COURT OF APPEALS

DECISION

DATED AND FILED

 

August 10, 2010

 

A. John Voelker

Acting Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

 

 

 

 

Appeal No.�

2009AP1579

Cir. Ct. No.� 1997CI970001

STATE OF WISCONSIN���

IN COURT OF APPEALS

 

DISTRICT I

 

 

 

 

In re the commitment of Edwin C. West:

 

 

State of Wisconsin,

 

����������������������� Petitioner-Respondent,

 

����������� v.

 

Edwin Clarence West,

 

����������������������� Respondent-Appellant.

 

 

 

����������� APPEAL from an order of the circuit court for Milwaukee County:� m. joseph donald, Judge.� Affirmed.�

����������� Before Curley, P.J., Fine and Kessler, JJ.

�1������� PER CURIAM.   Edwin Clarence West was committed as a sexually violent person in 1997.� On April 18, 2008, West filed a petition for supervised release.� The circuit court denied West�s petition.� On appeal, West contends that the circuit court incorrectly assigned the burden of proof under Wis. Stat. � 980.08(4)(cg) and that by doing so, the circuit court violated West�s Due Process and Equal Protection rights.� Because we rejected identical arguments in State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443, we affirm.

�2������� Prior to August 1, 2006, when faced with a petition for supervised release, the circuit court was required to �grant the petition unless the state proves by clear and convincing evidence� either �[t]hat it is still likely that the person will engage in acts of sexual violence if the person is not continued in institutional care� or �[t]hat the person has not demonstrated significant progress in his or her treatment or the person has refused treatment.�� Wis. Stat. � 980.08(4)(b).� Under that statute, the State bore the burden of proof, �by clear and convincing evidence that the person is still a sexually violent person and that it is substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care.�� State v. Brown, 2005 WI 29, �11, 279 Wis. 2d 102, 109, 693 N.W.2d 715, 718.�

�3������� 2005 Wis. Act 434 extensively revised Wis. Stat. ch. 980, and a circuit court is now guided by Wis. Stat. � 980.08(4)(cg) when deciding a

petition for supervised release.[1]� Under that statute, the court �may not authorize supervised release unless, based on all of the reports, trial records, and evidence presented, the court finds that all� of the five enumerated criteria are met.� See Rachel, 2010 WI App 60, �9, 324 Wis. 2d at 471�472, 782 N.W.2d at 446 (emphasis omitted).

�4������� West argues that the change in the statutory language did not shift the burden of proof from the State.� He further argues that Wis. Stat. � 980.08(4)(cg) would violate Due Process and Equal Protection if the burden of proof rested with the person seeking a supervised release.� Both of West�s arguments were rejected by this court in Rachel.

�5������� In that case, we noted that Wis. Stat. � 980.08(4)(cg) �begins by directing the court to deny supervised release unless certain criteria are present� and �sets forth five criteria that must be demonstrated to overcome the presumption of institutionalization.�� Rachel, 2010 WI App 60, �11, 324 Wis. 2d at 473, 782 N.W.2d at 447.� Thus, while the statute is silent as to which party bears the burden of proof, �[i]t 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.�� Id., 2010 WI App 60, �12, 324 Wis. 2d at 473�474, 782 N.W.2d at 447.� We held that �the plain language employed by the legislature convinces us that the burden of proof now rests on the petitioner to show that the five statutory criteria are met.�� Id., 2010 WI App 60, �16, 324 Wis. 2d at 476, 782 N.W.2d at 448.

�6������� We also rejected the argument that the statutory change rendered Wis. Stat. ch. 980 unconstitutional.� We observed that �the constitutionality of [ch. 980] relies on procedures for periodic review of a commitment order,� and that �nothing in the revised statute has changed the requirement for periodic review.�� Rachel, 2010 WI App 60, ��15, 16, 324 Wis. 2d at 475�476, 782 N.W.2d at 447, 448.� Therefore, we held that �the constitutionality of the commitment scheme [wa]s not disturbed� by the amendment of Wis. Stat. � 980.08(4).� Rachel, 2010 WI App 60, �16, 324 Wis. 2d at 476 782 N.W.2d at 448.

�7������� Our opinion in Rachel controls this appeal, and, therefore, we affirm the circuit court order denying West�s petition for supervised release.

����������� By the Court.�Order affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.


 


[1]  In State v. Arends, 2010 WI 46, __ Wis. 2d __, __ N.W.2d __, the supreme court considered how the revisions to Wis. Stat. ch. 980 affected the procedures when a committed person filed a petition for discharge under Wis. Stat. � 980.09.� In that case, the supreme court held that under � 980.09(1), the circuit court first �engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person.�� Arends, 2010 WI 46, �4, __ Wis. 2d at __, __ N.W.2d at __.� �The clear purpose of [this] review is to weed out meritless and unsupported petitions.�� Id., 2010 WI 46, �28, __ Wis. 2d at __, __ N.W.2d at __.�

If the petition alleges sufficient facts, the circuit court then conducts the review called for by Wis. Stat. � 980.09(2).� That review is a �limited review of the sufficiency of the evidence.�� Id., 2010 WI 46, �43, __ Wis. 2d at __, __ N.W.2d at __.�

The [circuit] court is required to review the items specifically enumerated [in � 980.09(2)] if available, and may order those items to be produced and/or conduct a hearing at its discretion.� The circuit court must determine whether the enumerated items contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person.� If any facts support a finding in favor of the petitioner, the [circuit] court must order a discharge hearing on the petition; if no such facts exist, the court must deny the petition.

Ibid.� The supreme court further held that �[t]he petitioner does not need to prove a change in status in order to be entitled to a discharge hearing; the petitioner need only provide evidence that he or she does not meet the requirements for commitment.�� Id., 2010 WI 46, �41, __ Wis. 2d at __, __ N.W.2d at __.

A person committed under ch. 980 who wishes to secure his or her release may either file a petition for supervised release under Wis. Stat. � 980.08 or file a petition for discharge under Wis. Stat. � 980.09.� Arends, 2010 WI 46, �17, __ Wis. 2d at __, __ N.W.2d at __.� West chose to file a petition for supervised release, and, therefore, this court�s opinion in Rachel, addressing � 980.08, is applicable.