COURT OF APPEALS DECISION DATED AND FILED March 18, 2009 David
R. Schanker 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
Before
¶1 SNYDER, J. Dennis R. Thiel appeals from an order denying his petition for supervised release from his Wis. Stat. ch. 980 (2005-06)[1] commitment. He contends that the circuit court applied the wrong legal standard and misplaced the burden of proof on him rather than on the State when denying his petition. Because the legislature has extensively revised the relevant statutes, and those revisions support the circuit court’s exercise of discretion, we affirm the order of the circuit court.
FACTS AND PROCEDURAL BACKGROUND
¶2 Although the factual and procedural background of this case
is extensive, the information relevant to this certification is brief and
undisputed. Dennis R. Thiel has been
under a Wis. Stat. ch. 980
commitment order for over a decade.
Throughout the course of his commitment, he has alternately petitioned
for supervised release and for discharge from his commitment. This appeal involves Thiel’s petition for
supervised release, which had been remanded to the circuit court for further
proceedings.
¶3 On June 21, 2007, the court held a hearing on Thiel’s 1999
petition for supervised release and his 2006 petition for discharge.[2]
The court heard testimony from three expert witnesses: Dr. David Thornton, the treatment director at
¶4 Dr. Thornton testified that he had reviewed Thiel’s treatment records and had personally interviewed him twice. He explained that one particular recidivism risk assessment tool, the Static 99, indicated Thiel was a “moderate low level of risk.” He also stated that other assessment tools, such as the Psychopathy Checklist-Revised (PCL-R), showed “somewhat elevated psychopathic traits” that were associated with a high risk of reoffending. Overall, Dr. Thorton concluded that Thiel was “probably just a little over the required threshold for civil commitment.” He agreed with the proposition that Thiel “could be safely treated in the community as long as he’s in [Sand Ridge’s supervised release] program.”
¶5 Dr. Hill testified that she conducted her examination based
on the reports in Thiel’s Sand Ridge file along with the Static 99 and other
tests that she conducted herself. She
concluded that Thiel suffered from pedophilia and a nonexclusive sexual
attraction to females, and alcohol, cannabis, and cocaine abuse. Based on her review of Thiel’s treatment
records, she concluded that Thiel was not an appropriate candidate for supervised
release. She tied her opinion to the
five statutory factors in Wis. Stat. § 980.08(4)(cg);
specifically concluding that Thiel had not made significant progress in
treatment, was “much more likely than not” to reoffend, that appropriate
treatment in the community is “simply not [available] in the State of
¶6 Dr. Lytton testified that her record review and interview
with Thiel convinced her that Thiel was an appropriate candidate for supervised
release.
Dr. Lytton pointed to Thiel’s successful completion of several treatment
programs, specifically noting that Thiel “generally got good marks” and
“participated well,” had “very good attendance,” helped other participants with
their homework, and was “insightful.” Dr.
Lytton believed Thiel had made significant progress in treatment. She testified that there is treatment
available in the community to meet Thiel’s ongoing needs and that she expected
Thiel to comply with treatment requirements if placed on supervised release.
¶7 The circuit court denied Thiel’s petition for supervised release on June 21, 2007. In its oral ruling, the court stated:
[T]he overall conclusion of … [Drs.] Thornton and Hill, is that Mr. Thiel is more likely than not to reoffend; that in terms of treatment, possible release, and supervision, that some additional work needs to be done, he needs to complete Phase Two of the treatment; and that there needs to be some reasonable expectation, at least from Dr. Hill’s perspective, that Mr. Thiel will be amenable to treatment. And I think, very pointedly, Dr. Thornton pointed out, what my notes indicate … a lack of ability to be amenable to treatment….
But overall—I understand Dr. Lytton’s opinions. I believe that given the history, given the testing that’s been done, given the … state of where Mr. Thiel presently is with treatment, that the opinion of Dr. Hill that … he’s likely to reoffend, that he shouldn’t be discharged, and that there are not reasonable measures for supervision in the community is, to me, convincing and I deny the request for supervised release, or discharge … or any provision that he be released on some kind of conditions.
¶8 Thiel appeals, arguing that the State’s evidence was insufficient to support the court’s order denying supervised release.
DISCUSSION
¶9 Thiel asserts that we must review the circuit court’s order
using a sufficiency of the evidence standard, in accordance with State
v. Brown, 2005 WI 29, ¶42, 279 Wis. 2d 102, 693 N.W.2d 715. The State counters that when the legislature
revised the supervised release statute, it relieved the State of the evidentiary
burden to prove by clear and convincing evidence that the committed person
should not be released and, as a result, the circuit court has complete
discretionary authority to grant or deny supervised release. The interpretation of statutes is a question
of law, which we review de novo. State
ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶11, 238 Wis. 2d 393,
617 N.W.2d 201. Statutory interpretation “begins with the language of the
statute.” State ex rel. Kalal v. Circuit
Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(citation omitted). If the meaning of
the statute is plain, we ordinarily stop the inquiry and apply that meaning.
¶10 The violent sexual offender statutes were extensively revised by 2005 Wis. Act 434 (effective Aug. 1, 2006). Petitions for supervised release are governed by Wis. Stat. § 980.08. When a petition is filed, the circuit court is directed to consider several factors, including five criteria under § 980.08(4)(cg), the petitioner’s “mental history and present mental condition, where the person will live, how the person will support himself or herself, and what arrangements are available to ensure that the person has access to and will participate in necessary treatment.” Sec. 980.08(4)(c).
¶11 When Brown was decided, the statute included the following directive:
The court shall grant the petition [for supervised release] unless the state proves by clear and convincing evidence one of the following:
1. That it is still likely that the person will engage in acts of sexual violence if the person is not continued in institutional care.
2. That the person has not demonstrated significant progress in his or her treatment or the person has refused treatment.
Wis. Stat. § 980.08(4)(b) (2003-04). From the express language of the statute in effect at the time, the Brown court reasoned:
According to Wis. Stat. § 980.08(4) [2003-04], the circuit court starts in the position of having to grant a petition for supervised release. The circuit court does not have to grant the petition if the State proves 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…. The statute also sets forth four factors a circuit court may consider, along with other factors, in making its determination.
Thus, if the circuit court decides that the State has failed to meet its burden, the circuit court does not have any option: It “shall” grant Brown’s petition for supervised release. If the circuit court decides, however, that the evidence is sufficient to prove the State’s case by clear and convincing evidence, then the circuit court must deny Brown’s petition.
Brown, 279
¶12 Under the revised the statute, a circuit court starts in the position of having to deny a petition for supervised release. The new directive states the circuit court may not authorize supervised release unless the evidence shows that these five criteria are met:
1. The person has made significant progress in treatment and the person’s progress can be sustained while on supervised release.
2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release.
3. Treatment that meets the person’s needs and a qualified provider of the treatment are reasonably available.
4. The person can be reasonably expected to comply with his or her treatment requirements and with all of his or her conditions or rules of supervised release that are imposed by the court or by the department.
5. A reasonable level of resources can provide for the level of residential placement, supervision, and ongoing treatment needs that are required for the safe management of the person while on supervised release.
Wis. Stat. § 980.08(4)(cg).
¶13 In Brown, the supreme court specifically addressed whether a
circuit court’s denial of petition for supervised release should be classified
on review as a determination of a question of law or as an exercise of circuit
court discretion. Brown, 279
Uniformity of application of facts to law, respect for circuit courts’ reasoning, and recognition of circuit courts’ observational advantage in evaluating evidence are desirable goals with respect to orders on [Wis. Stat. ch.] 980 petitions for supervised release. These goals are more likely to be achieved with the sufficiency of the evidence standard of review than with an erroneous exercise of discretion standard of review.
Brown, 279
¶14 The State observes that the change in the statute means the
circuit court no longer “starts in the position of having to grant a petition
for supervised release.” See id., ¶11. Rather, it argues that the legislature
greatly expanded the circuit court’s authority to deny supervised release. The State asserts, “The presumption in favor
of supervised release and requirement that it be authorized unless the state
met its burden of proof has been replaced by a non-exhaustive list of factors
that circuit courts may consider.”
Accordingly, the State argues, the new decision-making process is akin
to that for sentencing, wherein appellate courts afford the circuit court’s
discretion great deference. See, e.g., State v. Gallion, 2004 WI
42, ¶18, 270
¶15 The question presented is particularly important because the
procedures for periodic review of a commitment order preserve the
constitutionality of the Wis. Stat. ch.
980 commitment scheme. See
¶16 Following revisions by 1999 Wis. Act 9, which eliminated a
circuit court’s ability to order supervised release at the time of the original
commitment and extended the length of time an offender had to wait to petition
for supervised release, the supreme court nonetheless held the sexually violent
persons commitment law constitutional.
¶17 Nonetheless, the plain language of the latest revision to the supervised release statute suggests that the burden of proof is no longer on the State, but rather the burden now rests with the petitioner to show that the five statutory criteria are met. Wis. Stat. § 980.08(4)(cg) (“The court may not authorize supervised release unless … the court finds that all of the following criteria are met[.]”). Further, the legislature’s decision to remove any express burden of proof makes the decision to grant or deny supervised release discretionary within the confines expressly provided; that is, the court may not order supervised release if the five statutory criteria are not met. See id.
¶18 A valid exercise of discretion is not the equivalent of
“unfettered decision-making.” Hartung v. Hartung, 102
CONCLUSION
¶19 The legislature has revised Wis. Stat. § 980.08(4) to eliminate the State’s burden of proof on a committed person’s petition for supervised release. It now directs that a circuit court “may not authorize supervised release” unless it finds from all the evidence that five criteria are met. See § 980.08(4)(cg). The new statute omits language specifically relied upon in Brown to establish a standard of review for § 980.08(4) determinations. The legislature has placed the burden of proof on the petitioner, and made the decision to grant or deny supervised release discretionary with the circuit court. Therefore, we must affirm.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
[2] The circuit court denied Thiel’s petition for discharge. That order is not the subject of the appeal.
[3] We certified the following question to the supreme court:
Whether Wis. Stat. § 980.08(4) (2005-06), which previously required the State to show by clear and convincing evidence that supervised release should not be granted and was reviewed using a sufficiency of the evidence standard, has been revised such that appellate courts should now review the orders under an erroneous exercise of discretion standard.
State v. Thiel, No. 2007AP2742 (Dec. 10, 2008). Certification was denied.