In re Civil Commitment of Johnson

          Freeborn County District Court File No. 24-PR-11-1097

          Jeremy David Johnson, Moose Lake, Minnesota (pro se appellant)

          Keith Ellison, Attorney General, Noah A. Cashman, Assistant Attorney General, St. Paul, Minnesota; and David Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

          Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Slieter, Judge.

         SYLLABUS

         Mere speculation that a lawyer was under the influence of a mood-altering substance while representing a client in commitment proceedings under the Minnesota Commitment and Treatment Act (MCTA), Minn. Stat. §§ 253B.01-.24 (2010 & Supp. 2011), or under the Minnesota Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities, Minn. Stat. §§ 253D.01-.36 (2018), is insufficient to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

          OPINION

          LARKIN, JUDGE

         In 2012, appellant was committed as a sexually dangerous person (SDP) and as a sexual psychopathic personality (SPP). In 2018, appellant moved for a new trial and asked the district court to appoint an attorney to represent him in the proceedings on his motion. As support for his motion, appellant asserted that his court-appointed attorney in the commitment proceedings was under the influence of a mood-altering substance and provided ineffective assistance of counsel as a result. The district court denied appellant's request for court-appointed counsel, as well as his motion for a new trial. Because Johnson did not have a constitutional right to appointed counsel in the proceedings on his motion, and because the district court did not abuse its discretion by denying the motion both as untimely and on the merits, we affirm.

         FACTS

         In June 2011, respondent Freeborn County petitioned for indeterminate commitment of appellant Jeremy David Johnson as an SDP and an SPP. The district court appointed counsel to represent Johnson in the commitment proceedings and held a two-day trial on the county's petition in November 2011.^[1] In March 2012, the district court indeterminately committed Johnson as an SDP and an SPP under Minn. Stat. § 253B.02, subds. 18b, 18c (2010).^[2] Johnson did not appeal from the judgment of commitment.^[3]

         In February 2018, Johnson's court-appointed attorney in the commitment proceedings was charged with first-degree controlled-substance sale and possession after police found drugs in his home while executing a search warrant.

         In June 2018, Johnson moved for a new trial under rules 59.03^[4] and 60.02^[5] of the Minnesota Rules of Civil Procedure, claiming that he received ineffective assistance of counsel in the commitment proceedings. Johnson's motion papers stated that "the newly discovered evidence of his attorney . . . having been criminally charged in Blue Earth County District court [with] several Felonies, including but not limited to the sale of methamphetamine, marijuana and other drugs," is "relevant, admissible, and likely to have an effect on the result of [his] civil commitment proceedings." Johnson asserted that his "attorney was under the influence of a mood altering substance, and therefore could not . . . do his duty as an attorney." (Emphasis omitted.)

         The district court held a hearing on Johnson's motion. Johnson appeared pro se and asked the district court to appoint an attorney to represent him in the proceedings. The county had previously indicated to the district court that it opposed appointment of counsel, arguing that because "a Rule 60.02 motion is not a proceeding under the commitment act," Johnson was not entitled to court-appointed counsel. See In re Civil Commitment of Moen, 837 N.W.2d 40, 43, 50-51, 50 n.2 (Minn.App. 2013) (stating that a patient who has been committed as an SDP does not have a statutory right to counsel under Minn. Stat. § 253B.07, subd. 2c (2012), for purposes of a rule 60.02 motion, and noting that chapter 253D includes a statutory right to counsel that is substantively the same as right to counsel in chapter 253B), review denied (Minn. Oct. 15, 2013). The district court denied Johnson's request for court-appointed counsel.

         The district court also denied Johnson's new-trial motion, reasoning that it was untimely and that it failed on the merits. As to the merits, the district court reasoned that Johnson failed to provide any evidence to support his assertion that his former attorney was under the influence of chemicals during the commitment proceedings, that the record indicated that his former attorney's performance did not fall below an objective level of competence, that the evidence established that Johnson met the criteria for commitment, and that it is unlikely that a different strategy by Johnson's former attorney would have changed the result. Johnson appeals.

         ISSUES

         I. Did the district court err by not appointing counsel to represent Johnson in the proceedings on his motion for a new trial?

          II. Did the district court err by denying Johnson's new-trial motion as untimely? III. Did the district court err by denying Johnson's new-trial motion on the merits?

         ANALYSIS

         I.

         Johnson contends that the district court erred by denying his request for court-appointed counsel to represent him in the proceedings on his new-trial motion. He argues that "the due process clause of the constitution sometimes requires that an indigent respondent must be granted a court-appointed attorney in civil proceedings which affect important rights" and that "courts have widely recognized a constitutional right to court-appointed counsel in civil commitment proceedings." He further argues that "courts have recognized the constitutional necessity of providing court-appointed counsel to committed persons even during various ancillary points in the proceedings."

         Whether the district court violated a constitutional right to court-appointed counsel is an issue of law reviewed de novo. State v. Andersen, 871 N.W.2d 910, 916 (Minn. 2015).

         This court rejected a constitutional claim to counsel in Beaulieu v. Minn. Dep't ofHuman Servs., holding that "[t]he Due Process Clause of the Fourteenth Amendment to the United States Constitution does not confer a right to counsel on a person who is the subject of a civil-commitment proceeding." 798 N.W.2d 542, 543 (Minn.App. 2011), ...