                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-1577

                        In the Matter of the Civil Commitment of:
                                  Steven Merrill Hogy.

                                 Filed February 13, 2017
                                        Affirmed
                                   Cleary, Chief Judge

                              Goodhue County District Court
                                File No. 25-PR-07-1705


David A. Jaehne, West St. Paul, Minnesota (for appellant Hogy)

Lori Swanson, Attorney General, James H. Clark III, Assistant Attorney General, St. Paul,
Minnesota (for respondent commissioner of human services)

Stephen Betcher, Goodhue County Attorney, Erin Louise Kuester, Assistant County
Attorney, Red Wing, Minnesota (for respondent Goodhue County)


       Considered and decided by Cleary, Chief Judge; Kirk, Judge; and Bratvold, Judge.

                         UNPUBLISHED OPINION

CLEARY, Chief Judge

       On appeal from the dismissal of his petitions for transfer to community preparation

services (CPS), provisional discharge, and full discharge, appellant Steven Merrill Hogy

argues that the judicial appeal panel erred by dismissing his petitions and requests that this

court, at minimum, order his transfer to Phase II of the Minnesota sex offender program
(MSOP). Because we conclude that the panel did not err and that Hogy failed to request a

transfer to Phase II of MSOP while before the special review board, we affirm.

                                           FACTS

       Hogy was civilly committed to MSOP as a sexually dangerous person and sexual

psychopathic personality in July 2008. In May 2014, Hogy petitioned the special review

board for full discharge, provisional discharge, or transfer to CPS. The special review

board held a hearing in March 2015, at which the board heard the arguments of Hogy’s

attorney, heard witness testimony, and considered the results of risk assessment tests as

applied to Hogy. The special review board recommended that Hogy’s petitions for full

discharge, provisional discharge, and transfer to CPS be denied.

       Hogy requested rehearing and reconsideration by the judicial appeal panel. In April

2016, the judicial appeal panel held a hearing, at which it received the commissioner’s

evidence without objection from any party. The evidence received included MSOP

treatment reports, MSOP therapy group participation progress notes, MSOP behavioral

expectation reports, MSOP incident reports, an MSOP sexual violence risk assessment,

and a written report of the March 2016 evaluation of Hogy that was performed by a

psychologist serving as a court-appointed examiner.

       The court-appointed examiner who evaluated Hogy in March 2016 testified before

the judicial appeal panel. On direct examination by Hogy’s counsel, the examiner testified

that Hogy “really made no progress in treatment. He hasn’t really learned anything about

his offending cycle[,] . . . hasn’t admitted to really being an offender[,] . . . [and] does not

have a plan for how he’s going to make sure he doesn’t reoffend.” He further testified that


                                               2
he did not believe that the community would be safe if Hogy were placed in an outpatient

setting using GPS monitoring and supervision. When asked how likely Hogy would be to

reoffend if he were provisionally discharged or completely discharged, the examiner

testified that “right now he’s probably a moderate to high moderate risk to reoffend.”

       Hogy also appeared before the panel and testified to the following on direct

examination by his own counsel. Hogy had been in Phase I of MSOP for eight years and

had participated in treatment, but missed some treatment sessions because of illness. He

explained that, at the time of the hearing, he was not participating in treatment because

“[i]t’s a hopeless case of trying to move on in the program.”

       After Hogy’s presentation of evidence was complete, the commissioner moved for

dismissal under Minn. R. Civ. P. 41.02(b), and Goodhue County joined in the motion. The

panel considered the statutory transfer factors of Minn. Stat. § 253D.29, subd. 1(b) (2016),

concluded that Hogy failed to establish by a preponderance of the evidence that transfer to

CPS was appropriate, and denied the transfer petition. The panel next considered Hogy’s

petition for provisional discharge and explained that provisional discharge is inappropriate

if transfer to CPS, a lesser custody reduction, is inappropriate. The panel concluded that

Hogy did not meet his burden of production under Minn. Stat. § 253D.28, subd. 2(d)

(2016), because he presented no provisional discharge plan and failed to show that there

was no longer a need for treatment and supervision in his current setting. As a result, the

panel denied his petition for provisional discharge. Finally, the panel denied Hogy’s

petition for full discharge, explaining that full discharge is inappropriate if transfer to CPS

or provisional discharge is inappropriate. The panel concluded that Hogy did not meet his


                                              3
burden of production under Minn. Stat. § 253D.28, subd. 2(d), because he failed to present

a prima facie case with competent evidence to show that he was entitled to full discharge.

Hogy now appeals the judicial appeal panel’s dismissal of his petitions and requests that

this court, at minimum, order his transfer to Phase II of MSOP.

                                      DECISION

       Rule 41.02(b) provides that “[a]fter the plaintiff has completed the presentation of

evidence, the defendant . . . may move for a dismissal on the ground that upon the facts

and the law, the plaintiff has shown no right to relief.” Minn. R. Civ. P. 41.02(b). If the

action is tried by a court without a jury, the court may then determine the facts and render

judgment against the plaintiff, or it may decline to render any judgment until the close of

all the evidence. Id. If the court renders judgment against the plaintiff, it must make

findings as provided in Minn. R. Civ. P. 52.01. Id.

I.     Transfer Petition

       When a judicial appeal panel, sitting as a trier of fact, dismisses a transfer petition

under rule 41.02(b), this court reviews the dismissal for clear error. Foster v. Jesson, 857

N.W.2d 545, 548 (Minn. App. 2014). We will not reverse findings of fact if the record as

a whole sustains those findings. Rydberg v. Goodno, 689 N.W.2d 310, 313 (Minn. App.

2004). “A party seeking transfer under section 253D.29 must establish by a preponderance

of the evidence that the transfer is appropriate.” Minn. Stat. § 253D.28, subd. 2(e) (2016).

The judicial appeal panel must address the statutory factors when evaluating whether a

petitioner has demonstrated that transfer is appropriate. Foster, 857 N.W.2d at 549. Those

factors are: “(1) the person’s clinical progress and present treatment needs; (2) the need


                                              4
for security to accomplish continuing treatment; (3) the need for continued

institutionalization; (4) which facility can best meet the person’s needs; and (5) whether

transfer can be accomplished with a reasonable degree of safety for the public.” Minn.

Stat. § 253D.29, subd. 1(b).

       Here, the record evidence at the close of Hogy’s case-in-chief was insufficient. The

testimony that Hogy’s counsel elicited from the examiner does not support Hogy’s request

for transfer to CPS. The examiner testified that Hogy had not learned anything about his

offending cycle, that Hogy failed to take responsibility for his actions, and that GPS

monitoring and supervision were insufficient to ensure the community’s safety.1 The

record evidence supports the examiner’s testimony and shows that transfer to CPS is

inappropriate. The judicial appeal panel considered the statutory factors and concluded

that Hogy had experienced minimal clinical progress, had a high need for security to

accomplish continuing treatment, had a high need for continued institutionalization in his

current facility, would have his treatment needs best met in a secure facility, and could not

be transferred with a reasonable degree of safety for the public. The record evidence, as a




1
  Clients who are transferred to CPS are moved from the secure facility to a less restrictive
environment and must wear GPS-monitoring devices. See Minn. Dep’t Human Servs.,
Programming On and Off Campus: Minnesota Sex Offender Program (Oct. 2015),
http://www.dhs.state.mn.us/main/groups/agencywide/documents/pub/dhs16_167930.pdf
(providing that CPS clients are monitored by GPS and are permitted to move outside of the
MSOP secure perimeter); see also Minn. Dep’t Human Servs., Facilities for MSOP Clients
in Community Preparation Services (Mar. 2016), http://mn.gov/dhs/images/msop-
bonding.pdf (explaining that CPS clients wear GPS devices and are transferred from the
secure facility to a less restrictive environment).


                                             5
whole, supports the panel’s findings and conclusion. The judicial appeal panel did not err

in dismissing Hogy’s petition for transfer pursuant to rule 41.02(b).

II.    Discharge Petitions

       When a judicial appeal panel dismisses a discharge petition under rule 41.02(b), our

review of the dismissal is de novo. Larson v. Jesson, 847 N.W.2d 531, 534 (Minn. App.

2014). “The petitioning party seeking discharge or provisional discharge bears the burden

of going forward with the evidence, which means presenting a prima facie case with

competent evidence to show that the person is entitled to the requested relief.” Minn. Stat.

§ 253D.28, subd. 2(d). The petitioner must “come forward only with sufficient, competent

evidence that, if proven, would entitle the petitioner to relief.” Coker v. Jesson, 831

N.W.2d 483, 490 (Minn. 2013).         “If the committed person satisfies his burden of

production, then the party opposing the petition bears the burden of proof by clear and

convincing evidence that the discharge or provisional discharge should be denied.” Id. at

486 (quotations omitted).

       When considering a rule 41.02(b) motion to dismiss a discharge petition, the judicial

appeal panel may not weigh the evidence or make credibility determinations regarding

discharge. Foster, 857 N.W.2d at 549. Rather, it must view the evidence in a light most

favorable to the committed person. Id.

       A.     Provisional Discharge

       Viewing the evidence in a light most favorable to Hogy, he failed to satisfy his

burden of production with respect to his petition for provisional discharge. A committed

person may be provisionally discharged only if the judicial appeal panel determines that he


                                             6
is “capable of making an acceptable adjustment to open society.” Minn. Stat. § 253D.30,

subd. 1(a) (2016). When determining whether a provisional discharge is appropriate, the

judicial appeal panel must consider:

                     (1) whether the committed person’s course of treatment
              and present mental status indicate there is no longer a need for
              treatment and supervision in the committed person’s current
              treatment setting; and

                    (2) whether the conditions of the provisional discharge
              plan will provide a reasonable degree of protection to the
              public and will enable the committed person to adjust
              successfully to the community.

Id., subd. 1(b) (2016).

       The language of Minn. Stat. § 253D.30, subd. 1(b)(2) plainly requires a provisional

discharge plan. “[A] provisional discharge plan is a necessary step before the judicial

appeal panel could even begin to consider a provisional discharge.” Larson, 847 N.W.2d

at 536. On direct examination by Hogy’s counsel, the examiner testified that Hogy did not

have a plan establishing how he would ensure that he did not reoffend. The record evidence

supports the examiner’s testimony that Hogy lacked a provisional discharge plan that

would provide a reasonable degree of protection to the public. The judicial appeal panel

did not err in concluding that Hogy failed to present a provisional discharge plan.

       Minn. Stat. § 253D.30, subd. 1(b)(1) additionally requires the judicial appeal panel

to consider whether the committed person’s course of treatment and mental status indicate

that treatment and supervision in the committed person’s treatment setting are no longer

needed. On direct examination by Hogy’s counsel, the examiner testified that Hogy had

not learned anything about his offending cycle, failed to take responsibility for his actions,


                                              7
would have a “moderate to high moderate risk to reoffend” if provisionally discharged, and

would pose a risk to the community even if he were monitored using GPS. The record

evidence supports the judicial appeal panel’s conclusion that Hogy failed to show that there

was no longer a need for treatment and supervision in his current setting.

       The testimony that Hogy’s counsel elicited from the examiner does not support

Hogy’s request for provisional discharge. Absent corroborating neutral testimony, Hogy’s

own testimony about his treatment and condition cannot stand alone as competent evidence

of his capability to adjust to open society without the treatment and supervision that MSOP

provides. Even viewing the evidence in Hogy’s favor, he failed to produce to the panel

competent evidence that, if proven, would entitle him to provisional discharge. The

judicial appeal panel did not err in dismissing Hogy’s petition for provisional discharge

pursuant to rule 41.02(b).

       B.     Full Discharge

       The commissioner asserts that Hogy has not challenged the judicial appeal panel’s

denial of his petition for full discharge and that he has thereby waived the full-discharge

issue on appeal. “It is axiomatic that issues not ‘argued’ in the briefs are deemed waived

on appeal.” In re Application of Olson for Payment of Servs., 648 N.W.2d 226, 228 (Minn.

2002). Where an issue is not addressed in the argument portion of a brief, it may be deemed

waived. Id. A request for full discharge appears nowhere in the argument section of the

brief submitted by Hogy’s counsel. Rather, the request for a full discharge appears only in

the brief’s statement-of-the-case section. As a result, Hogy’s brief failed to adequately

argue that he was entitled to full discharge, and this court need not address it. See id.


                                             8
(explaining that the court of appeals committed no error by refusing to address an issue

that appellant’s brief did not discuss in the argument section and that was identified only

tangentially in one argument heading and one footnote).

       Even if this court were to address the full-discharge issue, Hogy could not establish

that he is entitled to full discharge. Viewing the evidence in a light most favorable to Hogy,

he failed to satisfy his burden of production with respect to his petition for full discharge.

A committed person may be discharged only if the judicial appeal panel determines that he

is “capable of making an acceptable adjustment to open society, is no longer dangerous to

the public, and is no longer in need of inpatient treatment and supervision.” Minn. Stat.

§ 253D.31 (2016). On direct examination by Hogy’s counsel, the examiner testified that

Hogy had not learned anything about his offending cycle, failed to take responsibility for

his actions, would have a “moderate to high moderate risk to reoffend” if discharged, and

would pose a risk to the community even if he were monitored using GPS. Viewing the

evidence in Hogy’s favor, Hogy failed to produce to the panel competent evidence that, if

proven, would entitle him to full discharge. The judicial appeal panel did not err in

dismissing Hogy’s petition for full discharge pursuant to rule 41.02(b).

III.   Transfer to Phase II of MSOP

       MSOP is a multiphase-treatment program. Hogy has been in Phase I for eight years

and requests that this court order that he be transferred to Phase II. Hogy initiated this case

by requesting a special review board hearing pursuant to Minn. Stat. § 253B.18, subd. 5

(2016), but he failed to request a transfer to Phase II of MSOP while his case was before

the special review board. After the special review board recommended that Hogy’s


                                              9
petitions for transfer to CPS, provisional discharge, and full discharge be denied, Hogy

requested rehearing and reconsideration by the judicial appeal panel.

       The judicial appeal panel is statutorily authorized to rehear and reconsider decisions

of the special review board but “may not consider petitions for relief other than those

considered by the commissioner or special review board from which the appeal is taken.”

Minn. Stat. § 253B.19, subd. 3 (2016). Because Hogy did not request a transfer to Phase

II while he was before the special review board, this court will not consider the request

now. This comports with the statutory directive of Minn. Stat. § 253B.19, subd. 3, and our

well-established rule against considering issues not raised to the initial decision maker. See

Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (explaining that a reviewing court

generally must consider only those issues that were presented to and considered by the

district court). Therefore, this court will not address whether Hogy is entitled to transfer

to Phase II of MSOP.

       Affirmed.




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