IN THE MATTER OF: THE DPHHS PETITION CONCERNING KEVIN J. CAPSER
Submitted on Briefs: May 8, 2019
FROM: District Court of the Fourteenth Judicial District, In
and For the County of Wheatland, Cause No. DC-00-11 Honorable
Brenda R. Gilbert, Presiding Judge
Appellant Chad Wright, Appellate Defender, James Reavis,
Assistant Appellate Defender, Helena, Montana
Appellee Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
Hickman, Wheatland County Attorney, Brant S. Light, Special
Deputy County Attorney, Harlowton, Montana For
Curiae: Jorge Quintana, Special Assistant Attorney General,
Department of Public Health and Human Services, Helena,
McGrath Chief Justice
Kevin J. Capser appeals from a July 13, 2017 Fourteenth
Judicial District Court order denying the Department of
Public Health and Human Services' (the Department)
petition to modify Capser's sentence. We reverse.
We address the following issue on appeal:
the District Court abused its discretion when it denied the
AND FACTUAL BACKGROUND
In 1998, when Capser was a teenager, he began exhibiting
symptoms of schizophrenia, a disorder with which his
great-grandfather, uncle, and great-aunt had all been
previously diagnosed. Capser started laughing at
inappropriate times, became guarded and quiet, and made
threats of violence at school. Due to his unusual behavior,
Capser, then eighteen years old, was placed on a community
commitment and prescribed an antipsychotic medication.
Capser's symptoms did not subside, and in 1999, following
an altercation with his father, he was involuntarily
committed to the Montana State Hospital (MSH) where he
remained for eighty-six days. During his stay at MSH, Capser
agreed to increase his dosage but resisted taking his
medication and was too cognitively impaired to participate in
treatment or hospital activities. The State extended
Capser's commitment for an additional six months. In
January 2000, Capser was discharged from MSH on a conditional
release. While Capser's condition initially improved,
several months after his release his performance in school
declined rapidly and he began resisting his medication again.
Capser's caregivers determined that his mental illness
was compounded by his dependence on alcohol and marijuana.
The conditional release expired on June 23, 2000, and shortly
thereafter Capser left school to work on the family ranch.
Around this time, Capser began experiencing significant side
effects from his medication, including dulled responses and
severe memory loss-so severe that he was unable to recall
what he watched on television the night before. Capser's
doctor suggested a change in medication but when Capser
refused, his original regimen continued.
On December 8, 2000, Capser shot and killed his father, John
Capser, while John was watching television. An autopsy
concluded that John Capser was shot twice-once in the head
and again in the chest. Witnesses later testified that Capser
was not taking his medication at the time of the murder. The
State charged Capser with deliberate homicide and on February
26, 2002, following competency proceedings, he entered a plea
of nolo contendere. On June 5, 2002, Capser was found guilty
of deliberate homicide, a felony. The court found that at the
time of the offense Capser suffered from a mental disease or
disorder that rendered him unable to appreciate the
criminality of his behavior or to conform his behavior to the
requirements of the law. Capser was committed to the custody
of the Department pursuant to § 46-14-312(2), MCA, for
one hundred years, with thirty years suspended, and an
additional ten years imposed for the use of a weapon.
Since his conviction, Capser has resided at MSH without
incident. In June 2016, the Forensic Review Board at MSH
concluded that although Capser continued to suffer from
schizophrenia, undifferentiated, he no longer represented a
substantial risk of harm to himself or others. On February
16, 2017, the Director of the Department filed a Petition for
Review of Sentence with the District Court, pursuant to
§ 46-14-312(3), MCA, and submitted a supporting report
from the MSH Forensic Review Board. At a May 23, 2017
hearing, the District Court heard testimony and received
letters from numerous individuals, including Capser's
medical providers and family members, advocating for his
release to a group home in Missoula, Montana. On July 13,
2017, the court denied the petition after finding that the
Department's suggested transition lacked adequate
safeguards to ensure the safety of both Capser and the
community, and Capser remained a danger to himself and
others. Capser now appeals.
This Court reviews a district court's denial of a
petition for sentence modification pursuant to §
46-14-312(3), MCA, for an abuse of discretion. State v.
Korell, 222 Mont. 112, 116-17, 720 P.2d 688, 691 (1986).
Abuse of discretion occurs only when the court acts
arbitrarily, without the employment of conscientious
judgment, or exceeds the bounds of reason resulting in
substantial injustice. State v. Wilson, 2007 MT 327,
¶ 18, 340 Mont. 191, 172 P.3d 1264.
Whether the District Court abused its discretion when it