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No. 100,362

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of ROBERT C. ONTIBEROS. SYLLABUS BY THE COURT

1. Because there is a statutory right to court-appointed counsel in sexually violent predator proceedings, there is a correlative right to competent, effective counsel.

2. A person confined in the Kansas Sexual Predator Treatment Program may bring a habeas corpus petition alleging due process violations.

3. It is a due process violation to have ineffective assistance of counsel in sexually violent predator determinations.

4. The Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is constitutional even though the Act contains no specific statute allowing a respondent to challenge the effectiveness of court-appointed counsel.

5. When a K.S.A. 60-1501 habeas corpus petition raising the issue of the effectiveness of court-appointed counsel in a sexually violent predator proceeding has not 1

been filed, this court has the option, when the issue is raised for the first time on appeal, to remand the matter to the district court for the limited purpose of making inquiries and findings concerning the effectiveness of counsel. If the district court finds counsel was effective, the case returns to this court and any issues arising from the remand proceedings are included in the briefing and are subject to review by this court.

6. Because proceedings to determine whether a respondent is a sexually violent predator are civil actions, courts will review the cases to determine if the respondent received a fair trial. An evaluation of prejudice to the respondent is the central consideration in such a determination.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed January 28, 2011. Reversed and remanded with directions.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Kris Ailslieger, assistant attorney general, and Marc Bennett, special assistant attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN and HILL, JJ.

HILL, J.:

INTRODUCTION

Several times during the jury trial of this sexually violent predator case, in violation of the parties' agreement, the State's attorney used documents from an exhibit not admitted into evidence to cross-examine the respondent, Robert Ontiberos. The State's attorney also represented that a prison disciplinary report on Ontiberos involved a 2

weapon when it did not. While this was unfolding before the jury, respondent's courtappointed lawyer never objected to any of the State's actions. Then counsel failed to offer evidence that bolstered the opinions expressed by the respondent's expert witness. The hallmarks of a fair trial are: an adequate hearing before a neutral tribunal; findings of fact based on legally admissible evidence relevant to the issues involved; and, a proceeding free from bias or prejudice. Based on the representations made by the State's attorney, combined with the inaction of respondent's counsel, we hold Ontiberos did not receive a fair trial. We reverse and remand for a new trial.

There is an order to our tasks. First, we examine and reject Ontiberos' claim that the Kansas Sexually Violent Predator Act is unconstitutional because it contains no way to contest the competence of his court-appointed counsel. After all, Ontiberos has successfully done just that in this appeal. Next, we point out that our Supreme Court has ruled that in prisoner habeas corpus actions, appointing an attorney should not be an empty gesture. By analogy, we hold that appointed attorneys in sexually violent predator cases must also be effective and competent. Then, we offer a brief review of the relevant trial testimony and examine the performances of the attorneys who tried this case.

The Act is constitutional even though it contains no specific statute that allows a respondent to contest the competence of court-appointed counsel. Ontiberos argues the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is unconstitutional because it does not provide a remedy for the effects of inept counsel. Because there are other methods to test the effectiveness of court-appointed counsel, such as the procedure followed in this case, we reject Ontiberos' argument. Reasoning by analogy, first from criminal appeals and then from prisoner habeas corpus actions, we hold court-appointed counsel in these predator actions must be effective and competent. Next, we hold the Act does not violate the constitution simply because it contains no specific method for redressing the incompetence of court-appointed attorneys. 3

We first fix the platform from which we base our reasoning. Obviously, the United States Supreme Court has twice examined and approved the procedures of the Kansas Act. See Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002); Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). Notably, one of the significant characteristics of actions under the Kansas Sexually Violent Predator Act is that they are civil in nature. Hendricks, 521 U.S. at 369. Therefore, respondents resisting commitment do not have a constitutional right to counsel but do have a statutory right. See K.S.A. 59-29a06(b); Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004). But does this really make a difference?

In our view, if a statute compels a court to appoint counsel to represent anyone indigent, then that counsel should perform competently. It should not make any difference who is paying the attorney's fee. For example, in criminal appeals, where there is a statutory right to counsel, the United States Supreme Court held that due process requires effective appointed lawyers: "A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney." Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 83 L. Ed. 2d 821, reh. denied 470 U.S. 1065 (1985). So, in direct criminal appeals, due process of law requires the effective assistance of an appointed attorney, even though that attorney is appointed because a statute requires the appointment. The Kansas Supreme Court adopted this holding in Laymon v. State, 280 Kan. 430, 439-40, 122 P.3d 326 (2005).

Going further, courts have extended this principle from criminal cases to prisoner habeas corpus actions. When analyzing the right to counsel in proceedings under K.S.A. 60-1507, our Supreme Court recognized that when there is a statutory right to counsel, there is, by necessity, a right to effective counsel. The court noted the appointment of counsel would be a useless formality if counsel were not required to be effective and competent. Brown, 278 Kan. at 484. The court reiterated Brown's holding in Robertson v.

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State, 288 Kan. 217, 228, 201 P.3d 691 (2009). We see merit in applying the Brown ruling here.

Court-appointed counsel must be effective and competent in sexually violent predator cases. Both the prisoner habeas corpus procedures and the sexually violent predator statutes compel the court to appoint counsel for those requesting help. In fact, in sexually violent predator cases, the law requires appointment of counsel at all stages of the proceedings, while the law requires appointment of counsel in habeas corpus cases only after the prisoner has shown the court a substantial issue of law or fact; thus, compelling the court to appoint counsel. See K.S.A. 59-29a06; K.S.A. 22-4506. The policy set out in Brown, requiring effective assistance and providing a remedy for counsel's failure to provide such assistance, is equally applicable here. To rule otherwise would make the appointment of counsel in these cases a useless gesture. We hold that because there is a statutory right to counsel in sexually violent predator proceedings, there is a correlative right to effective counsel and a remedy for counsel's failure in that regard.

We look now at the possible methods to test the performance of counsel and to provide a remedy for their incompetence, if necessary. First, there is habeas corpus relief under K.S.A. 60-1501. Our Supreme Court has ruled a person confined as a sexually violent predator can seek the redress of due process violations by using this law:

"K.S.A. 60-1501 allows any person confined in Kansas to prosecute a writ of habeas corpus in the county in which such restraint is taking place. Based on the broad language of K.S.A. 60-1501, a person confined in Kansas' Sexual Predator Treatment Program is included within the purview of K.S.A. 60-1501, and, as a result, may bring a habeas corpus petition alleging due process violations." (Emphasis added.) Johnson v. State, 289 Kan. 642, Syl.

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