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Case No.: |
02-3342 |
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Complete Title of Case: |
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In re the Commitment of Henry
Pocan: State of Wisconsin, ����������������������� Petitioner-Respondent, ������������� v. Henry Pocan, ����������������������� Respondent-Appellant. |
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Opinion Filed: |
October 21, 2003 |
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Submitted on Briefs:� |
September 9, 2003 |
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Oral Argument:� |
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JUDGES: |
Cane, C.J., Hoover, P.J., and Peterson, J. |
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����������� Concurred: |
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����������� Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the respondent-appellant, the cause was submitted on the briefs of Margaret A. Maroney, assistant state public defender, Madison.� |
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Respondent |
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ATTORNEYS: |
On behalf of the petitioner-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Warren D. Weinstein, assistant attorney general.� |
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COURT OF APPEALS DECISION DATED AND FILED October 21, 2003 Cornelia G. Clark Clerk of Court of Appeals |
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2003 WI App 233 NOTICE |
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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.� |
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Appeal No.� |
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Cir. Ct. No.�
97-CV-388 |
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STATE OF WISCONSIN��� |
IN COURT OF APPEALS |
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In re the Commitment of Henry
Pocan: State of Wisconsin, ����������������������� Petitioner-Respondent, ������������� v. Henry Pocan, ����������������������� Respondent-Appellant. |
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����������� APPEAL from an order of the circuit court for Outagamie County:� harold V. froehlich, Judge.� Reversed and cause remanded with directions.�
����������� Before Cane, C.J., Hoover, P.J., and Peterson, J.
�1����������������������� PETERSON, J. Henry Pocan appeals an order denying his petition for discharge from a Wis. Stat. ch. 980 commitment.[1]� He argues the court erroneously denied him a probable cause hearing.� We agree, reverse the order and remand for a probable cause hearing.
BACKGROUND
�2����������������������� Pocan previously was found to be a sexually violent person under Wis. Stat. � 980.06.� He was committed to the custody of the Department of Health and Family Services in February 1998.
�3����������������������� The State first evaluated Pocan in 1997.� One psychologist stated that Pocan�s schizophrenia and antisocial personality disorder predisposed Pocan to acts of sexual violence and that there was a substantial probability he would engage in acts of sexual violence.� Another psychologist stated he could not conclude Pocan was sexually dangerous.� Several reexaminations took place between 1997 and 2001.� Each time, the reviewing psychologists were unable to recommend Pocan�s release.
�4����������������������� Another reexamination occurred on June 28, 2002.� Using actuarial tables not available when Pocan was originally committed, the psychologist stated that Pocan�s �mental disorders do not predispose Mr. Pocan to engage in acts of sexual violence, as defined by Chapter 980.�� Further:
This evaluator cannot conclude, to a reasonable degree of professional certainty, whether or not there continues to be a substantial probability that Mr. Pocan will reoffend sexually if he is not continued in institution care.
Based on this report, Pocan petitioned for discharge and asked for a probable cause hearing.� The court denied the petition and Pocan appeals.
DISCUSSION
�5����������������������� Resolution of this appeal requires interpretation of Wis. Stat. �� 980.09 and 980.10.� Section 980.09 applies to a first petition for discharge, while � 980.10 applies to subsequent petitions.� The interpretation of a statute presents a question of law this court determines independently.� Three & One Co. v. Geilfuss, 178 Wis. 2d 400, 412, 504 N.W.2d 393 (Ct. App. 1993).� �Where the plain meaning of a statute is unambiguous, the words of the statute must be given their obvious and intended meaning.�� Id.
�6� ����������������������� Wisconsin Stat. ch. 980 provides that a committed person may petition for discharge with the approval of the secretary of the Department of Health and Family Services, Wis. Stat. � 980.09(1), or without the secretary�s approval, Wis. Stat. � 980.09(2).� Pocan petitioned without the secretary�s approval.� When an individual petitions for the first time without the secretary�s approval, � 980.09(2)(a) states �the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person.�
�7����������������������� If the individual files any subsequent petitions, the court proceeds under Wis. Stat. � 980.10, which states:
[I]f a person has previously filed a petition for discharge without the secretary�s approval and the court determined, either upon review of the petition or following a hearing, that the person's petition was frivolous or that the person was still a sexually violent person, then the court shall deny any subsequent petition under this section without a hearing unless the petition contains facts upon which a court could find that the condition of the person had so changed that a hearing was warranted.
However, if a previous petition
was denied for any another reason, the court must follow the procedure in
� 980.09(2)(a) and hold a probable cause hearing.�� Id.
�8����������������������� Believing this was not Pocan�s first petition for discharge, the court followed Wis. Stat. � 980.10.� It determined that a previous petition had been found frivolous and that the current petition did not contain facts upon which it could find that Pocan�s condition had changed.� The court then denied a probable cause hearing. �
�9����������������������� The State concedes Pocan was entitled to a probable cause hearing because �[n]one of Pocan�s [previous] pleadings can fairly be regarded as a petition for discharge.�� Therefore, Pocan was entitled to a probable cause hearing under Wis. Stat. � 980.09.[2]� The State nonetheless maintains that this error does not require reversal because Pocan�s petition does not show he has changed and is no longer a sexually violent person.
�10����������������������� The State bases its argument on several statutory provisions.� First, Wis. Stat. � 980.07(1) states that reexamination is �for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged.�� Second, Wis. Stat. � 980.10 provides that subsequent petitions focus on whether there are �facts upon which a court could find that the condition of the person had so changed that a hearing [is] warranted.�� Finally, Wis. Stat. � 980.09(2)(a) requires the court to hold a probable cause hearing �to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person.����
�11����������������������� The State argues that Wis. Stat. ch. 980 thus requires the court to focus on progress or improvement in Pocan�s condition.� The psychologist stated that, based on new diagnostic tools, she could not conclude that Pocan would reoffend sexually.� However, the State argues the psychologist�s report contains no evidence that there was an improvement in Pocan�s condition.� Instead, the State maintains Pocan is merely arguing that he was never a sexually violent person in the first place, instead of establishing that he is not �still� a sexually violent person.�
�12����������������������� We agree that progress in treatment is one way of showing that a person is not still a sexually violent person.� However, we conclude that is not the only way.� A new diagnosis would be another way of proving someone is not still a sexually violent person.� A new diagnosis need not attack the original finding that an individual was a sexually violent person.� Rather, a new diagnosis focuses on the present.� The present diagnosis would be evidence of whether an individual is still a sexually violent person.
�13����������������������� The circuit court found Pocan to be a sexually violent person when it committed him in 1998.� He now argues new diagnostic tools show that he is not a sexually violent person.� If the court finds Pocan is not sexually violent now, that means he is not still a sexually violent person.��
�14����������������������� Pocan asks that we remand for a probable cause hearing.� The State agrees that this is the best course if we do not affirm the court�s denial of the petition.� We also agree that remand is necessary here.� At the hearing, the circuit court should proceed under Wis. Stat. � 980.09 and determine whether facts exist that warrant a trial on whether Pocan is still a sexually violent person.
����������� By the Court.�Order reversed and cause remanded with directions.
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[1]� All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2]� Pocan characterizes several of his previous pleadings as petitions for discharge and therefore claims we must proceed under Wis. Stat. � 980.10.� He argues that the court did not find any previous petition frivolous or that Pocan remained a sexually violent person.� Consequently, under � 980.10, the court must follow Wis. Stat. � 980.09(2)(a) and hold a probable cause hearing.��� The State, however, maintains none of Pocan�s previous petitions were petitions for discharge and therefore � 980.10 does not come into play.� We need not determine which is the correct view of the facts because the result is the same.� Either way, Pocan is entitled to a probable cause hearing.�