In the Matter of the Civil Commitment of: Michael Benson.

This opinion is nonprecedential except as provided by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
A22-1840

In the Matter of the Civil Commitment of: Michael Benson.

Filed June 5, 2023
Affirmed
Larson, Judge

Commitment Appeal Panel
File No. AP21-9058

Michael Benson, Moose Lake, Minnesota (pro se appellant)

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

Considered and decided by Gaïtas, Presiding Judge; Larson, Judge; and Rodenberg,
Judge.*
NONPRECEDENTIAL OPINION
LARSON, Judge
Appellant Michael Benson appeals from a Commitment Appeal Panel’s (the CAP)1
decision granting respondent Minnesota Commissioner of Human Service’s ( the

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
1 The commitment statutes have evolved over time. We have previously called the CAP
the “supreme court appeal panel,” or “SCAP,” or the “judicial appeal panel.” See In re
Civ. Commitment of Edwards , 933 N.W.2d 796, 797 n.1 (Minn. App. 2019) (noting
evolution of the statute), rev. denied (Minn. Oct. 15, 2019).
2
commissioner) motion to dismiss his petition for a reduction in custody, denying appellant
all requested relief, and ordering appellant’s petition withdrawn. We affirm.
FACTS
Appellant is a patient in the Minnesota Sex Offender Program (MSOP). Benson v.
Johnston, A21- 1111, 2022 WL 1004845, at *1 ( Minn. App. April 4, 2022) , rev. denied
(Minn. June 21, 2022). The commissioner civilly committed appellant indeterminately in
1993 on the basis that he has a psychopathic personality. Id.; see also the Minnesota
Commitment and Treatment Act (MCTA), Minn. Stat. §§ 253B.01-.24 (2022).
The special review board (SRB) held a hearing on appellant’s petition for a
reduction in custody, and the SRB filed its recommendation to deny appellant’s request.
Appellant filed a petition for rehearing and reconsideration before the CAP. Appellant
then filed a motion in district court through appointed counsel ,2 asking for an order
allowing appellant to exercise his “statutory right to cross -examine all expert witnesses at
the [CAP hearing].”
The district court ordered that:
1. [Appellant] will be allowed to assist with cross
examination at the [CAP] hearing , if his counsel is also
present. . . .

2. The parameters of [appellant’s] questioning of the
expert witnesses will be determined by the [CAP] on the
day of the hearing, but [appellant] will be allowed to

2 On appeal, a ppellant claims counsel did not represent him before the CAP . The record
amply establishes counsel’s appointment and that couns el worked with appellant in
anticipation of the CAP hearing.
3
directly ask the expert(s) questions as long as the
questioning remains respectful and appropri ate.

The CAP heard appellant’s petition for rehearing and reconsideration, at which both
appellant and his appointed counsel appeared. In an order, the CAP described the hearing.
The CAP informed appellant that , pursuant to the district court order, appellant could
participate in cross -examination, but that appointed counsel would directly examine
witnesses and offer exhibits. Appellant indicated an unwillingness to participate in the
proceedings under these parameters and , after speaking privately with his appointed
counsel, appellant chose not to offer any exhibits or witness testimony. The commissioner
then moved to dismiss appellant’s petition. Neither party offered exhibits or testimony.
The CAP granted the commissioner ’s motion to dismiss, denied appellant all
requested relief, and ordered appellant’s petition withdrawn. This appeal follows.
DECISION
Appellant challenges the CAP’s decision on two grounds. First, appellant asserts
the CAP violated his statutory right to represent himself when it only allowed him to
participate in cross -examination. Second, appellant argues he received ineffective
assistance of counsel. We address each issue in turn below.
I.
Appellant argues the CAP violated his statutory right to represent himself when it
only allowed him to participate in cross examination. 3 We review statutory interpretation

3 Appellant argues for the first time on appeal that he has a constitutional right to represent
himself before the CAP. Generally, we do not review issues a party failed to raise below.
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). While this rule has exceptions, we see
4
issues de novo. Rydberg v. Goodno, 689 N.W.2d 310, 313 (Minn. App. 2004). The MCTA
provides persons subject to civil -commitment proceedings the following rights to
representation:
A patient has the right to be represe nted by counsel at
any proceeding under this chapter. The court shall appoint a
qualified attorney to represent the proposed patient if neither
the proposed patient nor 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;

(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.

Minn. Stat. § 253B.07, subd. 2c. Appellant argues section 253B.07, subd ivision 2c,
confers a statutory right to self -representation, challenging our nonprecedential decision
concluding that no such statutory right exists . We are not persuaded.

no reason to depart here. And we have rejected a similar argument in at least one
nonprecedential decision. See, e.g., In re Civ. Commitment of Emberland, A11-1561, 2012
WL 612320, at *6- 7 (Minn. App. Feb. 27, 2012) ; see also Minn. R. Civ. App. P. 136.01,
subd. 1(c) (“Nonprecedential opinions . . . are not binding authority except as law of the
case, res judicata or collateral estoppel, but nonprecedential o pinions may be cited as
persuasive authority.”).
5
In In re Irwin , we interpreted the predecessor statute to section 253B.07,
subdivision 2c,4 to decide whether a civilly committed person had the right to represent
himself. 529 N.W.2d 366, 371 (Minn. App. 1995), rev. denied (Minn. May 16, 1995). We
determined the legislature intended the then -existing statute to mean a civilly committed
person was not “permitted to waive the right to representation.” Id. On this basis, we
concluded “[n]either the statute nor the rules [gave] appellant the right to represent
himself.” Id.
More recently, in Emberland, we evaluated whether our decision in Irwin survived
intervening changes to the statute and rules. 2012 WL 612320, at *5- 6. We noted that
section 253B.07, subd ivision 2c, contains “substantially t he same . . . language” as the
prior statute and the same was true for modifications to the rules . Id. at *5. We, thus,
decided “consistent with our conclusion in Irwin” that a civilly committed person does not
“have a statutory right to represent himself at his commitment hearing. ” Id. at *6.
We discern no legal infirmity in our analysis in Emberland that Irwin correctly
interpreted the legislature’s intent regarding self-representation in civil- commitment
proceedings. Because there ha ve been no material changes to section 253B.07,

4 In Irwin, we interpreted Minn. Stat. § 253B.03, subd. 9 (1994), and a comment to t hen
Minnesota Rule of Civil Commitment 3.01. In 1997, the legislature repealed section
253B.03, subdivision 9, and replaced the statute with section 253B.07, subd ivision 2c. See
1997 Minn. Laws ch. 217, art. 1, §§ 43, 118, at 2155, 2183. In 1999, the Minnesota Rules
of Civil Commitment were repealed in their entirety and replaced with the Special Rules
of Procedure Governing Proceedings under the Minnesota Commitme nt and Treatment
Act. See Promulgation of Special Rules of Procedure Governing Proceedings Under the
Minnesota Commitment and Treatment Act , No. C4- 94-1646 (Minn. Nov. 10, 1999)
(order).
6
subdivision 2c, since Emberland, we conclude that appellant does not have a statutory right
to represent himself before the CAP. 5
II.
Appellant argues that appointed counsel provided ineffective assistance at the CAP
hearing because he admitted that cross-examination of experts in psychology was not his
“forte.” Appellant further asserts that he was prejudiced because the result would have
been different if appointed counsel had these skills. We are not persuaded.
As a threshold issue, we do not provide relief for errors that an appellant causes.
See Eisenschenk v. Eisenschenk , 668 N.W.2d 235, 243 (Minn. App. 2003) (“[A] party
cannot complain about a district court’s failure to rule in [the party’s] favor when one of
the reasons it did not do so is because that party failed to provide the district court with the
evidence that would all ow the district court to fully address the question.” ), rev. denied
(Minn. Nov. 25, 2003) . Here, after conferring with appointed counsel, appellant decided
not to submit any exhibits or proceed with any witnesses at the CAP hearing. In doing so,
appellant prevented his appointed counsel from providing the legal assistance he now
challenges. Appointed counsel cannot act ineffectively when his client decides not to put
on a case, and we will not provide appellant relief on this basis. See id.
Even so, we observe that appellant’s ineffective-assistance-of-counsel claim fails
on the merits . We review ineffective -assistance-of-counsel claims de novo. In re Civ.

5 Appellant makes several arguments about waiver and competency that assume a statutory
right to self -representation. Because this right does not exist, appellant’s waiver and
competency arguments fail.
7
Commitment of Johnson, 931 N.W.2d 649, 657 (Minn. App. 2019), rev. denied (Minn.
Sept. 17, 2019). In the civil -commitment context, we analyze ineffective -assistance-of -
counsel claims using “ the analytical framework ordinarily used in criminal cases when
applying the Sixth Amendment right to counsel.” Beaulieu v. Minn. Dep’t Hum. Servs.,
798 N.W.2d 542, 550 (Minn. App. 2011) , aff’d, 825 N.W.2d 716 (Minn. 2013) . An
appellant “ must show that counsel’s representation fell below an objective standard of
reasonableness (the performance factor) and that there is a reasonable probability that, b ut
for counsel’s unprofessional errors, the result of the proceeding would have been different
(the prejudice factor). ” Johnson, 931 N.W.2d at 657 (quotation omitted) . “A court may
address the two prongs of the test in any order and may dispose of the cl aim on one prong
without analyzing the other.” Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006) .
Because appellant never allowed his appointed counsel to cross -examine an expert
at the CAP hearing, appellant cannot show prejudice. We have noted on numerous
occasions that we will not speculate on what might have occurred “without any evidentiary
support.” E.g., In re Dibley , 400 N.W.2d 186, 190- 91 (Minn. App. 1987) , rev. denied
(Minn. Mar. 25, 1987). Here, appellant asks us to speculate about the prejudicial effect of
something that did not happen because appellant chose not to offer any exhibits or
witnesses. Appellant has, therefore, failed to establish that appointed counsel’s assistance
prejudiced him. For this reason, appellant failed to establish that he received ineffective
assistance of counsel.
Affirmed.