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SVP – Qualifying Placement, § 980.02(2)(ag) – Secure Facility, Juvenile Adjudication

State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee TrialI

Issue: Whether a ch. 980 petition is supported against a juvenile who was not placed in a secured correctional facility following the original adjudication on the qualifying sexually violent offense but was subsequently placed in such a facility as a result of additional offense.

Holding: By analogy to State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997) (petition timely filed where adult respondent serving consecutive sentences), Tremaine’s continuous custody in the juvenile system, eventuating in secure placement, establishes ch. 980 jurisdiction, ¶13.

¶14 We recognize that criminal sentencing concepts are foreign to juvenile proceedings. See State v. Wolfe, 2001 WI App 136, ¶15, 246 Wis. 2d 233, 631 N.W.2d 240. Nonetheless, the twin purposes of WIS. STAT. ch. 980 apply equally to juvenile offenders. We conclude that the risk of reoffense and the protection of the public are best served by applying a WIS. STAT. § 980.02(2)(ag) analysis to a juvenile’s placement circumstances pending release rather than to a juvenile’s placement under the original disposition. Tremaine’s original disposition in case no. 97-JV-XXX could not have formed a basis for a ch. 980 petition; however, his subsequent placement in a secured correctional facility, which was based at least in part on the sexually violent offense in case no. 97-JV-XXX, is sufficient to support the State’s petition.

Translated: We got you coming and going. If the set-up isn’t clear enough, here’s more background detail. Ch. 980 requires an underlying, qualifying offense and a petition filed within 90 days of release from a qualifying facility. All you need to know further is that Tremaine’s qualifying adjudication occurred in 1998 when he was 11, and although that dispositional order kept getting extended his later transfer to a qualifying institution was on account of non-qualifying conduct. (Also of note: because of his age, he could not have been placed in a 980-qualifying facility under his qualifying adjudication.) You can see, then, Tremaine’s argument: a petition must stand on two legs or not at all, and this petition only has one. But, the court of appeals says, it’s his argument that doesn’t have legs. The interesting thing about the court’s treatment is its rather blithe amalgamation of Keith and Wolfe and then its enlistment of the resulting, ad hoc rationale to service of the 980 cause. Briefly: Keith says that you treat consecutive adult sentences as one continuous sentence, so that release on a nominally non-qualifying sentence imposed consecutive to a qualifying sentence supports ch. 980 jurisdiction; and Wolfe says (¶¶14-15) that where you’ve got separate juvenile adjudications, one qualifying and one not, a 980 petition is supported upon release for the qualifying offense even though time remains on the non-qualifying offense, because unlike adult sentences juvenile dispositions can’t be imposed consecutively. In other words, under Keith it doesn’t matter which sentence comes where because they’re regarded as indistinct, and under Wolfe it very much matters which disposition comes where because each is necessarily distinct from the other. And this brings Tremaine’s point even more sharply into focus: if juvenile dispositions are, as caselaw clearly indicates, to be given separate effect, then it follows that his last placement was not on account of the qualifying offense, and he therefore falls outside 980 eligibility. But ch. 980 is a great leveler, and all points of distinction must give way to “(t)he risk that a sex offender may re-offend.”


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