In the Matter of the Civil Commitment of: Alan Joseph Schiller.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1026

In the Matter of the Civil Commitment of:
Alan Joseph Schiller.

Filed January 14, 2019
Affirmed
Bratvold, Judge

Sibley County District Court
File No. 72-PR-17-9

Daniel P. Repka, Repka Law, LLC, St. Paul, Minnesota (for appellant)

Keith M. Ellison, Attorney General, John D. Gross, Assistant Attorney General, St. Paul,
Minnesota; and

David Schauer, Sibley County Attorney, Winthrop, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
On appeal from his civil commitment, appellant raises two challenges. First, he
contends that his indeterminate commitment as a sexually dangerous person and sexual
psychopathic personality must be reversed because the evidence is insufficient. Second, he
argues that the district court erred in denying his motion for a new trial based on ineffective
2
assistance of counsel. Because we view the evidence in the light most favorable to the
district court’s decision, and expert testimony in the record established that appellant is
highly likely to engage in harmful sexual conduct in the future and lacks the ability to
control his sexual impulses, we conclude that the district court did not err when it found,
by clear and convincing evidence, that appellant is sexually psychopathic and dangerous
to other persons as defined by the applicable statutes. We also conclude that the district
court did not err in denying appellant’s request for a new trial because appellant established
neither that (a) his trial counsel’s representation f ell below the objective standard of
reasonableness, nor (b) a reasonable probability that, but for counsel’s unprofessional
errors, the outcome would have been different. Thus, we affirm appellant’s civil
commitment and its order denying appellant a new trial.
FACTS
In June 2008, J.O. spoke to a sheriff’s deputy at the Cozy Corners C ampground in
Eden Lake Township, Minnesota, and reported that appellant Alan Joseph Schiller had
sexually assaulted her 13- year-old son, D.L. J.O. stated that they had met Schiller the
previous summer and Schiller was “very friendly” to J.O. and D.L. When D.L. did not
return after he left to watch a movie at Schiller’s camper, J.O. walked to the camper and
saw D.L.’s underwear and pants on the floor. J.O. “pounded on the door” and Schiller came
to the door. J.O. screamed, pushed passed Schiller, and saw D.L. come out of the bedroom
wearing a shirt and holding clothing over his crotch. Schiller said he was sorry. J.O. left
with D.L. and called police.
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D.L. told police that he and Schiller took a boat ride and then went inside the camper
to watch a movie. D.L. told Schiller that he had a stomach ache and Schiller rubbed D.L.’s
stomach for about five minutes. Schiller then began rubbing D.L.’s “crotch” and took off
D.L.’s pants and underwear; Schiller took D.L. to his bedroom and made him lay down on
the bed, and Schiller started to “suck on [D.L.’s] penis.” D.L. told Schiller he felt
uncomfortable and asked him to stop, but Schiller told him that “it was okay.” This lasted
for about 30 seconds when D.L.’s mother arrived. When the police arrived, Schiller initially
denied touching D.L. inappropriately and told officers that he had been drinking most of
the day and did not remember details of the incident.
Schiller was 56 years old at the time of his arrest; he grew up on a farm, graduated
from high school, and attended vocational school. He married in 1976, had two daughters,
and was divorced in 1986. Schiller had both anger and alcohol problems after his divorce.
At the time of his arrest, Schiller was active in the community, both at church and in other
organizations.
Schiller was charged with one count of third-degree criminal sexual conduct.
Schiller pleaded guilty to the charge and testified that he touched and put his mouth on
D.L.’s penis. In August 2009, the district court convicted Schiller, stayed imposition of the
guidelines sentence, and placed Schiller on probation for 15 years, with conditions that
included completing outpatient sex-offender treatment and having no unsupervised contact
with minors.
Schiller entered an outpatient sex-offender treatment program in May 2010. While
in treatment, Schiller disclosed that he had sexually abused at least 15 victims beginning
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in 1969, when Schiller, at age 17, sexually abused a ten-year-old male. Schiller’s admitted
offenses occurred throughout the 39 year period examined during his commitment trial.
Schiller was not previously charged; his other victims were males ranging in age from 10
to 34, but most of his victims were 12 to 14 years old. Schiller knew all but one victim
through friends, family, or neighbors. Schiller committed many offenses either at his family
farm or in his residence and committed one offense in a public bathroom. His off enses
included fondling, oral sex, and anal sex.
Schiller’s outpatient sex offender treatment program terminated him in August 2010
for failure to make adequate progress. From 2013 to 2015, Schiller violated probation
conditions several times: he had unsupervised contact with minors, failed to re-enroll in
treatment, enrolled in and was terminated from treatment, and refused to return to sex
offender treatment due to a medical condition. Because of his probation violations, the
district court executed Schiller’s 36- month sentence in November 2015 and he was
committed to the Minnesota Correctional Facility (MCF) in Lino Lakes.
On August 2, 2017, respondent Sibley County filed a petition to civilly commit
Schiller as a sexually dangerous person (SDP) and sexual psychopathic personality (SPP).
The district court appointed an attorney to represent Schiller in the commitment
proceedings. The district court also appointed Dr. Linda Marshall, as the court’s expert
examiner. At Schiller’s request, the court app ointed Dr. Anne Pascucci as a second court
examiner. The court- appointed psychologists interviewed Schiller and conducted
independent assessments, their testimony and written recommendations were entered into
evidence during the commitment trial.
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Dr. Marshall’s report, filed with the district court in November 2017, summarized
Schiller’s sexual history and sexual offenses. Dr. Marshall stated that, although Schiller is
“a level two offender” and needs to continue with treatment, “there is insufficient criteria
to commit [Schiller] as a Sexually Dangerous Person and Sexual Psychopathic
Personality.” Dr. Pascucci also filed a report, which stated that “Schiller does not meet the
statutory requirements as a Sexually Dangerous Person and as a Sexual Psychopath ic
Personality. While he presents with a significant history of harmful sexual behavior and a
sexual disorder, the results of the risk assessment . . . are indicative of an individual who is
appropriate for treatment in the community.”
The county retained a third psychologist, Dr. Rosemary Linderman, to review the
record. Previously, Dr. Linderman had provided a pre-petition opinion that Schiller met the
criteria for commitment. Dr. Linderman also interviewed Schiller. Her report supported
Schiller’s commitment as a SDP and SPP and was also received into evidence at trial.
The district court held a three-day trial on the commitment petition, starting on
January 4, 2018. First, the state called Schiller to testify regarding his history of sexual
behavior. Even after years of treatment, Schiller testified that D.L. became aroused when
Schiller rubbed his stomach and that led him to abuse D.L. He also testified that D.L.
seemed attracted to him and that Schiller believed, if he had not been drinking, he does not
think he would have offended against D.L. When asked at trial about his community
involvement and whether he was leading a double life, Schiller replied, “To a certain extent
I think so.”
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Dr. Linderman acknowledged that she had been retained by the county to testify as
an expert and testified that she “found evidence to support [Schiller] meeting the criteria”
to be committed as a SDP and SPP. Dr. Linderman described Schiller’s grooming pattern
with victims, history of chemical dependency, lack of adequate control over his sexual
impulses, and history of not complying with probation supervision. She opined that he was
highly likely to sexually re-offend because he has a “lifelong proclivity to seek out minor
males to engage in sexual behavior” with them. She also testified that Schiller ca nnot be
safely released into the community.
Dr. Pascucci and Dr. Marshall testified consistent with their reports that Schiller did
not meet the statutory criteria for commitment as either a SDP or SPP. Dr. Pascucci testified
that she did not read any records before she interviewed Schiller and admitted that some of
this information may have affected her assessment of his overall risk to reoffend.
Dr. Marshall testified that five out of six factors increased Schiller’s risk to re-offend, but
she did not think that Schiller met the highly -likely-to-reoffend standard. All three
examiners opined that Schiller had engaged in a habitual course of sexual misconduct and
has one or more conditions that render him irresponsible for personal conduct with respect
to sexual matters.
Sara Robinson, a social worker at the MCF -Lino Lakes, testified regarding
Schiller’s two-year participation in the sex-offender program, which she described as in
the “primary phase.” Robinson testified that Schiller was evasive regarding his uncharged
victims. Robinson also explained that because Schiller’s outpatient program did not share
information with MCF, Schiller was able to “either deny or minimize his sex offenses” and
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had a “persistent behavioral trait” of doing so “until confronted with documentation (or
evidence) that contradicts his position.” Robinson testified that Schiller’s denial may not
indicate “by itself” the “propensity to re-offend,” but it “negatively impact[s] his ability to
be successful in treatment.”
On March 12, 2018, the district court issued its findings of fact, conclusions of law
and order, and memorandum, in 91 pages with over 350 detailed factual findings. The
district court reviewed the evidence regarding each of the 15 victims and found that Schiller
engaged in conduct “likely to cause substantial physical or emotional harm” to each victim.
The district court reviewed Schiller’s treatment history and found that he had made “some
progress” but has “39 years of ingrained deviant sexual behavior, and he resisted and twice
failed in outpatient sex offender treatment.” Despite two years of intensive inpatient
treatment in prison, Schiller had not progressed past the primary phase; thus the district
court concluded that outpatient treatment and its related level of supervision “are not
sufficient to meet Schiller’s treatment needs or the needs of public safety.” After making
additional findings, the district court concluded that clear and convincing evidence
supported indeterminately committing Schiller to the Minnesota Sex Offender Program
(MSOP) as both a SDP and SPP.
Schiller retained a new attorney and filed a motion for a new trial, arguing that he
had received ineffective assistance of counsel at trial. Specifically, Schiller alleged that his
trial attorney used controlled substances during the trial. In May 2018, the district court
denied Schiller’s request for a new trial. Schiller appeals.
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D E C I S I O N
I. The district court did not err in determining that clear and convincing evidence
established that Schiller should be committed as a sexually dangerous person
and sexual psychopathic personality.

A perso n may be civilly committed as a SDP or SPP if the county proves the
statutory criteria by clear and convincing evidence. Minn. Stat. § 253D.07, subd. 3 (2018).
If the district court finds that the statutory criteria has been met, the court “shall commit
the person . . . unless the person establishes by clear and convincing evidence that a less
restrictive treatment program is available, is willing to accept the respondent under
commitment, and is consistent with the person’s treatment needs and the requirements of
public safety.” Id.
This court reviews a district court’ s factual findings on the elements of the civil
commitment statutes for clear error. In re Civil Commitment of Stone, 711 N.W.2d 831,
836 (Minn. App. 2006), review denied (Minn. June 20, 2006). We view the record in the
light most favorable to the district court’s decision. In re Knops, 536 N.W.2d 616, 620
(Minn. 1995). An appellate court will not reweigh the evidence. In re Salkin, 430 N.W.2d
13, 16 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988). “W here the findings of
fact rest almost entirely on expert testimony, the [district] court’s evaluation of credibility
is of particular significance.” Knops, 536 N.W.2d at 620. But whether the evidence is
sufficient to meet the statutory requirements for commitment is a question of law, which
this court reviews de novo. In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn.
App. 2003), review denied (Minn. Aug. 5, 2003).
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On appeal, Schiller argues that the district court erred in determining that the state
proved the statutory criteria for SDP and SPP commitment by clear and convincing
evidence. Specifically, Schiller argues that the district court erred because the expert
testimony conflicts regarding whether he is highly likely to engage in harmful sexual
conduct in the future, and whether he lacks the ability to control his sexual impulses .
Schiller also argues that evidence does not show that he is dangerous to other persons, as
is required by the SPP statute.
A. The district court properly determined that Schiller is a sexually
dangerous person under Minnesota law.

A SDP is a person who (1) “has engaged in a course of harmful sexual conduct”;
(2) “has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct.” Minn. Stat. § 253D.02,
subd. 16(a) (2018). Schiller limits his challenge to the district court’s findings and
conclusions regarding the third statutory requirement. Precedent has clarified that the third
element is satisfied if a person is “highly likely” to reoffend by engaging in acts of harmful
sexual conduct in the future. In re Civil Commitment of Ince, 847 N.W.2d 13, 23 (Minn.
2014).
To determine whether a person is highly likely to reoffend, a district court must
engage in a “multi-factor analysis.” Id. The multi-factor analysis includes consideration of
the following six factors, known as the Linehan factors:
(a) the person’s relevant demographic characteristics (e.g., age,
education, etc.); (b) the person’s history of violent behavior
(paying particular attention to recency, severity, and frequency
of violent acts); (c) the base rate statistics for violent behavior
10
among individuals of this person’s background (e.g., data
showing the rate at which rapists recidivate, the correlation
between age and criminal sexual activity, etc.); (d) the sources
of stress in the environment (cognitive and affective factors
which indicate that the person may be predisposed to cope with
stress in a violent or nonviolent manner); (e) the similarity of
the present or future context to those contexts in which the
person has used violence in the past; and (f) the person’s record
with respect to sex therapy programs.

Id. at 22 (quoting In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994)). The Linehan factors
also allow the court to consider other relevant evidence and information, including the
actuarial assessment evidence used by the experts, even though this evidence is not directly
mentioned in the Linehan factors. See id. at 24. No single factor is determinative. In re
Civil Commitment of Navratil, 799 N.W.2d 643, 649 (Minn. App. 2011), review denied
(Minn. Aug. 24, 2011).
Schiller argues that, because Dr. Marshall and Dr. Pascucci, the court appointed
examiners, both opined that Schiller was not likely to engage in acts of harmful sexual
conduct in the future, the district court erred in finding otherwise. Schiller also contends
that, because Dr. Linderman was a paid expert, and because she was a “member of the
prepetition screening team,” the district court erred in finding her opinion more credible.
Schiller states that the opinions of “examiners who did not have a stake in the outcome of
the case, must be weighed more heavily than the examiner who was retained.”
First, we reject Schiller’s argument that Dr. Linderman’s opinion should be given
less weight because she was retained and paid by the state. As stated, this court gives due
deference to the district court as the best judge of the credibility of witnesses. See Knops,
536 N.W.2d at 620. And where, as here, the findings of fact “rest almost entirely on expert
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testimony, the [district] court’s evaluation of credibility is of particular significance.” Id.
This is true even when an expert is paid by a party. See In re Civil Commitment of Crosby,
824 N.W.2d 351, 356, 360-61 (Minn. App. 2013) (affirming appellant’s civil commitment
despite appellant’s objection to the district court’s decision to credit the forensic
psychologist retained by the state, in the face of “competing experts”), review denied
(Minn. Mar. 27, 2013).
Second, the district court thoroughly explained why it rejected Dr. Marshall and
Dr. Pascucci’s analysis and conclusions on the Linehan factors. Specifically, the district
court stated that Dr. Pascucci’s “lack of review of any records prior to interviewing Schiller
weakens her persuasiveness on this element” because she was unable to ask “any follow-up
questions” related to Schiller’s offenses and likelihood to reoffend. The court explained
that it rejected Dr. Marshall’s opinion, in part, because she “testified that most of the
Linehan factors apply, but she still did not support commitment, which weakens her
persuasiveness on this element.” Accordingly, the district court was within its discretion to
determine which expert’s opinion it found most persuasive. See id.; see also Knops, 536
N.W.2d 620 (stating that due regard is given to district court cred ibility determinations,
and that the court’s evaluation of the credibility of expert witness is particularly significant
when the findings of fact rest almost exclusively on expert testimony).
Third, the district court’s decision includes a detailed written analysis of each of the
Linehan factors. In doing that analysis, the district court considered each expert’s report
and reached its own conclusion regarding Schiller’s risk of reoffending. The district court
did not find certain parts of Dr. Marshall and Dr. Pascucci’s opinions persuasive. But the
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court determined that a majority of the Linehan factors supported its determination that
Schiller was “highly likely to commit acts of harmful sexual conduct in his remaining
lifetime and is dangerous.” We consider the district court’s assessment of each of the six
Linehan factors.
Factor a: Demographic characteristics. Schiller was 66 years old at the time of trial
and had a history of alcohol dependence. Dr. Marshall and Dr. Pascucci opined that Schiller
was an older male, who had demonstrated a pattern of lifestyle stability, and accordingly,
was less likely to reoffend. The district court found that while Schiller’s age normally might
mitigate risk, Schiller had committed at least one sexual offense in his “mid-50s,” and
therefore, his age did not alleviate the risk of reoffending. Also, the 2008 assault of D.L.
took place while Schiller was experiencing l ifestyle stability. The court determined that
this factor “somewhat increases Schiller’s likelihood of re-offense.” We conclude that the
district court’s determination of this factor is supported by record evidence.
Factor b: History of violent behavior. The district court found that this factor had
“moderate application.” Dr. Marshall opined that Schiller had a history of committing
violent acts because “any sex offense against an underage child can be considered to be a
violent offense.” Dr. Pascucci opined that Schiller had a history of “sexual misbehavior.”
The district court agreed with Dr. Marshall an d Dr. Pascucci and also found that Schiller
had threatened violence towards his ex-wife, “usually while drinking.” Dr. Lindeman
reported, and the district court found, that Schiller had “not used physical violence in any
of his sex offenses.” We conclude that the district court’s determination on this factor is
supported by the record.
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Factor c: Base-rate statistics. The district court found that the base -rate statistics
for violent behavior among individuals with Schiller’s background indicated that Schiller
has “an average to below-average group risk” of reoffending. The district court added that,
while these “actuarial tools are helpful, they are not . . . determinative” on whether Schiller
is highly likely to reoffend because base-rate statistics measure group risk, not Schiller’s
individual likelihood of reoffending. We conclude that the district court’s determination on
this factor is supported by the record. See Ince, 847 N.W.2d at 24 (determining that, while
the actuarial assessment evidence “is relevant to the determination of whether a person is
highly likely to engage in future harmful sexual conduct,” it is just one factor in a “multi -
factor analysis for dangerousness prediction”).
Factor d: Sources of stress. The experts testified that Schiller had some support in
the community, including the Knights of Columbus and the Lions Club. But Dr. Pascucci
opined that Schiller had “triggers to sexual misbehavior” which included “feelings related
to social inadequacy.” Dr. Pascucci specifically recognized Schiller’s history of alcohol
abuse as a “continued concern.” The district court found that Schiller “essentially lived a
double-life in the community —the image he projects to the community, and his private
life, where he committed sex offenses against at least 15 victims.” Relying in part on
Dr. Pascucci’s testimony, t he district court found that Schiller would struggle with
“reconciling those two worlds while in outpatient treatment.” We conclude that the district
court’s finding on this factor and that it “significantly increases” Schiller’s risk to re-offend
is supported by the record.
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Factor e: Similarity of the present context to past context of offenses. The district
court found that Schiller had offended in his family home, on his family’s farm, and in his
home as an adult. Schiller asserted that his family “will keep him from re-offending,” but
the district court rejected this claim. At trial, Schiller testified that, years ago, a family
member confronted him about his sexual offenses, and he denied any offense. Schiller also
testified that the family member did not intervene. The district court concluded that Schiller
would be released to the same environment in which he abused minors in the past, and this
factor increased his likelihood of reoffending. We conclude that the district court’s finding
on this factor is supported by the record.
Factor f: Record in treatment programs. The district court found that Schiller had
participated in prison-based sex-offender treatment, but was “still in the primary phase of
treatment after two years.” The record shows that Schiller was twice terminated for failing
to make progress in outpatient treatment while on pro bation. Schiller’s probation agent
reported, in 2014, that Schiller claimed he “was finished with treatment” and going back
to treatment would “cause unnecessary ‘stress’ in his life.” Schiller’s probation agent also
stated that Schiller “threaten[ed] civil action against” the treatment program if he was
required to return. The district court found that Schiller minimizes his behavior and is
evasive about his sexual offenses while in treatment. The district court concluded that this
factor may be the “most significant factor increasing Schiller’s likelihood of re-offense.”
We conclude that the record supports the district court’s findings on this factor.
In sum, the district court concluded that the Linehan factors establish Schiller is
highly likely to reoffend and, therefore, support commitment as a SDP. In completing its
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multi-factor assessment, the district court found that factors (d), (e), and (f) significantly
increase Schiller’s risk to reoffend, factor (b) moderately increases his risk, factor
(a) slightly increases his risk, and factor (c) was “largely neutral.” Because the district
court’s findings are supported by the record, we conclude that the district court did not err
in determining Schiller to be a SDP.
B. The district court properly determined that Schiller has a sexual
psychopathic personality under Minnesota law.

A sexual psychopathic personality is
the existence in any person of such conditions of emotional
instability, or impulsiveness of behavior, or lack of customary
standards of good judgment, or failure to appreciate the
consequences of personal acts, or a combination of any of these
conditions, which render the person irresponsible for personal
conduct with respect to sexual matters, if the person has
evidenced, by a habitual course of misconduct in sexual
matters, an utter lack of power to control the person’s sexual
impulses and, as a result, is dangerous to other persons.

Minn. Stat. § 253D.02, subd. 15 (2018) (emphasis added). Schiller challenges the district
court’s SPP decision in two ways. First, he claims that the evidence does not establish an
utter lack of power to control. Second, he argues that the state did not prove that he is
dangerous to other persons. We address each challenge in turn.
1. Utter lack of power to control sexual impulses
Generally, when considering whether a person has an utter lack of power to control
his sexual impulses, the district court considers “the nature and frequency of the sexual
assaults, the degree of violence involved, the relationship (or lack thereof) between the
offender and the victims, the offender’s attitude and mood, the offender’s medical and
16
family history, the results of psychological and psychiatric testing and evaluation, and such
other factors that bear on the predatory sex impulse and the lack of power to control it.” In
re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). The district court may also consider the
person’s need for security, chemical-dependency issues, history of flight, and need for sex-
offender treatment. See In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied
(Minn. Aug. 30, 1995); In re Irwin, 529 N.W.2d 366, 375-76 (Minn. App. 1995), review
denied (Minn. May 16, 1995); In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App.
1994), review denied (Minn. Oct. 27, 1994).
Schiller argues that Dr. Marshall and Dr. Pascucci considered these factors and
concluded that he did not “meet all of the Blodgett, Pirkl, Bieganowski, and Irwin factors,”
and the factors that he did meet did not support “meeting criteria under the” SPP statute.
Schiller also contends that Dr. Linderman concluded that he met “every single” factor, even
though the evidence did not support her conclusion.
We are not persuaded by Schiller’s argument because the district court conducted
its own analysis of these factors and concluded that Schiller met the criteria for
commitment as a SPP. Applying the Blodgett factors, the district court found that: Schiller
had sexually assaulted 15 victims over a period of approximately 39 years; while Schiller
did not use physical violence, he used his age and size to offend, and he offended against
an adult victim while that victim was unconscious; Schiller assaulted strangers and
acquaintances which “indicates a broad victim pool”; and Schiller did not complete sex-
offender treatment, did not understand his offending cycle, and minimized his behaviors to
avoid accountability. The district court concluded that the Blodgett factors supported a
17
finding that Schiller had an utter lack of power to control his sexual impulses. The court
also analyzed the Pirkl, Bieganowski, and Irwin factors, and concluded that each of these
tests supported a finding that Schiller has an utter lack of control over his sexual impulses.
The district court also stated that it did not find persuasive Dr. Marshall and
Dr. Pascucci’s reports on Schiller’s self-control “because the applicable case law factors
support an utter lack of power to control finding.” The court stated that it completed its
own analysis of the factors, and concluded that Schiller did not “have the ability to control
his deviant sexual impulses when there is a victim available, and the means and opportunity
to sexually offend.” Based on our review, the district court’s findings are supported by the
record, and clear and convincing evidence supports the district court’s determination that
Schiller has evidenced an utter lack of power to control his sexual impulses.
2. Dangerous to other persons
Schiller argues that the state did not prove by clear and convincing evidence that he
is dangerous to other persons. Schiller contends that his sexual offenses did not involve
violence, and therefore, he is not dangerous to other persons. Schiller argues that his case
is analogous to In re Robb, because Robb sexually assaulted several young boys, but did
not use physical violence in his assaults. 622 N.W.2d 564, 566-67 (Minn. App. 2001),
review denied (Minn. Apr. 17, 2001). In Robb, this court concluded that “Robb’s behavior
is not the kind of behavior contemplated by the [SPP] statute. . . . Robb did not physically
injure any of his victims.” Id. at 572. Schiller claims that he also did not “physically injure”
any victims, therefore, he argues that the district court erred in finding him dangerous to
other persons.
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But our caselaw has evolved since Robb, and this court has determined that a person
is “‘dangerous to others’ and subject to commitment as a [SPP] when the person’s pattern
of sexual misconduct . . . creates a substantial likelihood of serious physical or emotional
harm to others.” In re Kindschy, 634 N.W.2d 723, 732 (Minn. App. 2001), review denied
(Minn. Dec. 19, 2001); see also In re Preston , 629 N.W.2d 104, 113 (Minn. App. 2001)
(finding that, although appellant did not cause “physical injury collateral to their assaults
themselves, this does not mean that [appellant’s] assaults were non-violent within the
meaning of the sexual psychopathic personality statute”).
Even though Schiller’s assaults were not physically violent, the emotional harm that
he caused his victims supports a finding that Schiller is dangerous to others. In fact, the
record shows that D.L. was “frighten[ed]” and upset by the assault. Although Schiller was
not prosecuted for his 14 other offenses, against mostly 12 to 14 year olds, he committed
several instances of “what m ay have been charged as either First or S econd-Degree
Criminal Sexual Conduct.” Certain offenses, including criminal sexual conduct in the first
and second degree, give rise to a rebuttable presumption of dangerousness to others
because those offenses “create[] a substantial likelihood that a victim will suffer serious
physical or emotional harm.” See Minn. Stat. § 253D.02, subd. 8(b). The district court
found that Schiller did not rebut the presumption that his victims suffered “serious physical
or emotional harm.” Id. All three examiners found that Schiller’s history of deviance
created a substantial likelihood of serious emotional harm to Schiller’s victims.
We conclude that the record supports the district court’s conclusion that Schiller is
dangerous to other persons by clear and convincing evidence. Because the record also
19
supports the district court’s determination that Schiller has an utter lack of power to control
his sexual impulses, we affirm the district court’s determination that Schiller must be
civilly committed as a SPP.
II. The district court did not err in concluding that Schiller failed to demonstrate
ineffective assistance of counsel.

A committed person has the statutory right to assistance of counsel in commitment
proceedings. See Minn. Stat. § 253D.20 (2018). The district court shall appoint counsel to
represent the committed person if the person does not provide counsel for himself. Id.
During the commitment proceedings, the attorney shall: (1) consult with the person before
any hearings; (2) “be given adequate time and access to records to prepare for all hearings;
(3) continue to represent the person throughout any proceedings under this chapter unless
released as counsel by the court; and (4) be a vigorous advocate on behalf of the person.”
Id. The district court determined that Schiller’s trial attorney satisfied the statutory
requirements and denied his request for a new trial.
This court applies the criminal standard for analyzing the effectiveness of counsel
in civil-commitment cases. In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review
denied (Minn. Mar. 25, 1987). Accordingly, Schiller must show “that counsel’s
representation fell below an objective standard of reasonableness , and that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Reed v. State, 793 N.W.2d 725, 733 (Minn. 2010)
(citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068
(1984)). “A strong presumption exists that counsel’s performance fell within a wide range
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of reasonable assistance.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). Claims of
ineffective assistance of counsel that raise mixed questions of fact and law are reviewed de
novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
Schiller argues that the district court erred in denying his motion for a new trial
because he received ineffective assistance of counsel. Specifically, Schiller claims that his
trial attorney’s performance fell below an objective standard of reasonableness because his
attorney was arrested for a “serious felony-level drug charge” during his representation of
Schiller. The district court has the discretion to grant a new trial, and this court will not
disturb that decision “absent a clear abuse of that discretion.” Willis v. Indiana Harbor S.S.
Co., 790 N.W.2d 177, 184 (Minn. App. 2010), review denied (Minn. Dec. 22, 2010).
A. Facts relevant to Schiller’s ineffective-assistance-of-counsel claim
On January 2, 2018, the parties convened for what was supposed to be the first day
of trial. Schiller’s attorney did not appear and, when the district court called him at home,
the attorney stated that he was sick, but that he would be “able to proceed normally
tomorrow.” On January 3, Schiller’s attorney again did not appear and told the court on a
conference call that he was still sick. The district court received word that Schiller’s
daughter heard Schiller’s attorney “slurring” his speech when she spoke to him on the
phone. Schiller’s attorney explained that he had been sleeping and was groggy. The district
court gave Schiller the opportunity to speak to his attorney on the phone, and scheduled
the trial to begin the next day . On January 4, the trial began with Schiller’s attorney
representing him.
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After the district court issued its commitment order in March 2018, the state wrote
a letter to the district court stating that they could not reach Schiller’s trial attorney. The
district court appointed a new attorney for Schiller. Schiller ’s new attorney filed a motion
for a new trial, arguing that Schiller received ineffective assistance of counsel because his
trial attorney used controlled substances during the trial.
On May 30, 2018, the district court denied Schiller’s request for a new trial. The
district court’s order stated that, on January 31, 2018, a drug task force completed a search
at Schiller’s attorney’s home and found “large quantities of controlled substances.” During
an interview with law enforcement after the search, Schiller’s attorney admitted “being
addicted to methamphetamine and estimated using somewhere between a quarter and a half
gram per day.” Schiller’s attorney was charged with two counts of first-degree controlled
substance crime, and those charges were pending at the time the di strict court issued its
post-trial order in Schiller’s case.
The district court concluded that Schiller’s attorney’s performance at trial did not
fall “below an objective standard of reasonableness.” The district court found that
Schiller’s attorney had been in contact with Schiller before trial, was a “vigorous advocate”
at trial, and that there was “nothing in the record to suggest that [ Schiller’s attorney] was
impaired while representing [Schiller].”
B. The district court did not abuse its discretion in denying Schiller a new
trial.

Schiller asks that, “as a matter of first impression, this [c]ourt hold that an attorney’s
performance falls below an objective standard of reasonableness when his actions lead to
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criminal charges and possible license sanctions.” We decline to adopt this rule. First, this
rule contradicts the established standard for ineffective-assistance claims, which requires
this court to consider whether the specific trial counsel’s performance in that case fell
below an objective standard of reasonableness. Reed, 793 N.W.2d at 733. A per se
ineffective-assistance rule would not permit reviewing courts the flexibility that the
Strickland test demands. Second, this court has previously declined to adopt per se
ineffective-assistance-of-counsel rules. See, e.g., Berkow v. State, 573 N.W.2d 91, 97
(Minn. App. 1997) (affirming finding of no ineffective assistance of counsel based on
circumstances of case), aff’d, 583 N.W.2d 562 (Minn. 1998). Third, Schiller’s proposed
rule also contradicts analogous caselaw on this issue. In State v. Nissalke, the supreme court
denied an ineffective-assistance-of -counsel claim when appellant’s trial attorney was
arrested for a drug charge just a few months prior to appellant’s trial. 801 N.W.2d 82, 111
(Minn. 2011). Applying the Strickland test, the supreme court determined that, despite his
attorney’s drug arrest, Nissalke had not “demonstrated that his counsel’s performance was
objectively unreasonable.” Id. at 111-12.
Schiller’s claim of ineffective assistance fails for the same reasons Nissalke’s did.
Some of Schiller’s comp laints of ineffectiveness—including his trial attorney’s decision
not to “rehabilitate [Schiller] after his incriminating responses” to the county’s questions
and his attorney’s decision not to call Schiller during his case in chief—fall squarely within
“tactical decisions properly left to the discretion of trial counsel.” See State v. Mems, 708
N.W.2d 526, 534 (Minn. 2006) (noting such tactical decisions do not prove that counsel’s
performance fell below an objective standard of reasonableness). Generally, a reviewing
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court does not review matters of trial strategy for competence. See Voorhees v. State, 627
N.W.2d 642, 651 (Minn. 2001).
Schiller also argues that his counsel was likely impaired during the trial. But after
reviewing the record, the district court specifically determined that there was no evidence
that Schiller’s attorney was impaired while he represented Schiller during trial or other
court proceedings. We conclude that these factual findings are supported by the record.
Finally, and importantly, Schiller has failed to show that, but for counsel’s
“unprofessional errors, the result of the proceeding would have been different.” Reed, 793
N.W.2d at 733. As stated by the district court, Schiller has failed to point to any “references
to the transcript, citing inappropriate questioning, or the absence of questioning on critical
issues.” Thus, Schiller failed to show that his trial attorney’s performance prejudiced him,
and that, without his attorney’s errors, the result would have been different.
We conclude that the district court did not abuse its discretion in denying Schiller’s
motion for a new trial. In sum, because clear and convincing evidence supports the district
court’s civil-commitment findings and conclusions, we affirm Schiller’s commitment.
Affirmed.