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SVP – Petition for Discharge – Request for Independent Examiner, Hearing: Alleged Change of Diagnosis

State v. Kenneth R. Parrish, 2010AP809, District 1, 2/15/11

court of appeals decision (3-judge, not recommended for publication); for Parrish: Ellen Henak, SPD, Milwaukee Appellate; case activity; Parrish BiC; State Resp.; Reply

SVP – Petition for Discharge – Request for Independent Examiner

Parrish’s failure to unequivocally request appointment of an independent examiner dooms his argument on appeal that the trial court “prematurely dismissed his petition for discharge (§ 980.09) without first appointing an examiner, ¶¶14-16. Moreover, such a request must be made at the time of his reexamination (§ 980.07(1)), else it comes too late.

¶17      Even if we consider Parrish’s statements at the hearing as a request for an independent examination, his request was woefully late.  While Wis. Stat. § 980.07 does allow petitioners the right to request independent examinations by court-appointed examiners, such a request should be made “[a]t the time of a reexamination.”  Id.  Parrish’s annual reexamination report was filed by Dr. Barahal on April 30, 2009.  In February 2009, Parrish received a form prepared by the DHS on which he could request the appointment of counsel and/or an examiner.  Parrish, who had been committed since 2000 and who had previously requested an independent examiner on the form, did not sign the February 2009 form.  Parrish had also filed a written request for an independent examiner with the court in 2007.  The record demonstrates that Parrish knew the process for making examination requests.  However, Parrish made no request for an independent examination until the hearing on September 17, 2009.  There is no evidence in the record that Parrish requested an independent examiner at or about the time of the reexamination, as required by § 980.07.  See State v. Thayer, 2001 WI App 51, ¶15, 241 Wis. 2d 417, 626 N.W.2d 811.

SVP – Petition for Discharge – Hearing: Alleged Change of Diagnosis

Postcommitment change of diagnosis from two qualifying mental disorders (borderline personality and antisocial personality) to one (the latter) didn’t support hearing on his discharge petition, given that Parrish remained predisposed to sexual violence – therefore, the expert’s “report does not provide facts which support the conclusion that Parrish no longer meets the criteria for commitment as a sexually violent person,” ¶¶18-22.

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