                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0363
                                  Filed April 19, 2017


IN RE THE DETENTION OF
MARVIN ALLEN MEAD

MARVIN ALLEN MEAD,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      Marvin Mead challenges the district court’s denial of his request for a final

review hearing pursuant to Iowa Code section 229A.8 (2015).                  WRIT

ANNULLED.




      Adam C. Gregg, State Public Defender, and Thomas J. Gaul, Assistant

Public Defender, for appellant.

      Thomas J. Miller, Attorney General, Kyle P. Hanson and Tyler J. Buller,

Assistant Attorneys General, and Lucas Sterbick, Student Legal Intern, for

appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, Presiding Judge.

       Marvin Mead challenges the district court’s denial of his request for a final

review hearing pursuant to Iowa Code section 229A.8 (2015). He argues he

proved by a preponderance of the evidence that there is relevant and reliable

evidence for a final hearing to determine whether he is suitable for discharge or

transitional release.

       In 2011, a jury found Mead to be a sexually violent predator, and he was

civilly committed. On January 29, 2016, Mead had his annual review hearing

pursuant to section 229A.8. Both Mead and the State presented evidence from

separately obtained experts who independently evaluated Mead to determine his

suitability for discharge or transitional release. On February 3, the district court

denied Mead’s request for a final review hearing. Mead appealed. The supreme

court treated Mead’s appeal as a petition for writ of certiorari and granted the

petition. See Iowa R. App. P. 6.108.

       “We review certiorari actions for correction of errors at law.” Taft v. Iowa

Dist. Ct., 828 N.W.2d 309, 312 (Iowa 2013). In reviewing such actions, “[w]e

‘examine only the jurisdiction of the district court and the legality of its actions.’”

Id. (citation omitted).   “Illegality exists when the court’s factual findings lack

substantial evidentiary support, or when the court has not properly applied the

law.” Id. (citation omitted). To the extent constitutional issues are raised, our

review is de novo. See In re Det. of Matlock, 860 N.W.2d 898, 901 (Iowa 2015).

       A person committed under chapter 229A is entitled to an annual

examination and review of the committed “person’s mental abnormality.” Iowa

Code § 229A.8(2); see also Taft, 828 N.W.2d at 313. “A report of the results of
                                        3


each annual examination must be submitted to the court that ordered the

committed person’s commitment.” Taft, 828 N.W.2d at 313 (citing Iowa Code

§ 229A.8(3)).   “A committed person may present evidence including expert

opinions for the court’s consideration in the annual review.” Id. (citing Iowa Code

§ 229A.8(2)). “The court’s annual review of the committed person’s status may

be based ‘only on written records.’” Id. (quoting Iowa Code § 229A.8(3)).

      Section 229A.8(1) includes “a rebuttable presumption . . . that the

commitment should continue.” The committed person can rebut the presumption

by proving “by a preponderance of the evidence that there is relevant and reliable

evidence . . . , which would lead a reasonable person to believe a final hearing

should be held.” Iowa Code § 229A.8(5)(e)(1). The committed person must

establish facts sufficient to warrant a final hearing to determine whether “[t]he

mental abnormality of the committed person has so changed that the person is

not likely to engage in predatory acts constituting sexually violent offenses if

discharged,” or “[t]he committed person is suitable for placement in a transitional

release program.”     Id. § 229A.8(5)(e)(1)(a), (b).    Thus, the “standard for

determining whether a final hearing is required is satisfied if a reasonable person

would find, from the relevant and reliable evidence presented at the annual

review stage, that the committed person has more likely than not generated a

fact question on either of the[se] issues.” Taft, 828 N.W.2d at 318 (citing Iowa

Code § 229A.8(5)(e)(1)(a), (b)). If the court finds the burden has been met, the

court sets the matter for a final hearing. Iowa Code § 229A.8(5)(e)(2).

      Here, the district court determined Mead “ha[d] not proved by a

preponderance of the relevant and reliable evidence that a reasonable person
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would believe a final hearing should be held to determine if he is suitable for

placement in a transitional release program or for release.”          In making its

determination, the district court pointed out numerous, significant inconsistencies

in Mead’s expert’s report that led to its conclusion the report was not reliable.

The court noted the expert had failed to consider certain facts surrounding prior

sexually violent offenses Mead had committed and had ignored the fact that

Mead’s risk of reoffending based on the administered objective tests was

increasing rather than decreasing.

       Further, the court found that, even if Mead’s expert’s report did meet the

threshold level of reliability, the evidence did not raise a factual question

regarding his continued dangerousness or his suitability for transitional release

because it did not unequivocally recommend Mead be discharged. See Taft, 828

N.W.2d at 322. The court noted that, similar to the circumstances in Taft, Mead’s

expert opined, “Mead is most suitable for no longer being termed a sexually

violent predator. If a trier of fact concluded that he somehow continues to meet

criteria for [sexually violent predator] labeling, then it is recommended that he be

placed in a transitional release program.” The court concluded, “This is not an

unequivocal opinion recommending discharge.” We agree. See id. (affirming the

district court’s determination the respondent “failed to satisfy his burden of proof

at the annual review stage on his claim for discharge” when the expert’s “report

did not include an unequivocal opinion that [the respondent] should be

discharged”).

       Finally, the court determined Mead was statutorily ineligible for transitional

release because he failed to meet the requirements of Iowa Code section
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229A.8A(2)(a)–(i).   See id.   The court reiterated the expert’s report showed

Mead’s risk of reoffending had increased rather than decreased and the report

failed to acknowledge certain facts underlying Mead’s original commitment. See

Iowa Code § 229A.8A(2)(a) (“The committed person’s mental abnormality is no

longer such that the person is a high risk to offend.”). The court also noted Mead

had received a major incident report within six months of the review hearing.

See id. § 229A.8A(2)(e) (providing “[a] committed person is suitable for

placement in the transitional release program if the court finds . . . [n]o major

discipline reports have been issued for the committed person for a period of six

months”). Additionally, the court determined Mead failed to meet the requirement

of section 229A.8A(2)(g), which provides, “The committed person is not likely to

engage in predatory acts constituting sexually violent offenses while in the

program,” based on objective test results that Mead’s risk of recidivism is

increasing.

      On our review, we agree with the district court’s determination Mead failed

to prove by a preponderance of the evidence that he was entitled to a final

hearing to determine whether he is suitable for discharge or transitional release.

Accordingly, we affirm.

      WRIT ANNULLED.

      Bower, Judge, concurs; McDonald, Judge, dissents.
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McDONALD, Judge (dissenting)

        I respectfully dissent.   The legal standard for determining whether a

committed person is entitled to a “final hearing” is set forth in Iowa Code chapter

229A (2015). The relevant standard, as explained in Taft v. Iowa District Court,

is as follows:

        [U]nder section 229A.8(5)(e)(1), a committed person is entitled to a
        final hearing if the court, upon consideration of all the evidence
        presented at the annual review, finds the committed person has
        proved by a preponderance of the relevant and reliable evidence
        that a reasonable person would believe a hearing should be held to
        determine whether (a) the mental abnormality of the committed
        person has so changed that the person is not likely to engage in
        predatory acts constituting sexually violent offenses if discharged or
        (b) the committed person is suitable for placement in a transitional
        release program. This standard for determining whether a final
        hearing is required is satisfied if a reasonable person would find,
        from the relevant and reliable evidence presented at the annual
        review stage, that the committed person has more likely than not
        generated a fact question on either of the issues enumerated in
        section 229A.8(5)(e)(1)(a) or (b).

828 N.W.2d 309, 318 (Iowa 2013). The committed person does not need to

establish a fact question with respect to both (a) and (b). See In re Det. of

Shaffer, No. 12-1815, 2014 WL 1746530, at *3 (Iowa Ct. App. Apr. 30, 2014)

(“Second, the grounds for a final hearing are set forth in the disjunctive. That is,

the committed person establishes an entitlement to a final hearing by generating

a fact question on either of the issues enumerated in section 229A.8(5)(e)(1)(a)

or (b).”)

        Dr. Witherspoon’s report is “relevant and reliable” within the meaning of

the statute and Taft. Dr. Witherspoon is a licensed clinical psychologist and sex-

offender evaluator with extensive experience.        His methodology is generally

accepted in the relevant community.           His report and testimony would be
                                            7


admissible pursuant to Iowa Rule of Evidence 5.702. Nothing more is required.

In concluding to the contrary, the district court undertook a thorough analysis of

the credibility and conclusions of the report. This was improper. See Shaffer,

2014 WL 1746530, at *3 (“Chapter 229A does not require a mini-trial on the

evidence presented at the annual review on questions that ultimately will be

decided at a final hearing, if granted. The ultimate weight to be given to the

evidence is for the finder of fact at the final hearing.”).

       Mead established by a preponderance of the evidence that he “more likely

than not generated a fact question” on whether “the mental abnormality of the

committed person has so changed that the person is not likely to engage in

predatory acts constituting sexually violent offenses if discharged.” This is not a

high burden.     See id. at *2 (quoting Taft, 828 N.W.2d at 318) (stating “the

committed person is not required to generate a question of fact” but instead only

has to show he “more likely than not generated a fact question”).                  Dr.

Witherspoon explicitly opined Mead’s mental abnormality had changed due to

Mead’s advanced age, infirmity, and years of treatment, among other things.

The report states, “There is no evidence of ongoing antisocial tendencies, other

acting out concerns, or severe psychopathology.               His profile was normal.”

Further, “Deviant sexuality does not appear to be an operant component of his

current functioning.” Dr. Witherspoon also explicitly opined Mead is not likely to

engage in sexually violent offenses if discharged.            The report stated Mead’s

“projected risk not to reoffend sexually would be estimated at 99% per year.”

(Emphasis added.) The report concludes:
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               The upshot, realistically, is that concern about reoffending
       risk for Mr. Mead at this point is nearly moot. For him to be legally
       termed a sexually violent predator, there would be a need to
       demonstrate ongoingly that he is more likely than not to reoffend
       sexually. Not only is that not the case, but his estimated
       reoffending risk at this point is nearly off the chart in the other
       direction.

       Chapter 229A does not require a “mini-trial” on the evidence presented at

the annual review on questions that ultimately will be decided at a final hearing.

See Taft, 828 N.W.2d at 317. But that is exactly what happened in this case, and

it was improper. Mead met his burden in establishing an entitlement to a final

hearing by establishing a fact question with respect to section 229A.8(5)(e)(1)(a).

The district court exceeded its jurisdiction and otherwise acted illegally in denying

Mead’s request for final hearing. I would reverse the judgment of the district court

and remand this matter for a final hearing.
