State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky
¶24 In his petition, Arends alleged that his condition had changed such that he no longer met the definition of a sexually violent person because (1) “the passage of time demonstrated that anti-social behavior expected under an earlier diagnosis did not occur,” (2) a lower PCL -R score showed a change in Arends’ condition, and (3) his successful progress in treatment suggested a change in his condition.  Arends contends that Dr. Fields’ reexamination report did not simply reinterpret data that was present when Arends was originally committed, but relied on new research and new facts about his current condition. He distinguishes his case from that of Combs, 295 Wis. 2d 457, ¶14, where we held that Combs could not challenge the original grounds for commitment by offering new interpretations of old data. See id., ¶34. Combs, though decided prior to the effective date of the new statute, speaks to the same issue that arises under the current version: a change in the petitioner’s condition since the time of initial commitment. To provide grounds to believe a person is no longer sexually violent, “an expert’s opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding ….” Id., ¶32.¶25 Here, Dr. Fields considered new observations of Arends’ behavior and interpreted the data using existing and accepted tools of the psychology profession. Her report, which was based in part on the absence of deviant sexual arousal and anti-social behavior, also incorporated new research on the topic of predicting recidivism risk for juvenile offenders as compared to adult offenders. This is sufficient for purposes of Wis. Stat. § 980.09(1) and (2). See Combs, 295 Wis. 2d 457, ¶32 (petitioner can satisfy the standard when the expert’s opinion is “based at least in part on new professional knowledge about how to predict dangerousness”). Arends is entitled to an evidentiary hearing on his discharge petition.