On Point

State v. Jose A. Trujillo, 2005 WI 45, affirming summary order of court of appeals
For Trujillo: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶13 We define a new factor as “an event or development which frustrates the purpose of the original sentence,” Champion, 258 Wis. 2d 781, ¶4, and recognize it to be more than a change in circumstances since the time of sentencing. Crochiere, 273 Wis. 2d 57, ¶14. … As previously noted, to qualify for a sentence modification based on a new factor, the defendant must show: (1) a new factor exists; and (2) the new factor warrants modification of his sentence. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

¶14 Case law governing sentence modification based on a new factor is well settled. Champion, 258 Wis. 2d 781, ¶4. Wisconsin courts have reached the conclusion that many of the circumstances presented were not sufficient to establish a new factor. ^[9] See Crochiere, 273 Wis. 2d 57, ¶15. While there have been some cases where new factors have been identified, ^[10] there have been no cases involving TIS legislation where the reduction in penalties has been considered highly relevant to the imposition of sentence and, thus, a new factor.

The footnotes in this text aren’t reproduced here, just their links; what you’ll see is a dreary recitation of what have not, followed by a perversely illuminating list of what have been found to be a “new factor.” The former utterly dwarf the latter, which grandly total three in number; and of those lonely three examples, one is an instance of an increase in sentence, while the other two can equally be explained as accurate-information cases. That said, you must also throw into the mix State v. John Doe, 2005 WI App 68 (cooperation with law enforcement is a new factor), which, if it doesn’t turn out to be one-off, makes hazardous generalization about new-factor based argument.

State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶8. The issue presented by the parties in the instant case is whether a circuit court’s denial of a chapter 980 petition for supervised release should be classified as a determination of a question of law or as an exercise of circuit court discretion. ……

¶38. We next look to State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999), a chapter 980 case, for the sufficiency of evidence standard of review. …

¶42 … [T]he Curiel standard of independent review of the circuit court’s decision on the basis of the sufficiency of evidence, rather than a review for erroneous exercise of discretion, is appropriate in the instant case.

…

¶44. The sufficiency of evidence standard of independent appellate review gives deference to the circuit court’s strength in determining the credibility of witnesses and in evaluating the evidence and recognizes the evaluative aspects involved in a circuit court’s denial of a petition for supervised release. Circuit courts are better able than appellate courts to determine the credibility of witnesses and evaluate the evidence. In making a determination about the sufficiency of evidence, a reviewing court may draw not only on a circuit court’s observational advantage, but also on the circuit court’s reasoning.

The lesson of this case probably reduces to the following formulation: Context, which is to say statutory text and legislative intent, matters; the statute in this instance places a burden of proof on the State, and whether or not a litigant has met its burden of proof is reviewed paradigmatically as a question of law rather than discretion, ¶29. So it is here. Along the way, the court suggests that when the statute imposes on the circuit court a “subjectively” determined decision (by, for example, requiring that the court be “satisfied” as to some matter), then the decision is “inherently discretionary,” ¶28, which is of course reviewed deferentially. And where in distinction, as in this instance, the statute explicitly lays out a burden of proof, from which the court’s decision automatically flows, then review of whether the evidence has met that burden is something of a mix: non-deferential as to the ultimate conclusion, after giving weight to trial-level credibility determinations, etc. In effect, you take the facts as found by the trial court and then determine whether they satisfy the burden of proof. This methodology, the court says, “fosters consistency and uniformity in circuit court decision making,” ¶45. One wonders if it doesn’t also express a bit of concern that, given essentially unfettered and unreviewable discretion, circuit court decision making in the SVP context would be nothing so much as a rubber stamp.

The lesson of this case probably reduces to the following formulation: Context, which is to say statutory text and legislative intent, matters; the statute in this instance places a burden of proof on the State, and whether or not a litigant has met its burden of proof is reviewed paradigmatically as a question of law rather than discretion, ¶29. So it is here. Along the way, the court suggests that when the statute imposes on the circuit court a “subjectively” determined decision (by, for example, requiring that the court be “satisfied” as to some matter), then the decision is “inherently discretionary,” ¶28, which is of course reviewed deferentially. And where in distinction, as in this instance, the statute explicitly lays out a burden of proof, from which the court’s decision automatically flows, then review of whether the evidence has met that burden is something of a mix: non-deferential as to the ultimate conclusion, after giving weight to trial-level credibility determinations, etc. In effect, you take the facts as found by the trial court and then determine whether they satisfy the burden of proof. This methodology, the court says, “fosters consistency and uniformity in circuit court decision making,” ¶45. One wonders if it doesn’t also express a bit of concern that, given essentially unfettered and unreviewable discretion, circuit court decision making in the SVP context would be nothing so much as a rubber stamp.

State ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella

Issue/Holding:

¶11. Since granting the petition for review in this case, we have determined that the issue presented is moot as to Riesch. “An issue is moot when its resolution will have no practical effect on the underlying controversy.” State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425. Riesch’s issue satisfies this definition because he has been discharged from the conviction underlying his parole revocation, and that revocation did not delay the start of the probationary term he is now serving.¶12. Appellate courts generally decline to consider moot issues but may do so under certain circumstances. State v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674 N.W.2d 349. For example, this court has held that it may decide an otherwise moot issue if it is of great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts. Id. (citing In re John Doe Proceeding, 2003 WI 30, ¶19, 260 Wis. 2d 653, 660 N.W.2d 260). In this case, the issue presented falls within these exceptions, and therefore, we reach its merits.

State v. Michael S., 2005 WI 82, reversing unpublished decision
For Michael S.: Susan Alesia, SPD, Madison Appellate

Issue/Holding:

¶6 Reviewing courts generally decline to decide moot issues but may do so under certain circumstances. ^[3] A court may decide a moot issue when the issue is of great public importance; occurs frequently and a definitive decision is necessary to guide the circuit courts; is likely to arise again and a decision of the court would alleviate uncertainty; or will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties.¶7 The question presented in this case seems to satisfy all these exceptions to the mootness rule. Deciding a circuit court’s retention of authority over a juvenile after the expiration of a dispositional order is a matter of great importance to the sound operation of the judicial system and the rights and interests of juveniles.

¶8 We will therefore address the issue presented in the instant case.

State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Where the only witness at Brown’s supervised release hearing was an expert who supported release, and the evidence indisputably showed favorable response to treatment, the State failed to meet its burden of proof that Brown should not be released, ¶¶62-94.

A highly fact-specific result, of course, which probably hinges on the favorable standard of review; the court of appeals, by contrast, upheld non-release under a fully deferential review-regime. In short, it’s probably unwise to try to generalize; about all you can say is that there were factors both favorable and unfavorable to release, the court reviewed everything and, “Simply put, we conclude as a matter of law that the circuit court’s order denying Brown’s petition for supervised release is not supported by evidence sufficient to meet the clear and convincing evidence standard,” ¶93.One curiosity bears mention. After the opinion was released, it was modified, to add a new footnote 31, at ¶84:

Actuarial Risk Assessment tests (ARAs) estimate “‘risk’ of recidivism . . . based on aggregate or group data.” Eric S. Janus & Robert A. Prentky, Forensic Use of Actuarial Risk Assessment With Sex Offender: Accuracy, Admissibility and Accountability, 40 Am. Crim. L. Rev. 1443, 1476 (2003). In other words, “the actuarial assessment tells us the empirically measured rate of recidivism among a group of sex offenders who share a set of characteristics with the subject of the evaluation.” Id.A user of this tool must understand that the ARAs scales “must be interpreted as reporting risk without consideration of treatment or state-of-the-art supervision.” Id. at 1481.

In his report, Dr. Warner opined that one of the ARAs, the MnSOST-R, indicated that the offenders in the sample group comprising the actuarial assessment who scored above a threshold number re-offended 70% of the time within six years of release from a secure setting. The other two ARAs, also administered upon Brown’s initial commitment, measured lower re-offense rates (21.1% and 40%) for their sample groups.

Dr. Warner’s testimony cannot, however, be summarized to state that Brown has a 70% chance for re-offending (or a 21.1% or a 40% chance). The actuarial does not refer specifically to Brown or any other individual to whom the ARAs might be administered. Id. at 1477. Professor Janus and Dr. Prentky highlighted this very problem in using ARAs in sex offender cases:

We urge courts to control the language used to describe the statistical evidence. Both research and commonsense suggest that the way in which risk is communicated affects the way in which it is understood. Since risk is inherently a group characteristic, risk assessments should be ascribed to the relevant group, not to the individual defendant.. . . .

Courts should exclude testimony that directly ascribes a risk to the defendant.

Id. at 1495-96.

Is this new material non-substantive, as suggested by its sua sponte inclusion after decisional release? The text itself reads as if weightier than that. But to add to the mystery, as ¶84 indicates, Warner himself testified that the actuarials were limited to the initial commitment determination, and “were of no use in evaluating his current risk of reoffense”; similarly, the circuit court appeared to disdain reliance on the actuarials, id. In other words,the footnote is literally unnecessary. Why, that is, bother discussing instruments that weren’t even used in the event? The purpose must be didactic, to sound a note of alarm — but alarm about what, exactly?Taking the footnote at face value, the court’s intent seems perfectly clear: the court does not want actuarial instruments misused so as to reduce to a misleadingly precise percentage a given individual’s chance of re-offending. Actuarials reflect group data, and group data are not in and of themsleves a ground to detain a particular individual. But it is not merely the misuse of group data that appears to trouble the court, it is the very attempt to give a mathematically precise assessment: thus, the court quotes with approval, and therefore adopts, the Janus-Prentky view that “testimony that directly ascribes a risk to the defendant” should be excluded. And if that’s not obvious enough, the court helpfully illustrates: an expert simply can’t say that the respondent has X “chance for re-offending.”

In other words, the ch. 980 practitioner must now be exquisitely sensitive to the limits in using ARAs (actuarial risk assessment instruments). To be sure, this does not portend the end of ARAs. To the contrary. It simply means that limits are imposed on their use. And that, in turn, means at a minimum that the practitioner would be well-advised to obtain and closely review the cited Janus-Prentky article. No attempt will be made to summarize that article here, except to say that it views ARAs as equal if not superior to clinical judgments in making risk-assessment of SVPs; “in the real world of SVP cases,” the article says, “it is incoherent to ignore ARA.” 40 Am. Crim. L.Rev., at 1493. And improvident to ignore the way ARAs are used — or ought to be used, which you will find usefully discussed in the article.

State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶11. According to Wis. Stat. § 980.08(4), the circuit court starts in the position of having to grant a petition for supervised release. The circuit court does not have to grant the petition if the State proves by clear and convincing evidence that the person is still a sexually violent person and that it is substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care. “Substantially probable” means “much more likely than not.”⁵ The statute also sets forth four factors a circuit court may consider, along with other factors, in making its determination.¶12. Thus, if the circuit court decides that the State has failed to meet its burden, the circuit court does not have any option: It “shall” grant Brown’s petition for supervised release. If the circuit court decides, however, that the evidence is sufficient to prove the State’s case by clear and convincing evidence, then the circuit court must deny Brown’s petition.

State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding¹ [general principles]: Assuming that an out of court statement first satisfies a hearsay rule (¶23), it does not implicate the “core” concern of the confrontation clause unless the statement is considered “testimonial” under Crawford v. Washington, 541 U.S. 36, 50-51 (2004), which although declining comprehensive definition, provides three formulations: ex parte in-court testimony; formalized extrajudicial statements; and statements reasonably thought to be available for use later, at a trial. ¶¶37-39.

Issue/Holding² [application to facts]:

¶53      We find these cases persuasive. Applying them, we conclude that Stamps’ statements to were not testimonial. Stamps made the statements to Rhodes, his girlfriend, during what appears to be a spontaneous, private conversation that occurred shortly after the shooting.  See United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004) (statements “made to loved ones or acquaintances . . . are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks.”); Horton, 370 F.3d at 84; Rivera, 844 A.2d at 202; Shepherd, 689 N.W.2d at 729; Woods, 152 S.W.3d at 114. There is no dispute that Rhodes is not a government agent, nor is there any contention that Stamps somehow expected Rhodes to report to the police what he told her. See Cervantes, 12 Cal. Rptr. 3d 774, 783. By all indications, the conversation was confidential and not made with an eye towards litigation. See also State v. Vaught, 682 N.W.2d 284, 291 (Neb. 2004) (concluding that four-year-old victim’s statement to an emergency room physician that her uncle sexually assaulted her was not testimonial as there was no indication of a purpose to develop testimony for trial, nor any indication of government involvement in the initiation or course of the examination). Absent any evidence that Stamps was attempting to use Rhodes to mislead the police on his own behalf, we conclude that Stamps’ statements cannot be considered testimonial under Crawford‘s third formulation.

This result will have to be read keeping in mind since-decided cases such as Davis v. Washington, 547 U.S. 813 and Hammon v. Indiana, 547 U.S. 813, neither of which dealt with similar facts, but which laid down broad principles.