COURT OF APPEALS DECISION DATED AND FILED July 18, 2012 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 an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 PER CURIAM. Jamerrel Everett appeals an order denying his petition for discharge from his commitment as a sexually violent person. The issue is whether the State met its burden of proof at the discharge hearing. We conclude that it did. We affirm.
¶2 Everett was committed as a sexually violent person under Wis. Stat. ch. 980 (2009-10)[1]
in 2004. In 2009,
¶3 Everett’s appointed appellate counsel filed a no-merit
report. This court ordered Everett’s
counsel to investigate and consult with him as to whether the circuit court’s
review of previous reports and other documents filed under Wis. Stat. § 980.07 suffice in
terms of the State meeting its burden of proof at the discharge hearing.
¶4
¶5 The transcript indicates that six exhibits were marked for
identification at the outset of the hearing.
Those exhibits were: Exhibit 1, the June 4, 2004 report of psychologist
Caton F. Roberts; Exhibit 2, a timeline of Everett’s treatment requests; Exhibit
3, Wakefield’s curriculum vitae; Exhibit 4, Wakefield’s July 25, 2009 report; Exhibit
5, a treatment progress report prepared by psychologist Bridget Kanz[2];
and Exhibit 6, a report of psychologist Christopher Snyder. The exhibit list does not specify the dates
of the Kanz and Snyder reports. A
seventh exhibit, an “Awareness Report” listing
¶6 The hearing transcript is not a model of clarity in regard to rulings on the admission of the exhibits. Only Exhibit 1, Dr. Roberts’ 2004 report, was unequivocally admitted. Related docket entries reflect: “Court marks the originals [of Exhs. 1-6] as exhibits and takes judicial notice of Ex. 3 & 4,” and, later, “Ex. 2, 6 & 7 received.” The Exhibit List in the record indicates that Exhibits 1-4 and 7 were received. The only one left unaddressed in any fashion is Exh. 5, Dr. Kanz’s treatment progress report.
¶7 The docket entries and the Exhibit List are efforts to
memorialize the less-than-clear oral pronouncements. We see it as being analogous to instances
when a circuit court’s oral and written decisions conflict. As in those cases, it is the court’s intent
that should control. See, e.g., State v. Lipke, 186
¶8 We first note that, as a practical matter, Dr. Snyder’s report was one in a series of annual reexaminations submitted to the court, via the Department of Health Services, to determine whether Everett made sufficient progress for the court to consider whether he should be placed on supervised release or discharged. See Wis. Stat. § 980.07(2), (6). In addition, the transcript reflects that the parties stipulated that they would ask the court to take judicial notice of their experts’ reports. The attorneys and the court conducted the remainder of the hearing in a manner consistent with the court accepting the stipulation and receiving the reports as evidence. Both parties questioned Dr. Wakefield about Dr. Snyder’s conclusions and the court referred to them in its oral decision.
¶9 We also are able to conclude that the report referred to at trial was the one Dr. Snyder prepared in April 2009. The parties’ questioning about the report included references to “the new Static-99,” to specific reconviction rates at specific intervals, and to a fourth-degree sexual assault mentioned on “page 6 of 16” of the report. Those references do not appear in his 2008 report. Further, his 2009 report is part of a document in the record that also includes Dr. Kanz’s treatment progress report, marked as Exhibit 5. Her report is dated April 1, 2009. We conclude Dr. Snyder’s report could only be the one from April 2009.
¶10 The question then becomes whether the evidence was sufficient
to grant
¶11 Dr. Snyder submitted a sixteen-page report. He found that
¶12 Offset against Dr. Snyder’s report was Wakefield’s testimony and report. Although Wakefield opined that Everett was “not more likely than not to reoffend,” her opinion was not unqualified. She went only as far as to say that Everett “may” meet the criteria for discharge and frankly cautioned that he would be “better off in supervised release,” which Everett was not seeking, and that “[b]oth [Everett] and society would benefit if he weren’t discharged at this time.” As the trier of fact, the circuit court was free to weigh the experts’ conflicting testimony and decide which was more reliable; to accept or reject any expert’s testimony, in whole or in part, and to consider any nonexpert testimony—here, Everett’s own—in deciding whether there was a substantial probability that Everett would commit future acts of violence. See State v. Kienitz, 227 Wis. 2d 423, 441, 597 N.W.2d 712 (1999). The court decided that Dr. Snyder’s opinion was the more reliable. We are bound by that determination.
¶13 Because we conclude that the State satisfied its burden of proving by clear and convincing evidence that Everett still is a sexually violent person, we affirm the circuit court’s decision to deny his petition for discharge from his Wis. Stat. ch. 980 commitment.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.