In re Care & Treatment of McCoy , 360 S.C. 425, 427, 602 S.E.2d 58, 59 (2004) ; In re Care & Treatment of McCracken , 346 S.C. 87, 96, 551 S.E.2d 235, 240 (2001). However, given the significant due process implications inherent in civil commitments, we find section 44-48-90's right to counsel is not merely a statutory right, but also a constitutional one arising under the Fourteenth Amendment and the South Carolina Constitution.Cf. Vitek , 445 U.S. at 496–97, 100 S.Ct. 1254 ; In re Care & Treatment of Ontiberos , 295 Kan. 10, 287 P.3d 855, 864–65 (2012) (examining the three due process factors espoused in Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and concluding there is a constitutional right to counsel arising under the Fourteenth Amendment and the state constitution with regards to SVP commitment proceedings); Jenkins v. Dir. of the Va. Ctr. for Behavioral Rehab. , 271 Va. 4, 624 S.E.2d 453, 460 (2006) (holding that because of the "substantial liberty interest at stake in an involuntary civil commitment based on Virginia's [SVP] Act," persons subject to SVP proceedings have a constitutional right to counsel arising under the Fourteenth Amendment and the state constitution). Lest the right ring hollow, we further hold this right to counsel is necessarily a right to effective counsel.
The Kansas Supreme Court has held that inherent in this statutory right to counsel is also another right: the right to competent, effective assistance of counsel. In re Care & Treatment of Ontiberos, 295 Kan. 10, Syl. ¶¶ 1–2, 25, 287 P.3d 855 (2012). An individual the State seeks to classify as a sexually violent predator is therefore guaranteed the same level of representation that a criminal defendant is owed under the Sixth Amendment to the United States Constitution, and the same test of a counsel's effectiveness is used in both situations.
The Kansas Supreme Court has held that inherent in this statutory right to counsel is also another right: the right to competent, effective assistance of counsel. In re Care & Treatment of Ontiberos, 295 Kan. 10, Syl. ¶¶ 1 –2, 25, 287 P.3d 855 (2012).An individual the State seeks to classify as a sexually violent predator is therefore guaranteed the same level of representation that a criminal defendant is owed under the Sixth Amendment to the United States Constitution, and the same test of a counsel's effectiveness is used in both situations.
See, e.g., In re Ontiberos, 295 Kan. 10, 287 P.3d 855, 867 (2012) (holding the due process right to counsel in SVP proceedings "carries with it a correlative right to competent, effective counsel"); Jenkins v. Dir. of Va. Ctr. for Behavioral Rehab., 271 Va. 4, 624 S.E.2d 453, 460 (2006) (holding that based on the "substantial liberty interest at stake" the movant "has a constitutional right to effective assistance of counsel during the proceeding in which he was adjudicated a sexually violent predator, and on appeal from that adjudication"); Matter of Chapman, 419 S.C. 172, 796 S.E.2d 843, 846 (2017) ("given the significant due process implications inherent in civil commitments, we find section 44-48-90’s right to counsel is not merely a statutory right, but also a constitutional one arising under the Fourteenth Amendment and the South Carolina Constitution"); see also cases discussed infra, section II.C, II.D. This Court holds likewise. Indeed, an SVP’s due process right to counsel in SVP proceedings would be hollow were there no accompanying requi
Similarly, in Kargus v. State, 284 Kan. 908, 928, 169 P.3d 307 (2007), the Kansas Supreme Court found relief may be appropriate under Flores–Ortega rather than under Ortiz or Strickland when appointed counsel fails to file a petition for review following a direct appeal in a criminal case. After Albright, the Kansas Supreme Court decided In re Care & Treatment of Ontiberos, 295 Kan. 10, 25, 287 P.3d 855 (2012), holding that persons subject to SVPA proceedings have a due process right to the appointment of counsel at trial. That right carries with it a correlative right to competent, effective counsel.
In its concluding remarks, and by way of dicta, the appellate court stated it was “troubled” by the State's failure to complete the impeachment of the defendant's wife with extrinsic evidence contradicting her denial that the defendant had abused or threatened her. 31 Kan.App.2d at 292. This concern expressed in Ward was cited in In re Care & Treatment of Ontiberos, 295 Kan. 10, 38–39, 287 P.3d 855 (2012), a sexually violent predator case. There, the State asked Ontiberos on cross-examination about various instances of claimed misconduct, to which Ontiberos responded that he did not remember or that he disagreed with the premise of the question.
We agree that by not offering this evidence or more thoroughly cross-examining Goodpasture, Wilson's attorney must have either failed to familiarize himself with the evidence in the case or used an objectively unreasonable trial strategy. See In re Care & Treatment of Ontiberos, 295 Kan. 10, 33, 287 P.3d 855 (2012). We also agree with the district court that this worked to Wilson's substantial detriment, i.e., there is a reasonable probability that the trial's outcome would have been different had Wilson's attorney provided minimally effective representation.
We agree that by not offering this evidence or more thoroughly cross-examining Goodpasture, Wilson's attorney must have either failed to familiarize himself with the evidence in the case or used an objectively unreasonable trial strategy. See In re Care & Treatment of Ontiberos, 295 Kan. 10, 33, 287 P.3d 855 (2012). We also agree with the district court that this worked to Wilson's substantial detriment, i.e., there is a reasonable probability that the trial's outcome would have been different had Wilson's attorney provided minimally effective representation.
The Mathews Court established a three-factor test to determine what due process protections are required in a particular proceeding and Kansas courts follow the same test. See In re Care & Treatment of Ontiberos, 295 Kan. 10, 22, 287 P.3d 855 (2012). Accordingly, this court must examine:
The Kansas Supreme Court has also discussed ineffective assistance of counsel issues during a confinement hearing and concluded that K.S.A. 60–1501 is the proper vehicle to address those issues as well. In In re Care & Treatment of Ontiberos, 295 Kan. 10, 287 P.3d 855 (2012), Ontiberos was civilly committed to Larned by a jury as a sexually violent predator. He timely appealed the ruling to the Court of Appeals and when new counsel was appointed, counsel filed a motion alleging ineffective assistance of trial counsel at the commitment hearing.