In re Commitment of Arends

• Decision Date: 19 November 2008
• Docket Number: No. 2008AP52.,2008AP52.
• Citation: 2008 WI App 184,762 N.W.2d 422
• Parties: In re the COMMITMENT OF Daniel ARENDS: State of Wisconsin, Petitioner-Respondent<SMALL><SUP>&#x2020;</SUP></SMALL> v. Daniel Arends, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

762 N.W.2d 422

2008 WI App 184

In re the COMMITMENT OF Daniel ARENDS State of Wisconsin, Petitioner-Respondent^† v. Daniel Arends, Respondent-Appellant.

No. 2008AP52.

Court of Appeals of Wisconsin.

Submitted on Briefs September 19, 2008.

Opinion Filed November 19, 2008.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Len Kachinsky of Sisson and Kachinsky Law Offices, Appleton.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Christine Remington, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BROWN, C.J., SNYDER and NEUBAUER, JJ.

¶ 1 SNYDER, J

Daniel Arends appeals from an order denying his petition for discharge from his WIS. STAT. ch. 980 (2005-06)¹ commitment. He contends that the circuit court erred when it denied his petition without an evidentiary hearing. We agree and reverse the order, remanding the matter for a WIS. STAT. § 980.09(2) evidentiary hearing.

BACKGROUND

¶ 2 The relevant facts are brief and undisputed. On January 21, 2005, Arends was committed as a sexually violent person under WIS. STAT. ch. 980. On August 10, Arends filed a default petition for discharge; in other words, he declined to waive his right to make such petition. The circuit court determined that discharge was not appropriate at that time. In July 2006, a reexamination report by Dr. James Harasymiw was filed with the court. A treatment progress report prepared by Sand Ridge Secure Treatment Center was filed as well. Arends commitment under ch. 980 continued.

¶ 3 On June 7, 2007, Arends moved for the appointment of counsel and for an expert to perform an examination and participate in the proceedings on his behalf. The circuit court granted the motion, ordering Dr. Sheila Fields, a clinical and forensic psychologist, to participate on Arends' behalf.

¶ 4 About six weeks later, on August 9, Sand Ridge filed a new treatment progress report and a reexamination report by Dr. William Schmitt. In developing his report, Dr. Schmitt reviewed Arends' treatment records, previous examination reports, actuarial tools for predicting recidivism, and the Psychopathy Checklist-Revised (PCL-R). He also conducted a clinical interview with Arends. Ultimately, Dr. Schmitt concluded that Arends suffered from six mental disorders, including antisocial personality disorder. However, Dr. Schmitt also stated:

[D]ue to specifics involved with Mr. Arends' offense history as an adolescent ... this examiner cannot offer an opinion, to a reasonable degree of professional certainty, regarding his current risk category (low, medium, high). Consequently, this examiner cannot offer an opinion as to whether Mr. Arends is currently "more likely than not" to commit another sexually violent offense.

¶ 5 Dr. Fields followed with her report soon thereafter. She included several findings drawn from three clinical interviews, the PCL-R, and her review of records dating back to Arends' initial commitment. Dr. Fields report, dated August 13, 2007, stated that Arends had "no reports of inappropriate sexual behavior since October 2003" and that the last incident of actual criminal sexual activity occurred when Arends was fourteen years old. At the time of Dr. Fields' report, Arends was twenty-one years old. In her report, Dr. Fields took up the issues of continuing mental illness and continuing dangerousness separately. She began by explaining the difficulty of predicting adult behavior and mental health based on diagnoses made during the person's youth. She related "less than full confidence" that Arends suffered from antisocial personality disorder. In her assessment of Arends' dangerousness and recidivism risk, Dr. Fields questioned the usefulness of actuarial scales developed for adult offenders such as Arends, where the offenses were committed when he was a juvenile. She referenced "accumulating research that juvenile offenders as a whole are less likely to sexually reoffend than are adults." Dr. Fields concluded that Arends was "almost certainly" not in that group of "high-risk juvenile-only sex offenders" that are likely to reoffend as adults. In sum, Dr. Fields opined that Arends "may" have a mental disorder that qualifies him for commitment under WIS. STAT. ch. 980, but the diagnosis of antisocial personality disorder "cannot be offered very confidently." She further stated that his tendency toward sexual violence is "quite debatable." She relied heavily on the fact that Arends' behavior had changed as an adult. She concluded that Arends was not "more likely than not to sexually reoffend," and recommended that he be discharged or considered for supervised release.

¶ 6 Arends, relying on Dr. Fields' report, petitioned for discharge under WIS. STAT. § 980.09. Arends alleged that his condition had changed since his initial commitment and that he no longer met the criteria for WIS. STAT. ch. 980 commitment. He asserted that he was no longer more likely than not to commit a future act of sexual violence. The circuit court denied the petition without a hearing on September 26, stating, "The court does not find probable cause exists to conduct a hearing on the Petition." Arends appeals.

DISCUSSION

¶ 7 Arends presents but one issue for our review: Whether the circuit court erred when it denied his discharge petition without an evidentiary hearing. The court's decision to grant or deny an evidentiary hearing on a petition for discharge is guided by WIS. STAT. § 980.09. Whether the court properly interpreted and applied the statutory standard is a question of law for our de novo review. See Knight v. Milwaukee County, 2002 WI 27, ¶ 14, 251 Wis.2d 10, 640 N.W.2d 773.

¶ 8 The parties acknowledge that the violent sexual offender statutes were extensively revised by 2005 Wis. Act 434 (effective Aug. 1, 2006). Prior to August 2006, the law required that, upon receiving a petition for discharge that was not approved by the Department of Health and Family Services (DHFS) secretary:

[T]he court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person ....

If the court determines at the probable cause hearing ... that probable cause exists to believe that the committed person is no longer a sexually violent person, then the court shall set a hearing on the issue.

Wis. STAT. § 980.09(2)(a) and (b) (2003-04). The statute authorized the circuit court to engage in a probable cause hearing, a paper review of the reexamination reports, in order to "weed out frivolous petitions." State v. Paulick, 213 Wis.2d 432, 438-39, 570 N.W.2d 626 (Ct.App.1997). The question the court sought to answer at such a hearing was whether probable cause existed to establish that the individual seeking discharge was no longer a sexually violent person. State v. Thiel, 2004 WI App 140, ¶ 16, 275 Wis.2d 421, 685 N.W.2d 890. The probable cause determination under § 980.09(2)(a) (2003-04) was the same as the probable cause determination in a criminal proceeding; that is, the circuit court was to determine whether there was a plausible expert opinion that, if believed, would establish probable cause to believe a person was no longer a sexually violent person within the meaning of the statute. State v. Kruse, 2006 WI App 179, ¶ 30, 296 Wis.2d 130, 722 N.W.2d 742.

¶ 9 Our supreme court has long held that the WIS. STAT. ch. 980 civil commitment procedure does not violate equal protection, due process, double jeopardy, or ex post facto safeguards. In State v. Post, 197 Wis.2d 279, 293-94, 541 N.W.2d 115 (1995), the supreme court considered the constitutional implications of WIS. STAT. § 980.09(2) (1993-94), specifically addressing whether the commitment of a sexually violent person constitutes treatment or punishment. Comparing the recommitment procedures for sexually violent offenders with those for mental commitments under WIS. STAT. ch. 51, the court concluded that the "increased likelihood of accurate initial [ch.] 980 commitment decisions reduces the need for some of the recommitment procedures that act as a safety net in chapter 51." Post, 197 Wis.2d at 326, 541 N.W.2d 115. The court further held that "the opportunities to seek release every six months and discharge annually are sufficient to meet constitutional demands and the state is not required to provide access to unlimited additional hearings unless adequate cause is shown." Id. at 327, 541 N.W.2d 115.

¶ 10 On the same day that it decided Post, the supreme court also addressed constitutional challenges to WIS. STAT. ch. 980 in State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995). There, the court addressed whether civil commitment of a sexually violent person subjects the person to multiple punishments for the same offense, thereby placing the person in double jeopardy. Id. at 262-63, 541 N.W.2d 105. The Carpenter court concluded that a civil commitment under ch. 980 is not punishment and therefore survives constitutional scrutiny. See Carpenter, 197 Wis.2d at 272, 541 N.W.2d 105. The court specifically pointed to the supervised release and discharge provisions of the statutes as key to the constitutionality of sexually violent person commitments:

Respondents rely heavily on the fact that those committed under [WIS. STAT. ch. 980 (1993-94)] face an indefinite period of confinement in a secure facility as evidence that the true intent of the statute is punishment. However, ch. 980 expressly provides for supervised release either at the time of commitment ... or upon the person's subsequent petition after receiving treatment.... Further, the person is entitled to discharge as soon as his or her dangerousness or mental disorder abates.

We conclude that these provisions significantly detract from respondents' argument that the statute's primary purpose is punishment.

Carpenter, 197 Wis.2d at 268, 541 N.W.2d 105 (citations omitted).

¶ 11 Following...