Schmidt v. State

• Decision Date: 08 May 1975
• Docket Number: No. S,S
• Citation: 228 N.W.2d 751,68 Wis.2d 512
• Parties: Ronald D. SCHMIDT, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 39.
• Court: Wisconsin Supreme Court

Page 751

228 N.W.2d 751

68 Wis.2d 512

Ronald D. SCHMIDT, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 39.

Supreme Court of Wisconsin.

May 8, 1975.

December 9, 1971, Ronald D. Schmidt, plaintiff in error (hereinafter defendant), plead guilty to a charge of attempted rape, in violation of sections 944.01(1) and 939.32 Stats. Pursuant to the mandatory provisions of sec. 975.01, Sex Crimes Law, the trial court committed the defendant to the Department of Health and Social Services (hereinafter Department) for a presentence social, physical and mental examination. The Department recommended that the defendant was not in need of specialized treatment for his mental and physical aberrations. The defendant moved the trial court for a hearing on the recommendation of the Department that the defendant was not in need of such specialized treatment. The motion was denied for the reason that sec. 975.01 did not require such a hearing and the defendant was thereupon sentenced as provided by law.

The defendant appeals from that portion of the judgment of the trial court which denied the motion of the defendant for a hearing on the recommendation of the Department that the defendant was not in need of specialized treatment.

David G. Walsh, Walsh & Walsh, Madison, for plaintiff-in-error.

Victor A. Miller, Atty. Gen., and Wm. L. Gansner, Asst. Atty. Gen., Madison, for defendant-in-error.

CONNOR T. HANSEN, Justice.

The issues presented on this appeal are:

1. Whether sec. 975.05, Stats., denies the defendant's right to due process of law by failing to provide a hearing to review a recommendation of the Department that the defendant is not in need of specialized treatment pursuant to the provisions of the Sex Crimes Law?

2. Whether the same statutory section violates the defendant's right to equal protection of the law?

We first set forth a chronological review of certain facts, although all of them do not relate to the narrow issues presented on this appeal.

In 1969, the defendant was convicted in Milwaukee county of the crime of threat to injure, contrary to sec. 943.30(1), Stats. Following a presentence, a social, physical and mental examination by the Department, as provided in sec. 975.01, it recommended that the defendant was in need of specialized treatment. The defendant was, therefore, committed to the Department pursuant to sec. 959.15(6), Stats.1969, (now sec. 975.06, Stats.) for such treatment. He was transferred by the Department to the Central State Hospital for treatment.

In July, 1971, the defendant escaped from Central State Hospital and while an escapee committed the crim in Dane county which gives rise to the instant appeal. Following his conviction on a plea of guilty entered before the Dane county court, the defendant was again committed to the Department for a presentence social, physical and mental examination pursuant to sec. 975.01, Stats. The Department recommended to the Dane county trial court that defendant was not in need of specialized treatment as provided by the Sex Crimes Law. It was also during these proceedings that the trial court denied the motion of the defendant for a hearing on the recommendation of the Department that the defendant was not in need of specialized treatment. Sentence was imposed as provided by law.

The report of the Department submitted to the trial court in this instance recommended that the defendant not be committed to the Department for specialized treatment because the specific crime and the specific act for which the defendant was convicted was not the result of sexual psychopathology. In arriving at its recommendation, the Department applied the criteria established by the Department pursuant to sec. 975.06, Stats., and approved by this court in State v. Torpy (1971), 52 Wis.2d 101, 114, 187 N.W.2d 858, which are:

(1) Was the behavior for which the defendant was convicted the result of sexual psychopathology;

(2) Is the defendant dangerous to society?

(3) Is he treatable, or will he respond to treatment? ¹

In August, 1973, the Milwaukee county trial judge received a recommendation from the Department that the defendant be continued under its control for the 1969 conviction past November, 1973, the date on which the 1969 commitment would expire. This recommendation was made pursuant to ss. 975.12 and 975.13, Stats.1971. Once a person has been committed to the Department pursuant to sec. 975.06, for specialized sex deviant treatment with regard to a particular offense, the standards for the continuance of such control are set forth in sec. 975.14(2). The statutory standard requires that the Department determine that the person would be dangerous to the public because of the person's mental or physical deficiency, disorder or abnormality. State v. Torpy, supra, pp. 115, 116, 187 N.W.2d 858. The Department applied this standard in making its recommendation for an extension of control. A hearing was held pursuant to sec. 975.14, and the Milwaukee trial judge ordered a five-year extension of the defendant's commitment and directed that he be sent to the Wisconsin Sex Deviate Center. Section 975.15 provides that a commitment (in this instance the 1969 Milwaukee commitment) may be continued for additional periods of five years by the trial court upon recommendation of the Department and after due notice and hearing as provided by statute and law.

At oral argument in this case, it was stated that the defendant is presently at Central State Hospital. Sec. 975.06(6), Stats., provides:

'975.06 Commitment to the department.

'. . .

'(6) Persons committed under this section who are encumbered with other sentences, whether concurrent with or consecutive to the commitment, shall be received or remain at the sex crimes facility designated by the department. Such facilities may be regarded as state prisons for the purpose of beginning the other sentences, crediting time served on them, and computing parole eligibility dates.'

Therefore, in the instant case the defendant is serving the sentence imposed by the Dane county trial court and the commitment ordered by the Milwaukee county trial court concurrently.

This case is the reverse of Huebner v. State (1967), 33 Wis.2d 505, 147 N.W.2d 646. In Huebner, it was determined that before a person, convicted of certain specific sex crimes, could be committed to the Department for specialized treatment instead of being sentenced under the applicable penal penalties, the defendant was entitled to a hearing. See: sec. 975.06, Stats.

Essentially, in this case the defendant asks for a hearing after conviction as to why he should not be committed as a sex deviant instead of being sentenced under the penal statute of conviction. The defendant wishes the opportunity to prove that his actions were the result of sexual psychopathology; that he is dangerous to society; and that he is treatable or will respond to treatment. We conclude that he is not entitled to such a hearing when the recommendation of the Department is that he is not a sex deviant.

The defendant recognizes that Huebner, supra, is not controlling. We agree. This court stated in Huebner, supra, page 526, 147 N.W.2d page 656:

'We consider this commitment procedure (Sex Crimes Law) so essentially different from penal sentencing as to amount to an independent proceeding which determines such important rights of the defendant unrelated to the determination of guilt that due process requires a hearing thereon as much as it does for subsequent hearings on the same issue.'

See also: Specht v. Patterson (1967), 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326.

The invocation of a commitment under the Sex Crimes Law is predicated upon a determination of facts which are not elements of the crime for which a person was convicted. Also, a commitment to the Department under the Sex Crimes Law automatically determines the initial maximum period of incarceration and subjects the person to potential continuing incarceration and treatment for life. For these and other reasons, this court in Huebner, supra, determined that due process and equal protection dictated a hearing as therein set forth before a person could be committed to the Department under the Sex Crimes Act.

When a person is determined not to be a sex deviant with regard to the commission of the particular crime for which he has been convicted and is sentenced under the penal statute, none of the elements or factors considered in Huebner, supra, and related cases are present. The person is neither automatically subjected to the maximum period of incarceration nor is he subjected to the risk of a continuing, indefinite, incarceration based upon facts which are not ingredients of the crime for which he was convicted.

The defendant contends that procedural due process is required in the present case because persons who have committed an offense particularized by sec. 975.01, Stats., requiring their commitment to the Department for a presentence social, physical and mental examination, fall within a category of persons having an entitlement to specialized sex deviant treatment.

In Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, it was determined that a person receiving welfare benefits had an interest in the continued receipt of those benefits that is safeguarded by procedural due process. In Morrissey v. Brewer (1972), 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484, the Supreme Court held that a parolee whose parole was revoked, was, in effect, an individual "condemned to suffer grievous loss" by the revocation decision and hence entitled to procedural due process protections.

In Board of Regents v. Roth (1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, the Supreme Court summarized its view of entitlements as property rights as follows:

'Property interests, of course, are not created by the Constitution. Rather they are created and their...