facts do not help him either. In February 2015, shortly after having been
recommitted, Howard requested an annual review, which triggered an evaluation. The
record shows that Howard's mental state was also evaluated sometime before December
24, 2014. Thus, Howard appears to have received timely evaluations.

We find no support for Howard's assertion that his recommitment to SVP
treatment after his release from the DOC was erroneous and no support for his suggestion
that it was necessary to start the SVP process over upon his release from the DOC, as
though he had never been in that program.

D. Appointment of Counsel

Finally, Howard argues that the district court erred by not appointing counsel to
represent him in his 60-1501 petition.

In Merryfield v. State, 44 Kan. App. 2d 817, 826, 241 P.3d 573 (2010), we
concluded "that when the K.S.A. 60-1501 claims of a civilly committed sexual predator
are not subject to summary dismissal, counsel must be appointed to represent the
petitioner." But here, the district court summarily dismissed Howard's claims, and we
have found no error in its doing so. Accordingly, Howard had no right to counsel. The
district court did not err by summarily dismissing Howard's petition.

Affirmed.