In re the Care & Treatment of Ontiberos
287 P.3d 855
| Kan. | 2012Background
- Ontiberos has prior sexual offenses and was civilly committed under the Kansas Sexually Violent Predator Act (KSVPA) after a trial finding him a predator; he challenges trial effectiveness of counsel and State misconduct on appeal; the Court of Appeals reversed for new trial based on ineffective assistance and misconduct; the Supreme Court grants review to address due process right to counsel and effectiveness claims; the district court conducted a Van Cleave-type evidentiary hearing; discovery Exhibit 1 contained 3,500 pages of records, including clinician reports and tests; Dr. McCoy diagnosed Ontiberos with paraphilia and certain disorders and relied on MnSOST-R and Static-99; Dr. Barnett offered defense opinions disputing reliability of tests and noted plethysmograph data not initially reviewed; the trial relied on Exhibit 1 and expert testimony, and a number of evidentiary and impeachment questions arose during cross-examination; the Court ultimately remands for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ontiberos has a due process right to counsel in KSVPA proceedings | Ontiberos asserts constitutional right to counsel | State contends no constitutional right to counsel in civil KSVPA proceeding | Ontiberos has a due process right to counsel (and to effective counsel) under federal/state law |
| What standard applies to evaluating ineffective counsel in KSVPA | Strickland standard should apply | Fair-trial framework should apply | Two-prong Strickland standard applies (deficient performance and prejudice) |
| Whether Ontiberos could challenge counsel effectiveness via Van Cleave or 60-1501 collateral attack | Ie.g., Van Cleave remand or 60-1501 allowed | Statutes limit avenues | A detained person may raise ineffective counsel on direct appeal via Van Cleave or via 60-1501; unconstitutional challenge rejected |
| Whether trial counsel's conduct was ineffective based on specified actions | Counsel failed to introduce favorable evidence, improperly stipulated, and mishandled cross-examination | Counsel acted strategically and within discretion | Multiple deficiencies shown; cumulative errors create reasonable probability of different outcome; remand for new trial |
| Whether State misconduct requires reversal or remand | State improperly cross-examined using undisclosed exhibits | No reversible misconduct if not properly invoked | State misconduct found; remand appropriate |
Key Cases Cited
- Gonzalez v. State, 282 Kan. 73 (2006) (limits on expert reliance on hearsay in KSVPA)
- In re Care hr Treatment of Foster, 280 Kan. 845 (2006) (civil commitment context for misconduct)
- Colt v. State, 289 Kan. 234 (2009) (invited error in stipulations regarding admissibility)
- Brown v. State, 278 Kan. 481 (2004) (constitutional right to effective counsel in KSVPA-related claims)
- Vitek v. Jones, 445 U.S. 480 (1980) (due process right to counsel in civil commitments)
- Smith v. Blakey, Administrator, 213 Kan. 91 (1973) (fair-trial standard in civil proceedings)
- Gauger v. Gauger, 200 Kan. 515 (1968) (impeachment and admissibility of written statements)
- Turner v. Rogers, 131 S. Ct. 2507 (2011) (no automatic right to counsel in certain civil proceedings with safeguards)