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State v. Joseph J. Spaeth, 2012AP2170, District 2, 7/31/13

Court of Appeals certification, review granted 11/26/13; case activity

Issue certified:

Wisconsin Stat. § 980.02(1m) and (2) require that a commitment petition be filed “before the person is released or discharged” and allege that a person has been convicted of a sexually violent offense. Does § 980.02 additionally require that the commitment petition be filed before the person is released or discharged from a sentence that was imposed for the same sexually violent offense that is alleged in the petition as the predicate offense, as stated in State v. Gilbert, 2012 WI 72, ¶51, 342 Wis. 2d 82, 816 N.W.2d 215?

The issue in this case arises from an unusual set of facts and so would seem to be of limited interest even to lawyers handling ch. 980 cases. But the state’s argument, if accepted, has potentially far-reaching consequences for the timing of petitions, so the case bears watching. Here’s the background.

Spaeth was sentenced to prison for a child sexual assault in a 1992 case. He was paroled from that sentence in 2004. In 2006, while on parole, he was charged with a new offense. His parole in the 1992 case was revoked and he returned to prison; he discharged from the 1992 sentence in June 2008. In the meantime, he was convicted in the new case in 2007, but in October 2008 that conviction was vacated and a new trial was ordered. He worked out a plea deal on the 2006 case and pled in 2009, but that conviction was also thrown out because it was based on his compelled statements. State v. Spaeth, 2012 WI 95, 343 Wis. 2d 220, 819 N.W.2d 769.

In November 2010, while Spaeth’s 2009 conviction in the 2006 case was being appealed, the state filed a ch. 980 petition. The predicate offense for the petition was the conviction in the 2006 case. In August 2012, after that conviction was reversed and had been dismissed, the state sought to change the petition’s predicate offense to the 1992 case–from which Spaeth had been discharged over two years before the petition was even filed. The circuit court agreed with Spaeth that the petition should be dismissed: It could not rely on the 2006 case (given the conviction had been vacated and the case dismissed) and was untimely as to the 1992 case.

The certification sees the problem here as an apparent conflict between the statutory language and a remark by the supreme court in Gilbert, 342 Wis. 2d 82, ¶51, about the need for the petition to be filed before the person’s release from a sentence for a sexually violent offense. Though it notes, briefly, Spaeth’s argument that there really is no conflict, the certification doesn’t mention case law bearing directly on the issue and favoring Spaeth’s position. In particular, State v. Thomas, 2000 WI App 162, 238 Wis. 2d 216, 617 N.W.2d 230, makes it clear that a petition is untimely if the state files it after the person is out from under all criminal custody and is being held only on the ch. 980 petition. Further, when the petition was filed Spaeth was serving only the sentence for the 2006 case, which was imposed in 2009, after the sentence in the 1992 case was finished. Thus, the petition can’t be saved by the cases holding that a petition may be filed at the end of confinement on a sentence for a non-sexual offense that is concurrent with or consecutive to a sentence for a sexual offense. State v. Keith, 216 Wis. 2d 61, 72, 573 N.W.2d 888 (Ct. App. 1997); State v. Treadway, 2002 WI App 195, ¶18, 257 Wis. 2d 467, 651 N.W.2d 334.

The court of appeals’ evident reluctance to resolve this case in Spaeth’s favor despite the supporting statutory and case law brings up a final point: Accepting the state’s argument would vastly expand the reach of ch. 980, for it means a petition could be predicated on a previous, now-discharged case from years ago as long as the person is about to be released from some sort of custody, regardless of any lack of connection between that custody and the old case. Chapter 980 practitioners, stay tuned.

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