In the Matter of the Care and Treatment of Richard A. Quillen.
BY THE COURT
analyzing jury instruction issues, an appellate court follows
a three-step process. First, the court must determine whether
it can or should review the issue, i.e., whether there is a
lack of appellate jurisdiction or a failure to preserve the
issue for appeal. Second, it must consider the merits of the
claim to determine whether legal or factual errors occurred
below. And third, if there is error, it must assess whether
the error requires reversal, i.e., whether the error can be
Kansas Sexually Violent Predator Act, K.S.A. 2018 Supp.
59-29a01 et seq., authorizes the State to civilly commit
sexually violent predators to the custody of the Kansas
Department for Aging and Disability Services for treatment.
commit a person under the Kansas Sexually Violent Predator
Act, K.S.A. 2018 Supp. 59-29a02(a), the State must prove
beyond a reasonable doubt that (1) the person has been
convicted of or charged with a sexually violent offense, (2)
the person suffers from a mental abnormality or personality
disorder, (3) that mental abnormality or personality disorder
makes the person likely to commit repeat acts of sexual
violence, and (4) the person has serious difficulty
controlling their dangerous behavior.
person is civilly committed under the Kansas Sexually Violent
Predator Act, K.S.A. 2018 Supp. 59-29a08 entitles such person
to an annual review to determine whether his or her mental
abnormality or personality disorder has so changed as to
render them safe to be at large. The committed person can
also use the annual review process to seek transitional
release out of the treatment program by filing a petition for
filing a petition for transitional release, the committed
person has the burden under K.S.A. 2018 Supp. 59-29a08(d) to
show probable cause to believe that the person's mental
abnormality or personality disorder has significantly changed
so that he or she is safe to be placed in transitional
committed person establishes probable cause, the court must
conduct a hearing on the petition for transitional release.
Under K.S.A. 2018 Supp. 59-29a08(g), the burden of proof at
this hearing is on the State to prove beyond a reasonable
doubt that the committed person's mental abnormality or
personality disorder remains such that the person is not safe
to be placed in transitional release and if transitionally
released is likely to engage in repeat acts of sexual
process requires annual review proceedings to utilize the
same standard of proof as used in the original commitment
proceedings. As such, to deny a committed person release, the
State is also constitutionally required to prove beyond a
reasonable doubt that the person would have serious
difficulty controlling his or her behavior if transitionally
from Johnson District Court; Kevin P. Moriarty, judge.
Green, P.J., Standridge, J., and McAnany, S.J.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for
R. Carswell, assistant solicitor general, and Derek Schmidt,
attorney general, for appellee.