On Point

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.

Instructions – Unanimity
Refusal to give unanimous verdict instruction re: continuing course of conduct (sexual assault) or mode of commission (ptac) upheld.

Evidence – Defendant’s Peaceful Character
Refusal to allow evidence of defendant’s peaceful character upheld, where the elements of the offense (4^th degree sexual assault) didn’t involve violence.

court of appeals decision (1-judge; not for publication); Resp. Br.

Delinquency
Failure to receive discovery until, but not prior to, plea hearing didn’t render latter a nullity; and, under § 938.01(1), the court must liberally construe the juvenile justice code: “Dakota has presented no reason, nor do we see any reason, why his best interest would be served by dismissing the petition with prejudice.”

State v. Tory L. Rachel, 2010 WI App 60; for Rachel: Donald T. Lang, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.

SVP – Supervised Release Hearing: Burden of Proof on Petitioner

Under revisions to § 980.08 wrought by 2005 Wis. Act 434 (eff. date 8/1/06), the burden of proof has been shifted from the State (to prove unsuitability for supervised release) to the petitioner (to show suitability), despite silence in the legislation as to placement of the burden.

¶11      The State offers two primary counterarguments.  First, it asserts that Rachel’s position ignores the presumption in favor of institutional commitment of sexually violent persons. …

¶12      A close look at the criteria supports the State’s argument. The criteria that are to be affirmatively demonstrated include: a showing of “significant progress in treatment,” a substantial probability that the petitioner will not re-offend while in the community, “reasonably available” treatment options in the community, a reasonable expectation that the petitioner will comply with treatment requirements, and a “reasonable level of resources” will provide for ongoing treatment needs and “safe management” of the petitioner while on supervised release. See Wis. Stat. § 980.08(4)(cg). It would be impractical, if not absurd, to place the burden on the State to demonstrate factors weighing in favor of release because the State has no incentive to do so.

¶13      Second, the State argues that we should apply the general rule that a petitioning party bears the burden of proof. …

¶14      Here, the State emphasizes that Rachel is the moving party, he has access to all of his records and to legal counsel, he has been adjudged a sexually violent person, and fairness considerations are built into the statutory commitment scheme. The State also observes that the judicial estimate of probabilities requires the court to consider which party should bear the risk of failure of proof. See id., ¶48.  In this case, the question is whether a sexually violent person should bear the risk of continued institutionalization until the next review period or if the public should bear the risk of a sexually violent person returning to the community unprepared. The State urges that the risk of failure of proof should be allocated to the petitioner.

In short, once someone has been committed under ch. 980, a presumption of continuing institutionalization attaches. If he (for it is virtually always “he”) wants supervised release, § 980.08, then he bears the burden of proving that he meets the 5 criteria of § 980.08(4)(cg), quoted in ¶9. Keep in mind that from its inception, ch. 980 has been under constitutional attack. Each has been unsuccessful—procedural due process, substantive due process, double jeopardy, ex post facto, you name it. If anything, these defeats have encouraged the legislature to whittle away what few protections applied, confident in the knowledge that courts are apparently unwilling to draw any lines. We’ve come a long way from Kansas v. Hendricks, 521 U. S. 346, which upheld the first, more rights-oriented commitment regime by a razor-thin 5-4 margin. Supervised release procedure is but another in this dreary procession. The burden once was on the State to prove by clear and convincing evidence continuing likelihood of  sexual violence and lack of significant progress in treatment, failing which the court was required to order supervised release. No longer. Now, the person must himself prove a laundry list of requirements; falling short in any respect means he stays right where he is.

Another innovation along the way has been automatic institutionalization. Used to be that on an initial commitment the court had discretion to order supervised release, but that was taken care of by 1999 Wis. Act 9, so that institutionalization now automatically flows from commitment, § 980.06. There’s a name for this—preventive detention—that courts haven’t quite got around to uttering. Instead, they offer assurances that “(i)n light of all the safeguards and alternative methods by which a person committed under Wis. Stat. ch. 980 can obtain supervised release,” the regime passes constitutional muster, State v. Isaac H. Williams, 2001 WI App 263, ¶9. Rachel itself cites some of these previously expressed concerns, ¶15 (“We are mindful that the constitutionality of this statutory scheme relies on procedures for periodic review of a commitment order.”). But even though those safeguards have now been all but abrogated, as this case starkly illustrates, the court has no difficulty announcing “that the constitutionality of the commitment scheme is not disturbed,” ¶16. Indeed, the right of meaningful review and opportunity to seek release was basically all that was left of potential constitutional attack. E.g., State v. Daniel Arends, 2008 WI App 184, ¶18 (“we emphasize that meaningful periodic review has kept the commitment scheme constitutionally sound,” emphasis in original). “Meaningful” review, then, is the right to have a state’s “expert” determine that you have a “mental disorder” that isn’t recognized by the field as a whole, McGee v. Bartow, 593 F.3d 556 (7th Cir. 2010); Bruce N. Brown v. Watters, 7th Cir. No. 08-1171 (3/19/10); followed by the right to prove the expert wrong. Might be better just to call it what it is, preventive detention, and be done with the charade.

SVP – Supervised Release Hearing: Clear and Convincing Burden of Proof
The standard of proof allocated to the SVP on a supervised release petition under § 980.08 is clear and convincing evidence, on public policy grounds given that the statute doesn’t specify the nature of the burden.

¶18      The circuit court adopted a standard of clear and convincing evidence without explanation. Rachel advocates a preponderance of the evidence standard, arguing that the higher burden of clear and convincing evidence is too harsh. The State concedes that, in the absence of an express burden of proof, the preponderance of the evidence standard may be appropriate. Unless, that is, public policy demands the higher burden. We are convinced that it does.  In Carpenter, 197 Wis. 2d at 271, the supreme court recognized the public safety implications of placing offenders in the community, stating:

We conclude that the principal purposes of [WIS. STAT.] ch. 980 are the protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such conduct in the future. These constitute significant nonpunitive and remedial purposes.

Protection of the public is a legitimate public policy concern and is implicated in the context of supervised release. See, e.g., State v. Burris, 2004 WI 91, ¶30, 273 Wis. 2d 294, 682 N.W.2d 812 (due process does not require that a court expressly consider alternatives before revoking a sexually violent person’s supervised release when the court determines that the public safety requires the person’s commitment to a secure facility). This policy of advancing public safety is reflected in Wis. Stat. § 980.08(4)(cg)2., which precludes a court from ordering supervised release unless it is “substantially probable that the person will not engage in an act of sexual violence while on supervised release.” Thus, we conclude that the proper burden of proof on the § 980.08(4)(cg) petitioner is driven by public policy. Accordingly, the circuit court correctly held Rachel to a standard of clear and convincing evidence. See Walberg, 109 Wis. 2d at 102 (the middle burden derives from public policy).

To add to the discussion above: this holding is driven by notions of public safety. Note how the court blithely quotes Carpenter for the idea that commitment serves to protect the public and treat the individual … and then proceeds to completely ignore the latter. Treatment literally has nothing to do with the analysis. Great. Next step: just acknowledge the whole thing is about preventive detention. And by the way, the court’s facile reliance on Walberg is revealing. True, Walberg linked the burden of proof in civil cases to public policy, but the particular policy there was “the state’s interest in finality of convictions,” 109 Wis. 2d at 103. Think about it: finality of conviction versus periodic review of mental condition; a static versus fluid circumstance. If anything, this distinction ought to militate in favor of a lesser burden in the 980 context. Unless, of course, detention is the overwhelming goal. And then, how far are we from traditional criminal-law objectives, which we have been assured all along is not the aim of ch. 980?

SVP – Supervised Release Hearing: Sufficiency of Evidence
Although nominally “independent,” appellate review of a supervised release determination “give(s) deference to the circuit court’s strength in determining the credibility of witnesses and in evaluating the ¶¶19-20. “(T)he records showed “substantial progress” in treatment and “extremely positive” feedback from the WRC,” ¶26. The case for release was “close,” in the trial court’s estimation. But not close enough.

¶29      Ultimately, the circuit court held that Rachel had failed to carry his burden to show three of the five criteria. The court indicated that Rachel had more work to do in “Phase Three” of his treatment, that a more “specific and definable” supervision plan was needed, and that the court required a “more definite manner … of treatment … that would assist [the] Court in knowing that there’s not a substantial probability that Mr. Rachel would engage in sexual violence if he were on supervised release.” Because Rachel did not show the court by clear and convincing evidence that he met the five criteria, the court denied his petition.

¶30      We defer to the circuit court’s credibility determinations in evaluating the evidence.  See Brown, 279 Wis. 2d 102, ¶44. A circuit court is better able to determine the credibility of witnesses and evaluate the evidence. Id. Here, the circuit court did an exhaustive review of the evidence presented, showed familiarity with the facts of the case and the tests and tools used to evaluate Rachel’s treatment and progress, and explained in detail what criteria Rachel’s proof failed to demonstrate. In our review, we draw not only on the circuit court’s observational advantage, but also on the circuit court’s reasoning, which was exemplary here. See id. We conclude that the evidence adduced at the hearing was sufficient to support the circuit court’s denial of Rachel’s petition.

So it goes with preventive detention.

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Miranda – Suppressed Statement and Probable Cause

¶7        First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. The trial court found, and we agree, that Kohel’s statement was the result of a custodial interrogation and should be suppressed. The passenger was handcuffed, told he was under arrest for a warrant, and placed in the backseat of a squad car before the deputy point-blank asked “[W]here is the odor of burnt marijuana coming from?” The question can only be construed to be one of gathering further evidence in support of a crime that the officer believed had occurred—and not an investigation of whether a crime has occurred. A statement made during a custodial interrogation, such as in this case, cannot be considered voluntary and admissible until Miranda warnings have necessarily been waived.³ See Miranda v. Arizona, 384 U.S. 436, 476 (1966). Kohel was not given an opportunity to waive his Miranda rights because the deputy never Mirandized him. See id. So we agree with the trial court that the passenger’s statement cannot be considered “voluntary” and is not admissible.

The court goes on to say, ¶8: a) odor of marijuana in a car provides probable cause to arrest if linked to a specific person; b) linkage to the specific person at hand—Garske—turns on Kohle’s statement described above; c) but, because that statement was suppressible, no such linkage exists and therefore “the odor was insufficient to establish probable cause for his arrest.

Traffic Stop – Marijuana Odor and Probable Cause
Probable cause to arrest Garske not supported by his connection to backpack found containing contraband, found in car:

¶12      The trial court found, and we agree, that there was not enough evidence connecting Graske to the backpack to support a finding of possession. The trial court properly considered Graske’s checkbook in the backpack as a factor to determine possession of the backpack. But the backpack was on the floorboard of the front passenger’s seat in a vehicle that was not owned by Graske. And even though a person can constructively possess an object when it is in near proximity when there is no actual dominion and control, the trial court was obviously convinced that Graske did not. The court concluded that it would have been difficult for the backpack to be “immediately accessible” to Graske from where he was sitting since the backpack was sitting next to or underneath Kohel. Just the fact that Graske was in the same vehicle where the backpack was found does not by itself mean that he had dominion and control over the backpack. Whether an investigatory stop meets the constitutional and statutory standards is a question of law that we review de novo. State v. Krier, 165 Wis. 2d 673, 676, 478 N.W.2d 63 (Ct. App. 1991). When we review the factors that led to determinations of constructive possession in other Wisconsin cases, the universality of which is neatly compartmentalized in the Texas case cited in the footnote, Willis v. State, 192 S.W.3d 585, 593 (Tex. App. Ct. 2006), most of the factors that would be indicia of ownership are simply not present in our case. Under the specific facts of this case, there just was not enough.

A really interesting case. You’d think the question of linkage of a particular person to contraband would come up fairly frequently but it doesn’t, at least not terribly much in Wisconsin caselaw. The leading case, which deals with sufficiency of evidence not probable cause, remains State v. R.B., 108 Wis.2d 494, 497-98, 322 N.W.2d 502 (Ct. App. 1982) (“Unless actual control exists, there must be found from the surrounding facts and circumstances, aided by reasonable inferences, an intent to exercise control over the prohibited item. Without such a finding, there can be no constructive possession.”), which found that a juvenile’s mere presence to alcohol didn’t prove his possession of same. R.B. wasn’t cited here by the court or the parties but may have salience nonetheless on the problem. And even if it doesn’t, the conclusion of no probable cause surely would be support an insufficient-evidence claim on facts similar to Graske. Take a look as well at ¶11 n. 4, which lists a number of “nonexclusive factors to determine if there is a sufficient link between a defendant and contraband.”

court of appeals decision (1-judge; not for publication)

TPR
Plea to grounds upheld, in light of trial court credibility determinations at post-termination evidentiary hearing, against claim Benny didn’t understand State’s burden of proof, 2-stage nature of TPR, or finding of unfitness as necessary consequence of plea.

State v. Robert A. Tomaszewski, 2010 WI App 51; for Tomazewski: Devon M. Lee, SPD, Madison Appellate; Resp. Br.; Reply Br.

¶6 n. 3:

Tomaszewski argues this is not a case in which reasonable suspicion that he was violating a traffic law would justify the stop. In Tomaszewski’s view, a temporary detention may be justified by reasonable suspicion only where an officer cannot determine, without further investigation, whether a traffic violation has occurred. This is not the law. See, e.g., Wis. Stat. § 968.24; State v. Post, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634; State v. Griffin, 183 Wis. 2d 327, 330-31, 515 N.W.2d 535 (Ct. App. 1994) (temporary detention justified whenever police reasonably suspect the individual stopped has committed a crime).

Police had reasonable suspicion to stop vehicle for violating § 347.12(1)(b), which requires dimming high beams within 500 of vehicle in front:

¶10      We conclude Wis. Stat. § 347.12(1)(b) does not require proof that the headlights reflected into the eyes of another driver. The statute directs drivers operating within 500 feet to dim their headlights, and concludes by describing the purpose of this requirement: to prevent the glaring rays from reflecting into another driver’s eyes. Tomaszewski’s interpretation would require an ordinary driver using high beams to know whether his or her headlights will impair another driver’s vision. This interpretation is absurd; drivers are in no position to determine whether their vehicle’s high beams glare into the eyes of other drivers. To avoid this problem, the statute assumes the use of high beams within 500 feet will cause impairment, and prohibits their use.

¶11      Under this interpretation, the circuit court properly found that Danielson possessed reasonable suspicion Tomaszewski was in violation of Wis. Stat. § 347.12(1)(b). It found Tomaszewski used his vehicle’s high beams while operating within 500 feet of the semi truck. These findings are not clearly erroneous and the circuit court properly denied Tomaszewski’s suppression motion.

State v. Karon M. Asmus, 2010 WI App 48; for Asmus: Donald C. Dudley

Interstate Detainer Act claim is waived by guilty plea:

¶3        A guilty plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886. This rule applies even though the defendant attempts to preserve an issue by raising it in the circuit court. State v. Skanfer, 176 Wis. 2d 304, 312 n.2, 500 N.W.2d 369 (Ct. App. 1993).

¶4        Failure to bring a prisoner to trial within 120 days under the Intrastate Detainer Act is not a jurisdictional defect. …

¶6        … As in Armstrong, the charges could have been dismissed by the district attorney without prejudice and merely recharged at a later date. See State v. Davis, 2001 WI 106, ¶19, 242 Wis. 2d 344, 626 N.W.2d 5.  When a defendant chooses to accept a plea agreement rather than inconveniencing the district attorney by requiring the filing of a new complaint, the protections of § 971.11 are forfeited.

Well, yes and no. Yes, the guilty plea waiver rule would apply (assuming the Detainer Act to be nonjurisdictional). But no, that doesn’t necessarily end the matter. If the defendant clearly thought the issue survived the plea, then plea-withdrawal would be the remedy, State v. Riekkoff, 112 Wis.2d 119, 126, 332 N.W.2d 744 (1983); Foster v. State, 70 Wis.2d 12, 21, 233 N.W.2d 411 (1975). And to the extent that counsel provided such misadvice, then surely ineffective assistance would be a ground for plea-withdrawal. But, so far as the opinion indicates, Asmus hasn’t argued along these lines. For all appearances, the learned trial judge mistakenly denied Asmus’ motion to dismiss, ¶2 n. 2. But the plea bargain also appears to have been favorable, and successful challenge could have seen reissuance of the pre-bargain charges.