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SVP: Pre-Commitment Return to DOC Custody

State v. Carl Cornelius Gilbert, Jr. / State v. Price T. Hunt, 2011 WI App 61, affirmed 2012 WI 72 (recommended for publication); for Gilbert: William J. Tyroler, SPD, Milwaukee Appellate; for Hunt:  Eric James Van Schyndle, Leah Stoecker, Allison E. Cimpl-Wiemer; case activity (Gilbert), case activity (Hunt); affirmed, 2012 WI 72

SVP – Pre-Commitment Return to DOC Custody

¶1        …  These appeals have been consolidated because they raise the same issue, which is one of first impression.  Both appellants argue that dismissal of a Wis. Stat. ch. 980 commitment proceeding is required when the subject of the petition is placed in a facility operated by the Department of Corrections (DOC) before a commitment order is made, and is therefore transferred to DOC custody, rather than being transferred immediately to the custody of the Department of Health Services (DHS),[3] as required by Wis. Stat. §§ 980.06 and 980.065.  Because we conclude that §§ 980.06 and 980.065, when construed in the context of ch. 980 as a whole, permit a commitment order in the circumstances that occurred here, we affirm.

¶11      Both Gilbert and Hunt argue that the State’s Wis. Stat. ch. 980 petitions should have been dismissed because Gilbert’s and Hunt’s return to DOC custody eliminated the possibility of placing them in immediate DHS custody, as required by Wis. Stat. § 980.06.  They both also argue that once they were returned to DOC custody, their commitment proceedings became moot because the orders would have no practical effect, as neither Gilbert nor Hunt could be subject to the immediate and exclusive confinement of the DHS.  Therefore, the question to be decided is whether ch. 980 requires dismissal of a pending commitment petition when the person who is the subject of the petition is incarcerated because of a new sentence or a parole/extended supervision revocation.  Because we conclude that various provisions of ch. 980 illustrate the legislature’s intent that commitment proceedings can occur while the subject of the proceedings is incarcerated, we affirm.[9]

Shorter version: you really can be two different places at the same time. This is a recurrent problem – a prisoner serving an SVP-qualifying sentence reaches his release date, the State files a 980 petition and, while it is pending, the once and future prisoner is returned to DOC custody (on revocation of parole in Gilbert’s instance, and of ES in Hunt’s). The 980 train continues barreling down the tracks, even though it can no longer disgorge its passenger at the only authorized stop, the DHS depot. State v. Arends, 2010 WI 46, ¶15, 325 Wis. 2d 1, 784 N.W.2d 513 (upon finding the person is SVP, “the court must commit the person to the custody of [DHS], which in turn must place the person into institutional care until the person no longer a sexually violent person. Wis. Stat. § 980.06”). Must be placed in DHS custody: how can that mandate be effectuated if the person is in exclusive DOC custody? The riddle is only deepened by the court’s analysis.

The court first invokes § 980.065(2), which allows DHS to contract with DOC for a secure mental health unit for SVPs, operated by DHS: “The statute allows the DHS to house committed persons in a DOC secure facility or a secure mental health unit.  Thus, the specific statutes on which appellants rely, by their plain language, do not support the appellants’ inferences as to legislative intent,” ¶15. But this is a non-sequitur. The argument is that § 980.06’s requirement of DHS-administered care, custody and treatment isn’t susceptible to compliance if the person is within exclusive DOC care and custody (forget about “treatment”). Speaking of plain statutory language, § 980.065(2) requires that DHS “operate” the facility provided by DOC. Waupun Correctional isn’t operated by DHS. The court also notes, correctly, that pre-commitment placement may be in a non-DHS facility, ¶¶16-18; but this has nothing to do with § 980.06-mandated DHS custody upon commitment. Finally, the court draws support from State v. Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998) and State v. White, 2000 WI App 147, ¶9, 237 Wis. 2d 699, 615 N.W.2d 667, which authorize a court to impose sentence for a new criminal offense on someone already under commitment. Of course, in such a post-commitment context the § 980.06 placement mandate has seen compliance.

Constitutional Basis

¶11 n. 9:

To the extent the appellants make constitutional arguments, we conclude that their arguments rely entirely on their interpretations of Wis. Stat. ch. 980 and are not developed beyond their interpretations of ch. 980.  See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (We need not address undeveloped arguments.).

Pettit elaborates on what is meant by “undeveloped arguments”: “Pettit’s arguments are not developed themes reflecting any legal reasoning. Instead, the arguments are supported by only general statements. We may decline to review issues inadequately briefed.” 171 Wis. 2d at 646. It is a species of waiver. Nonetheless, it appears that the court didn’t necessarily mean to apply a waiver bar but, rather, declined to reach the argument, ¶20 n. 14. Gilbert argued, Br-in-Ch, pp. 24-27; Reply, pp. 8-10, that the impossibility of DHS assumption of custody upon commitment violates the constitutional imperative of treatment, thus offends the very rationale for commitment. The very purpose of § 980.06-mandated DHS custody, care, treatment is to ensure the constitutionality of the commitment regime (under which a subject may be detained so long, but only so long, as required by his mental condition). If the person is in exclusive DOC custody, this constitutional mandate can’t be satisfied.

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