                   IN THE SUPREME COURT OF IOWA

                              No. 07–0714

                         Filed November 7, 2008

DANIEL E. GARREN,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY,

      Defendant.
________________________________________________________________________
      Certiorari to the Iowa District Court for Polk County, Don C.

Nickerson, 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

and Michael H. Adams, Assistant Public Defenders, 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, Daniel Garren, a civilly committed

sexual predator, challenges a district court judgment denying his request

for a final hearing to determine whether he is eligible for the transitional

release program. 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.

      Garren was civilly committed as a sexually violent predator under

the Commitment of Sexually Violent Predators Act, Iowa Code chapter

229A in October 1999. In the ’70s, ’80s, and ’90s, he was convicted of

various sexual offenses involving minor girls.      Prior to commitment,

Garren was diagnosed with pedophilia and antisocial personality

disorder, both which predispose him to commit future sexually violent

offenses.   Since his 1999 commitment, Garren has had seven annual

reviews, and in each one, the court has denied Garren’s request for a

final hearing. At his October 2006 annual review, the State submitted

evidence from two licensed psychologists who worked with Garren

stating, although Garren was making progress, he was not ready for

transitional release and remained more likely than not to commit

sexually violent offenses if not confined in a secure facility.     Garren
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submitted a report by Dr. Richard Wollert concluding Garren was ready

for transitional release and that his age (sixty-three) altered his mental

abnormality such that he is no longer a high risk for reoffending. The

district court weighed the evidence presented by both parties and

determined Garren had not shown by a preponderance of the evidence he

was entitled to a final hearing to determine whether he was eligible for a

transitional release program.     Garren 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

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.
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       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

committed person presents competent2 evidence that could lead a fact


       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).
       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).
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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 ___. Garren has met this standard by

submitting the report of Dr. Wollert.

      Further, the district court applied the incorrect standard in

determining Garren was not entitled to a final hearing:
      [T]he Court concludes that [Garren] has failed to show by a
      preponderance of evidence that his mental abnormality has
      so changed that he is either appropriate for transfer to a
      transitional release program or that he is not likely to engage
      in sexually predatory violent offenses if discharged.
(Emphasis added.)     The statute does not require that the committed

person demonstrate that his mental abnormality has changed, only that

the committed person present “competent evidence which would lead a

reasonable person to believe a final hearing should be held.” Iowa Code

§ 229A.8(5)(e). We sustain the writ of certiorari and remand the case to

determine whether Garren 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 Garren’s

request for a final hearing.

      WRIT SUSTAINED, AND CASE REMANDED.

      This opinion shall not be published.
