In the Matter of the Civil Commitment of: Jeremiah Jerome Johnson.

This opinion will be unpublished and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
A19-0656

In the Matter of the Civil Commitment of: Jeremiah Jerome Johnson.

Filed September 3, 2019
Affirmed
Florey, Judge

Commitment Appeal Panel
File No. AP18-9119

Jeremiah Johnson, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Matthew M. Hart, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Ben Lindstrom, Cass County Attorney, Barbara J. Harrington, Assistant County Attorney,
Walker, Minnesota (for respondent Cass County)

Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant Jeremiah Jerome Johnson challenges th e commitment appeal panel’s
order denying his petition for discharge and granting respondent Commissioner of Human
Services’ (the commissioner’s) motion to dismiss. We affirm.

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FACTS
Appellant is a 33 -year-old male who was indeterminately committed to t he
Minnesota Sex Offender Program (MSOP) as a sexually dangerous person (SDP) in
October 2009. The initial basis for appellant’s co mmitment concerned two criminal -
sexual-conduct offenses against minor females when he was 17 and 19 years old. Both
offenses included the use of force and violence to gain compliance.
Since appellant’s civil commitment in 2009, he has participated in treatment with
varying consistency. In March 2017, appellant was committed to the custody of the
department of corrections (DOC) after being convicted of fourth-degree assault of a MSOP
staff member. Appellant returned to MSOP from the DOC in November 2017.
In August 2017, appellant petitioned the special review board (SRB) for a reduction
in custody, including: (1) a transfer to a non -secure DHS facility, namely, a transfer to
community preparation services (CPS) at St. Peter; (2) a provisional discharge; or (3) a full
discharge from civil commitment. See Minn. Stat. § 253D.27, subd. 2 (2018). In June
2018, both a treatment report and sexual-violence-risk assessment were completed to assist
the SRB and commitment appeal panel in their decision -making. Both reports
recommended that appellant’s petition be denied.
In August 2018, the SRB held a hearing on appellant ’s petition for a reduction in
custody. See Minn. Stat. § 253D.27, subd. 3 (2018). Finding that appellant did not meet
the statutory criteria for transfer to CPS, provisional discharge, or full discharge, and that
appellant’s “current risk of sexual violence [was] above-average,” the SRB recommended
that appellant’s petition be denied.

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Appellant petitioned the supreme court for a rehearing and reconsideration of the
SRB’s findings of fact and recommendation. See Minn. Stat. § 253D.28, subd. 1 (2018).
The commitment appeal panel appointed Dr. James Gilbertson to conduct a mental
examination of appellant. See id. , subd. 2(c) (2018). In March 2019, Dr. Gilbertson
completed a mental examiner’s report, concluding that appellant did not meet the statutory
criteria for transfer to a less secure setting, provisional discharge, or general discharge.
Following the completion of Dr. Gilbertson’s report, the commitment appeal panel
held a first-phase hearing on appellant’s petition. Appellant appeared personally and was
represented by counsel. At the hearing, appellant withdrew his petition for tra nsfer and
provisional discharge and proceeded on the petition for full discharge only. Aside from
reading a statement that he had prepared, appellant did not offer any evidence or testimony.
At the close of appellant’s case, the commissioner moved for dismissal of appellant’s
petition pursuant to Minn. R. Civ. P. 41.02(b) and Minn. Stat. § 253D.28, subd. 2(d)
(2018).
The commitment appeal panel denied appellant’s petition for discharge, and granted
respondent’s motion to dismiss. The panel found that appellant offered no evidence that
he “satisfie[d] the statutory criteria for discharge,” and that his “uncorroborated, conclusory
statements [were] insufficient to meet his burden of production and withstand a motion to
dismiss.” This appeal follows.

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D E C I S I O N
I. The commitment appeal panel did not err in denying appellant’s petition for
discharge and granting the commissioner’s motion to dismiss.

Minnesota Statutes chapter 253D governs matters involving SDPs. See Minnesota
Civil Commitment and Treatment of Sex Offenders, Minn. Stat. §§ 253D.01-.36 (2018);
In re Civil Commitment of Poole , 921 N.W.2d 62 , 65 (Minn. App. 2018), review denied
(Minn. Jan. 15, 2019). Minnesota Statutes section 253D.31 provides:
A person who is committed as a sexually dangerous
person or a person with a sexual psychopathic personality 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 conditio ns 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 shall not be
granted.
A. Appellant presented insufficient evidence to establish a prima facie case
for discharge.

Pursuant to section 253D.28, subdivision 2(d), a committed person seeking
discharge bears the burden of “presenting a prima facie case with competent evidence to
show that the person is entitled to the requested relief.” “The proceeding in which a
committed person produces evidence is commonly referred to as a first -phase hearing.”
Coker v. Jesson, 831 N.W.2d 483, 486 (Minn. 2013) (quotation omitted). If the committed

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person establishes a prima facie case, the burden then shifts to the opposing party to show
by clear and convincing evidence that the discharge should be denied. Minn. Stat.
§ 253D.28, subd. 2(d). The proceeding in which the opposing party carries the burden is
known as the second-phase hearing. Coker, 831 N.W.2d at 486.
A petitioning party’s conclusory statements and uncorroborated assertions are
insufficient to establish a prima facie case. See Poole, 921 N.W.2d at 69. At the close of
the first-phase hearing, the commissioner may move to dism iss the petition on the basis
that the committed person has shown no right to relief. See Minn. R. Civ. P. 41.02(b). If
the commissioner moves to dismiss the petition under rule 41.02(b), the commitment
appeal panel “may not weigh the evidence or make cr edibility determinations.” Coker,
831 N.W.2d at 490 -91. “Instead, the [a]ppeal [p]anel is required to view the evidence
produced at the first-phase hearing in a light most favorable to the committed person.” Id.
at 491.
On appeal of a panel’s dismissal of a petition under rule 41.02(b), “the appropriate
standard of appellate review is de novo.” Larson v. Jesson, 847 N.W.2d 531, 534 (Minn.
App. 2014) (explaining that “the standards for directing a verdict under Minn. R. Civ. P.
50.01 apply to motions to dismiss under Minn. R. Civ. P. 41.02(b), and these standards
require the determination of whether, as a matter of law, the evidence is sufficient to present
a fact question for the jury’s consideration” (quotation omitted)).
Appellant concedes that he did not present any competent evidence to the
commitment appeal panel. Thus, appellant’s contention that the panel failed to view the

6
evidence in the light most favorable to him is without any merit, given there was no
evidence presented by appellant for the panel to consider.1
Appellant maintains that the reason he was unable to establish a prima facie case
was because he was never provided with “a qualified assessment by a qualified expert,”
which would have allowed him to put forth competent evidence to the commitment appeal
panel. Appellant’s assertion is an inaccurate statement of the facts. As the record
establishes, the commitment appeal panel appointed Dr. Gilbertson, a licensed
psychologist and therapist, to examine appellant prior to the hearing. See Minn.
Stat. § 253D.28, subd. 2(c). Dr. Gilbertson reviewed appellant’s “social, psychological,
offense, assessment and treatment history, and prepare[d] a report to provide an advisory
clinical opinion on his request for discharge.” As the panel stated in its order denying the
petition for discharge, appellant’s statement that he read at the hearing referenced

1 While difficult to decipher, appellant appears to suggest that the statement he read at the
first-phase hearing was sufficient evidence for the panel to consider. Referring to his
statement, he argues on appeal that “[t]he evidence of the ‘variance’ was more than
substantial evidence as it was authored by the Executive Director of the MSOP.” “While
an appellant acting pro se is usually accorded some leeway in attempting to comply with
court rules, he is still not relieved of the burden of, at least, adeq uately communicating to
the court what it is he wants accomplished and by whom.” Carpenter v. Woodvale, Inc. ,
400 N.W.2d 727, 729 (Minn. 1987). Not only is appellant’s argument difficult to follow,
but it is without any merit. The statement that he read was not supported by testimony of
MSOP’s executive director, or any witness testimony for that matter, nor did the statement,
prepared by appellant himself, constitute competent evidence as required by statute. See
Minn. Stat. § 253D.28, subd. 2(d).

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Dr. Gilbertson’s report, however, appellant “did not offer the report as an exhibit,” and
thus, the report “was not considered by the [p]anel.”2
Appellant contends that Dr. Gilbertson “is a conspicuous fake expert.” Because
Dr. Gilbertson’s report was not considered, his expertise is not relevant to the commitment
appeal panel’s decision to dismiss appellant’s petition. Further, a ppellant’s
characterization of Dr. Gilbertson is a conclusory statement without any evidentiary
support. Under Minn. Stat. § 253B.02, subd. 7(2) (2018), an examiner is defined as “a
person who is knowledgeable, trained, and practicing in the diagnosis and assessment or in
the treatment of the alleged impairment, and who is . . . a licensed psychologist who has a
doctoral degree in psychology.” Dr. Gilbertson is a licensed psychologist and licensed
marriage/family therapist who holds a doctoral degree. Appellant provides no evidence to
rebut these credentials.
Accordingly, appellant’s argument that he was not provided with “a qualified
assessment by a qualified expert” is an inaccurate statem ent of the facts and without any
legal merit. And because appellant failed to produce competent evidence which, if proven,
would entitle him to the relief sought, he did not satisfy his burden of establishing a prima
facie case, and consequently, the panel did not err by dismissing his petition for discharge
at the close of the first-phase hearing.

2 Pursuant to this court’s decision in Poole, because “[t]he question at a first-phase hearing
is whether the committed person produces competent evidence,” the commitment appeal
panel must not call its own examiner nor admit the examiner’s report in this stag e of the
proceedings. 921 N.W.2d at 66. As stated above, Dr. Gilbertson’s report was not
considered by the panel in its decision to dismiss appellant’s petition , nor was the report
admitted as evidence.

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B. Appellant’s claim that he has been denied the statutory right to periodic
assessments is without merit.

Minnesota Statute s section 253B.03 (2018) provides certain rights for civilly
committed patients. See Minn. Stat. § 253D.19 (explaining the application of statutory
rights enumerated by section 253B.03 to persons civilly committed as SDPs). Section
253B.03, subdivision 5, provides that a civilly committed patient “has the right to periodic
medical assessment, including assessment of the medical necessity of continuing care.”
The physical and mental condition of a civilly committed patient shall be assessed by the
treatment facility “as frequently as necessary, but not less often than annually.” Id.
Further, section 253B.03, subdivision 7, provides that “[t]he treatment facility shall devise
a written program plan for each [committed] person,” reviewed on a quarterly basis, “which
describes in behavioral terms the case problems, the precise goals, includi ng the expected
period of time for treatment, and the specific measures to be employed.”
Appellant alleges that, while he has been provided with annual and quarterly
treatment progress reports, “they are not to be considered ‘qualified reports’ by qualifi ed
experts as they are authored by MSOP staff which are not qualified experts.” While
somewhat difficult to decipher, appellant appears to argue that (1) he was unable to present
competent evidence at the first -phase hearing, in part, because the treatmen t progress
reports did not constitute a qualified a ssessment by a qualified expert and (2) the
commissioner failed to provide appellant with periodic assessments as provided for in
section 253B.03. Citing to In re Blodgett , 510 N.W.2d 910 (Minn. 1994), ap pellant

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contends that the commissioner’s continuous disregard of the mandates of section 253B.03
constitutes a violation of his due-process rights.
First, appellant did not raise any due -process arguments before the commitment
appeal panel at the first -phase hearing. An appellate court generally “may not consider
matters not produced and received in evidence below.” Thiele v. Stich, 425 N.W.2d 580,
583 (Minn. 1988).
Second, even if appellant’s due-process claim was properly before us, his argument
that t he commissioner failed to uphold his statutory right to periodic assessments is
factually inaccurate. In Blodgett, the case cited by appellant, the supreme court held, “So
long as civil commitment is programmed to provide treatment and periodic review, du e
process is provided.” 510 N.W.2d at 916. Citing to section 253B.03, subd ivision 7, the
supreme court explained, “[C]ommitted persons have the right to an individualized written
program plan; the right to periodic medical assessments; and the right to p roper care and
treatment, best adapted, according to contemporary professional standards, to rendering
further confinement unnecessary.” Id.; see Call v. Gomez, 535 N.W.2d 312, 318-19 (Minn.
1995) (“[O]nce a person is committed, his or her due process rig hts are protected through
procedural safeguards that include periodic review and re -evaluation, the opportunity to
petition for transfer to an open hospital, the opportunity to petition for full discharge, and
the right to competent medical care and treatment.”); see also Karsjens v. Piper, 845 F.3d
394, 410 (8th Cir. 2017) (concluding that the “extensive process and the protections to
persons committed under [the Minnesota Civil Commitment and Treatment Act] are
rationally related to the [s]tate’s legitimate interest of protecting its citizens from sexually

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dangerous persons,” and because “[t]hose protections allow committed individuals to
petition for a reduction in custody, including release[,] . . . the statute is facially
constitutional”).
Here, the record shows that appellant’s treatment facility, MSOP, has provided
appellant with annual treatment progress reports, quarterly treatment progress reports,
behavioral expectation and incident reports, and an individual treatment plan. He has also
been provided with opportunities, pursuant to Minn. Stat. § 253D.27, subd. 2, to petition
for transfer to CPS, provisional discharge, and full discharge. Thus, appellant’s assertions
that the commissioner continues to violate the mandates of section 253B.03 and “the
directives in Blodgett,” that “[a]ppellant to date has never been given a qualified medical
assessment by a qualified expert,” and that, under the current system, he “will never be
medically assessed for proper treatment,” are inaccurate statemen ts of the facts and
meritless allegations.
C. Appellant’s ineffective -assistance-of-counsel claim is not properly
before this court.

Minnesota Statutes section 253D.20 provides a committed person with a statutory
right to assistance of counsel in commitment proceedings. Pursuant to section 253D.20:
A committed person has the right to be represented by
counsel at any proceeding under this chapter. The court shall
appoint a qualified attorney to represent the committed person
if neither the committed person n or others provide counsel.
The attorney shall be appointed at the time a petition for
commitment is filed. In all proceedings under this chapter, the
attorney shall:
(1) consult with the person prior to any hearing;
(2) be given adequate time and access to records to
prepare for all hearings;

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(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.

Appellant argues that his counsel, “was grossly ineffective, untrained,
unprofessional[,] and deliberately indifferent” to appellant’s due-process rights. Appellant
alleges that he has been “deprived of rights secured by the Constitution or laws of the
United States, and these deprivations were committed under color of state law.”
First, “neither the United States Supreme Court nor the Minnesota Supreme Court
has held that the Due Process Clause of the Fourteenth Amendment confers a right to the
effective assistance of counsel on a person who is the subject of a civil -commitment
proceeding.” Beaulieu v. Minn. Dep’t of Human Servs., 798 N.W.2d 542, 549-550 (Minn.
App. 2011), aff’d, 825 N.W.2d 716 (Minn. 2013); see also In re Civil Commitment of
Johnson, __N.W.2d__, 2019 WL 2495668, at *3 (Minn. App. July 17, 2019). Accordingly,
appellant’s constitutional claim is without legal merit.
Second, for two reasons, appellant’s statutory right-to-counsel claim is not properly
before us. First, a person who has been civilly committed for an indeterminate period may
raise an ineffective -assistance claim, but must do so by a motion pursuant to Minnesota
Rule of Civil Procedure 60.02. See In re Civil Commitment of Lonergan, 811 N.W.2d 635,
643 (Minn. 2012). This is because “the Commitment Act does not provide any procedures
for a patient indeterminately committed as an SDP . . . to raise nontransfer, nondischarge
claims such as ineffective assistance of counsel.” Id. at 642. Appellant has failed to raise
his ineffective-assistance-of-counsel claim in a civil proceeding under rule 60.02. Second,

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appellant is raising the claim for the first time in a direct appeal , therefore, running afoul
of the principles articulated in Thiele. 425 N.W.2d at 582-83.
Lastly, even if the issue of ineffective assistance of counsel was properly before this
court, appellant’s claim is without legal merit. “This court analyzes ineffective-assistance-
of-counsel claims in civil-commitment cases under the Strickland standard that applies in
criminal cases.” Johnson, 2019 WL 2495668, at *5; see also Strickland v. Washington ,
466 U.S. 668, 104 S. Ct. 2052 (1984). Under the Strickland standard, “a defendant ‘must
show that counsel’s representation fell below an objective standard of reasonableness’ (the
performance factor) and that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different’ (the prejudice
factor).” Johnson, 2019 WL 2495668, at *5 (quoting Strickland, 466 U.S. at 688, 694, 104
S. Ct. at 2064, 2068). “A party claiming ineffective assistance of counsel must provide
adequate evidentiary and factu al support for the claim.” Id. at *6. On appeal, we review
de novo a party’s claim of ineffective assistance of counsel. Id. And, we apply “a strong
presumption that an attorney’s performance falls within the wide range of reasonable
professional assistance.” Id. (quotation omitted).
Aside from asserting that his attorney failed to submit any competent evidence at
the first-phase hearing, appellant does not provide any evidentiary and factual support for
his claim. “General assertions of error withou t evidentiary support are inadequate to
establish ineffective assistance of counsel.” Id. Because appellant’s claim fails under the
first Strickland prong, we need not analyze the other. See Swaney v. State , 882 N.W.2d
207, 217 (Minn. 2016).

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In sum, we affirm the commitment appeal panel’s dismissal of appellant’s petition.
Appellant presented insufficient evidence to establish a prima facie case for discharge, his
claim that he has been denied the statutory right to periodic assessments is factually
inaccurate and without any legal merit, and appellant’s ineffective -assistance-of-counsel
claim is not properly before this court.
Affirmed.