Matthew Paul Callanan, petitioner, Appellant, vs. Joan Fabian, Respondent.

Matthew Paul Callanan, petitioner, Appellant, vs. Joan Fabian, Respondent. A05-2072, Court of Appeals Unpublished, July 18, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2072

 

Matthew Paul Callanan, petitioner,

Appellant,

 

vs.

 

Joan Fabian,

Respondent.

 

Filed July 18, 2006

Affirmed

Worke, Judge

 

Anoka County District Court

File No. C9-05-3806

 

Ryan B. Magnus, Brandt & Magnus, P.A., 219 West Nassau Street, P.O. Box 57, St. Peter, MN 56082 (for appellant)

 

Mike Hatch, Attorney General, Mark B. Levinger, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

Appellant challenges the denial of his petition for a writ of habeas corpus, in which he claimed ineffective assistance of counsel at his revocation hearing for his counsel's failure to challenge the determination that he had sexual relations with "vulnerable" women when that determination formed the basis for his termination from sex-offender treatment.  We affirm.   

D E C I S I O N

"We are to give great weight to the [district] court's findings in considering a petition for a writ of habeas corpus and will uphold the findings if they are reasonably supported by the evidence."  Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. Nov. 17, 1998).  Questions of law, however, are subject to de novo review.  State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

Appellant Matthew Paul Callanan first argues that he was denied effective assistance of counsel at his supervised-release revocation hearing.  A claim of ineffective assistance of counsel requires a showing that the counsel's performance was deficientcounsel made errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendmentand the deficient performance prejudiced the defense depriving the defendant of a fair trial.  Strickland v. Washington,466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).  "There is a strong presumption that a counsel's performance falls within the wide range of reasonable professional assistance."  Hodgson v. State,540 N.W.2d 515, 518 (Minn. 1995) (quotation omitted).

Appellant was serving a 91-month sentence for first-degree criminal sexual conduct and kidnapping when he was put on intensive supervised release.  One of appellant's conditions of release was to successfully complete sex-offender treatment.  Several months after beginning treatment, appellant was terminated from the program for violating his treatment contract by engaging in a sexual "threesome" with two "vulnerable" women and because he did not appear amenable to treatment.  Following a revocation hearing, appellant's intensive supervised release was revoked after his release officer found that the evidence and testimony supported the determination that appellant was discharged from sex-offender treatment for just cause.  Appellant filed a petition for a writ of habeas corpus, and the district court denied the petition, ruling that the hearing officer did not abuse his discretion in determining that appellant violated the condition of his release that required him to successfully complete sex-offender treatment.   

Appellant argues that his counsel was ineffective for failing to challenge the determination that he engaged in sexual relations with "vulnerable" women.  Appellant contends that the women were not "vulnerable" merely because they were in Alcoholics Anonymous (AA).  Appellant relies on Minn. Stat. § 626.5572, subd. 21(2) (2004), which excludes from the definition of a "vulnerable adult" one who receives "outpatient services for treatment of chemical dependency."  But the definition of a "vulnerable adult" found in Minn. Stat § 626.5572, subd. 21 (2004), is for the purposes of reporting maltreatment of vulnerable adults under Minn. Stat. § 626.557 (2004).  There is no indication that that definition is to be used for any other purpose than under Minn. Stat. § 626.557.  Additionally, the district court ruled that the women's vulnerabilities did not need to be defined by statute.  The determination that the women were "vulnerable" is supported by the evidence.  First, AA advises members not to engage in sexual relationships with other members for at least one year after meeting.  Second, appellant did not disclose his criminal sexual past to the women, as he was required to do under his treatment contract.  Finally, appellant was not terminated from treatment solely because he had sexual relations with "vulnerable" women.  Appellant was terminated because he violated his treatment contract that provided that appellant would refrain from "engaging in any sexual acting out."  It is not unreasonable to characterize a level II sex offender engaging in a "threesome" as acting out sexually. 

Appellant was also terminated from treatment because he was not making progress and did not appear amenable to treatment.  The violation report detailed appellant's lack of progress in sex-offender treatment.  Specifically, it was reported that appellant "had his own agenda" and that "he was more interested in establishing a social life than he was about getting his priorities in order." Additionally, appellant frequently expressed frustration with treatment and believed that it was "a waste of time."  Appellant stated that his frustration would "lead to his cycle of reoffending . . . [and] another rape."  Further, it was reported that appellant's attitude had not improved and that he had reverted to his "old ways."  Failing to challenge the determination that the women were "vulnerable" was not an error that deprived appellant of a fair trial.  This is especially true because appellant was terminated from sex-offender treatment not just because he violated his treatment contract by sexually acting out through a sexual "threesome" with "vulnerable" women, but also because appellant was not making progress in the treatment program. 

Appellant next argues that the district court erred by denying his petition without an evidentiary hearing to determine whether the women were "vulnerable."  An evidentiary hearing is required only if there is a factual dispute.  See Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988).  Appellant suggests that there is a factual dispute because he obtained a letter from a licensed psychologist indicating that based on the definition of a "vulnerable adult" under Minn. Stat. § 626.5572, the women were, in her opinion, not vulnerable.  But this psychologist never treated appellant and only reviewed unidentified records.  Further, we have already determined that the "vulnerable adult" definition under Minn. Stat. § 626.5572, subd. 21, does not apply in this case.  There were no material facts in dispute, and the district court did not err in denying appellant's petition without an evidentiary hearing.

The commissioner of corrections has broad statutory authority to control the release and reincarceration of offenders.  State v. Schwartz, 628 N.W.2d 134, 138 (Minn. 2001).  Here, appellant was released with a special condition that he successfully complete sex-offender treatment.  Because there is sufficient evidence to support the findings that appellant violated his conditions of release by failing to successfully complete sex-offender treatment and because this violation is sufficient to justify revocation, appellant's supervised release was lawfully revoked.

            Affirmed.