State ex rel. Volden v. Haas

• Decision Date: 05 May 1953
• Citation: 58 N.W.2d 577,264 Wis. 127
• Parties: STATE ex rel. VOLDEN, v. HAAS, Sheriff of Dane County.
• Court: Wisconsin Supreme Court

Page 577

58 N.W.2d 577

264 Wis. 127

STATE ex rel. VOLDEN, v. HAAS, Sheriff of Dane County.

Supreme Court of Wisconsin.

May 5, 1953.

On September 18, 1952 relator George E. Volden, aged 17 1/2 years, was convicted on a plea of guilty on a charge of carnal knowledge and abuse in violation of section 340.47, Stats. and was committed to the state department of public welfare for a presentence examination pursuant to section 340.485(1), Stats.

On November 17, 1952 a report in writing by the director of the department of public welfare was filed with the circuit court pursuant to section 340.485(4), Stats., finding that the relator possesses the characteristics of a 'sexual psychopath' and is in need of specialized treatment for his mental aberrations, and recommending that he be committed to the department under the provisions of sections 340.485(6).

The commitment was made on December 17, 1952, and on the same day relator applied for and was issued a writ of habeas corpus addressed to the defendant in error, the sheriff of Dane county, who had not yet executed the commitment. The sheriff made return to the writ and relator traversed the return, the matter coming on for argument before the circuit court on January 30, 1953. Relator brings error to review an order remanding him to the custody of the sheriff under the commitment.

Further facts will be stated in the opinion.

William L. McCusker, Madison, Wilkie, McCusker & Wilkie, Madison, of counsel, for plaintiff in error.

Vernon W. Thomson, Atty. Gen., and William A. Platz, Asst. Atty. Gen., for defendant in error.

MARTIN, Justice.

Appellant's conviction was had under section 340.47, Stats.:

'* * * any person of the age of eighteen years or under who shall unlawfully and carnally know and abuse any female under the age of eighteen years shall be punished by imprisonment in the state prison not more than ten years nor less than one year, or by fine not exceeding two hundred dollars.'

Section 340.485, Stats. provides:

'Sex crimes. (1) Rape and related crimes; Commitment for presentence examination. If a person is convicted under sections 340.46 to 340.48, 351.34, or 351.41, the court shall commit him to the department of public welfare for a presentence social, physical and mental examination. The court and all public officials shall make available to the department upon its request all pertinent data in their possession in respect to the case. * * *

'(4) Report of examination. Upon completion of the examination, but not later than 60 days after the date of the commitment order, a report of the results of the examination and the recommendations of the department shall be sent to the court. * * *

'(6) Commitment to the department. If it appears from said report that the department recommends specialized treatment for his mental and physical aberrations, the court shall either place him on probation with the requirement as a condition of such probation, that he receive outpatient treatment in such manner as the court shall prescribe, or commit him to the department under this section.'

Relator's first contention is that these requirements of section 340.485, Stats. operate to deprive him of his liberty without due process of law because under the procedure therein outlined he is not served with notice of the report made by the department nor given a hearing upon the mental condition found by the department; that the findings may be made on the basis of unsworn information, received ex parte and appraised by the department, without provision for judicial review. Upon recommendation by the department that the accused be given specialized treatment for his mental aberrations, the court is required to do one of two things, either place him on probation on the condition that he receive outpatient treatment, or commit him to the department.

It may be noted that under other subsections of the statute the department may release committed persons on parole at any time it deems them capable of making the proper social adjustments; that it is authorized to discharge committed persons whenever that may be done in the light of public safety, except that in felony cases approval of the court must be obtained if the discharge is within two years of commitment; that at the expiration of the maximum term for the offense of which the accused was convicted, the department is obliged to discharge him unless, if it is of the opinion that the discharge would be dangerous to the public, it orders his retention for a longer period and applies to the committing court for review of its order. Under the circumstances last mentioned provision is made for notice, hearing, production of witnesses and evidence and representation of the accused by counsel. etc.

The statute gives relator no right to a court hearing on the question of his mental condition and need for specialized treatment from the time of his conviction until the expiration of the maximum term for which he might be imprisoned. Relator's contention is that he is thus deprived of his liberty without due process of law. He takes strenuous exception to the statement of the lower court that he is a 'convicted felon,' arguing that the crime of which he was convicted is not a felony which results in any loss of civil rights. Whether or not the felony of which relator was convicted deprives him of his civil rights is immaterial. The fact is that he is afforded all the rights of due process at the time of trial. He has been afforded the right to be heard by himself and counsel, to be advised of the nature of the charge against him, to meet the witnesses face to face and compel the attendance of witnesses in his own behalf, and to a speedy trial by an impartial jury. But upon conviction, he is subject to whatever loss of liberty the legislature has prescribed for his crime, whether that be imprisonment in the state prison or commitment to the department.

In State v. Meyer, 1949, 228 Minn. 286, 37 N.W.2d 3, 15, the Minnesota court considered this argument in a case involving the Youth Conservation Act which requires that persons under 21 years of age must, upon conviction or plea of guilty, be either placed on probation or committed to an administrative commission for the maximum term prescribed by the statute creating the crime for which he is committed. In discussing the defendant's constitutional rights to due process, the court there said:

'In all these arguments, defendant seeks to confuse the administrative supervision of convicted offenders after the imposition of sentence with proceedings that take place prior to the imposition of sentence. The trial terminates when the defendant is convicted. No rights of the defendant are affected by the act in any way up to that time. The court must then impose such sentence as the legislature has prescribed. In this case, the mandatory sentence is commitment to the commission unless the court places defendant on probation. Supervision of defendant after commitment may be vested in an administrative board without violating any constitutional rights of defendant. That is what the act does.'

In enacting section 340.485, Stats., the Wisconsin legislature has recognized that sex crimes are frequently committed by persons afflicted with mental aberrations, and has established this means of accomplishing the rehabilitation and adjustment of the offender to society for the protection of the public. There can be no question but that this method of rehabilitation...