In the Matter of the Civil Commitment of: Michael Dewayne Perseke.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0270

In the Matter of the Civil Commitment of:
Michael Dewayne Perseke.

Filed August 15, 2022
Affirmed
Kirk, Judge*

Commitment Appeal Panel
File No. AP21-9150

Thomas G. Kramer, Granite Falls, Minnesota (for appellant)

Keith Ellison, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of the Minnesota Department of Human
Services)

Matthew D. Haugen, Chippewa County Attorney, Montevideo, Minnesota (for respondent
Chippewa County)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Kirk, Judge.
NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant challenges the denial of his petition for transfer, provisional discharge, or
discharge from his indeterminate civil commitment to the Minnesota Sex Offender
Program as a sexually dangerous person. Because the commitment appeal panel did not
abuse its discretion by denying the petition without an evidentiary hearing, we affirm.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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FACTS
Appellant Michael Dewayne Perseke is indeterminately civilly committed as a
Sexually Dangerous Person (SDP) in the Minnesota Sex Offender Program (MSOP).
Perseke has a long history of criminal sexual conduct. In 2020, Perseke petitioned the
special review board (the SRB) for a transfer, provisional discharge, or discharge from civil
commitment. Following a hearing, the SRB issued a decision recommending denial of the
petition. Perseke did not file a petition for rehearing or reconsideration of the SRB’s
recommendation. The commitment appeal panel (the CAP) issued an order adopting the
SRB’s findings of fact and recommendations in their entirety and denying Pers eke’s
petition without an evidentiary hearing. Perseke now appeals.
DECISION
Perseke challenges the CAP’s decision denying his petition. An individual civilly
committed to MSOP may petition the SRB for a transfer, a provisional discharge, or
discharge from commitment. Minn. Stat. § 253D.27, subds. 1 (b), 2 (2020). In each
instance, the committed person first files a petition with the SRB, which conducts a hearing
and issues a recommendation to the CAP. Minn. Stat. § 253D.27, subds. 2, 3 (2020). If
the SRB recommends denying relief, the committed person may petition the CAP for
rehearing or reconsideration of that determination. Minn. Stat. § 253D.28, subd. 1(a)
(2020). “If no party petitions the [CAP] for a rehearing or reconsideration . . . [,] the [CAP]
shall either issue an order adopting the recommendations of the [SRB] or set the matter on
for a hearing.” Id., subd. 1(c) (2020).
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Generally, appellate courts “view the evidence in a light favorable to the findings[,]”
and “will not conclude that a fact[-]finder clearly erred unless, on the entire evidence, we
are left with a definite and firm conviction that a mistake has been committed.” In re Civ.
Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021) (citations and internal
quotation marks omitted). When reviewing a district court’s findings of fact, appellate
courts (a) do not reweigh the evidence; (b) do not find their own facts; and (c) do not
reconcile conflicting evidence. Id. at 221-22. The supreme court stated that the clear error
standard of review “is a review of the record to confirm that evidence exists to support the
decision[,]” and that “[w]hen the record reasonably supports the findings at issue on appeal,
it is immaterial that the record might also provide a reasonable basis for inferences and
findings to the contrary.” Id. at 222-23 (quotation omitted). The supreme court stated that,
[c]onsequently, an appellate court need not go into an extended
discussion of the evidence to prove or demonstrate the
correctness of the findings of the trial court. Rather, because
the factfinder has the primary responsibility of determining the
fact issues and the advantage of observing the witnesses in
view of all the circumstances surrounding the entire
proceeding, an appellate court’s duty is fully performed after it
has fairly considered all the evidence and has determined that
the evidence reasonably supports the decision.

Id. at 222 (quotation omitted).

We therefore inquire whether the CAP properly adopted the SRB’s
recommendation. Perseke’s failure to seek a hearing before the CAP limits our scope of
review to whether the evidence supports the CAP’s findings of fact, and whether the factual
findings support the CAP’s conclusions of law and denial of relief. See Gruenhagen v.
Larson, 246 N.W.2d 565, 569 (Minn. 1976) (stating that absent motion for new trial,
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appellate courts may review whether evidence supports findings of fact and whether
findings support conclusions of law and judgment); K ahn v. Tronnier, 547 N.W.2d 425,
428 (Minn. App. 1996) (stating, in a case in which the appellant did not seek district court
review of a referee’s ruling, that the scope of review on appeal was limited to “whether the
evidence sustains the findings of fact and whether the findings support the conclusions of
law and the judgment”), rev. denied (Minn. July 10, 1996).
Transfer.
A committed person seeking a transfer “must establish by a preponderance of the
evidence that the transfer is appropriate.” Minn. Stat. § 253D.28, subd. 2(e) (2020). The
following factors must be considered in determining whether a transfer is appropriate:
“(1) the person’s clinical progress and present treatment needs; (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.” Minn. Stat. § 253D.29, subd. 1(b)
(2020).
The SRB considered each of these five statutory factors and the CAP adopted the
SRB’s factual findings. The CAP found that Perseke’s risk assessment and SRB report
indicated that he did not meet the criteria for transfer. The CAP found that although
Perseke was behaviorally stable, he “is not an active participant in his treatment and has
remaining treatment needs.” The CAP further found that Perseke had “several non -
mitigated dynamic risk factors.” The CAP found that Perseke “continue[d] to require
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security at his current level,” and that he could not be released from commitment “with a
reasonable degree of safety for the public.”
The evidence supports the CAP’s findings of fact. Dr. Crystal Leal conducted a
mental health assessment in November 2020. Leal assessed Perseke with Other Specified
Paraphilic Disorder, Antisocial Personality Disorder, and Stimulant Use Disorder, among
other things. MSOP’s Mallory Jorgenson also conducted a sexual violence risk assessment
in August 2021. Jorgenson diagnosed Perseke with Unspecified Paraphilic Disorder,
Antisocial Personality Disorder, and Stimulant Use Disorder, in addition to other disorders.
Jorgenson opined that Perseke did not meet the statutory requirements for a transfer, partial
discharge, or discharge from civil commitment.
Katherine Farrington, the MSOP Treatment Report Supervisor, submitted a Special
Review Board Treatment Report in August 2021. Farrington stated that Perseke made only
“limited progress in his current phase, which has primarily bee n the result of his
inconsistent motivation for and involvement in treatment.” Perseke acknowledges in his
own brief that his participation in treatment groups has “declined.” Perseke stopped
attending treatment in June 2021 and, even while in treatment, he only “minimally
addressed his treatment plan, lacked investment in the treatment process, and has not
addressed treatment needs related to sexuality.” Perseke has not “ complete[d] a sexual
history polygraph or an objective measure of sexual arousal/interest which are cornerstones
for any sex-offense specific treatment program.” Perseke has “openly stated that he has no
intention of participating in a future polygraph examination,” which MSOP found troubling
in light of Perseke’s expected likelihood of reoffending in the future. Farrington concluded
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that Perseke “has not made the level of progress in the areas that would suggest that a
transition to a less restrictive setting is clinically indicated at this time.” Therefore,
Farrington expressed that in her opinion, “Mr. Perseke’s petition . . . is premature at this
time.” The evidence in the record amply supports the CAP’s findings of fact that Perseke
is not entitled to a transfer.
We determine further that the CAP’s findings of fact support its conclusions of law.
The CAP concluded that Perseke’s transfer request was “not appropriate” because he has
outstanding treatment needs and requires security. The CAP concluded that his transfer
could not be “accomplished with a reasonable degree of safety for the public.” The record
supports the CAP’s findings of fact which, in turn, support the CAP’s legal conclusions
that Perseke is not entitled to a transfer.
Provisional Discharge.
For a provisional discharge, a person “shall not be provisionally discharged unless
[he] is capable of making an acceptable adjustment to open society.” Minn. Stat.
§ 253D.30, subd. 1(a) (2020). The CAP considers two factors in determining whether to
grant a provisional discharge:
(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) (2020).
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The CAP found that Perseke’s risk assessment and SRB report revealed that he did
not qualify for a provisional discharge. Again, the evidence supports the CAP’s findings
of fact. MSOP considered the factors related to a provisional discharge from commitment,
including “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.” Jorgenson
stated that Perseke lacks insight into his treatment needs and that “without a deep
understanding of his offense dynamics, offense cycle, and specific methods to prevent such
behavior in the future, there is not sufficient evidence to say he no longer has remaining
criminogenic needs.” Jorgenson noted that Perseke has historically continued to reoffend
when he is without intervention and that “his criminogenic needs have not been adequately
addressed.” For these reasons, Jorgenson stated that “without further understanding what
underlies his presentation in conjunction with his history, Mr. Perseke requires continued
institutionalization in his current environment.” Jorgenson stated that Perseke’s “level of
risk suggests a higher level of intervention is necessary as compared to the average
offender.” Jorgenson also stated that “continued security is critical.”
Based on these assessments, MSOP stated that a provisional discharge from
commitment “would not provide a reasonable degree of safety to the public.” MSOP
specifically cited to Perseke’s “risk profile, antisocial personality construct, lack of insight,
use of problematic coping mechanisms, unwillingness to collaborate with professionals,
treatment interfering behaviors, and insufficient internal resources.” Jorgenson stated that
outpatient treatment or other housing options would not be sufficient to protect the public,
nor would it give Perseke the treatment he needs.
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The CAP’s findings of fact support its conclusion that Perseke is not entitled to a
provisional discharge. 1 The CAP concluded that a provisional discharge was not
appropriate because Perseke is “not capable of making an acceptable adjustment to open
society.” The CAP’s findings of fact support this conclusion. We therefore affirm the
CAP’s decision adopting the SRB’s recommendation.2
Affirmed.

1 Perseke also petitioned for discharge from commitment. “[T]he criteria for a provisional
discharge are more lenient than the criteria for a [full] discharge.” Larson v. Jesson, 847
N.W.2d 531, 535-36 (Minn. App. 2014). Therefore, a petitioner’s failure to make a case
for provisional discharge means that he cannot succeed on his petition for full discharge.
Id. at 536.

2 The commissioner argues that Perseke’s arguments are forfeited. Kahn instructs that a
district court’s review of a referee’s order “is not a prerequisite to [appellate] review,” but
instead alters the scope of review on appeal. 547 N.W.2d at 428. We decline to deem
Perseke’s arguments forfeited, but we limit our review to whether the record supports the
findings of fact and whether the findings of fact support the CAP’s conclusions of law. Id.