In re Care & Treatment of Delimont

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NOT DESIGNATED FOR PUBLICATION

No. 117,706

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
DAVID G. DELIMONT.


MEMORANDUM OPINION

Appeal from Morris District Court; STEVEN L. HORNBAKER, judge. Opinion filed December 1,
2017. Affirmed.

Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, for appellant.

Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: After being committed as a sexually violent predator (SVP),
David G. Delimont filed a request for a court-appointed independent expert to perform an
evaluation at his first annual review. The district court denied his request. Delimont
appeals, arguing for the first time that K.S.A. 2016 Supp. 59-29a08 violates due process
and equal protection by giving courts discretion to appoint independent experts for
indigent SVPs. Because this constitutional challenge was not raised or argued before the
district court, we decline to consider it on appeal and affirm the district court's decision.

FACTS

On June 13, 1995, the district court sentenced Delimont for two counts of
aggravated criminal sodomy of a child less than 14 years of age, one count of aggravated
indecent liberties with a child less than 14 years of age, and one count of indecent
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liberties with a child. One month before Delimont's scheduled release from prison in
2014, the State filed a petition for a probable cause hearing to determine if Delimont was
an SVP. The district court found there was probable cause to believe that Delimont was
an SVP and ordered that he be transferred to Larned State Security Hospital for an
evaluation. On April 13, 2015, after a bench trial on stipulated facts, the district court
found Delimont to be an SVP and ordered him committed to the custody of the Kansas
Department for Aging and Disability Services (KDADS). A panel of this court affirmed
on appeal. In re Delimont, No. 114,495, 2016 WL 3366001 (Kan. App. 2016)
(unpublished opinion).

On April 25, 2016, the State filed its "ANNUAL NOTICE OF RIGHT TO
PETITION FOR RELEASE FROM TREATMENT OVER THE SECRETARY'S
OBJECTION," as required under K.S.A. 2016 Supp. 59-29a08. The notice included the
State's annual examination of Delimont's mental condition. A few months later, Delimont
filed a petition, asking the district court to appoint an expert to evaluate him and
determine if he should be subject to transitional release. The State filed a response,
arguing the appointment of an expert was at the court's discretion unless Delimont had
shown probable cause that his condition had so changed that it would be safe to place him
on transitional release. It urged the court to deny Delimont's request because he had done
nothing to suggest he was ready for transitional release.

The district court held a hearing on Delimont's petition. Delimont's counsel
conceded that the State's response was essentially accurate and appointment of an expert
was within the court's discretion. He also told the court that an evaluation by Delimont's
chosen expert would likely cost about $1,500. The district court later issued a written
ruling denying Delimont's request and ordering continued commitment for further
treatment. Delimont has timely appealed.


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ANALYSIS

On appeal, Delimont does not argue the district court abused its discretion in
denying his request for an independent expert evaluation. Rather, Delimont argues that
giving district courts discretion to appoint experts for indigent SVPs at their annual
review violates both due process and equal protection. He raises these arguments for the
first time on appeal.

As our appellate courts have frequently noted, constitutional grounds for reversal
asserted for the first time on appeal are not properly before this court for review.
Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 729, 317 P.3d 70 (2014). There are
several exceptions to this general rule, including the following: (1) The newly asserted
theory involves only a question of law arising on proved or admitted facts and is finally
determinative of the case; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights; and (3) the judgment of the district
court may be upheld on appeal despite its reliance on the wrong ground or having
assigned a wrong reason for its decision. In re Estate of Broderick, 286 Kan. 1071, 1082,
191 P.3d 284 (2008).

When an appellant has failed to raise an issue before the district court, Supreme
Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 34) requires an appellant to explain why this
court should consider the issue for the first time on appeal. In State v. Williams, 298 Kan.
1075, 1085, 319 P.3d 528 (2014), the Supreme Court held that litigants who fail to
comply with this rule risk a ruling that the issue is improperly briefed and the issue will
be deemed waived or abandoned. In the wake of Williams, our Supreme Court held that
Rule 6.02(a)(5) would be strictly enforced. State v. Godfrey, 301 Kan. 1041, 1044, 350
P.3d 1068 (2015).

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Here, Delimont not only failed to raise these arguments before the district court,
he has not explained why this court should hear them for the first time on appeal. On their
face, the constitutional arguments Delimont raises do not appear to have been fully
developed, thereby confounding our ability to assess them either for purposes of deciding
whether we should address them at all or on their merits. We, therefore, abide the usual
rule that we do not consider arguments raised for the first time on appeal.

Affirmed.