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In re Care and Treatment of Zishka

Court of Appeals of Kansas

March 6, 2015

In the Matter of the Care and Treatment of PAUL DALE ZISHKA

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge.

SYLLABUS

1. A person who is or may be involuntarily committed under the Kansas Sexually Violent Predator Act has the right to be represented by an attorney at all stages of the proceedings. This includes the annual review hearing for those who have been committed to the program for treatment.

2. The district court's annual review of the status of a person involuntarily committed under the Kansas Sexually Violent Predator Act must take place at a hearing for which proper notice is provided.

3. In this case, the district court reviewed the papers associated with its annual review without holding a properly noticed hearing or appointing counsel to represent the committed person, who had requested the appointment of counsel. By doing so, the district court violated the person's rights.

Paul Dale Zishka, appellant pro se.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., ARNOLD-BURGER, J., and BUKATY, S.J.

OPINION

Page 559

Leben, J.

Paul Dale Zishka appeals the district court's decision at his annual review hearing to maintain his status in treatment in the Sexual Predator Treatment Program. On appeal, Zishka argues that the district court violated his rights when it failed to hold a hearing and failed to appoint an attorney to represent him. We agree.

Persons involuntarily committed as sexually violent predators are entitled to an annual review hearing at which they are represented by counsel. Here, the district court gave no hearing notice and simply signed a proposed order--submitted by the State--finding that Zishka should remain in the treatment program. In addition, [51 Kan.App.2d 243] although Zishka twice asked in writing to have counsel appointed to represent him, the district court did not do so. We therefore reverse the district court and remand to hold Zishka's review hearing after appointing counsel to represent him.

With that summary, let's review Zishka's appeal in greater detail. In 2008, Zishka was involuntarily committed as a sexually violent predator under the Kansas Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq. Since that time, he has been in state custody at the Larned State Hospital. He must remain in state custody until he makes sufficient progress in treatment that he qualifies for transitional release and, potentially, final discharge from the Sexual Predator Treatment Program. See In re Burch, 296 Kan. 215, 219-20, 291 P.3d 78 (2012).

Persons committed under the Act must receive an annual review of their status at a court hearing. Before that hearing, the Secretary of the Kansas Department for Aging and Disability Services, who formally has custody of those committed, must provide a written notice of the person's right to petition the court for release over the Secretary's objection. The Secretary also must forward to the district court that committed the person an annual report ...


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