On Point

State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith

Issue: Whether the trial court improperly assigned the burden of persuasion to the inmate at the § 980.09(2)(a) probable cause hearing.

Holding: The burden of persuasion is assigned to neither party at a § 908.09(2)(a) hearing, the purpose of which is simply to conduct a paper review to determine whether a full evidentiary hearing is necessary. The trial court did not assign the burden of persuasion to the inmate. ¶¶16-19.

State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith

Issue: Whether the patient was entitled to a full evidentiary hearing on release following the reexamination probable cause “paper review.”

Holding:

¶26 A full evidentiary hearing was unwarranted. The only evidence before the trial court indicated that the grounds for Thayer’s original WIS. STAT. ch. 980 commitment remained current and relevant, that Thayer continued to display dangerous and sexually inappropriate behavior while involved in treatment programs, that he still had important treatment issues to address and that he was still likely to engage in future sexual violence. The report did not present any facts that would warrant a full evidentiary hearing pursuant to WIS. STAT. § 980.09(2)(b).

State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith

Issue: Whether the lateness of counsel’s appointment, six days before the paper review probable cause hearing, violated due process.

Holding: Construing Thayer’s argument to raise a contention that due to lateness of the appointment, counsel “had insufficient time to prepare for the probable cause hearing,” ¶35, the court accepts the attorney’s assertion that he didn’t need additional time to prepare for the hearing, and concludes that Thayer therefore wasn’t prejudiced by the “timing of the appointment.” ¶37.

: The court says that “there is no specific statutory time established to appoint counsel for an indigent ch. 980 patient. Counsel must simply be appointed as soon as possible.” ¶32. The court isn’t explicit as to what triggers the right to counsel, but broadly hints that the right attaches whenever the person becomes a “subject of the petition.” Id., quoting, § 980.03(2)(a). “Petition” can mean the person’s petition, and Thayer, as the court notes, “effectively” was petitioning for discharge. ¶33. The court’s discussion on this critical point is elliptical, but this may be what the court means: § 980.09(2)(a) says that if the person doesn’t affirmatively waive the right to petition, the court shall set a probable cause hearing; Thayer didn’t waive his right to petition for discharge; he therefore “was effectively petitioning the court for discharge on that date.” Id. “¶33 By failing to waive his right to petition for discharge on August 15, 1998, Thayer was effectively petitioning the court for discharge on that date.” The department’s examination was dated August 24, 1998, ¶23, so we can infer that 8/15/98 was probably the date of the reexam. The statute indicates that the waiver form must be given to the person at the time of the § 908.07(1) exam. If, then, the court’s apparent holding is taken literally, two rights are simultaneously triggered: the right to an independent expert (waived if not affirmatively asserted) and to a petition and therefore to counsel (self-effectuating unless affirmatively waived). Which means that at the very time Thayer is held to waiver of an independent expert (discussed separately above), he was entitled to representation by counsel. The argument therefore could be — but doesn’t appear to have been made — that Thayer’s waiver of the expert wasn’t effective because it was made without advice of counsel to which he was then entitled.

State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
For Ransdell: Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether the automatic initial commitment to institutional care provision, § 980.06, on its face violates substantive due process.

Holding: A person challenging the constitutionality of a statute must show its infirmity beyond reasonable doubt; a statute restricting liberty implicates a “strict-scrutiny” test. ¶5. Applying this test, § 980.06 does not violate due process: requiring that a commitment subject first undergo evaluation and treatment in an institutional setting before a decision is made as to supervised release is a reasonable legislative policy determination; and, “there are many safeguards against arbitrary confinement” (such as, various options for petitioning for release or discharge). ¶¶7-9.

The court relies heavily on the automatic-commitment procedure for NGI defendants, § 971.17(1) (1981-82), upheld by State v. Field, 118 Wis. 2d 269, 279-82, 347 N.W.2d 365 (1984). ¶8. But this merely begs the question of whether NGI and SVP procedure are really comparable. As the Supreme Court has indicated, “insanity acquittees constitute a special class that should be treated differently from other candidates for treatment,” Jones v. United States, 463 U.S. 354, 370 (1983). Field, for that matter, is premised in significant part on the idea that an insanity acquittee has necessarily committed a criminal act, itself “indicative of dangerousness.” 118 Wis. 2d at 279. Same can’t be said for an SVP subject, whose commitment is premised on a “predisposition” not actual commission of a crime. Then, too, Field stresses that automatic commitment ensures “a thorough and accurate evaluation,” 118 Wis. 2d at 281, something that will necessarily precede an SVP petition. Finally, an NGI acquittee is eligible for immediate conditional release, making the court’s reliance on the case somewhat odd. Neither side, incidentally, even cited Field in the briefs.

State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether the sentencing court punished the defendant for going to trial and by stressing the perceived falsity of the theory of defense.

Holding:

¶66. We do not agree with Gribble’s claim that the trial court was punishing him for “defense counsel’s lawful efforts to support the defendant’s claim of innocence.” We are satisfied from our review of the record that the court properly considered Gribble’s testimony, and considered the defense strategy only insofar as it was based on that testimony, which was within Gribble’s control and which the court believed to be false. This is properly within a court’s sentencing discretion. When determining a sentence, the sentencing court has the authority to evaluate a defendant’s testimony, determine if it contained “willful and material falsehoods,” and assess it in light of all other knowledge gained about the defendant. United States v. Grayson, 438 U.S. 41, 55 (1978). We are satisfied from our review of the record that the court did not consider an improper factor and that it otherwise properly exercised its discretion when imposing its sentence on Gribble.

State v. Joshua Slagoski, 2001 WI App 112, PFR filed 4/27/01
For Slagoski: Christopher William Rose

Issue1: Whether the results of a competency examination, which suggested that defendant presented a homicide-suicide risk, amounted to materially inaccurate information used at sentencing.

Holding:

¶9 We conclude that it is entirely reasonable that a mental competency examination designed to address a defendant’s ability to understand the proceedings and assist counsel may also address issues of future dangerousness. If the evaluation establishes dangerousness, a court may reasonably consider it when gauging the need for public protection. This is wholly consistent with Wisconsin law which requires the sentencing court to consider all relevant available information pertaining to the seriousness of the offense, the character of the offender and the need for public protection….

Issue2: Whether sentencing use of pretrial psychiatric evaluations violated the defendant’s self-incrimination and assistance of counsel rights.

Holding:

¶15 It is clear that Slagoski waived his Fifth Amendment rights when, through counsel, he initiated a psychiatric evaluation and placed his mental condition into controversy by entering pleas of not guilty and not guilty by reason of mental disease or defect. Furthermore, his own attorney requested Palermo for the psychiatric evaluation. Because Slagoski commenced the process for the pretrial evaluations and submitted to the examinations, he cannot now claim that its use in sentencing compelled him to testify against himself. (Court also explicitly rejects argument that defendant entitled to specific notice that evaluations could be used at sentencing, because “the defense was reasonably put on notice that the clinical impressions of both doctors would be highly relevant to the issue of future dangerousness, a legitimate sentencing consideration.”)

State v. Shomari L. Robinson, 2001 WI App 127, 629 N.W.2d 810, PFR filed 5/7/01
Robinson: Joseph L. Sommers

Issue: Whether the trial court impermissibly limited the defense presentation at sentencing.

Holding:

¶19            What remains is for us to consider whether the trial court erroneously exercised its discretion by prohibiting Robinson from presenting his “car evidence” at sentencing.  As the trial court correctly noted, the only statements which a court must permit at sentencing are those of the defendant and his counsel, the victim and the prosecutor.  See Wis. Stat. § 972.14 (1999-2000).[3]  The receipt or consideration of any other statements or evidence at sentencing is within the court’s discretion, and is conditioned upon being “relevant to the sentence.”  Section 972.14(3)(b).  Here, the court concluded that the proffered “car evidence” had little or no probative value regarding the nature of the offense, and it certainly did not bear on any of the other sentencing factors.  The trial court acknowledged that evidence relating to what car Robinson was driving and whether its window was broken out on the night in question might have some bearing on the overall credibility of the victim’s description of the offense, but concluded that the evidence would have had no impact on the court’s sentencing decision.[4]  Thus, we conclude that the court committed no evidentiary error in refusing to allow the “car evidence” at Robinson’s sentencing.

¶20            Robinson, however, also argues that he has a due process right to be sentenced on the basis of accurate information.  …

¶21            In this case, however, the trial court did not refuse to consider relevant evidence regarding the nature of the offense Robinson had committed.  It simply declined to permit the sentencing hearing to be diverted into litigation of what vehicle the defendant had been driving and whether a window in the car had been broken.  Evidence that a car window had not been broken would not have made it any “more probable or less probable” that the sexual assault was consensual as opposed to forcible.  See Wis. Stat. § 904.01.  We concur with the trial court’s assessment that the “car evidence” was not relevant to the issues at sentencing ….