                   IN THE SUPREME COURT OF IOWA

                                No. 06–1960

                          Filed November 7, 2008

JOHN CARMODY,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR HENRY COUNTY,

      Defendant.
________________________________________________________________________
      Certiorari to the Iowa District Court for Henry County, R. David

Fahey, Judge.



      Plaintiff challenges the district court’s denial of his request for a

final hearing at his annual review.         WRIT SUSTAINED, AND CASE

REMANDED.



      Mark C. Smith, State Appellate Defender, and Steven L. Addington,

Assistant Public Defender, for plaintiff.



      Thomas J. Miller, Attorney General and Linda J. Hines and Becky

Goettsch, Assistant Attorneys General, for defendant.
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PER CURIAM.

      By petition for writ of certiorari, John Carmody, a civilly committed

sexual predator, challenges a district court judgment denying his request

for a final hearing to determine whether he is eligible for release.     He

claims the district court exceeded its jurisdiction and acted illegally when

it weighed conflicting expert opinions at his annual review to determine

he was not entitled to a final hearing.      We conclude the controlling

statute does not require the committed person prove at the annual

review a likelihood of winning at his final hearing. The statute governing

annual reviews requires the committed person show there is admissible

evidence that could lead a fact finder to find reasonable doubt on the

issue of whether his mental abnormality has changed.          We therefore

sustain the writ.

      I. Background Facts and Prior Proceedings.

      John Carmody was civilly committed as a sexually violent predator

under the Commitment of Sexually Violent Predators Act, Iowa Code

chapter 229A in 2002 and recommitted in 2004.            According to the

stipulated facts, Carmody was convicted of two counts of sexual abuse in

the third degree in 1990 and two counts of rape in 1976.           Prior to

commitment, Carmody was diagnosed with antisocial and narcissistic

personality disorders, which predispose him to commit future sexually

violent offenses.   Since his 2002 commitment, Carmody has had four

annual reviews, and in each one, the court has denied Carmody’s request

for a final hearing.   At his September 2006 annual review, the State

submitted evidence from a licensed psychologist who had worked with

Carmody stating he had refused to participate in all aspects of the sex

offender treatment and thus was not suitable for placement in the
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transitional release program.     Carmody submitted a report by Dr.

Richard Wollert that concluded Carmody’s mental abnormality had

changed such that he is not likely to commit sexually violent offenses if

released.   Wollert’s conclusion was based primarily on actuarial data

indicating the risk of recidivism declines with age, and Carmody’s risk of

reoffending, given his age of sixty-seven, was below ten percent.       The

district court weighed the evidence presented by both parties and

determined Carmody had not shown by a preponderance of the evidence

he was entitled to a final hearing. Carmody filed an application for writ

of certiorari with this court, claiming the district court exceeded its

jurisdiction when it weighed evidence to determine he was not entitled to

a final hearing.

      II. Scope of Review.

      In a certiorari case, we review the district court’s action for

correction of errors at law. Weissenburger v. Iowa Dist. Ct., 740 N.W.2d

431, 434 (Iowa 2007).     We may examine “only the jurisdiction of the

district court and the legality of its actions.” Christensen v. Iowa Dist.

Ct., 578 N.W.2d 675, 678 (Iowa 1998).       An “illegality exists when the

court’s factual findings lack substantial evidentiary support, or when the

court has not properly applied the law.”      Id.   We accept as true the

district court’s factual findings, if well supported. State Pub. Defender v.

Iowa Dist. Ct., 644 N.W.2d 354, 356 (Iowa 2002).

      III. Merits.

      In Johnson v. Iowa District Court, ___ N.W.2d ___ (Iowa 2008), we

interpreted Iowa Code section 229A.8 to require the committed person

show there is admissible evidence that could lead a fact finder to find

reasonable doubt on the issue of whether his mental abnormality has
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changed. Johnson, ___ N.W.2d at ___. If the committed person meets

this standard at the annual review, he is entitled to a final hearing. Id.

       Iowa Code chapter 229A allows for the commitment of sexually

violent predators in order “to protect the public, to respect the needs of

the victims of sexually violent offenses, and to encourage full, meaningful

participation of sexually violent predators in treatment programs.” Iowa

Code § 229A.1 (2007). Under section 229A.8, the committed person is

entitled to an annual review in which he may request a final hearing to

determine whether he is eligible for release or transitional release. At an

annual review, the committed person bears the burden of proof to show

by a “preponderance of the evidence” there is “competent evidence which

would lead a reasonable person to believe a final hearing should be held.”

Id. § 229A.8(5). If the committed person meets this burden, he is entitled

to a final hearing. At the final hearing, the state bears the burden of

proof to show “beyond a reasonable doubt” the committed person’s

mental abnormality has not changed.1 Id. § 229A.8(6). The committed
person has no burden to prove anything at the final hearing. Id. If, at

the final hearing, the fact finder determines there is a reasonable doubt

as to whether the committed person still suffers from a mental

abnormality, the commitment ends. Id.

       In determining whether the committed person is entitled to a final

hearing, the district court should apply the following standard:                  if the




       1The   final hearing on whether the committed person is eligible for transitional
release is different. Iowa Code § 229A.8A. The prerequisites for the transitional release
program include, among other things, that the committed person’s “mental abnormality
is no longer such that the person is a high risk to reoffend.” Id. § 229A.8A(2)(a).
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committed person presents competent2 evidence that could lead a fact

finder to find reasonable doubt on the issue of whether his mental

abnormality has changed, such that he is unlikely to engage in sexually

violent offenses, then the committed person should be granted a final

hearing. Johnson, ___ N.W.2d at ___. Carmody has met this standard by

submitting the report of Dr. Wollert.        We sustain the writ of certiorari

and remand the case to determine whether Carmody is entitled to a final

hearing under the standard set forth in Johnson.               See Johnson, ___

N.W.2d at ___.

      IV. Conclusion.

      We interpret the statute governing annual reviews to require the

committed person show there is admissible evidence that could lead a

fact finder to find reasonable doubt on the issue of whether his mental

abnormality has changed.           The writ of certiorari to this court is

sustained.    The district court acted illegally when it denied Carmody’s

request for a final hearing.

      WRIT SUSTAINED, AND CASE REMANDED.

      This opinion shall not be published.




      2Competent   evidence means admissible evidence, not credible evidence. See
Black’s Law Dictionary 596 (8th ed. 2004); see also State v. Decker, 744 N.W.2d 346,
356 (Iowa 2008).
