COURT OF APPEALS DECISION DATED AND RELEASED February 20, 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. 95-2819
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN THE MATTER OF
ANTHONY C.,
AN ALLEGED
INCOMPETENT:
MILWAUKEE COUNTY,
Petitioner-Respondent,
v.
ANTHONY C.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
RAYMOND E. GIERINGER, Reserve Judge.
Reversed and cause remanded with directions.
FINE,
J. Anthony C. appeals from the trial court's denial of his
motion for “postdetermination relief.”
He claims that he was denied effective assistance of counsel. We reverse the order denying
“postdetermination relief” and remand for a hearing on the
ineffective-assistance-of-counsel claim.[1]
A person may be
committed civilly under chapter 51.20, Stats.,
if he or she is “mentally ill” and “dangerous.” Section 51.20(1)(a)1 & 2, Stats. A person is “dangerous” under the statute if
he or she “[e]vidences a substantial probability of physical harm to other
individuals as manifested by evidence of recent homicidal or other violent
behavior, or by evidence that others are placed in reasonable fear of violent
behavior and serious physical harm to them, as evidenced by a recent overt act,
attempt or threat to do serious physical harm.” Section 51.20(1)(a)2.b, Stats.
At the commitment hearing in this case, a Milwaukee police officer testified
that he was called to a home in the city by Anthony C.'s aunt who complained
that Anthony C. “was out of control.”
When confronted in the home, Anthony C. was acting bizarre and,
according to the officer's testimony, in a way so that he was concerned for the
safety of the elderly woman in the home as well as the officer's own safety.
A psychiatrist testified
at the hearing that he examined Anthony C. and found that he was “mentally
ill”—suffering from “a bipolar disorder,” that Anthony C. was on
psychotropic medications, and that, if he were released, Anthony C. would
be a danger to himself and others. The
psychiatrist also told the trial court that Anthony C., whom he had known “at
least for five or ten years,” was “a proper subject for treatment.” The trial court also heard testimony from a
clinical psychologist, who opined that she believed that Anthony C. was
mentally ill, that “he presents a danger to others,” and that he was “an
appropriate subject for treatment.”
The trial court found
that Milwaukee County had proven “by clear and convincing evidence that
[Anthony C.] is mentally ill at this time, is treatable, and is dangerous to
himself and others.” See §
51.20(13)(e), Stats.
(petitioner's burden is “by clear and convincing evidence”). On this record we cannot say that these
findings are “clearly erroneous.” See
Rule 805.17(2), Stats.
Anthony C. claims that
his trial counsel gave him deficient representation. Although proceedings under § 51.20, Stats., are not criminal, persons whose commitment is sought
are entitled to counsel. Section
51.20(3), Stats. See also State ex rel. Memmel
v. Mundy, 75 Wis.2d 276, 249 N.W.2d 573 (1977). As we have noted recently, “`there is a
substantial liberty interest in avoiding confinement in a mental
hospital.'” Milwaukee County v.
Louise M., 196 Wis.2d 200, 207, 538 N.W.2d 550, 553 (Ct. App. 1995)
(citation omitted). If the “adversary
counsel” representation that § 51.20(3) requires is not to be an empty command,
counsel must not be deficient. Although
the requirement that a person subject to an involuntary-commitment petition
have effective assistance of counsel is not founded upon the Sixth Amendment to
the United States Constitution, as it is in criminal cases, we believe that the
standard of performance should be the same, namely whether counsel's alleged
“deficient performance render[ed] the result of the trial unreliable or the
proceeding fundamentally unfair.” See
Lockhart v. Fretwell, 113 S. Ct. 838, 844, 122 L.Ed.2d 180, 191
(1993).
The trial court did not
hold a hearing on Anthony C.'s claim that he was prejudiced by his trial
counsel's performance. Ordinarily, such
a hearing is required. See State
v. Washington, 176 Wis.2d 205, 214–216, 500 N.W.2d 331, 335–336 (Ct.
App. 1993); State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905,
908 (Ct. App. 1979). We cannot assess
Anthony C.'s ineffective-assistance-of-counsel claim without the type of
hearing envisioned by Machner.
Accordingly, the case is remanded for such a hearing.
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] We reject Milwaukee
County's assertion that Anthony C.'s appeal is untimely. See Rule
809.30, Stats. Moreover, although not raised by the County,
this appeal is not moot even though Anthony C.'s original commitment order
expired; it was extended by the trial court's order of October 27, 1995.
Anthony C. appealed from both the order of civil commitment under chapter 51 of the Wisconsin statutes, and the order denying “postdetermination relief.” Our decision reverses only the order denying “postdetermination relief” and remands the case for further postconviction proceedings. After the trial court has acted on remand, Anthony C. may, by a subsequent appeal, renew the issues applicable to the civil commitment order.