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SCOW: Reversal of predicate sexually violent offense doesn’t require dismissal of pending ch. 980 petition

State v. Joseph J. Spaeth, 2014 WI 71, 7/16/14, on certification from the court of appeals, and reversing the circuit court’s dismissal order; majority opinion by Justice Gableman; case activity

A necessary predicate of a commitment under ch. 980 is a conviction for a sexually violent offense. This case raises an unusual issue regarding predicate convictions: Can the state continue to prosecute a ch. 980 proceeding if the predicate conviction that was alleged in the petition is vacated and dismissed after the petition is filed? The supreme court answers “yes,” holding that the sufficiency of a ch. 980 petition is to be assessed as of the time it is filed, and at the time the petition in this case was filed there was a valid conviction for the predicate offense.

In 1993 Spaeth was convicted of sexual assault. (¶4). In 2006, while he was on parole for that offense, Spaeth was charged with new sexual assault and his parole was revoked. (¶¶4-5). He was convicted of the new charges in 2007, but those convictions were soon vacated; Spaeth was then re-convicted of amended charges of child enticement in 2009. (¶5). While all this was going on he finished the sentence for the 1993 case. (¶5 n.4).

In 2010, when Spaeth was to be released from the sentence for the 2009 convictions, the state filed a ch. 980 petition listing the 2009 convictions as the predicate offenses. (¶¶6-7). Two years later the 2009 convictions were reversed, State v. Spaeth, 2012 WI 95, 343 Wis. 2d 220, 819 N.W.2d 769, and ultimately dismissed. (¶8). The state then sought to amend the ch. 980 petition to make the 1993 conviction the predicate offense, but the circuit court concluded the dismissal of the 2009 convictions required dismissal of the petition. (¶¶8-9).

The supreme court holds the circuit court was wrong.

20    …. To determine whether a Chapter 980 petition meets the statutory requirements in Wis. Stat. § 980.02, a court should consider the sufficiency of the allegations in the petition at the time the petition was filed. Subsequent facts that impact the status of the allegations in the petition may be relevant at trial under Wis. Stat. § 980.05, but they will not invalidate a petition that met the requirements of Wis. Stat. § 980.02 at the time of filing.

Using the standard rules of statutory interpretation, State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶¶45-48, 271 Wis. 2d 633, 681 N.W.2d 110, the court concludes that while § 980.02(2) requires the petition to allege a predicate offense, that requirement pertains only to the petition and does not determine what must be proved at a probable cause hearing or a trial, where there will necessarily be testimony and other evidence that may differ from the limited allegations in the petition. (¶¶21-24). In fact, before being amended in 2006, ch. 980 required the state to prove the allegations in the petition at trial, § 980.05(3)(a) (2003-04), but now the state is simply required to prove the person is a sexually violent person, § 980.05(3)(a) (2011-12). (¶¶25-26).

Because nothing in ch. 980 limits the state’s proof to the allegations in the petition, the state is not precluded from producing additional evidence at either the probable cause hearing or at trial, or both, to support its petition. “Indeed, such a restriction would unnecessarily inhibit the State by prohibiting the introduction of evidence that may emerge after the State’s petition has been filed, such as additional sexually violent conduct.” (¶27). Conversely, while the ch. 980 proceeding can continue if the predicate conviction is vacated and dismissed, the fact the conviction has been vacated and dismissed may affect the state’s ability to prove its case: “If the strength of the State’s case has changed because the conviction in the petition was reversed, that becomes a matter to be considered by the trier of fact, beginning with the probable cause hearing.” (¶24).

Justice Prosser dissents, joined by Chief Justice Abrahamson and Justice Bradley. Citing ch. 980’s requirements that the state prove a conviction for a sexually violent offense, that it file the petition before the person’s release from custody for a sexually violent offense, and that the petition “state with particularity essential facts to establish probable cause,” § 980.02(3) (¶¶50-62), the dissent concludes that “the statute as a whole” makes it evident that a ch. 980 proceedings “centers around the sexually violent offense for which a person is confined at the time a Chapter 980 petition is filed.” (¶61). At the very least, if the predicate conviction is dismissed, the petition should be amended to allege a different predicate offense—though that can’t save the proceedings here because Spaeth’s other sexually violent offense is the 1993 conviction, and it is too late to use that because he was not in custody on that case when the petition was filed. (¶¶39-40, 70-77).

While this decision will interest die-hard ch. 980 practitioners, it will have very limited applicability for the obvious reason that cases where the predicate offense gets vacated and dismissed while the petition is pending are going to be rarer than hen’s teeth.

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