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SVP Discharge Hearing – Showing Required, § 980.09(2)

State v. Shawn David Schulpius, 2012 WI App 134; court of appeals decision (recommended for publication); case activity

SVP Discharge Hearing – Showing Required, § 980.09(2) 

Before granting discharge hearing on a ch. 980 petition, the circuit court must satisfy itself that the petition answers two concerns: First, under § 980.09(1) “paper-review” determination, the petition alleges sufficient facts to show that the petitioner no longer satisfies commitment criteria. Next, § 980.09(2) requires a more expansive review of the record to determine whether various “items contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person,” ¶¶23-24, citing State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513. The parties here agree that Schulpius met the initial test under subs. (1), with the application of subs. (2) in controversy. The court holds that this step requires that, before a discharge hearing may be held, the petitioner show the existence of new, previously unconsidered evidence:

¶4        Based on our independent review of Wis. Stat. § 980.09(2), we agree with the State that, while the circuit court must consider all of the evidence in the record when determining whether a discharge hearing is warranted, the petitioner must also produce some new evidence, not previously considered by a trier a fact, which demonstrates that he does not meet the criteria for commitment under Wis. Stat. ch. 980.  Because Schulpius has not set forth the requisite new evidence—to wit, an expert opinion, based on new facts, new professional knowledge, or new research—demonstrating that he does not meet the criteria for commitment as a sexually violent person, we affirm the denial of his request for a discharge hearing.

Put otherwise, the petitioner must adduce facts which have not been “already considered and rejected by a previous truer of fact,” ¶27:

¶35      Given the plain language of Wis. Stat. § 980.09(2) and the relevant case law, we hold that, when determining whether to hold a hearing on a petition for discharge, the circuit court must determine whether the petitioner has set forth new evidence, not considered by a prior trier of fact, from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person.  An expert’s opinion that is not based on some new fact, new professional knowledge, or new research is not sufficient for a new discharge hearing under § 980.09(2).  See Combs, 295 Wis. 2d 457, ¶32.  This result is the only reasonable one.  Permitting a new discharge hearing on evidence already determined insufficient by a prior trier of fact violates essential principles of judicial administration and efficiency.  We are to avoid absurd or unreasonable results in statutory construction.  See State v. Delaney, 2003 WI 9, ¶15, 259 Wis. 2d 77, 658 N.W.2d 416.

Applying this test, the court concludes that Schulpius is not, on the facts, entitled to a discharge hearing, despite the existence of a changed expert opinion based on a “recalculation” of a reoffense actuarial, ¶41 (“further reflection on his past scoring is not sufficient for a new discharge hearing because it is not new professional knowledge or research about how to predict dangerousness”).

¶43      Thus, we conclude that Dr. Barahal’s July 2010 opinion—that Schulpius no longer meets the criteria of a sexually violent person—is not based on new fact, new professional knowledge, or new research, but rather a recalculation of the Static-99.  Accordingly, the report sets forth an insufficient basis for a new discharge hearing.  See Combs, 295 Wis. 2d 457, ¶32.  We affirm.

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