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COURT OF APPEALS DECISION DATED AND FILED December 28, 2005 Cornelia G. Clark Clerk of Court of Appeals |
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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 from an order of the circuit court for Milwaukee County:� DAVID A. hansher, Judge.� Affirmed.�
����������� Before Wedemeyer, P.J., Curley and Kessler, JJ.�
�1����������������������� WEDEMEYER, P.J. Kenneth R. Parrish appeals pro se from an order denying his postconvicton motion.� He claims the trial court erred in denying his motion, which asserted that Wis. Stat. ch. 980 (2003-04)[1] was unconstitutional as applied to African-Americans in Milwaukee County and that he should be entitled to a jury trial at each recommitment level.� Because the trial court did not err in denying his motion, we affirm.
BACKGROUND
�2����������������������� On June 20, 2000, following a bench trial, Parrish was found to be a sexually violent person under Wis. Stat. � 980.05 and was committed to institutional care in the custody of the Department of Health and Family Services.� We affirmed his direct appeal.� See State v. Parrish, 2002 WI App 263, 258 Wis. 2d 521, 654 N.W.2d 273.
�3����������������������� On August 12, 2003, Parrish filed a petition seeking discharge from his commitment pursuant to Wis. Stat. � 980.09.� On May 26, 2004, a reexamination report, prepared under Wis. Stat. � 980.07, was filed with the trial court.� The report concluded that Parrish was still a sexually violent person and recommended that he not be discharged at that time.� Dr. Lori Pierquet of the� Department of Health and Family Services prepared the report.
�4����������������������� A probable cause hearing was conducted on October 8, 2004, wherein the trial court ruled there was no basis for a discharge hearing based on the reexamination.� On October 15, 2004, Parrish filed a notice of appeal, a combined withdrawal of the notice of appeal and motion to find ch. 980 unconstitutional, and a petition seeking discharge.� On December 2, 2004, the court denied Parrish�s motions on the constitutionality of ch. 980 and found there was no probable cause to hold a discharge hearing as he was still a sexually violent person.� Parrish filed another petition seeking discharge on December 17, 2004, which was again denied.
�5����������������������� On January 4, 2005, Parrish filed motions seeking summary judgment and an order vacating his commitment.� These motions were denied on January 7, 2005.� On February 10, 2005, Parrish filed a petition for discharge and a motion to declare the procedures unconstitutional as applied to African-Americans in Milwaukee County.� The trial court denied the petition and motion.� Parrish now appeals.
DISCUSSION
�6����������������������� Parrish�s pro se brief is difficult to decipher.� We interpret his complaints to assert three claims:� (1) Wis. Stat. ch. 980 is unconstitutional as applied to African-Americans in Milwaukee County; (2) that he should have been afforded a discharge hearing; and (3) the paper review violates his constitutional rights.� We reject all three arguments.
�7����������������������� Wisconsin Stat. � 980.09(2)(a) sets forth the law with regard to a petition seeking discharge from a ch. 980 commitment, without the secretary�s approval or when a person declines to waive the right to a discharge trial at the time of their annual reexamination under Wis. Stat. � 980.07.� The statute requires the trial court to conduct a �probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person.�� Sec. 980.09(2)(a).� Case law interpreting the statute involved in this case provides that the probable cause hearing consists of �a paper review of the reexamination report(s) with argument that provides an opportunity for the committing court to weed out frivolous petitions �.�� State v. Paulick, 213 Wis. 2d 432, 438-39, 570 N.W.2d 626 (Ct. App. 1997).
�8����������������������� Wisconsin Stat. � 980.10 provides that if a person previously filed a petition, which was denied because it was frivolous or because 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.�
A. Constitutionality.
�9����������������������� Parrish argues that the procedures in the statutes governing ch. 980 cases are unconstitutional as applied to African-Americans in Milwaukee County.� His argument is meritless because he does not explain how the statute discriminates against African-Americans and otherwise violates their constitutional rights.
�10����������������������� A challenge to the due process and equal protection procedures as unconstitutional was decided in favor of constitutionality in State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995).� Thus, Post controls the issue Parrish raises here.� The statutes are constitutionally sound.� Thus, we summarily reject Parrish�s constitutional claims.
B. Discharge
Hearing.
�11����������������������� We also conclude that the statutory procedures referred to above operate to bar Parrish�s claims that the trial court should have conducted a discharge hearing.� The record reflects that between August 12, 2003, and February 10, 2005, Parrish filed four to six petitions seeking discharge, and also triggered a �default� petition by failing to waive his right to a hearing following a reexamination.� Three of the petitions were filed in the four months between October 15, 2004, and February 10, 2005.� None of these petitions alleged any facts for a court to find that he was no longer suffering from a requisite mental disorder or that he was no longer substantially probable to re-offend.� Thus, the trial court did not err in acting as the gatekeeper here in summarily denying Parrish�s most recent filings.� Parrish�s petition/motion did not assert that his condition had changed so as to warrant a hearing.� Rather, this was simply another petition in a series of filings, which was rightfully denied as frivolous by the trial court.
C. Paper Review.
�12����������������������� Parrish contends that the procedure wherein the trial court conducts a paper review of the reexamination reports in order to determine whether to hold a discharge hearing is unconstitutional in that it violates his rights to confront witnesses.� We reject his argument.
�13����������������������� The confrontation clause in both the United States and Wisconsin Constitutions affords a defendant in a criminal proceeding with the opportunity to confront witnesses against him.� See U.S. Const., amend. VI; Wis. Const., art. I, � 7.� Wisconsin Stat. ch. 980 is a civil proceeding and affords ch. 980 respondents constitutional rights available to criminal defendants only as provided by Wis. Stat. � 980.05(1m).� See State v. Curiel, 227 Wis. 2d 389, 417, 597 N.W.2d 697 (1999).� This section applies only to the trial of the petition.� Therefore, Parrish was entitled to assert his confrontation rights only at his trial on the commitment petition.� That right does not extend to subsequent proceedings under ch. 980.� There is no basis to extend the confrontation clause to a court�s review of psychological reports and records for the purpose of determining whether to conduct a discharge hearing, which is a civil commitment proceeding.
����������� By the Court.�Order affirmed.�
����������� Not recommended for publication in the official reports.