In the Matter of the Civil Commitment of: Bounleng Saengchanh.

This opinion will be unpublished and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
A18-1811

In the Matter of the Civil Commitment of: Bounleng Saengchanh.

Filed March 18, 2019
Affirmed
Larkin, Judge

Judicial Appeal Panel
File No. AP17-9126

Michael C. Hager, Minneapolis, Minnesota (for appellant Bounleng Saengchanh)

Keith Ellison, Attorney General, R.J. Detrick, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Commissioner of Human Services)

Michael O. Freeman, Hennepin County Attorney, Annsara Lovejoy Elasky, Assistant
County Attorney, Minneapolis, Minnesota (for respondent Hennepin County)

Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.

U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant, an individual committed as a sexually dangerous person, challenges the
judicial appeal panel’s d ismissal of his petition for provisional discharge, discharge, or

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transfer, arguing that his current treatment program at the Minnesota Sex Offender Program
is constitutionally inadequate. We affirm.
FACTS
Appellant Bounleng Saengchanh was born in Laos and immigrated to t he United
States when he was 21 years old. In 1991, Saengchanh was convicted of first -degree
criminal sexual conduct against a 12-year-old girl. Between December 1991 and January
1992, Saengchanh was twice accused of sexual ly assaulting an adult woman, and she
allegedly was impregnated as a result of the second assault. Saengchanh was not charged
based on those accusations, but he told the police that the child was his and that the woman
was being deceitful about the accusations to obtain child support. In 1997, Saengchanh
was convicted of three counts of third -degree criminal sexual conduct involving two girls
ages 13 and 15. In 2005, Saengchanh was convicted of terroristic threats for choking his
girlfriend, threatening to kill her and slice her neck with a knife, and attempting to shove a
wooden cooking utensil down her throat.
In 2008, Saengchanh was indeterminately committed to the Minnesota Sex Offender
Program (MSOP) as a sexually dangerous person (SDP). In 2016, Saengchanh progressed
to Phase II of MSOP. In 2017, Saengchanh petitioned the special review board for a
provisional discharge, discharge, or transfer. The special review board recommended that
all three forms of relief be denied.
Saengchanh petitioned for rehea ring and reconsideration by the judicial appeal
panel, which held an evidentiary hearing on Saengchanh’s petition. Saengchanh testified
at the hearing, and he called the following witnesses: Eldridge Kretsinger, an individual

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who met Saengchanh in a ministry program while Saengchanh was incarcerated at MCF -
Stillwater, Soukchanpheng Ngonethong, an individual who works as an interpreter and was
hired to provide interpreting services for Saengchanh at MSOP in 2015, and Pastor Phonh
Sinbondit. Saengchanh offered one exhibit, but it was not received because the judicial
appeal panel found it “cumulative to the testimony.” The judicial appeal panel received 19
exhibits from respondent Minnesota Commissioner of Human Services , pursuant to a
stipulation of the parties.
After the presentation of Saengchanh’s witness testimony, t he commissioner and
respondent Hennepin County moved to dismiss Saengchanh’s petition under Minn. R. Civ.
P. 41.02(b). The judicial appeal panel granted the motion to dismiss, applying the statutory
standards that govern discharge and transfer determinations and concluding that
Saengchanh failed to present a prima facie case that he is entitled to a provisional or full
discharge and that Saengchanh failed to demonstrate by a pre ponderance of the evidence
that a transfer to a less-restrictive facility is appropriate. Saengchanh appeals.
D E C I S I O N
Saengchanh challenges the judicial appeal panel’s denial of his petition for relief
contending that his “current treatment program at MSOP is constitutionally inadequate and
reduction of custody should be granted to provide tailored adequate treatment .”
Specifically, Saengchanh questions “whether the conventional treatment offered [him], as
a Lao speaker with a verbal IQ of 5 7, is constitutionally adequate . . . .”1 Saengchanh

1 Saengchanh has limited English proficiency. Saengchanh’s interpreter, Ngonethong,
testified that Saengchanh speaks Lowland Lao and that he has had difficulty understanding

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argues that he needs “specialized programming so far unavailable in his current treatment
setting and he seeks transfer or provisional discharge in the hope that programming that
fits his unique needs c ould thereby be made available.” Saengchanh asserts that fact
finding regarding his “ educability, in the current placement, would be of constitutional
significance in rebuttal to the assumption of professional judgment” regarding “an adequate
treatment milieu.” Saengchanh concludes, “The decision to grant dismissal and to deny
[his] petition should be reversed to permit further proceedings below consistent with
standards for providing adequate treatment for an amenable patient.” In sum, Saengchanh
seeks a discharge or transfer to remedy his allegedly inadequate treat ment program at
MSOP.
The commissioner argues that Saengchanh’s “brief raises a constitutional adequacy
of treatment issue that has no bearing on his petition and is not properly before this Court
on appeal .” Whether a particular tribunal has authority to order a particular remedy
presents a question of law that we review de novo. See, e.g., State v. Johnson, 851 N.W.2d
60, 65 (Minn. 2014) (“ Whether Minnesota law permits courts to order joint and several
liability for restitution is a question of law, which [appellate courts] review de novo.”).

some interpreters’ accents or language because Laos h as 53 different et hnic groups.
However, Kretsinger testified that Saengchanh’s English “has improved . . . to a fairly good
extent. . . . [n]ow I pretty much understand most of what he says.”

Testing indicates that Saengchanh has a verbal -IQ score of 57, which falls int o the mild-
impairment range of functioning, and a performance -IQ score of 78, which falls into the
borderline range of intellectual functioning. “According to treatment records, the treatment
team is unsure if these results demonstrate true cognitive impa irment, a language barrier,
or both.”

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Saengchanh’s petition for discharge or transfer was a petition for reduction in
custody under section 253D.27 of the Minnesota Commitment and Treatment Act :
Sexually Dangerous Persons and Sexual Psychopathic Personalities (the MCTA), Minn.
Stat. §§ 253D.01-.36 (2018). The MCTA authorizes three forms of relief on a petition for
reduction of custody: p rovisional discharge, discharge , and transfer . See Minn. Stat.
§ 253D.27, subd. 1(b) (“For the purposes of this section, ‘ reduction in custody ’ means
transfer out of a secure treatment facility, a provisional discharge, or a discharge from
commitment.”); see also In re Civil Commitment of Lonergan , 811 N.W.2d 635, 641 -42
(Minn. 2012) (“The Commitment Act only provides relief to a patient indetermin ately
committed as an SDP or SPP through a transfer or a discharge.”).
The MCTA provides standards that must be followed when granting a discharge or
transfer. A person who is committed as a n SDP “shall not be provisionally discharged
unless the committed person is capable of making an acceptable adjustment to open
society.” Minn. Stat. § 253D.30, subd. 1(a). In determining whether to grant a provisional
discharge, the judicial appeal panel must consider two statutory criteria:
(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).
A person who is committed as an SDP

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shall not be discharged unless it appears to the satisfaction of
the judicial appeal panel, after a hearing and recommendation
by a majority of the special review board, that the committed
person is capable of making an acceptable adjustment to open
society, is no longer dangerous to the public, and is no longer
in need of treatment and supervision.

In determining whether a discharge shall be
recommended, the special review board and judicial appeal
panel shall consider whether specific conditions exist to
provide a reasonable degree of protection to the public and to
assist the committed person in adjusting to the community. If
the desired conditions do not exist, the discharge s hall not be
granted.

Minn. Stat. § 253D.31.2
As to a transfer request, “ A person who is committed as [an SDP] . . . shall not be
transferred out of a secure treatment facility unless the transfer is appropriate. Transfer
may be to other treatment programs under th e commissioner’ s control. ” Minn. Stat.
§ 253D.29, subd. 1(a). The judicial appeal panel must consider the following factors when
evaluating a request for transfer:
(1) the person’s clinical progress and present treatment needs;

2 Saengchanh bore the burden of going forward with sufficient evidence to support his
request for discharge or provisional discharge. See Minn. Stat. § 253D.28, subd. 2(d) (“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. If the petitioning party
has met this burden, the party opposing discharge or provisional discharge bears the burden
of proof by clear and convincing evidence that the discharge or provisional discharge
should be denied. ”). To meet his burden of production, Saengchanh had to present
competent evidence that, if believed by the panel, would allow it to grant the requested
relief. See Foster v. Jesson, 857 N.W.2d 545, 549 (Minn. App. 2014). The judicial appeal
panel was not allowed to weigh the evidence or make credibility determinations at the
initial stage of the proceedings and wa s required to view the evidence produced in a light
most favorable to Saengchanh. See Coker v. Jesson , 831 N.W.2d 483, 490-91 (Minn.
2013).

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(2) the need 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.

Id., subd. 1(b).3
The MCTA does not authorize a transfer based solely on treatment needs; instead,
the committed person’s “present treatment needs” is only one factor of five that must be
assessed. Id. Nor does the MCTA authorize a discharge or transfer as a means of obtaining
alternative treatment when the statutory standards for a discharge or transfer are not
otherwise satisfied. Yet, Saengchanh does not challenge the judicial appeal panel’s
findings and conclusions that the statutory standards for discharge and trans fer are not
satisfied. Moreover, Saengchanh does not claim that a discharge or transfer will result in
treatment that he deems appropriate .4 Instead, he seeks transfer or provisional discharge
in the hope that programming that fits his unique needs could be made available.
Because the MCTA does not authorize the relief Saengchanh seeks in his petition
for reduction of custody —a discharge or transfer to remedy purported ly inadequate

3 Minn. Stat. § 253D.29, subd. 1, governs transfers to nonsecure treatment programs under
the commissioner’s control. Saengchanh bore the burden of proof on his transfer request
and had to establish by a preponderance of the evidence that a transfer is appropriate. See
Minn. Stat. § 253D.28, subd. 2(e) (“A party seeking transfer under sect ion 253D.29 must
establish by a preponderance of the evidence that the transfer is appropriate.”). The judicial
appeal panel is allowed to make credibility determinations and weigh evidence on a motion
to dismiss a transfer request. Foster, 857 N.W.2d at 548.
4 Saengchanh did not submit a provisional discharge plan to the special review board or the
judicial appeal panel. Minn. Stat. § 253D.30, subd. 1(b)(2) (requiring consideration of a
provisional discharge plan). Nor has he identifi ed a treatment provider that will provide
more adequate treatment.

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treatment—we do not reverse and remand for further proceedings and findings regarding
Saengchanh’s “educability” or the adequacy of his treatment at MSOP. And b ecause
Saengchanh does not challenge the judicial appeal panel’s findings and conclusions that he
failed to meet his burdens of production and persuasion under th e statutory standards that
governed its decision, we affirm without addressing that decision, except to note that the
judicial appeal panel cited the correct statutory standards and we do not discern obvious
error.
Affirmed.