On Point

Dane County v. Stevenson L.J., 2009 WI App 84
For Stevenson L.J.: Ruth N. Westmont

Issue/Holding: Where Stevenson L.J. was detained on an “emergency statement” in one county (Brown), then transferred to another (Dane) before a probable cause hearing, a new emergency statement in Dane County did not establish a new 72-hour time limit for a probable cause hearing; competency over the proceeding was therefore lost:

¶12      Under the County’s argument, “otherwise admitted” would mean that a person initially detained under Wis. Stat. § 51.15(5) could be held solely on the basis of a treatment director’s emergency detention statement, which would, in essence, reset the seventy-two hour clock while the patient remained involuntarily detained at the institution. If this could be done once, however, there is no reason why it could not be done two or three times, or more for that matter. Given the statute’s unambiguous intent to protect the liberty interests of individuals like Stevenson L.J. during emergency detention, § 51.15(10) cannot reasonably be construed to allow practices that would defeat that end. … Stevenson L.J.’s first detention expired when he was not given a probable cause hearing within seventy-two hours. We conclude that § 51.15(10) is not ambiguous and cannot reasonably be construed to authorize the continued detention of an individual who has not been given a probable cause hearing within the statutorily required time. Accordingly, the treatment director’s statement of emergency detention was a nullity.¶13      Because we conclude that Wis. Stat. § 51.15(10) cannot reasonably be interpreted to authorize the continued detention of an individual who has not received the mandated probable cause hearing within seventy-two hours, we also reject the County’s additional contention that the second statement of emergency detention did not run afoul of our holdings in Getto, 175 Wis. 2d at 501-02, and Judith G., 250 Wis. 2d 817, ¶19. In each of these cases, we held that once the seventy-two hour period for holding a probable cause hearing has expired, the filing of a substantially identical successive petition for detention in an effort to set back the clock did not restore the court’s competency to proceed. See Getto, 175 Wis. 2d at 500-01, and Judith G., 250 Wis. 2d 817, ¶19. Here, contrary to the County’s argument, the fact that the treatment director’s subsequent statement of emergency detention contained additional allegations of dangerousness and was filed in a different county by a different detaining authority does not cure its defect. The statement’s shortcoming does not lie in its venue or in its content; instead, it lies in the fact that the detention it sought to execute was contrary to statutory requirements and was thus unlawful.

Meta-message: given the liberty interest at stake, Ch. 51 time limits will be strictly enforced, e.g., ¶11.

State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: “Infrequent references to annual re-evaluation” were not “sufficiently egregious to diminish the jury’s sense of responsibility for its verdict,” ¶¶20-24.

State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: Testimony by a state’s expert to the effect that the only treatment program for psychopaths is at Sand Ridge did not require a new trial under the theory that it implicitly suggested commitment would be in the community’s and respondent’s best interest, ¶¶25-27 (court rejecting analogy to TPR procedure):

¶27      Wisconsin Stat. ch. 980 establishes a bifurcated process, but one distinct from that contained in the TPR statutes. Under ch. 980, the fact finder determines whether the respondent is a sexually violent person. The court then enters judgment on that finding and orders the person committed. Wis. Stat. § 980.06. The decision to enter judgment upon the finding is not a discretionary one, which distinguishes ch. 980 from the TPR process. No independent consideration analogous to the “best interests” standard permeates the court’s role in a ch. 980 proceeding. In addition, the TPR statute explicitly reserves consideration of the best interests of the child for the court. In contrast, chapter 980 does not preclude consideration of the best interests of the respondent or those of society. In fact, the definition of a “sexually violent person” implicitly invokes both of these factors, see Wis. Stat. § 980.01(7), and our supreme court has recognized protection of the public as a principal purpose for committing a sexually violent person, Carpenter, 197 Wis. 2d at 271. In sum, we agree with the State’s conclusion that “the analogy between the two statutes is weak.”

State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se

Issue/Holding: DOC determination that an inmate isn’t eligible for CIP doesn’t constitute a new factor, notwithstanding the sentencing court’s determination that he is eligible.

¶11      Here, the trial court determined that Schladweiler was eligible for the CIP. … The sentencing court expressly indicated that participation in the CIP is a possibility to be ultimately determined by the department, explaining to Schladweiler the sentencing modifications that would take place “ if you are placed in … the [CIP] as determined by the department.” (Emphasis added.) Based on these statements and the statutory framework which provides the DOC with the final word on his eligibility, Schladweiler simply cannot establish that the DOC’s potential denial of placement was a fact not known to the trial court at the time of sentencing.

…

¶14      In sum, there is nothing in the court’s explanation that in any way indicates that its sentencing decision was premised upon Schladweiler’s acceptance into the CIP. We therefore conclude that Schladweiler has failed to demonstrate that his inability to meet the CIP placement criteria frustrated the purpose of the trial court’s sentence. See Johnson, 158 Wis. 2d at 466.

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: Initial confinement totaling 36, and supervision of 17, years on sexual assault-related convictions wasn’t harsh and excessive:

¶48      Berggren’s sentence was not shocking, nor does it violate the judgment of reasonable people concerning what is right and proper under the circumstances. As the State points out, the aggregate sentence of fifty-three years is less than one-fourth of the statutory exposure Berggren faced if the maximum sentences for the charges he pled guilty to had all been imposed consecutively. It was within the trial court’s discretion to impose an initial confinement period, upon the completion of which Berggren will be seventy-six years old. See State v. Stenzel, 2004 WI App 181, ¶¶10-20, 276 Wis. 2d 224, 688 N.W.2d 20 (upholding what the defendant described as a “de facto life sentence”); State v. Ramuta, 2003 WI App 80, ¶¶22-26, 261 Wis. 2d 784, 661 N.W.2d 483 (upholding the sentence imposed where the defendant raised an analogous argument).

State v. Anthony L. Prineas, 2009 WI App 28
For Prineas: Raymond M. Dall’Osto, Kathryn A. Keppel

Issue/Holding: Prineas was convicted on 2 counts of 2^nd-degree sexual assault, and acquitted on another 4; the PSI recommended 6-8 years, but he was sentenced to 10 IC, 10 ES and a concurrent 30-year term of probation; though a first-time offender, the disposition is upheld against a claim of harsh and excessive sentence, ¶¶29-34.

Purely as a point of curiosity: the sentencing judge was the subject of a recall campaign some years ago because of his perceived leniency in a sexual assault case, e.g., State v. Pablo Cruz Santana, 220 Wis. 2d 674, 584 N.W.2d 151 (Ct. App. 1998); the recall effort was unsuccessful but apparently the judge took the lesson to heart.

State ex rel. David C. Myers v. Smith, 2009 WI App 49
Pro se

Issue/Holding: Writ of certiorari “misdirected” to wrong respondent (in this instance, review of inmate complaint, improperly naming as respondent institution warden rather than DOC Secretary or designee) must be dismissed:

¶10      We begin by observing that certiorari “is available only for the purpose of reviewing a final determination.” Id., ¶12. The writ must be directed “to the board or body whose acts are sought to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject-matter or of the persons composing such board or body.” State ex rel. Kulike v. Town Clerk of Town of Lebanon, Dodge County, 132 Wis. 103, 105, 111 N.W. 1129 (1907). The final decision-making authority for an inmate complaint is identified by reference to the administrative code provisions.¶11      … [T]he DOC secretary is the final decision maker on an inmate complaint initiated under the ICRS.

¶12      We understand that, particularly for a pro se appellant, some sections of the administrative code may be difficult to navigate. Myers, however, appears to have followed the procedures and obtained a final determination by the secretary’s designee as envisioned by the code. He initiated a complaint using the ICRS, he was dissatisfied with the ICE’s determination, he sought review, a CCE reviewed the determination and recommended that the secretary approve the decision, and the secretary ^[3] adopted the CCE’s recommendation. Myers has not made, nor could he reasonably support, an argument that he did not know the final decision maker was the secretary. Accordingly, we affirm the order of the circuit court, which dismissed the petition for lack of jurisdiction because the writ was misdirected. See Kulicki, 132 Wis. at 105; Grzelak, 263 Wis. 2d 678, ¶12.