In the Interest of L.H., Alleged to be seriously mentally impaired

IN THE COURT OF APPEALS OF IOWA

No. 22-0940
Filed April 12, 2023

IN THE INTEREST OF L.H.,
ALLEGED TO BE SERIOUSLY MENTALLY IMPAIRED,

L.H.,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Lee (North) County, Ty Rogers,

District Associate Judge.

A respondent appeals his civil commitment. AFFIRMED.

William (Bill) Monroe, Burlington, for appellant.

Brenna Bird, Attorney General, and Chandlor Glenn Collins, Assistant

Attorney General, for appellee State.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
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PER CURIAM.

L.H. appeals a district court order continuing his civil commitment. He

contends counsel was ineffective for failing to move to recuse the judge, failing to

object to a periodic report, and failing to adequately challenge his commitment. 1

He also challenges the sufficiency of the evidence. We find counsel was not

ineffective. Sufficient evidence supports L.H.’s continued commitment. We affirm.

I. Background Facts & Proceedings

L.H. is serving a life sentence for murder. His conviction was affirmed on

direct appeal in 2005. He has been civilly committed since 2013. See In re L.H.,

No. 19-1888, 2020 WL 2988236, at *1 (Iowa Ct. App. June 3, 2020) (per curiam).

He is diagnosed with schizophrenia and a delusional disorder with an erotomanic

subtype. His mental illness causes him to engage in hypergraphia—excessive

writing—which includes writing sexually explicit content to staff and other members

of the public. He also has exposed himself and masturbated in front of prison staff.

He most recently received a “major report” in January 2022 for sexual misconduct

and sexual violence after he was discovered masturbating in front of a prison

guard.

1 Our supreme court has not held that a respondent subject to an involuntary
commitment proceeding has a right to effective assistance of counsel. See In re
Det. of Crane, 704 N.W.2d 437, 438-39 n.3 (Iowa 2005) (explaining that while the
Sixth Amendment right to counsel “is not directly implicated” by civil commitments,
because committees have a statutory right to counsel, “due process demands the
appointed counsel provide effective assistance”). Our court has previously
addressed this claim, determining that the right to effective assistance of counsel
“appears to be consistent with precedent.” In re D.M.T., No. 11-0654, 2012 WL
1440230, at *2 (Iowa Ct. App. Apr. 25, 2012) (citation omitted). We elect to reach
the merits of L.H.’s claims.
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L.H. sent multiple pro se letters to the district court in the spring of 2022. In

the letters, he claimed prison staff engaged in harassment directed toward him

since 2007. He also alleged staff submitted false reports about him, resulting in

his ongoing commitment. He asked to be transferred to a prison in Minnesota. He

asserted that he did not need “this unlawful medication to function correctly in my

everyday life.” In a May 5, 2022, order, the court noted L.H.’s pro se letters were

“nonsensical,” but scheduled a hearing soon thereafter “to review the necessity of

the current committal proceedings”.

A review hearing was held on May 18, 2022. The State relied on the

periodic report submitted on May 17, 2022, by the staff psychiatrist nurse

practitioner under Iowa Code section 229.15 (2022). That report alleged L.H. was

seriously mentally impaired, his condition had remained unchanged from the last

review hearing, and identified the January 2022 report as a recent episode of

dangerous behavior. L.H., through counsel, presented no evidence. The district

court ordered L.H. to remain civilly committed. L.H. now appeals.

II. Standard of Review

We review claims of ineffective assistance of counsel de novo. Crane, 704

N.W.2d at 438. “To succeed on an ineffective-assistance-of-counsel claim, a

defendant must prove (1) trial counsel failed to perform an essential duty and (2)

prejudice resulted.” Id. at 439.

To the extent L.H. raises a free-standing claim challenging the sufficiency

of the evidence, we review such claim for the correction of errors at law. In re

B.T.G., 784 N.W.2d 792, 796 (Iowa Ct. App. 2010). “The district court’s findings

of fact are binding upon this court if supported by substantial evidence. Evidence
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is substantial if a reasonable trier of fact could conclude the findings were

established by clear and convincing evidence.” Id. (internal citation omitted).

III. Judicial Bias

L.H. contends his counsel was ineffective for failing to move to recuse the

judge. In its May 5, 2022 order, the court characterized L.H.’s pro se letters as

“nonsensical in nature.” Because those letters allege correctional staff fabricated

reports about him that serve as the basis for his continued commitment, he alleges

the court pre-decided the issue of his continued civil commitment.

We reject L.H.’s claim for two reasons. First, even though the May 5 order

found L.H.’s letters nonsensical in nature, the court immediately thereafter issued

an order scheduling a hearing “to review the necessity of the current committal

proceedings.” This suggests that the court did not dismiss L.H.’s complaints

summarily. Instead, it suggests that the court, while not understanding L.H.’s

filings because the court found them nonsensical, scheduled a hearing to give L.H.

the opportunity to voice any concerns he had about continued commitment. As

the court had not prejudged the issue, the court had no obligation to be recused

and counsel was not ineffective for not requesting recusal.

Second, the supreme court recently summarized a judge’s obligation to

recuse themselves from a proceeding:

“A judge shall disqualify himself or herself in any proceeding
in which the judge’s impartiality might reasonably be
questioned . . . .” Iowa Code of Judicial Conduct R. 51:2.11(A); see
also Iowa Code § 602.1606(1)(a) (2020) (“A judicial officer is
disqualified from acting in a proceeding . . . if . . . [t]he judicial officer
has a personal bias or prejudice concerning a party.”). The Iowa
Code of Judicial Conduct, Terminology, defines impartiality as
“absence of bias or prejudice in favor of, or against, particular parties
or classes of parties, as well as maintenance of an open mind in
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considering issues that may come before a judge.” Actual prejudice
must be shown before recusal is necessary, and speculation is not
sufficient. State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002). The
test is “whether reasonable persons with knowledge of all facts would
conclude that the judge’s impartiality might reasonably be
questioned.” State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). The
party seeking disqualification must show that the judge’s “alleged
bias and prejudice must stem from an extrajudicial source and result
in an opinion on the merits on some basis other than what the judge
learned from participation in the case.” State v. Bear, 452 N.W.2d
430, 435 (Iowa 1990).

Carter v. Carter, 957 N.W.2d 623, 643-44 (Iowa 2021) (alterations in original).

L.H. has failed to establish the district court’s purported bias was based on

extrajudicial sources that resulted in a decision premised on information not

obtained through the court’s participation in the case. Indeed, the alleged bias

stemmed from L.H.’s own pro se filings, which he does not suggest the court

should have ignored. The court considered his allegations, found them to lack

credibility, and made a decision solely on the information the judge learned from

the judge’s participation in the case. See id. at 644. Because L.H. has not shown

the court was improperly biased, his claim fails—counsel has no obligation to file

a meritless motion. L.H. was not prejudiced by counsel’s inaction.

IV. Periodic Report

L.H. contends his counsel should have objected to the May 17, 2022

periodic report. He claims the report contains false information—specifically the

allegation that he masturbated in front of staff on January 26, resulting in a major

report of sexual misconduct and sexual violence. Consistent with prior pro se

filings, L.H. asserts correctional staff filed false reports of his behavior.

L.H.’s counsel was not ineffective for failing to object to the report. L.H.

identifies no grounds for challenging the report’s admissibility. Periodic reports are
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required by statute. See Iowa Code § 229.15. L.H.’s allegation that the report

contains false information goes to its weight, not its admissibility. See State v.

Booth-Harris, 942 N.W.2d 562, 576 (Iowa 2020) (“Most evidence can be called into

question in some way; however, that does not give the . . . court the ability to

preclude admission. We have cross-examination for a reason; evidence often is

tested in that way.”) (alteration in original) (quoting State v. Roberson, 935 N.W.2d

813, 828 (Wis. 2019)). L.H.’s counsel had no obligation to object because there

was no basis for doing so.

V. Sufficiency of Evidence

L.H. contests the sufficiency of the evidence supporting his commitment. A

person may be involuntarily committed if they have a serious mental impairment,

as defined in Iowa Code section 229.1(21). See Iowa Code § 229.6.

The definition of serious mental impairment has three
elements. The respondent must be found to have (1) a mental
illness, consequently (2) to lack “sufficient judgment to make
responsible decisions with respect to the person’s hospitalization or
treatment” and (3) to be likely, if allowed to remain at liberty, to inflict
physical injury on “the person’s self or others,” to inflict serious
emotional injury on a designated class of persons, or be unable to
satisfy the person’s physical needs.

In re J.P., 574 N.W.2d 340, 343 (Iowa 1998). The final element may now be proven

by a fourth category, “a history of lack of compliance with treatment.” Iowa Code

§ 229.1(21)(d). The State bears the burden of proving each element. See In re

L.H., 890 N.W.2d 333, 340 (Iowa Ct. App. 2016). “[T]o prolong a person’s

commitment, all three elements—mental illness, lack of judgment, and

dangerousness, must continue to exist.” Id.
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L.H. does not appear to seriously contest the first two elements. He is

diagnosed with “schizophrenia as well as a delusional disorder with an erotomanic

subtype.” The second element—lack of judgment—requires that the respondent

“lacks sufficient judgment to make responsible decisions with respect to the

person’s hospitalization or treatment.” Iowa Code § 229.1(21). The nurse

practitioner who submitted the most recent periodic report detailed how L.H. lacks

insight on the inappropriate and harmful nature of his behavior, instead seeing it

as a way to connect with others. In a pro se letter L.H. sent the court on

January 25, 2022, he derided the “unlawful medication,” asserting he did not need

it to function. That sentiment is similar to his long-standing belief that he does not

need medication, contradicted by medical staff who worked with him. In particular,

the staff psychiatrist testified in a 2019 review proceeding that L.H.’s behavior

worsens when he receives too low a dose of medication, and relayed L.H.’s

statements suggesting he would stop taking medication if he were not committed.

L.H. challenges the last element. “We have said the endangerment element

requires a predictive judgment, based on prior manifestations but nevertheless

ultimately grounded on future rather than past danger. The danger the person

poses to herself or others must be evidenced by a recent overt act, attempt or

threat.” J.P., 574 N.W.2d at 344 (citations and quotation marks omitted). The

district court found L.H. was likely to inflict serious emotional injury2 on others if

2 Iowa Code § 229.1(20) provides:
“Serious emotional injury” is an injury which does not necessarily
exhibit any physical characteristics, but which can be recognized and
diagnosed by a licensed physician or other mental health
professional and which can be causally connected with the act or
omission of a person who is, or is alleged to be, mentally ill.
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treatment ceased—in particular, the court identified staff members at the prison

who could not avoid contact with L.H.

We find substantial evidence supports that assessment. L.H. received

discipline in January 2022 for exposing himself and masturbating in front of a staff

member. That conduct resulted in a major report for sexual misconduct and sexual

violence. When he is not medicated or is under-medicated, his behavior worsens,

resulting in L.H. sending highly explicit letters to staff members and other members

of the public. Someone receiving those letters or witnessing L.H. masturbating is

likely to endure a serious emotional injury. And L.H. will not comply with

medication if not ordered to do so.

L.H. highlights that the only evidence demonstrating a recent overt act was

the report from January 2022, which he claims was a false report. But the only

evidence supporting his claim is his own pro se letters making conclusory

allegations. And we, like the district court, find those allegations lack credibility.

Evidence was sufficient to establish L.H. is seriously mentally impaired pursuant

to chapter 229.

VI. Structural Error

L.H. claims his counsel committed structural error by failing to subject the

State to adversarial testing. See Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011).

He highlights that the only evidence indicating a recent overt act causing serious

emotional injury came from the January 2022 periodic report. And L.H. claims this

periodic report relied on false reports from prison staff. He argues his counsel

failed to adequately represent his position that the discipline report was premised
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on false information. He also generally asserts counsel failed to challenge the

sufficiency of the evidence.3

“We have recognized structural error occurs when . . . counsel does not

place the prosecution’s case against meaningful adversarial testing . . . .” Id.

“Under these circumstances, ‘[n]o specific showing of prejudice [is] required’ as

the . . . process itself is ‘presumptively unreliable.’” Id. (first and second alterations

in original) (quoting U.S. v. Cronic, 466 U.S. 648, 659 (1984)).

Here, the hearing was short. The State relied on the information provided

in the May 18, 2022 periodic report. Counsel for L.H. did not present any evidence.

But L.H. was allowed to speak to the court. L.H. bears the burden of establishing

counsel failed to subject the State to adversarial testing. See id. On the record

before us, we do not find structural error.

VII. Cumulative Error

L.H. also asserts the culmination of all errors he identified warrants reversal.

It is well-settled law that “we analyze all claims ‘individually and cumulatively’”

when considering whether counsel was ineffective. State v. Clay, 824 N.W.2d 488,

500 (Iowa 2012) (citation omitted). Because we conclude L.H. failed to establish

counsel breached any essential duties, we do not address L.H.’s cumulative error

claim.

AFFIRMED.

3 L.H. further claims counsel committed structural error by failing to object to the
admissibility of the report and to move to recuse the judge. Because we have
already found counsel was not ineffective in those regards, his claims fail here as
well.