COURT OF APPEALS DECISION DATED AND FILED June 16, 2015 Diane M. Fremgen Clerk of Court of Appeals |
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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 from a judgment and an order of the circuit court for Milwaukee County: kevin e. martens, Judge. Affirmed.
Before Curley, P.J., Brennan, J., and Thomas Cane, Reserve Judge.
¶1 PER CURIAM. Michael Lewis Wattleton, pro se,
appeals a judgment and order finding that he is a sexually violent person and
committing him to the Department of Health Services for control, care and
treatment. See Wis. Stat. ch. 980
(2013-14).[1] He asserts that the circuit court erred by
failing to hear or resolve the pretrial motion he filed pro se while represented by counsel and that proceedings to commit
him under ch. 980 are barred for multiple reasons, the bulk of which are
related to the law in effect when he was convicted of sex crimes in 1980. We reject his claims and affirm.
BACKGROUND
¶2 On
June 19, 1980, a jury found Wattleton guilty in case No. J-6809 of one count of
armed burglary, two counts of armed robbery, and four counts of first-degree
sexual assault. See Wis. Stat. §§ 943.10
(1979-80), 943.32(2)
(1979-80), 940.225(1)(b) (1979-80). At
the time of Wattleton’s convictions, the Wisconsin Sex Crimes Law was in
effect. See Wis. Stat. ch. 975
(1979-80).[2] The law required sexual offenders convicted
under § 940.225(1)-(3) (1979-80) to undergo a social, physical, and mental
examination prior to sentencing. See Wis.
Stat. § 975.01 (1977-78) (effective through June 30, 1980, pursuant
to 1979 Wis. Laws, ch. 117, §§ 6, 15).
Depending on the outcome of the examination, the circuit court would
then either sentence the offender or conduct a hearing to determine whether to
commit the offender for treatment. See Wis.
Stat. §§ 975.05-975.06.
Accordingly, on June 19, 1980, the circuit court ordered Wattleton to
undergo a presentence examination.
¶3 The
legislature repealed Wis. Stat. ch.
975 effective July 1, 1980, and thereafter the circuit court could not commit
anyone under that chapter. See 1979 Wis. Laws, ch. 117, §§ 6,
15. Therefore, when Wattleton returned
to court in August 1980, the circuit court continued case No. J-6809 for
sentencing. The circuit court delayed
selecting a sentencing date, however, until resolution of pending charges in a
second case, No. J-6823.
¶4 On
October 20, 1980, Wattleton pled no contest in case No. J-6823 to one count of
armed burglary, four counts of armed robbery, and six counts of first-degree
sexual assault. On November 14, 1980,
all of the eighteen matters in case Nos. J-6809 and J-6823 proceeded to
sentencing. The circuit court imposed an
aggregate sixty-year indeterminate prison sentence.
¶5 While
Wattleton was incarcerated, the Wisconsin legislature enacted Wis. Stat. ch. 980, a procedure
permitting the State to seek civil commitment of sexually violent persons for
control, care and treatment. See 1993 Wis. Act 479; State
v. Carpenter, 197 Wis. 2d 252, 258-60, 541 N.W.2d 105 (1995). In 2007, ninety days before Wattleton’s
scheduled date for release from prison, the State petitioned to commit him as a
sexually violent person under ch. 980. With
the assistance of appointed counsel, Wattleton opposed the petition, and the
matter proceeded to a bench trial. The
circuit court found that Wattleton was a sexually violent person and committed
him to the Department of Health Services.
¶6 The
state public defender appointed new counsel to represent Wattleton in postdisposition
and appellate proceedings. Wattleton discharged
his appointed appellate counsel, and he now appeals pro se.
DISCUSSION
¶7 Wattleton
first contends the circuit court erred by failing to hear or resolve his pro se pretrial motion to dismiss the
proceedings. He is wrong. The Wisconsin Constitution gives a litigant
the right to prosecute or defend a lawsuit in state court “either in his own
proper person or by an attorney of the suitor’s choice.” Wis.
Const. art. I, § 21(2).
Wattleton elected representation by counsel. The general rule is that when a litigant is
represented by counsel, he or she is not entitled to conduct court proceedings pro se. See
H.C. Lind, Annotation, Right of Litigant in Civil Action Either to Assistance
of Counsel Where Appearing Pro Se or to Assist Counsel Where Represented,
67 A.L.R.2d 1102, § 3 (1959).
Wisconsin follows the general rule.
See Robinson v. State, 100 Wis. 2d 152, 165, 301 N.W.2d 429
(1981) (applying the rule in the context of criminal proceedings). Because Wattleton was represented by counsel
throughout the pretrial and trial proceedings, the circuit court did not err by
declining to address Wattleton’s pro se pretrial
motion.
¶8 Wattleton
next alleges that various procedural bars prevent the State from bringing
commitment proceedings against him under Wis.
Stat. ch. 980. It appears
Wattleton’s trial counsel did not seek to defeat the petition based on any procedural
bars. We conclude the issues are not
properly preserved. See State v. Harper, 57 Wis. 2d 543, 550, 205 N.W.2d 1 (1973)
(litigant’s attorney has the right to control the litigation). For this reason, we reject Wattleton’s
remaining arguments. See Jackson v. Benson, 218 Wis. 2d
835, 901, 578 N.W.2d 602 (1998) (explaining that we do not resolve issues
raised for the first time on appeal). Because
the State has addressed the substance of Wattleton’s contentions, however, we
elect to do so as well. See id.
¶9 Wattleton
asserts he was eligible to be committed for treatment under Wis. Stat. ch. 975, he was not committed
for treatment under ch. 975, and therefore he cannot be committed now because
the proceedings in 1980 conclusively resolved the question of whether he should
ever be committed. Wattleton states and
restates this claim in various ways, but controlling decisions from Wisconsin
courts dictate that the claim must fail, whether couched in the language of estoppel,
preclusion, or waiver.
¶10 Wattleton
argues judicial estoppel bars the State from pursuing his commitment under Wis. Stat. ch. 980 because, during the
course of the criminal prosecution in case J-6809, the prosecutor argued
“[Wattleton] was a criminal and should be sentenced” rather than committed
under Wis. Stat. ch. 975. Judicial estoppel is an equitable doctrine
applied to prevent a party from playing “‘fast and loose’” with the legal
system by persuading a court to adopt one position, then asking a second court
to adopt a contrary position. See State v. Petty, 201 Wis. 2d 337,
347, 548 N.W.2d 817 (1996) (citation omitted).
Before a court applies judicial estoppel to bar a party’s argument, the
party’s “‘later position must be clearly inconsistent with the earlier
position; second, the facts at issue should be the same in both cases; and
finally, the party to be estopped must have convinced the first court to adopt
its position.’” Id. at 348 (citations
omitted). Wattleton contends the State’s
position regarding his eligibility for commitment under ch. 975 is fatally
inconsistent with the State’s effort to commit him under ch. 980. He is incorrect.
¶11 As
Wattleton’s submissions show, the State’s position in 1980 was that Wattleton could
not be committed for treatment under Wis.
Stat. ch. 975 because the statute would expire before a commitment
proceeding could be completed. That
position is not inconsistent with the State’s effort to commit Wattleton several
decades later under a different—and robust—statute. Judicial estoppel is inapplicable.
¶12 Wattleton
next offers the doctrines of claim preclusion and issue preclusion as bars to committing
him under Wis. Stat. ch. 980. The doctrine of claim preclusion provides
that a judgment is conclusive in all subsequent actions between the same
parties or their privies involving all matters litigated, and all matters that
could have been litigated, in the proceeding leading to the judgment. State v. Parrish, 2002 WI App 263,
¶14, 258 Wis. 2d 521, 654 N.W.2d 273.
The doctrine of issue preclusion bars a party from relitigating a
factual or legal issue that actually was litigated and decided in an earlier
action. Id. Wattleton argues these doctrines apply because,
he says, the psychiatrist who examined him before his sentencing in 1980
“diagnosed [him] as a criminal” and “not in need of specialized [c]are.” In Wattleton’s view, the State could have
challenged these opinions and, because it did not, the 1980 proceedings
conclusively establish him as unsuitable for commitment.
¶13 Assuming
for the sake of argument only that in 1980 the State could have litigated or
did litigate Wattleton’s suitability for commitment under Wis. Stat. ch. 975, the State is not
thereby precluded from later pursuing commitment proceedings under Wis. Stat. ch. 980. We expressly rejected such preclusion
arguments in Parrish, 258 Wis. 2d 521, ¶¶13-23. There, the State filed a second petition
seeking to commit an offender under ch. 980 more than a year after failing to
prevail on an earlier such petition. See id.,
¶¶5-6. The offender objected: “[r]elying on what he termed ‘the concepts of res judicata, issue preclusion,
collateral estoppel, estoppel by the record, and double jeopardy,’ [the
offender] requested dismissal ‘on the grounds that the same issues have been,
and are being, presented in the two petitions.’”[3] Id., ¶6. We disagreed, stressing “the singular significance
of the present-time focus of a ch. 980 commitment trial.” Id., ¶20. We concluded that the “‘sheer passage of
time,’” see id., ¶22 (citation omitted), as well as “new
circumstances, and the dynamic nature of [the offender’s] mental health and
potential dangerousness allowed the State to file a new petition for [the
offender’s] commitment,” see id., ¶23.
¶14 Parrish
is controlling. Like the
offender in Parrish, Wattleton seeks to preclude the State from seeking his
commitment now in light of a prior proceeding.
As in Parrish, however, much time has passed since the first
proceeding, and the evidence presented by the State in the later proceeding
includes new information. For example, the
record indicates that a psychiatrist in 1980 diagnosed Wattleton only with an antisocial
personality disorder. During the Wis. Stat. ch. 980 trial, by contrast,
the State presented expert testimony that Wattleton presently carries additional
diagnoses of sexual sadism and paraphilia not otherwise specified and that he
exhibits a high degree of psychopathy.
Expert testimony further established that a high degree of psychopathy
increases the risk of an offender committing another sex crime.
¶15 Moreover,
the State presented evidence during the Wis.
Stat. ch. 980 trial regarding the various sex offender treatments that
Wattleton received while he was imprisoned, his decision to terminate some of
the treatment “against his provider’s advice,” his treatment providers’ ongoing
concerns that he has failed to internalize his treatment, the slew of conduct
reports he received while institutionalized, his bizarre behavior in relation
to a female prison psychologist, and his conflicts with institution staff. Finally, the State’s experts opined to a
reasonable degree of professional certainty that Wattleton is more likely than
not to engage in future acts of sexual violence. In sum, the State presented evidence of
Wattleton’s present need for control, care, and treatment in a confined setting,
evidence developed in substantial part after his sentencing in 1980.
¶16 The
passage of time, new information, and the dynamic nature of a person’s mental
health permit the State to file successive petitions for commitment without
running afoul of the doctrines of claim preclusion and issue preclusion. See Parrish, 258 Wis. 2d 521,
¶23. All three relevant factors are
present here. Accordingly, as in Parrish,
neither claim preclusion nor issue preclusion barred the State from pursuing
Wattleton’s commitment under Wis. Stat. ch.
980.[4] See Parrish, 258 Wis. 2d 521, ¶23.
¶17 Wattleton
next asserts estoppel by record bars a commitment proceeding under Wis. Stat. ch. 980. “Estoppel by record is a doctrine similar to
claim preclusion under which a party is prevented from litigating what was
litigated or might have been litigated in another proceeding, but it is the
record of the prior proceeding, not the judgment, that is the bar to the second
proceeding.” State v. Miller, 2004 WI
App 117, ¶30, 274 Wis. 2d 471, 683 N.W.2d 485. Parrish again requires us to reject
Wattleton’s claim. In Parrish,
the offender contended that the circuit court must examine the record of
proceedings in the offender’s first ch. 980 trial to determine whether a second
ch. 980 trial was precluded. See Parrish,
258 Wis. 2d 521, ¶24. We disagreed,
explaining: “[t]he issue, when the
second petition was filed, was whether [the offender] was a sexually violent
person in need of commitment in 2000, following release and revocation, not in
1997, prior to parole. The [circuit] court
did not need to read the record of the first trial to understand that.” Id., ¶26. Here, the question underlying the ch. 980
proceeding was whether Wattleton was a sexually violent person in 2007, at the
conclusion of his time in prison, not in 1980, when the circuit court sentenced
him. Accordingly, nothing in the record
of proceedings that ended in 1980 precluded commitment proceedings commencing
in 2007.
¶18 Next,
Wattleton asserts the State waived the opportunity to file a commitment
proceeding under Wis. Stat. ch. 980
because the State did not insist on seeking his commitment under Wis. Stat. ch. 975 in 1980. Waiver is “‘a voluntary and intentional
relinquishment of a known right.’” State
v. Nichelson, 220 Wis. 2d 214, 228, 582 N.W.2d 460 (Ct. App. 1998)
(citation omitted). Chapter 980 did not
exist in 1980. The State therefore had
no opportunity at that time to relinquish the right to pursue Wattleton’s
commitment under ch. 980. Waiver does
not apply.
¶19 We
turn to Wattleton’s contention that the circuit court should have dismissed the
commitment petition to avoid violating the constitutional prohibition against ex post facto laws. “It is well established that the
constitutional prohibition on ex post
facto laws applies only to penal statutes.”
Carpenter, 197 Wis. 2d at 272 (italics added). In Carpenter, the court explained that Wis. Stat. ch. 980 creates a civil
commitment procedure. Carpenter,
197 Wis. 2d at 258. Therefore, the
court held ch. 980 does not constitute an unconstitutional ex post facto law. Carpenter,
197 Wis. 2d at 258-59. Accordingly,
an ex post facto challenge is not
available to Wattleton.
¶20 Finally,
Wattleton offers a one-paragraph argument under the heading “equal protection.” In this paragraph, he includes no citations
to authority but asserts the judge and the lawyers involved in the Wis. Stat. ch. 980 proceedings “knew or
should have known the law does not allow someone to twice be persecuted [sic] for
the same offense under the civil statu[t]es or criminal statu[t]es.”
¶21 Because
the double jeopardy clauses of the Wisconsin and federal constitutions protect
against a second prosecution for the same offense after either acquittal or
conviction, see Carpenter, 197
Wis. 2d at 263, we conclude the “equal protection” claim Wattleton offers
is actually an assertion that the Wis.
Stat. ch. 980 proceedings violated his right to be free from double
jeopardy. The argument, however, is
wholly undeveloped, and we will not develop it for him. See
Cemetery
Servs. Inc. v. Wisconsin Dep’t of Regulation and Licensing, 221 Wis. 2d
817, 831, 586 N.W.2d 191 (Ct. App. 1998) (we cannot serve as both advocate and
judge). Nonetheless, we observe that a
double jeopardy claim, like a claim based on the bar to ex post facto laws, appears unavailable to Wattleton. In Carpenter, the supreme court held
that ch. 980 does not violate the double jeopardy clause. Carpenter, 197 Wis. 2d at
258-59.
By
the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
[2] All references to Wis. Stat. ch. 975 are to the 1979-80 version unless otherwise noted.
[3] In 1995, the supreme court replaced the terms res judicata and collateral estoppel with, respectively, the terms claim preclusion and issue preclusion. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995).
[4] Wattleton asserts that, as a result of the bars allegedly imposed by the doctrines of issue and claim preclusion, “the court lacked jurisdiction of the subject matter.” Wattleton is confused. “It is axiomatic that a circuit court is never without subject matter jurisdiction.” In re Ambac Assur. Corp., 2012 WI 22, ¶28, 339 Wis. 2d 48, 810 N.W.2d 450. An exception to this rule exists for an action premised upon a statute that is unconstitutional on its face. See State v. Bush, 2005 WI 103, ¶¶15-17, 283 Wis. 2d 90, 699 N.W.2d 80. Wattleton does not argue, let alone prove, that Wis. Stat. ch. 980 is facially unconstitutional. See State v. Pocian, 2012 WI App 58, ¶6, 341 Wis. 2d 380, 814 N.W.2d 894 (“In a facial challenge, the ‘challenger must establish, beyond a reasonable doubt, that there are no possible applications or interpretations of the statute which would be constitutional.’”) (citation omitted). Wattleton’s contention that the circuit court lacked subject matter jurisdiction is without merit, and we address it no further.