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SVP – Retroactivity of Qualifying Offense Legislation; State’s Waiver; Newly Discovered Evidence – Re-normed Actuarial

State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10

court of appeals decision (3-judge, not recommended for publication); for Melendrez: David R. Karpe; BiC; Resp.; Reply

SVP – Retroactivity of Qualifying Offense Legislation

Third-degree sexual assault wasn’t an SVP-qualifying offense when Melendrez plea-bargained a reduction of 2nd-degree sexual assault to 3rd. But by the time he was released from prison, the legislature had passed 2005 Wis. Act 434, which amended § 980.01(6)(a) to include 3rd-degree sexual assault as a “sexually violent offense,” thereby subjecting Melendrez to ch. 980 commitment. He argues that applying the amended legislation to him had a retroactive effect that violated due process.

Because it is well-established that ch. 980 isn’t penal in nature, and therefore doesn’t violate ex post facto and related principles, Melendrez is relegated to arguing due process protection against retroactive legislation in the civil context, Landgraf v. USI Film Products, 511 U.S. 244 (1994). But the statute must first have retroactive effect before due process analysis is triggered.

¶23      Wisconsin case law also establishes that retroactive legislation does not necessarily violate the due process clause. In Barbara B. v. Dorian H., 2005 WI 6, ¶¶19-20, 277 Wis. 2d 378, 690 N.W.2d 849, the court explains that a court is first to determine if a statute actually has a retroactive effect, which turns on whether it affects a substantive right that vested or accrued before the enactment. If the court concludes that it does have a retroactive effect, the court then determines whether the retroactive effect comports with due process.[11]

The court deems Act 434 non-retroactive, and therefore doesn’t need to reach due process. The Act is no more retroactive, which is to say not all all, than ch. 980 itself, which upon promulgation gathered within its reach individuals already convicted of qualifying offenses:

¶28      Melendrez also attempts to distinguish his situation from the persons who became subject to the Kansas statute—or to WIS. STAT. ch. 980—when it was first enacted.[13] He recognizes that those persons would not have known about the statute when they engaged in conduct and entered into pleas subsequently defined as sexually violent offenses. His situation is different, he asserts, because the existence of ch. 980 when he committed the offense and entered into the plea to third-degree sexual assault made it reasonable to rely on the terms of the statute at that time.[14] Rephrasing this argument reveals its flaw: Melendrez is asserting that he had a reasonable expectation that the statute would not be amended even though persons subject to ch. 980 when it was first enacted did not have a reasonable expectation that no such statue would be enacted in the first instance. Beyond asserting that there is a difference, Melendrez does not explain why his situation creates a vested interest in the version of the statute in effect when he pled—and, thus, makes the amendment retroactive as to him—when the original enactment did not have a retroactive effect on the persons first subject to ch. 980. Moreover, Melendrez’s attempt to distinguish on this ground is inconsistent with State v. Tabor, 2005 WI App 107, 282 Wis. 2d 768, 699 N.W.2d 663.

Is this a fair comparison? A pre-980 defendant couldn’t possibly have had a vested expectation (or right) of non-commitment, for the simple reason that commitment didn’t exist. Defendants wouldn’t have accepted or rejected pleas in the expectation of avoiding something — exposure to commitment — that wasn’t in place. But Melendrez, in contrast, likely would have plea-bargained the charge to 3rd- from 2nd-degree precisely to avoid commitment, which by contrast was a concrete possibility. (Or so, for present purposes, it might be assumed, though to be sure the record appears to be silent on the point, ¶28 n. 14. The idea is that regarding the two contexts as indistinguishable is much too facile, and in this sense it is fair to at least hypothesize that Melendrez’s plea-based conviction was induced by a reasonable expectation he was beyond the reach of an extant commitment regime.) As for Tabor, which upheld a reduced burden of proof at trials on petitions commenced after the statutory amendment’s effective date, ¶¶29-33: again, it is not the same thing. The court simply avoids discussing whether inducing a conviction with an assurance of no possibility of commitment — again, assuming that to be so and recognizing that we don’t know the facts — creates a vested right (or expectation) of no commitment.

Does Melendrez have any recourse against the conviction itself? That question, of course, wasn’t before the court on appeal solely of the commitment. Start with the assumption that the possibility of a 980 commitment is a mere collateral consequence of a plea, therefore doesn’t support (post-sentencing) plea withdrawal, State v. Myers, 199 Wis. 2d 391, 544 N.W.2d 609 (Ct. App. 1996). Consider, though, that the very distinction between collateral and direct consequences has been thrown into doubt by Padilla v. Kentucky. And then take into account the possibility that Melendrez was in fact informed that he would not be subject to commitment under 3rd-degree and that that is why he pleaded to the reduced charge — even under pre-Padilla caselaw you stood a chance of plea-withdrawal if you were “actively misinformed” on a collateral consequence, e.g., State v. Koll, 2008AP1403, 4/8/09. Melendrez might not have been “actively misinformed,” but if he was assured he couldn’t be committed on this plea then he might as well have been. Not an easy argument to make, but it is there.

State’s Waiver

The State waived its right to argue that Melendrez’s post-commitment motion was untimely, by failing to raise it in response to his motion: “We decline to address the State’s argument on untimeliness because it was not raised in the circuit court. State v. Champion, 2008 WI App 5, ¶17, 307 Wis. 2d 232, 744 N.W.2d 889 (‘We generally do not review an issue raised for the first time on appeal.’),” ¶13 n. 6.

And the waived argument? That 980 being civil, a motion for new 980 trial on the basis of newly discovered evidence must be brought under § 806.07 and, therefore, brought within one year of verdict.

Newly Discovered Evidence – Re-normed Actuarial

Post-trial release of new norms for Static-99, with reduced recidivism rates, didn’t support new trial, because it isn’t reasonably probable the verdict would have been different with this new information:

¶43      First, as the circuit court explained, Dr. Rosell’s testimony criticized the Static-99 on the same grounds set forth in the article, although in a less detailed and comprehensive way. The jury was informed that the original Static-99 overstated the risk of recidivism, although they did not learn by how much.

¶44      Second, the State’s experts used actuarial instruments, besides the Static-99, which the article does not address. The jury heard Dr. Rosell’s criticism of those instruments.

¶45      Third, the State’s experts acknowledged the limitations of all the actuarial tools in determining the risk of a particular person reoffending and both experts relied on much other information in forming their opinions. Specifically, one or both relied on Melendrez’s testimony of sexual offenses, his reoffending after treatment, his poor adjustment to supervision, and his lack of insight into the gravity of his offenses.

Test for newly discovered evidence recited at ¶36; court notes uncertainty in caselaw as to whether reasonable-probability portion of test is reviewed de novo or deferentially, but deems the question unnecessary to resolve in present case, ¶36 n. 17.

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