In re Zishka

3-6-2015 Kansas:

In re Zishka

Paul Dale Zishka appeals the district court's decision at his annual review hearing to maintain his status in treatment in the Sexual Predator Treatment Program. On appeal, Zishka argues that the district court violated his rights when it failed to hold a hearing and failed to appoint an attorney to represent him. We agree.

Persons involuntarily committed as sexually violent predators are entitled to an annual review hearing at which they are represented by counsel. Here, the district court gave no hearing notice and simply signed a proposed order—submitted by the State— finding that Zishka should remain in the treatment program. In addition, although Zishka twice asked in writing to have counsel appointed to represent him, the district court did not do so. We therefore reverse the district court and remand to hold Zishka's review hearing after appointing counsel to represent him.

With that summary, let's review Zishka's appeal in greater detail. In 2008, Zishka was involuntarily committed as a sexually violent predator under the Kansas Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq. Since that time, he has been in state custody at the Larned State Hospital. He must remain in state custody until he makes sufficient progress in treatment that he qualifies for transitional release and, potentially, final discharge from the Sexual Predator Treatment Program. See In re Burch, 296 Kan. 215, 219-20, 291 P.3d 78 (2012).

Persons committed under the Act must receive an annual review of their status at a court hearing. Before that hearing, the Secretary of the Kansas Department for Aging and Disability Services, who formally has custody of those committed, must provide a written notice of the person's right to petition the court for release over the Secretary's objection. The Secretary also must forward to the district court that committed the person an annual report regarding the person's mental condition, as well as the notice given to the committed person. K.S.A. 2014 Supp. 59-29a08(a).

The events leading to this appeal relate to Zishka's 2014 annual review. In April 2014, Keri Applequist, a master's-level psychologist and licensed clinical therapist, issued the required report of Zishka's mental condition. She concluded that Zishka's mental abnormality or personality disorder had "not so changed that it would be safe for Mr. Zishka to be placed in Transitional Release at this time."

The Secretary notified Zishka that the Secretary had reviewed the annual report, that he had concluded it would not be safe to release Zishka at this time, and that Zishka had the right to petition the court for release over the Secretary's objection. The notice also provided that Zishka could "waive further court proceedings at this time and . . . continue in treatment." The form provided two spots where Zishka could sign—one was a mere acknowledgement (of his rights and receipt of the Secretary's notice) while the other waived his right to his annual review hearing. Zishka signed the acknowledgement.

Knowing that his annual review was coming up, Zishka had already sent the district court a notice requesting "to have counsel re-appointed to represent him during all stages of his annual review" and to have an expert appointed to examine him. That notice was filed with the district court on April 3, 2014. After receiving the Secretary's notice and the annual report prepared by Applequist, Zishka sent a further motion to the court seeking appointed counsel for his annual review hearing. That notice was filed with the district court on May 27, 2014.

Several things should have happened at this point.

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Although Zishka raised a number of issues on appeal, we find it sufficient to rule only on his objection that the district court "erred when it denied [his] right to a hearing and the right to be appointed counsel." Review of any other issues should wait until counsel has been appointed to represent Zishka and the district court has held its annual review hearing.

The district court's judgment is reversed, and this case is remanded with directions to appoint counsel for Zishka and to hold an annual review hearing.

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