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SVP – Post-Disposition: Petition for Discharge Procedure, § 980.09(2) (2004) – Probable Cause Hearing / Full Evidentiary Hearing

State v. Dennis R. Thiel, 2004 WI App 140, PFR filed 7/16/04
For Thiel: Suzanne L. Hagopian

Issue: Whether an examiner’s recommendation of supervised release established probable cause that Thiel was no longer a sexually violent person and therefore supported a full evidentiary hearing on release, pursuant to § 980.09(2).


¶15. Thiel’s claim falls under Wis. Stat. § 980.09(2), which sets forth the procedural posture for a committed individual’s petition for discharge without the approval of the secretary of the Department of Health and Human Services.3¶16. The question before the circuit court at a Wis. Stat. § 980.09(2)(a) probable cause hearing is whether probable cause exists to establish that the individual seeking discharge is no longer a sexually violent person. … Accordingly, there is probable cause to believe the petitioner is no longer a sexually violent person if facts exist establishing probable cause to believe the individual no longer has a mental disorder as defined in Wis. Stat. ch. 980 or is no longer dangerous because, although he or she has the mental disorder, the mental disorder no longer makes it substantially probable that he or she will engage in acts of sexual violence. See §§  980.01(7), 980.09(2)(a).

¶17. By the plain language of the statute, the question at the probable cause hearing is not whether the individual is substantially probable to engage in acts of sexual violence if placed on supervised release or even if discharged from commitment; the statute draws no such distinction. Rather, the question at the probable cause stage is simply whether it is substantially probable that the person will engage in acts of sexual violence without regard to any specific restrictions, supervision or time frame. It is a black-and-white determination-it is either substantially probable that the person will engage in acts of sexual violence or it is not.

¶21. Thus, contrary to Thiel’s assertions, probable cause to believe a person is no longer a “sexually violent person” is not satisfied by a recommendation of supervised release without more. Accordingly, while Thiel may be correct that Dr. Kotkin’s recommendation of supervised release gives rise to the reasonable inference that Dr. Kotkin believed Thiel was not substantially probable to reoffend if placed on supervised release, Dr. Kotkin’s recommendation was not relevant to the question before the court and does not, standing alone, supply the probable cause necessary to warrant a full evidentiary hearing on the matter.

So, you can get an evidentiary hearing on discharge only if there’s PC you’re no longer SVP. [Or, if the art of the witchcraft becomes refined enough to show that you never were SVP, State v. Henry Pocan, 2003 WI App 233.] Then and only then are you entitled to supervised release, if the State proves at the hearing that you are indeed still SVP, ¶20. Would seem to make supervised release a highly elusive, if not quite illusory, remedy at least under discharge procedure of § 980.09. But the outcome might be different under § 908.08, which regulates petitions for supervised release, and which makes the placement of the commitment, institutional care vs. supervised release, highly relevant. The court goes on to uphold the constitutionality of the release procedure, ¶¶22-30, stressing that § 980.08 allows someone unable to proceed under § 980.09 “the opportunity to pursue a less restrictive alternative to commitment.”)


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