On Point

State v. Andre D. Crockett, 2001 WI App 235, PFR filed
For Crockett: David D. Cook

Issue:Whether facts suggesting that the defendant might have been less culpable than his codefendants amounted to a new factor justifying modification of sentence.

Holding: A new factor may be relate to facts “unknowingly overlooked” at sentencing; here, although the asserted new factor may have been unknowingly overlooked by the sentencing court, the defendant makes no claim that he was unaware of it, and it therefore fails the test. ¶14, citing State v. Kluck, 210 Wis. 2d 1, 7, 563 N.W.2d 468 (1997).

State v. John Casteel, 2001 WI App 188, PFR filed

Issue: Whether Casteel’s failure to argue in a prior new-factor based attempt to modify sentence bars him from now arguing that the special action release program, § 304.02 — a statute extant at the time of the prior motion to modify — is a new factor.

Holding:

¶17. We note that the special action parole release statute was first adopted in 1989. See 1989 Wis. Act 31. In 1993, Casteel argued that a new factor justified resentencing, but did not raise the current issue. See Casteel, Nos. 93-1306-CR and 93-1307-CR. In the additional six appeals since 1989, Casteel failed to raise this issue. He has not provided any reason that prevented him from arguing it previously. His appeal on this issue is untimely. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

This reasoning is dubious. Escalona merely interprets § 974.06, the statutory authority for collateral attacks on convictions; the limits it imposes on serial litigation are those it discerned in the statute. Sentence modification, on the other hand, is an exercise of inherent, common law authority, and importing purely statutory restrictions into this exercise is arbitrary. Nonetheless, the case is on the books and so long as it is strictly limited to its facts (asserted new factor extant at time of prior new-factor motion; no attempt to explain why not raised), then the impact may be limited.

State v. Anthony A. Parker, 2001 WI App 111

Issue: Whether transfer to an out-of-state prison was a new factor supporting sentence modification.

Holding:

¶11. Parker contends that his transfer out of state is a new factor that frustrates the purpose of his sentence because his placement no longer coincides with the judgment of conviction confining him to ‘Wisconsin state prisons.’ Parker’s reliance upon these words is excessively literal and finds no support in the case law. In Evers, we held that such language simply identifies the initial place of imprisonment for those who are imprisoned for more than one year.Evers, 2000 WI App 144 at ¶12. It creates neither a right of inmates to remain in Wisconsin institutions nor a restriction on the authority of the department to place inmates outside of Wisconsin when appropriate. Id.; see also Lambert, 35 F. Supp. 2d at 1132. Consequently, Parker’s transfer to a Minnesota prison does not violate his judgment of conviction.

¶12. Moreover, in reviewing the sentencing transcript, there is no indication that serving a portion of his term in a Minnesota prison, as opposed to a Wisconsin one, somehow frustrates the original intent of the trial court’s sentence. Indeed, the transcript makes clear that the court was primarily concerned about protecting the public from the violent conduct demonstrated by Parker in the case before it and his criminal history. The sentence was based on the gravity of the offense, the need for protection of the public, and Parker’s need for reform. Accordingly, we reject his claim.

State v. David J. Wolfe, 2001 WI App 136, 246 Wis.2d 233, 631 N.W.2d 240, PFR filed 5/18/01
For Wolfe: Ann T. Bowe

Issue: Whether evidence of the respondent’s arson adjudication, and institutional violations and misconduct while at an adolescent treatment center were admissible under § 904.04.

Holding:

¶37 Diagnoses of a mental disorder and dangerousness are directly foretold through past conduct. The jury needed to consider evidence of relevant past conduct to determine whether Wolfe had a mental disorder which predisposed him to commit acts of sexual violence and whether there was a substantial probability that he would commit acts of sexual violence in the future.…¶38 The use of an individual’s conduct and behavioral history and their effect on treatment is suitable in a WIS. STAT. ch. 980 commitment case. See State v. Adams, 223 Wis. 2d 60, 73, 588 N.W.2d 336 (Ct. App. 1998), review denied, 225 Wis. 2d 488, 594 N.W.2d 382 (Wis. Apr. 6, 1999) (No. 96-3136).

¶40 At trial, evidence was presented regarding Wolfe’s arson adjudication, his institutional rule violations and misconduct while at Norris, and his inability to participate in treatment programs. Clinical psychologist Michael Caldwell testified that Wolfe suffers from pedophilia and a personality disorder with antisocial features. A personality disorder is exhibited by a pervasive pattern of disregard for the rights of others, failure to comply with rules, irresponsibility and lack of remorse. The arson adjudication and institutional misconduct were presented to establish Wolfe’s diagnosed mental disorder, his dangerousness, and his risk of reoffending. This evidence had the tendency to make the statutory elements of a WIS. STAT. ch. 980 commitment more probable than not, State v. Sullivan, 216 Wis. 2d 768, 786, 576 N.W.2d 30 (1998), and thus was relevant. See WIS. STAT. § 904.01.

State v. Kerby G. Denman, 2001 WI App 96, 243 Wis. 2d 14, 626 N.W.2d 29.
For Denman: Glenn L. Cushing, SPD, Madison Appellate

Issue: Whether a Ch. 980 respondent’s jury waiver requires advice of the right to a unanimous verdict.

Holding: The court “look(s) to WIS. STAT. § 980.05(2), rather than the case law governing the waiver of a the constitutional right to a jury trial in criminal cases, to determine whether Denman’s waiver was valid,” ¶11; because that section “does not require the court to engage in any particular procedure,” it “does not require that a respondent be advised by the court that a jury verdict must be unanimous in order for the withdrawal of his or her request for a jury trial to be valid,” ¶12.

State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the trial court properly exercised discretion in refusing the indigent’s request for an independent expert on a § 980.07(1) (1997-98) reexamination.

Holding:

¶25 The first use of the word ‘may’ in WIS. STAT. § 980.07(1) (‘the person who has been committed may retain ….’) affords Thiel the option of requesting a second expert. Thus, it is within Thiel’s discretion whether to ask for an independent examination. However, if Thiel is indigent, as he alleged, and requests assistance from the court to obtain the second examination, the second use of the word ‘may’ in § 980.07(1) is not discretionary, but mandatory. The second use of ‘may’ does not offer the discretion to refuse such a request, but instead the latter “may” simply endows the circuit court with the authority to honor Thiel’s request. The new language of the statute, obligating the court to appoint an expert upon an indigent patient’s request, demonstrates that the legislature intended for the latter ‘may’ to be mandatory. Thiel’s § 980.07(1) request for the appointment of an expert was erroneously denied.

The holding seems self-explanatory: all SPD Ch. 980 clients are entitled, because they are by definition indigent, to mandatory appointment of an expert upon request. The more interesting question is how to square this case with State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811, which holds, ¶15, that the SVP has to request the expert at the time of reexam or the right is waived. Thiel’s reexam “was held on May 4, 1999”; he didn’t request an independent expert until he wrote a letter to the court on August 9, 1999. ¶3. But Thayer  has doubtful validity on this point. The right to an expert attaches when the person is “the subject of the petition.” § 980.03(3) (which is cross-referenced in § 980.07(1)). And the person doesn’t become a “subject of the (supervised release) petition” unless and until s/he refuses to waive the right to file a petition, something that at least arguably doesn’t occur until after the department’s examination has been prepared and filed with the court. § 980.09(2). In other words, the right to an independent examination hasn’t even attached “(a)t the time of the reexamination,” if that temporal limitation is taken literally, and it would therefore work an absurd result to impose a literal construction. The right attaches when you go to court, after the examination has been filed, and refuse to waive. That said, it still wouldn’t be clear what temporal limitation might apply. Thiel certainly made his request for an independent expert after that point, and the court held it viable, without discussing the problem. (Denial of counsel possibly entered into it.) Thayer was given counsel, and apparently never requested an expert, which might explain the different result, if not the reasoning. The lesson, certainly, is to make the request as soon as possible.

State v. Deryl B. Beyer, 2001 WI App 167, PFR filed
For Beyer: Jack E. Schairer, SPD, Madison Appellate

Issue1: Whether the trial court lost competence because the 72-hour time limit for a probable cause hearing, imposed by § 980.04(2), had passed.

Holding: Although the statutory time limit uses the term “shall,” it is directory rather than mandatory. “¶11. Under Wis. Stat. § 980.02(2), the State has only one ninety-day window of opportunity to petition for commitment. See Brissette, 230 Wis. 2d at 85; see also State v. Thomas, 2000 WI App 162, ¶13, 238 Wis. 2d 216, 617 N.W.2d 230. If the circuit court were to lose competence whenever the seventy-two-hour time limit is not met, in many cases the subjects of Wis. Stat. ch. 980 petitions could avoid that ninety-day window by making last-minute requests for judicial substitution. This would be a particularly likely scenario where the state has not filed a petition early in the ninety-day time window. Many offenders who are otherwise proper candidates for ch. 980 commitment would avoid treatment and remain a danger to the public simply by requesting a judicial substitution. The legislature could not have intended this result, and we therefore conclude that the seventy-two-hour limit in Wis. Stat. § 980.04(2) is directory.”

Issue2: Whether delay of approximately two months in holding the probable cause hearing violated due process.

Holding: Though the statutory time limit of 72 hours for holding a probable cause hearing is merely directory, it may not be extended “indefinitely.” Instead, any delay is bounded by considerations of due process. ¶¶13-14. Due process was satisfied here, the court stressing: “¶16. We caution that the length of delay that we have deemed permissible in Beyer’s case will not necessarily be reasonable in all Wis. Stat. ch. 980 cases. Beyer’s situation is extraordinary in that he made his request for judicial substitution at the last minute. The trial court found that ‘the substitution request was filed at approximately 5:00 p.m. on the 12th day of October, 1998, after normal business hours ….’ Such a strategy is particularly ill-advised in counties, as here, where only one circuit court judge sits.”