Ramaker v. State
| Decision Date | 12 July 1976 |
| Docket Number | No. 75--271--CR,75--271--CR |
| Parties | Arnold S. RAMAKER, Appellant, v. STATE of Wisconsin, Respondent. |
| Court | Wisconsin Supreme Court |
Robert J. Paul, Asst. State Public Defender (argued), Howard B. Eisenberg, State Public Defender, on the briefs, for appellant.
David J. Becker, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.
This is an appeal from two orders of the Sheboygan county court entered on March 13 and April 15, 1975. The first order quashed and dismissed Arnold S. Ramaker's writ of certiorari, by which he sought to challenge his probation revocation by the Department of Health and Social Services (DHSS). The second order denied a motion for rehearing. On this appeal Mr. Ramaker claims that the department abused its discretion and committed constitutional errors in revoking his probation. We conclude that the department properly exercised its discretion, and committed no prejudicial errors. The orders appealed from are affirmed.
In November of 1973 the appellant, Arnold Ramaker, was convicted of the crime of taking indecent liberties with a female child. As required by sec. 975.01 of the Sex Crimes Law, he was committed to DHSS for a presentence examination. DHSS recommended specialized treatment for Ramaker's mental aberrations, the court held a hearing on the issue of his need for specialized treatment. On April 5, 1974, the court found that Mr. Ramaker was in need of specialized treatment, committed him to DHSS, stayed execution of the commitment, and placed him on probation, on the condition that he receive outpatient treatment as prescribed by his psychiatrist. Richard Gagnon, Mr. Ramaker's probation agent, added the further condition that he not associate with minor children.
There was a delay of more than three months in establishing the treatment program for Mr. Ramaker, due to confusion as to where the treatment was to be given and how it was to be paid for.
On July 27, before he had had any treatment, Mr. Ramaker was arrested because he had been following in his car and photographing a thirteen-year-old girl, as she rode her bicycle. Because the girl had observed him doing this before, she told her parents, who called the police. The film in his camera contained pictures of other young girls, and he admitted that he had been driving around Sheboygan, taking pictures of young girls, for two weeks. The July 27th incident was the subject of a county court conviction for disorderly conduct, subsequently reversed in circuit court.
After Mr. Ramaker's arrest, Mr. Gagnon went to Mr. Ramaker's room and found there a metal box which contained pornographic pictures.
On August 15 DHSS issued a probation-violation warrant for Mr. Ramaker, citing the following probation violations:
'He admits that for a two week period he drove around the city of Sheboygan taking photographs of various juvenile females, the most recent incident being on 7--27--74 when he followed a 13 year old female and took a picture of her; he had in his possession (in his room) photographs of a sexual nature.
'Confinement is necessary to protect the public and to prove treatment for his deviant sexually motivated activity.'
The same violations were cited in the notice of hearing sent to Mr. Ramaker on September 17. After a hearing the hearing examiner found that, because Mr. Ramaker did not receive treatment, it was unreasonable to expect him to comply with the special condition that he not associate with minor children. The hearing examiner found that Mr. Ramaker had not violated any reasonable probation condition, and recommended that his probation not be revoked. The Secretary of DHSS disagreed, and ordered Mr. Ramaker's probation revoked on the ground that the July 27 incident was a violation of the reasonable condition that he not associate with minor children. Upon review by certiorari the county court determined that the Secretary had not abused his discretion in revoking probation. Mr. Ramaker appeals from this determination of the county court.
There issues are raised on this appeal:
(1) Did DHSS abuse its discretion in revoking Mr. Ramaker's probation for following and photographing a young girl, before Mr. Ramaker had begun to receive treatment for his sexual deviancy?
(2) Was it prejudicial error for DHSS, without notifying Mr. Ramaker, to consider a staff memo containing facts and photographs not entered into evidence at the revocation hearing?
(3) Did the Secretary, when he disagreed with the hearing examiner, fail to submit the required statement as to the evidence relied on and reasons for revoking probation?
A probation condition that a person convicted of taking indecent liberties with a child not associate with minor children is a reasonable condition. It is also evident that the actions of Mr. Ramaker, in following and photographing young girls from his car for a period of two weeks, constituted direct violations of this condition. The word 'association' implies a loose relationship, and when the defendant repeatedly came into contact with young girls under these suspicious circumstances, he violated the conditions of his probation. Moreover, this violation greatly increased the risk that he would commit another crime involving sexual abuse of children. There was thus a compelling factual basis for the conclusion that the protection of the public alone required that this defendant be confined. Because the fact of violation was established, and because there was a reasonable basis for the prediction that the defendant was likely to commit further antisocial acts, DHSS properly exercised its discretion in revoking Mr. Ramaker's probation. State ex rel. Plotkin v. H&SS Department (1974), 63 Wis.2d 535, 217 N.W.2d 641.
The delay in initiating a treatment program for Mr. Ramaker does not transform this revocation decision into an abuse of discretion. First of all, a reasonable inference from the evidence in the record is that Mr. Ramaker would not have responded well to outpatient treatment, even if it had been offered earlier. Judith Stielow, administrator of the Sheboygan county mental health center, testified that, when she saw Mr. Ramaker on May 5, he suggested that he did not need treatment at the center, from which she concluded that 'he lacked some basic understanding, and certainly some motivation for coming to the Mental Health Center.' Within a very short time after he did begin treatment in August, 1974, Eric Bonnet-Brunnich, psychiatric social worker at the center, reached the same conclusion, stating in an August 19 letter to Judge BUCHEN that Mr. Ramaker's 'motivation for an out patient treatment program is highly questionable' and that, 'if given a choice, he indicates that he would not be here of his own volition.' Mr. Bonnet-Brunnich testified that Mr. Ramaker should receive inpatient rather than outpatient treatment. Mr. Ramaker's failure to respond to outpatient treatment affords a reasonable basis for the department to conclude that his rehabilitation could not successfully be accomplished outside of a confined environment. State ex rel. Plotkin v. H&SS Department, supra, at page 544, 217 N.W.2d 641.
The second reason is that, in cases involving the sexual abuse of children, the department has a responsibility to protect the public from further criminal activity by the offender. This responsibility exists irrespective of whether the authorities have acted as speedily as possible to provide the sexual deviate with treatment. Mr. Ramaker's admitted course of conduct in July of 1974 greatly increased the risk that he would again commit a similar crime.
The defendant's reliance upon Sweeney v. United States (7th Cir. 1965), 353 F.2d 10, to support his position is misplaced. Sweeney is not, as Mr. Ramaker claims, a right to treatment case. Sweeney held...
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