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In re Detention of Ogden

Court of Appeals of Iowa

July 6, 2017

IN RE THE DETENTION OF MICHAEL OGDEN MICHAEL OGDEN, Respondent-Appellant.

         Appeal from the Iowa District Court for Plymouth County, Patrick H. Tott, Judge.

         Michael Ogden appeals his civil commitment as a sexually violent predator. REVERSED AND REMANDED.

          Jason A. Dunn, Assistant Public Defender, for appellant.

          Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant Attorney General, for appellee State.

          Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          TABOR, Judge.

         Today we examine the intersection between the sexually violent predator commitment procedures in Iowa Code chapter 229A and the more recently enacted "special sentencing" for sexual offenders under chapter 903B. Michael Ogden appeals the district court's order committing him as a sexually violent predator. He contends the district court should have granted his motion to dismiss because he was not "presently confined" within the meaning of Iowa Code section 229A.4(1) (2014) when the State filed its civil commitment petition. We agree, and because the State neither amended its petition to allege Ogden committed a recent overt act under section 229A.4(2) nor sought a factual determination under that alternative predicate, we reverse the district court's commitment order and remand for dismissal.[1]

         I. Background Facts and Prior Proceedings

         While living in a residential treatment facility, then nineteen-year-old Ogden digitally penetrated a female resident against her will and was charged with assault with intent to commit sex abuse-a sexually violent offense as defined in Iowa Code section 229A.2(10) (2009). Ogden pleaded guilty in December 2010. The district court sentenced him to 365 days in jail with all but thirty days suspended, placed him on probation, and imposed a ten-year special sentence under Iowa Code section 903B.2. Ogden's probation was later revoked, and the court imposed the suspended jail sentence.[2]

         In January 2012, Ogden was released from jail and placed at a residential facility to begin serving his special sentence under section 903B.2. Less than one year later, Ogden reported to his parole officer that he had "nibbled on" a female coworker's ear and "grabbed her butt" while they were gathered with a group of other people in a break area at his place of employment. Starting in January 2013, Ogden was incarcerated for two years for violating the terms of his special sentence.[3]

         On November 24, 2014, shortly before Ogden's discharge of the two-year term, the State filed a petition seeking to commit Ogden as a sexually violent predator. Ogden filed a motion to dismiss, asserting he was not "presently confined" within the meaning of section 229A.4 (2014), because at the time he violated his special sentence, "[h]e had completed his sentence for the sexually violent offenses and was only revoked for acts that are not sexually violent offenses." The district court denied Ogden's motion to dismiss, reasoning the special sentence was part of Ogden's conviction for a sexually violent offense and, because Ogden was still serving the special sentence when the petition was filed, he was "presently confined" within the meaning of the statute.

         The case proceeded to trial on April 12-14, 2016, and the jury returned a verdict finding Ogden to be a sexually violent predator. Ogden now appeals.

         II. Scope and Standard of Review

         We review the district court's ruling on Ogden's motion to dismiss for correction of legal error. See In re Det. of Stenzel, 827 N.W.2d 690, 697 (Iowa 2013); In re Det. of Shaffer, 769 N.W.2d 169, 172 (Iowa 2009).

         III. ...


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