Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
N.D. Supreme CourtInterest of Hoff, 2013 ND 68 This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect] Dissent filed.
Opinion of the Court by Kapsner, Justice.
[¶1] Robert R. Hoff appeals from an order denying his petition for discharge from civil commitment as a sexually dangerous individual. We hold the district court abused its discretion by not independently making an individualized determination on the record whether it was necessary to restrain Hoff during the hearing, and its failure to do so was not harmless error. We reverse and remand.
[¶2] Hoff, who is currently 38 years old, has been in trouble with the law for much of his life. In 1990, when he was 16 years old, Hoff was charged with gross sexual imposition resulting from an incident involving a 10-year-old girl, and he was sent to Home on the Range. The record contains evidence of other sex crimes where the victims declined to press charges. Hoff has also been convicted of four counts of delivering alcohol to minors and criminal trespass stemming from incidents involving an ex-girlfriend. In 2004, Hoff was convicted of gross sexual imposition, and he was given a suspended sentence and placed on probation. Hoff's probation was later revoked after he violated several conditions of probation, including that he not have unsupervised contact with minors. Hoff has been committed to the North Dakota State Hospital in Jamestown as a sexually dangerous individual since 2006.
[¶3] In September 2011, Hoff petitioned for discharge from civil commitment, and a hearing on the petition was held in Bismarck in March 2012. Hoff arrived in the courtroom wearing restraints consisting of handcuffs tethered to his waist and an ankle chain. At the beginning of the hearing, Hoff's attorney made a request to the district court:
MR. RUNGE: I have one request of the Court, that is that my client have the shackles, the handcuffs, removed so he can participate in his defense.
THE COURT: Well, is there a reason?
MR. RUNGE: Yeah. He can't write.
THE COURT: What do you mean he can't write?
THE COURT: I see what he's got, but the problem is the sheriff makes the determination whether or not they can be secured while they're here. I don't have a deputy.
MR. RUNGE: This is denial of his due process if he cannot communicate with his attorney. And oral communication does not suffice when I have to listen to--
THE COURT: Let's get one thing straight. I'm not going to have him asking questions.
MR. RUNGE: He's not going to.
THE COURT: I understand, but it won't be--not the first time just because somebody writes a question he gets asked.
MR. RUNGE: No, he's going to be writing comments on paper for me to possibly look at.
THE COURT: Well, I understand. Sue, I don't know if you--
DETENTION OFFICER: Not my call, Your Honor. The sheriff said no. They have to stay on.
THE COURT: Okay. Then until--what I'm going to say is no, Mr. Runge.
MR. RUNGE: I'm going to object.
THE COURT: Beforehand--you can object, that's fine.
MR. RUNGE: I would like to have a reason for the denial.
THE COURT: Well, number one, he's in custody. He's been transported 90 miles to here. I rely on them to determine to tell me whether or not he may be a danger. Sheriff's indicated he needs to remain in cuffs.
MR. RUNGE: But there is no indication that he's a danger. Nobody said he's a danger.
THE COURT: Nobody said he's a danger. Well, he has been convicted of two felonies, minimum. That's what ...