In re Care & Treatment of Ontiberos (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,362

In the Matter of the Care and Treatment
of ROBERT C. ONTIBEROS.


SYLLABUS BY THE COURT

1.
A person subject to a trial under the Kansas Sexually Violent Predators Act
(KSVPA), K.S.A. 59-29a01 et seq., has a due process right to the assistance of counsel.

2.
To be meaningful, a right to counsel necessarily includes the right to effective
assistance of counsel.

3.
Ineffective assistance of counsel for a respondent in a KSVPA trial is a due
process violation.

4.
A person confined for treatment under the KSVPA may bring a habeas corpus
petition under K.S.A. 60-1501 alleging a due process violation such as the ineffective
assistance of counsel.

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5.
When appellate counsel in a case arising under the KSVPA desires to raise an
ineffective assistance of counsel issue and that issue has never been ruled upon by the
trial court, the respondent may seek a remand of the case to the trial court for an initial
determination of the issue. The caveats set out in State v. Van Cleave, 239 Kan. 117, 120-
21, 716 P.2d 580 (1986), should be followed.

6.
The KSVPA is constitutional even though it contains no specific statute allowing a
respondent to challenge the effectiveness of counsel.

7.
The two-prong ineffective assistance of counsel test established in criminal cases
under Strickland v. Washington, 466 U.S. 668, 686-89, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), applies to claims based on deficient performance of counsel in a KSVPA
proceeding.

8.
To succeed on a claim of ineffective assistance of counsel based on deficient
performance in a KSVPA proceeding, a respondent must prove that (a) counsel's
performance was deficient; and (b) counsel's deficient performance was sufficiently
serious to prejudice the respondent and deprive him or her of a fair trial.

9.
It is improper for counsel to read from or refer to the contents of written material
not in evidence for the purpose of impeachment.

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10.
Counsel must admit extrinsic evidence, either by producing a document or live
witness testimony, if a witness denies an impeaching fact.

Review of the judgment of the Court of Appeals in 45 Kan. App. 2d 235, 247 P.3d 686 (2011).
Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed August 17, 2012.
Judgment of the Court of Appeals reversing and remanding to the district court is affirmed. Judgment of
the district court is reversed and remanded.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was
on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Marc Bennett, special
assistant attorney general, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: This appeal arises under the Kansas Sexually Violent Predator Act
(KSVPA), K.S.A. 59-29a01 et seq. A civil jury declared Robert Ontiberos a sexually
violent predator and determined he should be committed for treatment until he is safe for
release. The Court of Appeals vacated the commitment and remanded for a new trial
because it held that Ontiberos received ineffective assistance of counsel and that the
State's attorney committed misconduct during the trial. In re Care & Treatment of
Ontiberos, 45 Kan. App. 2d 235, 255-56, 247 P.3d 686 (2011). The panel rejected
Ontiberos' claim that the KSVPA was unconstitutional. Both sides petitioned for review
with this court.

We hold that due process guarantees a person facing civil commitment under the
KSVPA a right to counsel at trial, and that person may challenge the effectiveness of his
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or her trial counsel on direct appeal or under K.S.A. 60-1501. Based on those holdings,
Ontiberos' constitutional claim lacks merit. We also hold that his trial counsel was
ineffective and that the State committed misconduct. These holdings require remand for a
new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Ontiberos has two convictions for sexually violent offenses as defined by the
KSVPA. He was convicted of attempted rape in 1983 and aggravated sexual battery in
2001. Ontiberos was charged with lewd and lascivious behavior in 1991, but that was
dropped in exchange for a guilty plea for possession of cocaine. There were also two
uncharged incidents of alleged sexual misconduct in 1991 and 1999.

Before Ontiberos was released from prison for the aggravated sexual battery
conviction, the State filed a petition alleging he could be a sexually violent predator as
defined by the KSVPA and should be civilly committed for treatment. Greg Barker was
appointed to represent Ontiberos. The State was represented by a special assistant
attorney general appointed from the Sedgwick County District Attorney's Office. The
parties stipulated to probable cause, so the matter proceeded to trial.

The Parties' Stipulation

Over 3,500 pages of discovery documents were compiled, but most are irrelevant
to the KSVPA proceedings. The pertinent documents include: (1) police reports and
witness statements from the three alleged offenses that did not result in convictions; (2) a
2006 discharge summary from a sexual offender treatment program Ontiberos
participated in while imprisoned that contained a Static-99 test result concluding
Ontiberos was a "lower risk" to reoffend; (3) the results from a penile plethysmograph
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test administered to Ontiberos in 2005 as part of a sexual offender treatment program;
and (4) documents completed by either clinicians or Ontiberos as part of his sexual
offender treatment programs. All 3,500 pages of discovery were given a single
identifying designation as Exhibit 1.

The parties agree that they orally stipulated as to how Exhibit 1 would be used at
trial, but now dispute the scope of what was agreed to, including whether the State was
permitted to cross-examine Ontiberos with documents from Exhibit 1. There is no written
stipulation. The parties agree they stipulated that all documents within Exhibit 1,
including clinicians' reports: (1) could be reviewed by the expert witnesses when
forming opinions; (2) could be used to examine those expert witnesses at trial; and (3)
would be included in the appellate record. The district court did not take possession of the
records comprising Exhibit 1, none of the documents referenced at trial were separated
and made into another exhibit for more convenient reference in the record, and none of
the documents were provided to the jury for its review.

The Experts' Reports/Testimony

Prior to trial, the district court ordered a state psychologist to evaluate Ontiberos as
authorized by K.S.A. 59-29a05(d). Consistent with the parties' stipulation, the state's
psychologist, Dr. Deborah McCoy, reviewed all the discovery documents contained
within what became Exhibit 1. She also interviewed Ontiberos. She diagnosed him with
paraphilia not otherwise specified, with themes of exhibitionism and nonconsent, as well
as a personality disorder not otherwise specified, with antisocial features, polysubstance
dependence, and sexual abuse of an adult. The "not otherwise specified" diagnosis means
the conditions do not fit into specific diagnostic categories found in the Diagnostic and
Statistical Manual of Mental Disorders, DSM—IV. Dr. McCoy concluded that Ontiberos
met the criteria of a sexually violent predator under the KSVPA based upon two actuarial
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risk assessment tests she administered—the Minnesota Sex Offender Screening Tool
Revised (MnSOST-R) and the Static-99.

The MnSOST test results placed Ontiberos in a moderate risk category. Under that
test, 29 percent of individuals with similar risk factors were rearrested for a new sex
offense within 6 years. But Dr. McCoy concluded that Ontiberos fell within the high risk
category for sexual recidivism under the Static-99. Dr. McCoy testified Ontiberos'
chances of reconviction under that test were 39 percent after 5 years, 45 percent after 10
years, and 52 percent after 15 years. In her report, Dr. McCoy noted her results were
different than some previously administered Static-99 assessments, and she indicated she
did not know what caused the difference. At trial, Ontiberos' counsel did not ask Dr.
McCoy about any test results that conflicted with her findings, including the test results
from the 2006 discharge summary included in Exhibit 1.

Dr. Robert Barnett, also a clinical psychologist, examined Ontiberos as a defense
expert. Dr. Barnett reviewed Ontiberos' records "that were provided to [him]" and met
with Ontiberos' counsel about the case. Dr. Barnett did not administer the Static-99 or the
MnSOST-R because he considered them to be controversial instruments. He explained
this by noting that both tests purport to predict the percentage likelihood to reoffend, but
if only half of the people like Ontiberos reoffended "[t]here's no way—simply no logical
way to say which group [Ontiberos] would fall in[to]." Dr. Barnett also testified the
Static-99 and MnSOST-R tend to produce different scores, even though they are
supposed to measure the same thing.

Dr. Barnett testified that research had shown two tests to be reliable for deviant
responses—the penile plethysmograph and the Hare Psychopathy Checklist Revised. And
he said that he wished Larned personnel would use the plethysmograph because they
have the equipment to conduct that test. Dr. Barnett was apparently unaware that
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Ontiberos had taken a plethysmograph in 2005, and that the results were contained in
Exhibit 1. Ontiberos' attorney did not ask Dr. Barnett about the 2006 discharge
summary's Static-99 results that conflicted with Dr. McCoy's test results.

Dr. Barnett also disputed Dr. McCoy's paraphilia diagnosis because he concluded
the most "prominent feature of [Ontiberos'] psychological presentation is his chronic and
severe polysubstance abuse and dependence." Ontiberos, he further observed, suffered
from a mild "mind cognitive disorder, [and] has a little trouble with confusion, attention
and concentration." Dr. Barnett concluded that Ontiberos did not have any sexual
dysfunction diagnosis, i.e., he was not a sexually violent offender.

The jury found Ontiberos was a sexually violent predator. He was committed to
State custody for treatment until determined to be safe for release. Additional
descriptions about the evidence presented and conduct of the trial will be discussed as
necessary for the issues presented.

The Ineffective Assistance of Counsel Hearing

Ontiberos timely appealed to the Kansas Court of Appeals and was appointed new
counsel, who filed a motion alleging Ontiberos received ineffective assistance of trial
counsel and requested remand to the district court for an evidentiary hearing under State
v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986) (recognizing appellate court discretion
to order remand as an alternative and more expeditious remedy to K.S.A. 60-1507 to
pursue ineffective assistance of counsel allegations). Ontiberos alleged a Van Cleave-type
hearing was necessary because there were no other procedural mechanisms for a person
confined under the KSVPA to challenge his or her counsel's performance. The State did
not respond to the motion and the Court of Appeals remanded the case "to initiate
proceedings related to Appellant's claim of ineffective assistance of trial counsel,
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pursuant to [Van Cleave]." There was no further discussion of the legal basis for the
Court of Appeals' remand order.

Once back in the district court, Ontiberos argued that his right to effective
assistance of counsel arising from the Sixth Amendment to the United States Constitution
was violated due to his attorney's performance errors. He cited the test used to examine
ineffective assistance of counsel claims in criminal cases, which was developed under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He
argued trial counsel was ineffective because Barker: (1) stipulated to the admission of
otherwise inadmissible documents through Exhibit 1; (2) did not object to the State's use
of inadmissible documents, which precluded appellate review of their admissibility; (3)
allowed Dr. McCoy to consider inadmissible documents while forming her opinion in
violation of State v. Gonzalez, 282 Kan. 73, 87, 145 P.3d 18 (2006); (4) allowed the State
to cross-examine Ontiberos with documents that were not admitted into evidence—a use
Ontiberos alleges was outside the scope of the parties' stipulation; (5) allowed the State to
impeach Ontiberos about a non-existent incident involving a knife; (6) failed to
understand the conflicting results between the Static-99 tests; and (7) failed to question
Dr. McCoy or Dr. Barnett about the 2006 discharge summary's Static-99 test results
concluding Ontiberos was a low risk to reoffend. The State's original trial attorney (Marc
Bennett), Ontiberos, and Ontiberos' trial attorney (Barker) each testified.

Regarding the stipulation, Bennett admitted that statements in the police reports in
Exhibit 1 would have been hearsay under the rules of evidence, but he claimed he could
have gotten them admitted by calling the necessary witnesses: court clerks, a Department
of Corrections records custodian, and a Larned records custodian. Bennett explained that
Ontiberos' counsel agreed to the stipulation because "there was no sense in jumping
through all those [procedural] hoops when I could get it in irrespective." Bennett also
testified that he believed the police reports were admissible business records under the
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hearsay exception in K.S.A. 60-460m. In the alternative, Bennett added that he could
have called the individual police officers who were at the scene, specifically mentioning
an officer from Ontiberos' 2001 conviction. Bennett further testified that he could have
avoided double hearsay problems in the police reports by calling the victims and
witnesses to each crime to testify. He said he specifically talked to Ontiberos' mother-in-
law, who was the victim of the 2001 aggravated sexual battery conviction, but did not
issue a subpoena for her because he believed Ontiberos would not want her testifying.

As to a corrections department discipline report regarding the alleged knife
incident the State raised at trial while questioning Ontiberos' expert, Ontiberos testified
on remand that he was never disciplined for possessing a weapon. Bennett testified that
he perused the 3,500 page record for 20 minutes before the Van Cleave hearing and could
not find any reference to an incident involving a knife. But he added that he "wouldn't
have asked [a question about it] if it didn't come from somewhere."

Ontiberos' trial attorney, Barker, testified that he considered "very thoroughly"
whether to stipulate to the documents comprising Exhibit 1 and agreed because he did not
want the entire exhibit given to the jury to peruse or have multiple prosecution witnesses
piling on cumulative evidence about things contained within the documents. Barker also
testified he was unaware of this court's Gonzalez decision regarding restrictions on an
expert witness' ability to rely on hearsay evidence when forming an opinion. He further
testified he could not recall whether he was aware during the original trial that Ontiberos
had taken the Static-99 on different occasions with different results, but said he had
reviewed the entire discovery record before trial and did not see anything that would help
Ontiberos. He described his trial strategy as:

"to attack the very validity and accuracy of these tests. Therefore, I could not hardly
attack one score based upon an invalid system then come in front of the jury with this one
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you just showed me and say, Oh look, here's a good one. It's either a reliable system or it
isn't, and we all have to chose tactics in our trials. I chose the tactic of attacking the very
validity of the Static-99 itself. I would agree that the variation between this test and the
one Dr. McCoy did might arguably support that, but I simply chose to attack the primary
through Dr. Barnett's expertise." (Emphasis added.)

While ruling from the bench on Ontiberos' ineffective assistance of counsel claim,
the district court held that even though this was a civil case, the court believed criminal
caselaw was applicable and recited the two-part Strickland test. The district court further
held that Ontiberos received effective assistance of counsel and that neither of the
Strickland prongs was satisfied. A journal entry from the Van Cleave hearing was added
to the appellate record at the Court of Appeals' request.

The Court of Appeals Decision

On appeal, Ontiberos argued the KSVPA was unconstitutional because it did not
provide an explicit mechanism to challenge trial counsel's effectiveness. He also argued
that he received ineffective assistance of trial counsel and that the State's attorney
committed misconduct so egregious that reversal was required.

As to the first point, the Court of Appeals held that Ontiberos had a statutory right
to counsel and that an ineffective assistance of counsel claim could be raised through the
Van Cleave procedure. For those reasons, it denied Ontiberos' claim that the KSVPA was
unconstitutional. Ontiberos, 45 Kan. App. 2d at 240. But in so ruling, the Court of
Appeals went further and held that Ontiberos had no constitutional right to counsel
during the KSVPA proceeding because it is civil in nature. 45 Kan. App. 2d at 237
("respondents resisting commitment do not have a constitutional right to counsel, but do
have a statutory right").
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As to the second and third claims, the panel held that the appropriate standard of
review required determination as to whether Ontiberos' right to a fair trial was violated;
and then using that standard, it held Ontiberos was denied a fair trial. The court also held
that the State's attorney committed misconduct by improperly using portions of Exhibit 1
to cross-examine Ontiberos and by mischaracterizing evidence regarding the "knife
incident." 45 Kan. App. 2d at 253-54. The court further held that Ontiberos' trial attorney
failed to: (1) object when the State cross-examined Ontiberos with documents from
Exhibit 1 that were not admitted into evidence; (2) object when the State impeached
Ontiberos with a non-existent discipline report involving a knife; (3) introduce evidence
that the 2006 discharge summary's Static-99 test results contradicted Dr. McCoy's
findings by concluding Ontiberos was a "low risk" to reoffend; and (4) correct his own
witness (Dr. Barnett) when he incorrectly stated Ontiberos had not taken a
plethysmograph—the test Dr. Barnett claimed was the most accurate. The Court of
Appeals reversed and remanded for a new trial on this basis. 45 Kan. App. 2d at 236.

The State filed a petition for review with this court and Ontiberos cross-petitioned.
This court has jurisdiction under K.S.A. 20-3018(b) (review of Court of Appeals
decision).

ANALYSIS

In his cross-petition, Ontiberos continues to assert the KSVPA is unconstitutional
because it lacks a mechanism for persons committed under the act to challenge their trial
counsel's performance. In the alternative, he argues his civil commitment must be
reversed because he received ineffective assistance of counsel and the State's attorney
committed misconduct at trial. We address Ontiberos' constitutional arguments first.

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The threshold question is whether Ontiberos has a right to counsel arising from the
KSVPA, the Due Process Clause of the Fifth and Fourteenth Amendments to the United
States Constitution, or Section 18 of the Kansas Constitution Bill of Rights. We hold he
has a right to counsel under the federal and state constitutional due process provisions,
but we begin by examining the KSVPA.

Background

The KSVPA is a comprehensive statutory scheme for the civil commitment of
sexually violent predators originally enacted in 1994. L.1994, ch. 316, sec. 1. The United
States Supreme Court twice approved challenged procedures set out in the act. See
Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002) (holding the
KSVPA definition of "mental abnormality" must require proof that a person lacks some
control over their behavior but not a total lack of control); Kansas v. Hendricks, 521 U.S.
346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (addressing whether the Act's definition
of mental abnormality satisfied due process and holding the Act "comports with due
process requirements").

Like the procedure used in this case, the State usually initiates KSVPA civil
commitment proceedings when an inmate is nearing release for a criminal offense
qualifying for commitment under the act. The KSVPA requires that the agency with
authority over release of individuals who may meet statutory criteria notify the attorney
general 90 days prior to release. K.S.A. 59-29a03(a). The attorney general then has the
person's records studied by a prosecutor's review committee to make an initial
determination whether the person meets the sexually violent predator definition. K.S.A.
59-29a03(e). Based on that assessment, the attorney general may file a petition in the
county where the person was convicted, alleging that the person is a sexually violent
predator and stating sufficient facts to support the allegation. K.S.A. 59-29a04(a). Once
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the petition is filed, a judge must determine whether probable cause exists to believe the
person is a sexually violent predator and should be taken into custody. K.S.A. 59-
29a05(a). Once in custody, a probable cause hearing is required within 72 hours. K.S.A.
59-29a05(b). The detained person has a statutory right to be represented by counsel at the
probable cause hearing. K.S.A. 59-29a05(c)(1).

If probable cause is determined to exist and the matter proceeds to trial, the
KSVPA provides that a determination that a person is a sexually violent predator must be
made beyond a reasonable doubt. K.S.A. 59-29a07(a). And when a court or jury is
satisfied beyond a reasonable doubt that person must be committed to the custody of the
secretary of social and rehabilitation services "for control, care and treatment until such
time as the person's mental abnormality or personality disorder has so changed that the
person is safe to be at large," the person is committed indefinitely. K.S.A. 59-29a07(a).

Of interest in this case, K.S.A. 59-29a06(b) provides that "[a]t all stages of the
[KSVPA] proceedings . . . any person subject to K.S.A. 59-29a01 et seq., and
amendments thereto, shall be entitled to the assistance of counsel, and if the person is
indigent, the court shall appoint counsel to assist such person." (Emphasis added.) We
must consider the strength of that statutory provision next.

Right to Effective Counsel at the KSVPA Trial

This court has held that when there is a right to counsel there is necessarily a
correlative right to effective counsel—regardless of whether the right derives from a
statute or the constitution. See Albright v. State, 292 Kan. 193, 207, 251 P.3d 52 (2011)
("regardless of the source of the right, a right to counsel, to be meaningful, necessarily
includes the right to effective assistance of counsel"); Brown v. State, 278 Kan. 481, 484,
101 P.3d 1201 (2004) (recognizing the statutory right to the effective assistance of
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counsel in a K.S.A. 60-1507 proceeding); see also Strickland, 466 U.S. at 686 ("'the right
to counsel is the right to the effective assistance of counsel'"). This caselaw, coupled with
the statutory provision for counsel at all KSVPA proceedings in K.S.A. 59-29a06(b),
would appear to establish a statutory right to effective counsel.

But the conclusion that K.S.A. 60-29a06(b) establishes a statutory right to counsel
is diminished by K.S.A. 59-29a06(e), which follows up the recitation of that requirement
by stating "[t]he provisions of this section are not jurisdictional, and failure to comply
with such provisions in no way prevents the attorney general from proceeding against a
person otherwise subject to the [KSVPA]." (Emphasis added.) Arguably, this language
could be read to mean that the failure to comply with the statute regarding assistance of
counsel is not a barrier to proceeding against a person under the KSVPA. If so, the
provision for counsel in subsection (b) is made less certain by the subsequent subsection
(e) in the same statute. And since the Court of Appeals expressly held there is no
constitutional right to counsel for KSVPA proceedings, this equivocation in K.S.A. 59-
29a06 increases in importance for the issue presented. This compels us to address
whether a person is entitled to counsel in a KSVPA proceeding under the constitution.

In holding that Ontiberos does not have a constitutional right to counsel, the Court
of Appeals relied on an analogy to this court's K.S.A. 60-1507 caselaw, particularly
Brown, 278 Kan. at 483. Ontiberos, 45 Kan. App. 2d at 237. In Brown, this court held
prisoners do not have a Fourteenth Amendment Due Process right to counsel in
proceedings brought under K.S.A. 60-1507, stating: "We acknowledge that there is no
constitutional right to effective assistance of legal counsel on collateral attacks because
they are civil, not criminal, actions." 278 Kan. at 483. See Pennsylvania v. Finley, 481
U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987) (declining to extend the
Fourteenth Amendment right to counsel on direct appeal to a prisoner's collateral attack);
State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980) (defendant was not entitled to
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counsel under the Sixth or Fourteenth Amendment for his third motion for new trial); and
Robinson v. State, 13 Kan. App. 2d 244, Syl. ¶ 4, 767 P.2d 851, rev. denied 244 Kan. 738
(1989) (defendant does not have a due process right to counsel to appeal the dismissal of
a K.S.A. 60-1507 motion). But while there are some similarities between K.S.A. 60-1507
motions and KSVPA proceedings because they are both civil in nature, they are not
identical and the Court of Appeals did not take into account the important dissimilarities.

K.S.A. 60-1507 motions are procedurally distinguishable because prisoners in
1507 proceedings have already been afforded exercise of their Sixth Amendment right to
counsel at trial and their direct appeal. And the cases Brown cited, particularly the United
States Supreme Court's Finley decision, did not rely on the civil nature of a defendant's
collateral attack upon a conviction when they held that a defendant does not have a
constitutional right to counsel in those proceedings. 481 U.S. at 555. The Court
emphasized that a criminal defendant's right to counsel only extends to a defendant's first
appeal of right, and no further. 481 U.S. at 556. In other words, the collateral attack is not
the criminal defendant's first opportunity to appeal. KSVPA proceedings are original
actions, so the lack of previous litigation makes K.S.A. 60-1507 proceedings
inappropriate analogs.

When determining what due process protections are required in a particular
proceeding, this court follows the same three factor test used by the United States
Supreme Court. We examine: (1) the private interest affected by the official action; (2)
the risk of erroneous deprivation of that interest through the procedures used and the
probable value, if any, of additional or substitute procedural safeguards; and (3) the
government's interest, including the function involved and the fiscal and administrative
burdens the additional or substitute procedural requirements would entail. In re J.D.C.,
284 Kan. 155, 166-67, 159 P.3d 974 (2007); see Mathews v. Eldridge, 424 U.S. 319, 335,
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96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). And the United States Supreme Court has provided
some guidance on when the federal due process clause creates a right to counsel.

Due process is not a technical concept with fixed content unrelated to time, place,
and circumstances. Instead, its requirements are "'flexible and [call] for such procedural
protections as the particular situation demands.'" 424 U.S. at 334. And "[t]he pre-eminent
generalization that emerges from [the United States Supreme Court's] precedents on an
indigent's right to appointed counsel is that such a right has been recognized to exist only
where the litigant may lose his physical liberty if he loses the litigation." Lassiter v.
Department of Social Services, 452 U.S. 18, 25, 101 S. Ct. 2153, 68 L. Ed. 2d 640
(1981). The right to counsel is triggered by the defendant's interest in personal freedom,
not just the Sixth and Fourteenth Amendment right to counsel in criminal cases. 452 U.S.
at 25. A litigant's right to appointed counsel diminishes as the litigant's interest in
personal liberty diminishes. 452 U.S. at 26.

But the Due Process Clause does not always require the provision of counsel in
civil proceedings when incarceration is threatened. See Turner v. Rogers, __ U.S. __, 131
S. Ct. 2507, 2518, 180 L. Ed. 2d 452 (2011). In Turner, the Court recently held there is
no automatic right to counsel in a child support proceeding, which could result in a
parent's 1-year imprisonment, as long as sufficient alternative procedures are provided.
131 S. Ct. at 2519.

The Court has not addressed the right to counsel in a sexually violent predator
proceeding, but it has addressed this right in a civil commitment proceeding based on a
mental disease. Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). In
that case, a prisoner challenged a statute allowing his transfer to a mental hospital for the
duration of his sentence if a physician or psychologist determined he suffered from a
mental disease and the prison lacked the resources to provide treatment. Under that
17



statutory scheme, the prisoner could be held in a mental hospital until his sentence
expired unless treatment was no longer necessary. If the State wanted to retain the
prisoner in a mental hospital after his or her sentence expired, it would have to initiate
civil commitment proceedings at that time. 445 U.S. at 483-84.

A majority of the Vitek Court recognized that the transfer to a mental hospital
"implicates a liberty interest protected by the Due Process Clause." 445 U.S. at 487. But
the majority split as to whether due process required a right to legal counsel or simply
required "independent assistance" of some kind. Four of the five justices ruling on the
issue held that Vitek had a right to counsel. 445 U.S. at 497. The fifth justice determined
that due process only required an independent advisor who did not have to be a lawyer.
445 U.S. at 499 (Powell, concurring in part). The remaining justices dissented, arguing
the issue was moot. 445 U.S. at 500.

While Vitek is not dispositive of the issue in this case, it is strong authority for
finding that Ontiberos has a due process right to counsel. And it has been used by other
courts considering the same issue raised by Ontiberos to hold that such a right exists. For
example, the Virginia Supreme Court determined that sex offenders have a due process
right to counsel at all stages of the proceeding, including the appeal, based upon Vitek
and application of the three Mathews factors. Jenkins v. Director, Va. Ctr. For Behav.
Rehab., 271 Va. 4, 624 S.E.2d 453 (2006).The Jenkins court held that right exists under
both the federal and Virginia Constitutions, and it based its holding on the "substantial
liberty interest at stake in an involuntary civil commitment." Jenkins, 271 Va. at 16; see
also Ibur v. State, 765 So. 2d 275, 276 (Fla. Dist. App. 2000) ("Because involuntary
commitment is a substantial deprivation of liberty at which fundamental due process
protections must attach, the patient cannot be denied the right to be present, to be
represented by counsel, and to be heard."). We agree that an examination of the three
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Mathews factors supports finding that the federal and Kansas due process clauses
establish a right to counsel in KSVPA proceedings. We consider those factors next.

The first factor—the private interest affected by the KSVPA proceedings—
supports holding that a due process right exists. Ontiberos' liberty is the private interest
affected, and stronger due process rights attach to liberty interests. Indeed, it is difficult to
conceive of a stronger liberty interest because Ontiberos' confinement has the potential of
being indefinite and it includes participation in a sex offender treatment program while
committed to state custody. Ontiberos' interest is certainly greater than the prisoner's
interest in Vitek because Ontiberos would be free from state custody were it not for the
KSVPA proceeding, whereas Vitek would have been transferred back to prison.
Therefore, Ontiberos' private interest is substantially constricted by the KSVPA
proceedings.

The second factor—the risk of the erroneous deprivation of that interest—does not
weigh as strongly in Ontiberos' favor as the first. The KSVPA provides several
protections to ensure that persons are not wrongly determined to be sexual predators and
committed under the Act. See K.S.A. 59-29a05 (right to probable cause hearing with
counsel and the opportunity to present evidence); K.S.A. 59-29a06(b) (right to counsel
"[a]t all stages of the proceedings" and access to a qualified expert at the State's expense);
K.S.A. 59-29a07 (must prove beyond a reasonable doubt). One important consideration is
whether the State is represented by counsel at the KSVPA commitment proceeding. See
Turner, 131 S. Ct. at 2518-20 (holding indigent individual subject to a child support order
and facing incarceration does not have a right to counsel in part because the State is not
represented by an attorney either). Since the State is represented by counsel at the
KSVPA proceeding, the person the State seeks to commit should also have access to an
attorney.

19



The third factor is the government's interest in the proceedings and the fiscal and
administrative burdens appointment of counsel would entail. The burden of providing
counsel is small when compared to the substantial liberty issue at risk here. In addition,
the various protections and provisions benefiting a person subject to these proceedings
that are provided by the KSVPA certainly imply that the legislature perceived a person's
substantial stake in the process and its outcomes.

We hold that the caselaw and the Mathews factors support a holding that
Ontiberos has a due process right to the appointment of counsel at the KSVPA trial. The
Court of Appeals erred by holding otherwise. And since we have held that there is a
constitutional right to assistance of counsel in KSVPA proceedings, our caselaw instructs
that this right carries with it a correlative right to competent, effective counsel. Albright,
292 Kan. at 207; Brown, 278 Kan. at 484. Based on these holdings, we need not delve
further into the statutory provisions.

Ability to Challenge Effectiveness of KSVPA Trial Counsel

Ontiberos argues there is no way to challenge ineffective assistance of counsel on
direct appeal and argues further that ineffective assistance cannot be the subject of a
collateral attack through the habeas corpus statute, K.S.A. 60-1501. The State points out
that Ontiberos, in fact, did bring such a claim on direct appeal. Ontiberos counters that
the Court of Appeals had no authority to grant his motion for a Van Cleave-type hearing.
We begin by examining the procedure used in this case and the authority for it.

In Van Cleave, the defendant received new counsel to directly appeal his criminal
conviction, and his appellate counsel argued for the first time on appeal that Van Cleave's
trial counsel was ineffective. This court held that allegations of ineffective assistance of
counsel would not be considered for the first time on appeal because the trial court, which
20



observed counsel's performance and knew the trial strategy, was in a better position than
the appellate courts to consider counsel's competence. 239 Kan. at 119. But this court
also held that appellate courts have discretion to remand to the trial court for an
evidentiary hearing on the ineffective assistance of counsel claim to avoid the expense
and delay of a separate K.S.A. 60-1507 action later. 239 Kan. at 119. Against this
background, we must consider whether Van Cleave has application to a KSVPA
proceeding, so that an appellate court considering a person's direct appeal of a
commitment can know whether it is permitted to order a remand to the district court to
consider ineffective assistance of counsel claims.

The obvious distinction from Van Cleave is that K.S.A. 60-1507 would not apply
to a KSVPA proceeding. See K.S.A. 60-1507(a) (defining statute's scope as extending to
a prisoner in custody under a sentence). But the State argues that K.S.A. 60-1501 applies
to persons committed under the KSVPA. It cites Johnson v. State, 289 Kan. 642, 215
P.3d 575 (2009), in which two persons committed under the KSVPA filed a petition
under K.S.A. 60-1501 alleging the Sexual Predator Treatment Program was
constitutionally inadequate to cure their conditions, resulting in their eventual release.
289 Kan. at 644. In that case, this court held that a person confined under the KSVPA "is
included within the purview of K.S.A. 60-1501 and, as a result, may bring a habeas
corpus petition alleging due process violations." 289 Kan. at 648. Ontiberos argues
K.S.A. 60-1501 only applies if the committed person is challenging the conditions of
confinement, such as the allegations made by the petitioners in Johnson about their
treatment program.

Ontiberos' claim lacks merit because it contradicts the plain language of the 60-
1501 statute and is premised mostly on the fact that Ontiberos is the first litigant to
attempt to raise 60-1501's application to issues not premised on conditions of
21



confinement. But novelty is not infirmity. The relevant portion of K.S.A. 60-1501(a)
states:

"Subject to the provisions of K.S.A. 60-1507. . . any person in this state who is
detained, confined, or restrained of liberty on any pretense whatsoever, . . . physically
present in this state may prosecute a writ of habeas corpus in the supreme court, court of
appeals or the district court of the county in which such restraint is taking place."
(Emphasis added.)

The statute's plain language provides a remedy to any detained person who is
excluded from K.S.A. 60-1507's provisions. And while Ontiberos is correct that Johnson
can be distinguished because it involved prisoners challenging conditions of confinement,
it is nevertheless strong support that persons detained under the KSVPA may utilize 60-
1501 to challenge the effectiveness of trial counsel. The Court of Appeals interpreted
Johnson to hold that a sexually violent predator may seek relief under K.S.A. 60-1501 for
any challenges to the legal process due, including the effective assistance of counsel.
Ontiberos, 45 Kan. App. 2d at 239. We agree.

We hold that a person detained under the KSVPA may raise an ineffective
assistance of trial counsel claim on direct appeal using the Van Cleave remand procedure
or through a collateral attack using K.S.A. 60-1501. Ontiberos' claim that the KSVPA is
unconstitutional is without merit. We next consider whether Ontiberos received the
effective assistance of counsel to which he was entitled at his KSVPA trial.

Application of Strickland

Ontiberos cites numerous trial errors amounting to the ineffective assistance of
counsel, but the threshold question is what test applies to his claim. The State urges us to
adopt the two-prong ineffective assistance of counsel test for deficient performance
22



claims established in criminal cases under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Ontiberos cited Strickland to the district court and the
Court of Appeals, but he argues to this court that a more stringent test established by the
Montana Supreme Court in In re K.G.F., 306 Mont. 1, 7, 29 P.3d 485 (2001), applies.
The lower courts disagreed on the applicable test. The district court held Ontiberos'
counsel was not ineffective using the two-prong Strickland standards. The Court of
Appeals examined Ontiberos' ineffective assistance of counsel claims under a right-to-
fair-trial framework because the KSVPA is a civil proceeding.

We hold that the two-prong Strickland test applies because Ontiberos' right to
counsel arises from a constitutional right similar to the rights attendant to a criminal trial.
We begin by explaining why we decline to adopt the fair trial framework for Ontiberos'
ineffective assistance of counsel claims, and then we address the misconduct allegations.

In Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973), the driver
of an automobile sued the automobile's owner for personal injuries stemming from an
accident. On appeal, the owner claimed the trial court erred by permitting opposing
counsel to verbally abuse and attack defense counsel in front of the jury. The Smith court
held counsel's remarks resulted in reversible error when the parties have been denied a
fair trial. 213 Kan. at 96. The Smith court reversed after it found "the remarks and
conduct of [opposing] counsel materially distracted and hindered the jury from returning
an impartial verdict." 213 Kan. at 96.

This same fair trial standard has been applied in subsequent cases when a civil
litigant alleged opposing counsel committed misconduct. See McKissick v. Frye, 255
Kan. 566, 876 P.2d 1371 (1994) (opposing counsel's remarks are reversible error if the
parties have not had a fair trial); Sledd v. Reed, 246 Kan. 112, 117, 785 P.2d 694 (1990)
(same); Henderson v. Hassur, 225 Kan. 678, 693, 594 P.2d 650 (1979) (same); Kleibrink
23



v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, Syl. ¶ 6, 581 P.2d 372 (1978)
(same). And this court adopted the same fair trial analysis in another KSVPA appeal
involving the state attorney's misconduct. In re Care & Treatment of Foster, 280 Kan.
845, Syl. ¶ 2, 127 P.3d 277 (2006). We must now decide whether that fair trial analysis
should be extended to claims by persons committed under the KSVPA alleging
ineffective assistance of counsel.

The State urges us to adopt the Strickland standard applicable in criminal cases
because it is well-known and easy to apply. Numerous other jurisdictions use Strickland
for claims of ineffective assistance of counsel raised by persons committed under that
state's sexually violent predator law. See, e.g., Jenkins, 271 Va. at 16 (recognizing a
constitutional right to effective counsel and evaluating the claim under Strickland); State
of Texas for the Best Interest and Protection of H.W., 85 S.W.3d 348, 356 (Tex. App.
2002) (same); People v. Rainey, 325 Ill. App. 3d 573, 585-86, 759 N.E.2d 492 (2001)
(recognizing statutory right to effective counsel and evaluating that claim under
Strickland); In re Crane, 704 N.W.2d 437, 439 (Iowa 2005) (same); In re Alleged Mental
Illness of Cordie, 372 N.W.2d 24, 29 (Minn. App. 1985) (same). These courts applied
Strickland regardless of whether that court held that the person's right to effective counsel
arose from statute or the constitution.

Most of these cases lack any significant analysis as to why Strickland was
adopted, but the Washington Court of Appeals explained that it found the Strickland
analysis appropriate in civil commitment proceedings, even though it is "rooted in Sixth
Amendment protections," in part because the Strickland standard is well known,
supported by a well-developed body of caselaw, and the majority of jurisdictions follow
it. In re Detention of T.A.H.-L, 123 Wash. App. 172, 180, 97 P.3d 767 (2004). The one
exception appears to be the Montana Supreme Court's analysis in In re K.G.F., which
Ontiberos now urges us to apply.
24




In the Montana case, the civil litigant was involuntarily committed after a court
determined she had a mental disorder and was a danger to herself. She was not a sexually
violent predator. The K.G.F. court rejected the Strickland standard because "'reasonable
professional assistance' cannot be presumed in a proceeding that routinely accepts—and
even requires—an unreasonably low standard of legal assistance and generally disdains
zealous, adversarial confrontations." 306 Mont. at 8. The court continued by saying the
Strickland requirement of proving that counsel's performance prejudiced the defense "is
contrary to [Montana's caselaw] that mandates that unless civil commitment laws are
strictly followed, a commitment order must be reversed." 306 Mont. at 8. Finally, it held
Strickland was inappropriate because it was designed to protect a defendant's Sixth
Amendment rights and the "involuntary commitment process does not invoke those
constitutional provisions." 306 Mont. at 8-9.

The K.G.F. court considered five factors, which it adopted from portions of the
National Center for State Courts' Guidelines for Involuntary Civil Commitment, as to
whether: (1) competent counsel was appointed; (2) counsel conducted a thorough review
of all records; (3) counsel knew what the client wanted to occur; (4) the client knowingly
and voluntarily talked to the clinicians and/or was the client advised of the right to remain
silent or attend the examination; and (5) counsel vigorously advocated for his or her
client. 306 Mont. at 16-19.

The Montana court's criticism of Strickland appears partially based on the
abbreviated, 2-day time frame in which persons found to be a danger to themselves are
civilly committed under Montana's commitment statutes. 306 Mont. at 8 ("[T]he conduct
of counsel during those few available hours prior to an involuntary commitment hearing
or trial should be a key focal point of the inquiry as to whether the counsel's
representation was effective."). But that process is distinguishable from KSVPA
25



proceedings because counsel has substantially more time to prepare under the KSVPA
since the statute requires a trial within 60 days of the probable cause hearing. K.S.A. 59-
29a06(a).

Notably, no other jurisdiction follows the Montana court's approach. See In re
Daryll C., 401 Ill. App. 3d 748, 930 N.E.2d 1048 (2010) (declining to adopt the Montana
court's approach because it was grounded in Montana constitutional and statutory law); In
re L.G., No. 06AP-453, 2006 WL 2780157, at *8 (Ohio App. 2006) (unpublished
opinion) (rejecting the Montana Supreme Court's approach and applying the Strickland
standard); In re Detention of T.A.H.-L, 123 Wash. App. at 180 (declining to adopt the
Montana Supreme Court's dim view of the quality of civil commitment proceedings, or
their adversarial nature, in the state of Washington). Likewise, we decline to adopt in
Kansas such a critical and limited view of the Strickland standards.

Although there is some merit to applying the fair trial rubric this court adopted in
Smith, 213 Kan. 91, to address claims of misconduct by opposing counsel, we hold that
the well-known Strickland test better addresses the concerns embodied in ineffective
assistance of counsel claims in KSVPA proceedings. The United States Supreme Court
crafted Strickland to determine when counsel's performance violates a criminal
defendant's Sixth Amendment right to counsel, and it makes sense to apply the same
standard based on a Fourteenth Amendment right to counsel. Strickland was adopted in
this context by the majority of other jurisdictions, and it is a well-known standard likely
to invite a more consistent application by Kansas courts. Drawing from Strickland, we
hold that a finding of ineffective assistance of counsel based on deficient performance in
a KSVPA proceeding requires a determination that (1) counsel's performance was
deficient; and (2) counsel's deficient performance was sufficiently serious to prejudice the
respondent and deprive him or her of a fair trial. We address next whether Ontiberos' trial
counsel was ineffective using the Strickland standard.
26




Ineffectiveness of Trial Counsel

Ontiberos argues his trial counsel was ineffective because he: (1) failed to use
evidence corroborating Ontiberos' expert's testimony and impeaching the State's expert;
(2) stipulated that Dr. McCoy could review all documents contained in Exhibit 1,
including hearsay reports by other clinicians, when testifying and forming her opinion on
whether Ontiberos met the criteria of a sexually violent predator; (3) failed to object
when the State cross-examined Ontiberos based on information derived from Exhibit 1
because the exhibit was never introduced into evidence; and (4) allowed Dr. Barnett to be
impeached with a corrections department discipline record involving a duct-taped knife,
which Ontiberos alleges does not exist. The State disputes all of these claims.

Standard of Review

The same standard of review adopted to review a criminal defendant's ineffective
assistance of counsel claim applies here. Ineffective assistance of counsel claims involve
mixed questions of law and fact requiring de novo review. Thompson v. State, 293 Kan.
704, 715, 270 P.3d 1089 (2011). It is incumbent upon the movant to prove that (1)
counsel's performance was deficient, and (2) counsel's deficient performance was
sufficiently serious to prejudice the defense and deprive the movant of a fair trial. 293
Kan. at 715.

"The first prong of the test for ineffective assistance of counsel requires a
defendant to show that counsel's representation fell below an objective standard of
reasonableness, considering all the circumstances. Judicial scrutiny of counsel's
performance must be highly deferential, and a fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate the
27



conduct from counsel's perspective at the time. We must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance.
[Citation omitted.]

"Once a defendant has established counsel's deficient performance, the defendant
also must establish prejudice by showing that there is a reasonable probability that, but
for counsel's deficient performance, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome. A court hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury. [Citation omitted.]" Bledsoe v. State, 283 Kan. 81, 90-
91, 150 P.3d 868 (2007).

Since the district court conducted an evidentiary hearing on Ontiberos' motion, we
review any factual findings for substantial competent evidence and evaluate whether
those findings support the trial judge's conclusions of law. See Thompson, 293 Kan. at
715-16 (reviewing K.S.A. 60-1507 evidentiary hearing). The district judge's legal
conclusions are reviewed de novo. See Gonzales, 289 Kan. at 358-59.

Failure to Introduce Corroborating Evidence

Exhibit 1 contains results from a Static-99 administered to Ontiberos in 2006 as
part of Ontiberos' sexual offender treatment program. Those 2006 results showed
Ontiberos had only a 9 percent chance of reconviction in 16 years and concluded he was
a lower risk to re-offend. The 2006 results contradicted the results from the Static-99
administered by the State's witness, Dr. McCoy. She testified that Ontiberos fell into the
high risk category for sexual recidivism in part because Ontiberos had a 52 percent
chance of reconviction in 15 years. Ontiberos argues his trial counsel was ineffective
because he failed to admit into evidence the 2006 Static-99 test results, so the jury was
never made aware of it. And even if the lower score was not independently relevant,
28



Ontiberos argues the contradictory results would have supported his trial strategy of
discrediting the test's general reliability. The State argues the omission of the more
favorable 2006 Static-99 test results would have contradicted Ontiberos' trial strategy.

At the Van Cleave hearing, Ontiberos' trial counsel testified it would have hurt his
trial strategy to admit the contradictory test scores because he could not claim one score
was reliable while Dr. McCoy's results were not. But counsel seemed to recognize the
problem with that argument when he admitted the contradictory Static-99 results could
"arguably" have supported his claim that the test was unreliable. The district court did not
make any findings related to this issue, and we regard Barker's explanation to be
nonsensical.

Dr. McCoy's testimony that Ontiberos fell in the high risk category on the Static-
99 was among the more damaging evidence presented at trial because she testified
Ontiberos was only in the "moderate risk" category on the MnSOST. Not only would the
contradictory 2006 Static-99 test scores support Dr. Barnett's testimony that those tests
are unreliable, but it would diminish the credibility of Dr. McCoy's conclusion that
Ontiberos was a high risk for recidivism. The failure to admit the 2006 test results falls
below an objective standard of reasonableness regardless of whether it resulted from what
trial counsel characterized as "strategy" or from trial counsel's after-the-fact
rationalization for failing to familiarize himself with the evidence.

We are similarly troubled that Ontiberos' attorney did not alert his expert that
Ontiberos was given a penile plethysmograph test as part of a sexual offender treatment
program in 2005. Dr. Barnett testified that was a more reliable test, and we cannot be
certain how it would have affected his diagnosis or testimony. But as the Court of
Appeals held, this omission again calls Barker's pre-trial preparation into serious
question. 45 Kan. App. 2d at 255. The first prong of the Strickland test is satisfied. We
29



will address the second prong after determining whether trial counsel's performance fell
below an objective standard of reasonableness based on Ontiberos' other claimed
performance errors.

Stipulation to Expert's Review of Evidence

Ontiberos next argues his trial counsel was ineffective for stipulating that Dr.
McCoy could review all the discovery contained in Exhibit 1, including hearsay and
documents created by other clinicians, when forming her expert opinion on whether
Ontiberos was a sexually violent predator.

At the time of Ontiberos' trial, the KSVPA was silent regarding what evidence
experts could rely upon when forming their opinions. That would later change. See
K.S.A. 2011 Supp. 59-29a06(c) (effective July 1, 2011, allowing expert witnesses in
KSVPA proceedings to consider inadmissible evidence if certain conditions are
satisfied). The general statute governing expert opinion testimony, K.S.A. 60-456(b),
applied instead. It states:

"If the witness is testifying as an expert, testimony of the witness in the form of
opinions or inferences is limited to such opinions as the judge finds are (1) based on facts
or data perceived by or personally known or made known to the witness at the hearing
and (2) within the scope of the special knowledge, skill, experience or training possessed
by the witness." K.S.A. 60-456(b).

At that time, this court's K.S.A. 60-456(b) caselaw clearly precluded experts
testifying in KSVPA proceedings from giving an opinion based on facts or data not
"'perceived by or personally known or made known'" to the expert at trial. State v.
Gonzalez, 282 Kan. 73, 87, 145 P.3d 18 (2006). In Gonzales, an expert witness relied
30



upon California medical records to form an opinion whether Gonzalez was competent to
stand trial. This court held that the psychologist's opinion was not based on facts or
knowledge personally made known to her, nor was it based on facts put into evidence
because the State never offered the California records for admission under one of the
hearsay exceptions. Therefore, the records were inadmissible hearsay. 282 Kan. at 96.

Emphasizing the clarity of Gonzales, this court criticized the same type of
stipulation as entered into at Ontiberos' trial in another KSVPA case, In re Care &
Treatment of Colt, 289 Kan. 234, 243, 211 P.3d 797 (2009) ("'[E]xperts' opinions based
upon hearsay are not admissible in any court proceedings.'"). In that case, the parties
entered a similar stipulation allowing the State's expert to rely on inadmissible hearsay
evidence. The court declined to reverse Colt's civil commitment holding that the error
was invited. But this court stated:

"Admission of unreliable statements by out-of-court declarants to prove the truth of the
matter asserted is exactly what the hearsay rule is designed to prevent; this agreement
appears to have eliminated any useful purpose our enforcement of the rule might serve;
waived any initial objection to the Rosenberg's reliance on and reference to the records;
and, to the extent admission of his opinion was error, invited it." Colt, 289 Kan. at 243.

During the Van Cleave hearing for Ontiberos, his trial attorney admitted that he
was not familiar with Gonzalez, and this failure to familiarize himself with the
requirements for expert testimony undoubtedly led him to enter into such an all-
encompassing stipulation.

Parties are obviously encouraged to enter into stipulations to avoid undue costs or
time consuming litigation when there is no real dispute. Fuller v. Wright, 106 Kan. 676,
680, 189 P. 142 (1920) (stipulations are commendable to shorten or eliminate certain
matters of fact not seriously in dispute although tedious or expensive to prove). But
31



counsel's willingness to simply agree to foundation and wholesale use by Dr. McCoy is
more than puzzling. As discussed below, some of the documents involved witness
statements from uncharged events dating back to the 1990s and clinical reports from
individuals at the prison that lack all of the author's identifying information.

In light of the caselaw existing at the time, we are skeptical that the State could
have admitted all of the information it claims it could have admitted. But we do not need
to reach that issue because Barker's admission that he was unfamiliar with Gonzalez and
his decision to grant the State free rein over all evidence—however remote or
incomplete—falls below the objective standard of reasonableness for an attorney under
these circumstances.

In State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997), this court held that defense
counsel's performance fell below an objective standard of reasonableness when he
advised his client not to testify because counsel mistakenly believed the defendant's prior
convictions would become admissible if he testified. This court held that this advice was
not "based on any justifiable strategic considerations" but was instead based on an
incorrect understanding of the law. 261 Kan. at 607. Likewise, Barker's failure to
familiarize himself with this court's Gonzalez decision caused him to enter a stipulation
allowing Dr. McCoy to review all of Exhibit 1 without first understanding the evidentiary
rules governing what evidence she could use when forming her opinions and testifying.

Failure to Object to Cross-examination

Ontiberos argues next that his attorney was ineffective for not objecting when the
State improperly cross-examined him by using documents in Exhibit 1 without admitting
the documents into evidence for the jury's review. We begin by determining whether the
State should have admitted the documents into evidence. Ontiberos raises numerous
32



instances of what he characterizes as improper cross-examination, but we will focus on
those in which our review of the record demonstrates a problem. These generally occur
when Ontiberos testified that he could not remember whether the State's assertions were
true or he disagreed with the factual premises underlying a State question. That testimony
must be described in greater detail.

First, the State purported to use a police report from 1999 containing a victim's
statement that Ontiberos approached a woman named Paula and said, "I want some
pussy." Ontiberos was never charged, and he testified at trial that he did not remember
making the statement. Then, the State asked, "But you do remember the police contacting
you, asking you if you were involved in that, if you'd done that, correct?" And Ontiberos
replied, "No, sir." Finally, the State inquired whether Ontiberos remembered telling the
police that he was staying with a friend and he did not know "Paula." Ontiberos again
testified he did not remember anything about the alleged incident. The State did not admit
into evidence the police report or any other evidence establishing that these events
actually transpired.

Second, the State inquired about another uncharged incident occurring in 1991
when Ontiberos allegedly took his clothes off and stood naked, staring at a neighbor
through a sliding glass door. Ontiberos testified he remembered the incident, but he
thought he was wearing shorts. And the State tried to impeach that claim with the
officer's statement in the police report, stating:

"If the police reports indicate . . . he made no effort to conceal his genital area and walked
up the stairs in a sort of—they call it a strutting manner, do you have any disagreement
with that? Is that the way you remember it?"

33



Ontiberos again testified he remembered leaving, but he thought he had shorts on. The
State then asked whether Ontiberos had said, "Charlie's going to get you," when the
police asked him to get dressed. Ontiberos denied making that statement. The police
report was not admitted into evidence or shown to Ontiberos so that he could review it
and respond to its version of the alleged events.

Third, the State asked Ontiberos about a time he left a residential drug treatment
facility without authorization. Ontiberos admitted he left the facility, but he denied that
he was picked up 8 days later at his in-laws' house. Ontiberos claimed he was only gone 1
day. The State attempted to impeach him by asking, "If the records indicate it was a
matter of several days, your memory's [sic] different than that at least?" And Ontiberos
again indicated it had happened the same day. No document was admitted into evidence
establishing whether the State was correct.

Fourth, Ontiberos complains the State impeached him with statements he made in
1983 to a corrections department counselor about the attempted rape conviction.
Ontiberos testified he remembered being at the victim's house, taking his clothes off, and
walking down the hall, but then he blacked out because of drug use. The State asked
whether he remembered telling a psychiatrist the victim picked up a knife. Ontiberos
testified he did not remember. The State continued this line of questioning by asking
Ontiberos six questions about statements the counselor reported that he allegedly made in
1983, and Ontiberos testified that he could not remember each time. The counselor's
report was never admitted into evidence, and the State now concedes the follow-up
questions may have "overreached" because Ontiberos indicated he did not remember.

Fifth, Ontiberos argues the State improperly impeached his expert, Dr. Barnett, in
the same fashion. For example, when the State was attempting to show Ontiberos had
numerous disciplinary actions in prison and was not truthful about the number of the
34



violations during his interview with Dr. Barnett, the State asked whether Dr. Barnett
knew Ontiberos had been in a fight in 2003. Dr. Barnett testified that it would be unusual
for someone imprisoned as long as Ontiberos to not have been in a fight, seemingly
conceding that the fight occurred. But the State did not admit any evidence that Ontiberos
had been in a fight in 2003, effectively impeaching Ontiberos and Dr. Barnett without
establishing a basis for it.

Finally, the State asked Dr. Barnett whether Ontiberos reported "that he was listed
in a disciplinary report as having taken duct tape and wrapped it around a pen in order to
fashion a crude knife of some kind . . . did he tell you about that?" Dr. Barnett testified
Ontiberos had not disclosed that incident, again seemingly conceding that the incident
had occurred and that Ontiberos had been dishonest. But as the Court of Appeals opinion
thoroughly discusses, Ontiberos was never disciplined for having a knife. And, at trial,
the State claimed this incident occurred in 2003, but the discipline report the State later
claimed established the basis for its question was a 1991 report, which actually concluded
that Ontiberos had "less dangerous" contraband. There is no mention of a knife. The
Court of Appeals rightly found this error to be one of the most egregious concluding "this
leading question was not based on fact." Ontiberos, 45 Kan. App. 2d at 254.

In State v. Gauger, 200 Kan. 515, 438 P.2d 455 (1968), this court held that it is
improper for counsel to read or refer to the contents of written matter that has not been
introduced into evidence for impeachment, stating:

"Where the impeaching statement is written, and the witness, although admitting that he
gave a statement, cannot remember the contents thereof, or will neither admit nor deny
the same, there is ample foundation for admitting the statement itself or at least the
impeaching portion thereof into evidence. . . .

35



". . . Counsel may comment on the credibility of a witness where his remarks are
based on facts appearing in the evidence; but it is highly improper for the court to permit
counsel to read or even refer to the contents of written matter not in evidence for the
purpose of impeachment." (Emphasis added.) 200 Kan. at 520.

In State v. Ward, 31 Kan. App. 2d 284, 64 P.3d 972, rev. denied 276 Kan. 974
(2003), the defendant argued the trial court abused its discretion by allowing the State's
cross-examination of his wife regarding whether she was afraid of him. 31 Kan. App. 2d
at 290-91. The court held the examination was proper because it would demonstrate
whether she had any bias. But it took issue with the State's failure to admit extrinsic
evidence that she was afraid of Ward once she denied it, stating:

"[W]e are troubled by the State's failure to complete the impeachment. Once Sheila
denied the specific instances of physical abuse, the State should have offered extrinsic
evidence to illustrate that Sheila's denial of the specific instances of abuse was suspect."
31 Kan. App. 2d at 292 (citing Barbara, Kansas Rules of Evidence with Evidence
Objections and Evidentiary Foundations § 3.1 [4th ed.1997]).

The most recent edition of Barbara, Kansas Law and Practice continues to support
the rule that counsel admit extrinsic evidence, either by producing the document or live
witness testimony, if the witness denies the impeaching fact. It explains that the purpose
of this rule "is to insure against unfair cross-examination where the examiner may
misquote or take the statement out of context." Barbara, Kansas Law and Practice, § 3:1
(5th ed. 2001). These procedures were not followed, preventing the jury from
determining whether Ontiberos and Dr. Barnett's testimony was suspect. And our review
of the record establishes at least one instance when the State was misstating the alleged
facts—not Ontiberos. We hold that counsel's performance fell below an objective
standard of reasonableness.

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We find it disturbing that the State's method of cross-examination pervaded the
trial without intervention by Ontiberos' advocate. No evidence was admitted for the jury's
review to determine the accuracy of the facts alleged to underlie the State's questions, and
this was particularly egregious since some of the State's questions were not supported by
the record. This again suggests Ontiberos' trial counsel lacked sufficient familiarity with
the evidence in his case and the rules governing admissibility of evidence. And while the
substance of the parties' stipulation is not entirely clear, we can tell without further detail
that it was ineffective assistance of counsel for Ontiberos' attorney to enter into a
stipulation that avoided the need to admit evidence that would allow the jury to make
these essential determinations.

Failure to Object to State's Question about a Knife

As discussed above, the State asked Dr. Barnett whether Ontiberos had disclosed
that he was disciplined in 2003 for having a knife. Dr. Barnett admitted that Ontiberos
had not disclosed it, simultaneously impeaching Dr. Barnett's evaluation of Ontiberos and
suggesting Ontiberos was dishonest. Ontiberos' attorney did not object to the question,
and the State did not admit the alleged discipline record into evidence.

This is the most poignant example of why attorneys must produce extrinsic
evidence to avoid misquoting or mischaracterizing a document. Ontiberos' attorney
remained silent while the State questioned Dr. Barnett without producing the discipline
report for his verification that the described incident occurred. Presumably Ontiberos'
attorney was unaware that the evidence had been mischaracterized; and based on the
stipulation Ontiberos' attorney entered, the State did not submit the document to the jury
either. Ontiberos' attorney's failure to familiarize himself with the evidence and to object
when this question was posed to Dr. Barnett falls below an objective standard of
reasonableness.
37




Were These Errors Prejudicial?

Having found that error occurred, we must determine whether there is a reasonable
probability that, but for counsel's deficient performance, the result of the proceeding
would have been different. Bledsoe, 283 Kan. at 90-91. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Harris v. State, 288 Kan.
414, Syl. ¶ 3, 204 P.3d 557 (2009).

To summarize, we have concluded above that counsel's performance fell below an
objective standard of reasonableness because he: (1) failed to introduce evidence that a
2006 Static-99 concluded that Ontiberos was a lower risk to reoffend; (2) entered a
stipulation allowing Dr. McCoy to review evidence that was arguably inadmissible
without first familiarizing himself with K.S.A. 60-456's evidentiary requirements and this
court's Gonzalez decision; (3) failed to object when the State impeached Ontiberos and
his expert witness without introducing extrinsic evidence to complete the impeachment;
and (4) failed to object to the State's mischaracterization of a corrections department
discipline report.

Two themes pervade these errors. The first is counsel's failure to familiarize
himself with the evidence. This is evident by not introducing the more favorable Static-99
test results, failing to inform his expert witness that Ontiberos had taken a penile
plethysmograph, and not objecting when the State mischaracterized the discipline report
as involving a knife. The second theme is a failure to recognize the evidentiary rules
governing expert testimony and cross-examination.

While each individual error may not have required reversal, the accumulation of
these errors undermines our confidence in the trial's outcome. These circumstances
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precluded the jury from hearing the only evidence corroborating Ontiberos' expert's
testimony. Here the jury was only informed about one Static-99 test result—the one
placing him at high risk to re-offend. And Dr. Barnett's testimony criticizing the
reliability of the tests Dr. McCoy used would have been more credible if the jury was
provided an example of the inconsistency. Moreover, counsel's failure to object allowed
the State to impeach both Ontiberos and his expert without establishing a basis for the
impeachment. Given the pervasive nature of counsel's errors, we conclude there is a
reasonable probability that the outcome would have been different.

Opposing Counsel's Misconduct

Finally, Ontiberos argues he is entitled to a new trial because the state's attorney
committed misconduct. And although we would ordinarily not address Ontiberos' other
claimed errors because we are reversing his civil commitment on other grounds, we
briefly consider his claim that the state's attorney committed misconduct by attempting to
impeach Ontiberos and Dr. Barnett without admitting evidence to complete the
impeachment. We do so because it may arise again on remand. See State v. Hernandez,
294 Kan. 200, 209, 273 P.3d 774 (2012).

Just as it was ineffective assistance of counsel for Ontiberos' attorney to allow the
State to cross-examine Ontiberos and Dr. Barnett without admitting into evidence the
documents the State relied on for impeachment, the State committed error by cross-
examining the witnesses in this fashion. By failing to identify and admit into evidence the
documents the State relied upon, the State prevented the jury from deciding the facts and
properly assessing credibility. It also allowed the State to mischaracterize the KDOC
discipline report and insinuate Ontiberos was disciplined while imprisoned for having an
unauthorized weapon without support in the record. This is misconduct under any
standard. If the State initiates another civil commitment proceeding against Ontiberos, the
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State must admit extrinsic evidence to complete the impeachment if a trial witness denies
making a prior inconsistent statement or the witness claims that he or she cannot
remember the events that form the factual premise for the question.

The judgment of the Court of Appeals reversing and remanding this case to the
district court is affirmed. The judgment of the district court is reversed and remanded.

MORITZ, J., not participating.
THOMAS H. SACHSE, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Sachse was appointed to hear case No. 100,362
vice Justice Moritz pursuant to the authority vested in the Supreme Court by Art. 3, § 6(f)
of the Kansas Constitution.