COURT OF APPEALS DECISION DATED AND RELEASED October 24, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1965-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DELMAR MCNEAL,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Rock County:
EDWIN C. DAHLBERG, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Delmar McNeal appeals from an order denying his
petition for conditional release from commitment under § 971.17, Stats.
The issue is whether the trial court clearly erred by finding clear and
convincing evidence that McNeal would pose a significant danger to himself or
others if conditionally released. We
conclude that the trial court did not clearly err, and therefore affirm.
In August 1993, McNeal
committed an arson. In July 1994, on a
stipulation that he was not guilty by reason of insanity (NGI), the court
committed him to the custody of the Department of Health and Social Services for
a thirteen-year, four-month term, which is the maximum permitted by law. Sections 939.50(3), 943.02(1) and 971.17(1),
Stats. The court also found him in need of institutional care and
ordered him placed at Mendota Mental Health Institution.
In February 1995, McNeal
petitioned for conditional release. At
the hearing on his petition, the court heard evidence that McNeal's paranoid
schizophrenia was in remission due to medication and that he did not need
hospitalization for treatment purposes.
He had not experienced any problems since coming to Mendota and had been
placed in minimum security since October 1994.
In summary, the evidence showed that as long as McNeal continued to take
his full medication dosages he posed no danger on release, but if he abandoned
or reduced his medications he would pose a danger. The trial court concluded that the latter possibility was
substantial enough to justify continued confinement for the time being. This appeal results from that decision.
One committed to a
mental institution on an NGI finding may petition for conditional release from
the institution after six months.
Section 971.17(4), Stats. The court shall grant the petition unless it
finds by clear and convincing evidence that the person would pose a significant
risk of bodily harm to himself or herself, or to others, or of serious property
damage if conditionally released.
Section 971.17(4)(d). In making
that determination, the court may consider, among other things, the nature and
circumstances of the crime, the person's mental history and present mental
condition, and the conditions of release, including arrangements to ensure that
the person will take the necessary medication.
Id.
The evidence was
sufficient to allow the trial court to deny release. McNeal had, on past occasions, abandoned his medication and
subsequently committed criminal offenses.
Although he had remained on medication and stabilized his condition
since entering Mendota, the court could reasonably attribute that fact to the
structured, controlled environment, and not necessarily McNeal's change of
heart, although there was some evidence of an attitude change. Additionally, at the time of the hearing,
McNeal was not yet eligible for unescorted trips off the institution
grounds. Given McNeal's history and the
absence of any trial periods showing that McNeal would voluntarily continue to
take his medications without supervision, the court could reasonably infer that
a danger existed that McNeal might once again abandon his medications. If he did, it is undisputed that he would
once again pose a risk of property damage and harm to others.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.