State v. Carpenter
| Decision Date | 08 December 1995 |
| Docket Number | Nos. 94-1898,94-2024,s. 94-1898 |
| Citation | 197 Wis.2d 252,541 N.W.2d 105 |
| Parties | , 64 USLW 2479 STATE of Wisconsin, Petitioner-Appellant, v. William CARPENTER, Respondent-Respondent. STATE of Wisconsin, Petitioner-Appellant, v. William A. SCHMIDT, Respondent-Respondent. |
| Court | Wisconsin Supreme Court |
For the petitioner-appellant in No. 94-1898, the cause was argued by Sally L. Wellman, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
For the respondent-respondent there were briefs by Bill Ginsberg, Rick B. Meier and Mandell & Ginsberg Law Offices, Madison, and oral argument by Bill Ginsberg.
Amicus curiae brief was filed by Christopher L. Wolle, Madison, for State Representatives David Prosser, Jr. and Lolita Schneiders.
Amicus curiae brief was filed (in the court of appeals) by Jeffrey J. Kassel and LaFollette & Sinykin, Madison, for American Civil Liberties Union of Wisconsin Foundation.
Amicus curiae brief was filed (in the court of appeals) by Herbert S. Bratt and John D. Schrager, Milwaukee, for Wisconsin Psychiatric Association, Inc.
Amicus curiae brief was filed (in the court of appeals) by Dianne Greenley, Madison, for Wisconsin Coalition for Advocacy, Inc.
For the petitioner-appellant in No. 94-2024, the cause was argued by Sally L. Wellman, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
For the respondent-respondent there was a brief and oral argument by Daniel M. Berkos, Mauston.
These cases are before the court on certification by the court of appeals from orders of the Circuit Court for Dane County, Mark A. Frankel, Judge, and the Circuit Court for Sauk County, James Evenson, Judge, holding Wisconsin's Sexually Violent Person Commitments statute, Wis.Stat. ch. 980 (1993-94) 1 unconstitutional. The respondents in these cases and the companion cases 2 decided today argue that ch. 980 violates the Equal Protection, Due Process, Double Jeopardy, and Ex Post Facto Clauses of the Wisconsin and United States Constitutions. We conclude in this opinion that ch. 980 creates a civil commitment procedure primarily intended to protect the public and to provide concentrated treatment to convicted sexually violent persons, not to punish the sexual offender. Therefore, we hold that ch. 980 does not violate either the Ex Post Facto or the Double Jeopardy Clause. Accordingly, we reverse the trial courts' orders determining that ch. 980 is unconstitutional on these grounds and remand for further proceedings consistent with ch. 980. We also affirm the trial court's order in Carpenter finding probable cause that he is a sexually violent person.
This opinion is limited to the question of whether ch. 980 violates the Double Jeopardy or Ex Post Facto Clauses of the Wisconsin and United States Constitutions. Our determination of the due process and equal protection issues is set forth in the companion cases. See State v. Post, 197 Wis.2d 279, 541 N.W.2d 115 (1995).
We begin with a brief overview of the statute. 3 Chapter 980 provides for the involuntary commitment of certain individuals who are found to be sexually violent persons. Section 980.01(7) defines a "sexually violent person" in part as "a person who has been convicted of a sexually violent offense ... and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence."
When a petition is filed alleging that a person is sexually violent, the court must review the petition to determine whether to issue an order detaining the person and must hold a hearing to determine whether there is probable cause to believe that the person named in the petition is sexually violent. Wis.Stat. § 980.04. If a court or jury determines that the person is sexually violent as defined by the statute, the person is committed to the Department of Health and Social Services (DHSS) "for control, care and treatment until such time as the person is no longer a sexually violent person." Wis.Stat. § 980.06.
The facts and procedural history in both cases are undisputed. We will address each in turn.
Carpenter was convicted of first-degree sexual assault of a seven-year-old in 1984 and was sentenced to 12 years in prison. The court stayed the sentence and placed him on probation for 10 years. His probation was initially revoked in 1986 for engaging in sexual intercourse with his 14-year-old daughter. The revocation was vacated but reinstated in 1988 based on an allegation that he violated parole by associating with minors.
Carpenter was paroled in 1993 and out on parole for nine months before being reincarcerated based on the Department of Corrections' (DOC) recalculation of his mandatory release date pursuant to State ex rel. Parker v. Fiedler, 180 Wis.2d 438, 509 N.W.2d 440 (Ct.App.1993), rev'd, State ex rel. Parker v. Sullivan, 184 Wis.2d 668, 517 N.W.2d 449 (1994). Although this court overturned the court of appeals' decision in Parker and provided that the prisoners detained pursuant to that decision be released by July 15, 1994, Carpenter was not released.
Instead, on July 14, 1994, the State filed a petition against Carpenter pursuant to Wis.Stat. § 980.02(1)(b), alleging that he is a sexually violent person. The petition also summarized the opinions of Dr. Lawrence Kane, who concluded that Carpenter suffers from pedophilia and an antisocial personality disorder. Kane opined that there is a substantial probability that Carpenter will engage in future acts of sexual violence.
Carpenter filed a motion challenging the constitutionality of ch. 980 on the grounds of due process, equal protection, vagueness, ex post facto, and double jeopardy. He also attacked the factual basis for the petition. The trial court held that ch. 980 was unconstitutional because it violated the Ex Post Facto, Double Jeopardy, and Substantive Due Process Clauses of the Wisconsin and Federal Constitutions and therefore did not reach Carpenter's factual challenge to the petition.
The State requested and received a stay pending appeal of the trial court's order holding the statute unconstitutional and releasing Carpenter from custody. In the meantime, the court of appeals granted Carpenter's motion to remand for a probable cause hearing, after which the trial court found probable cause to find that Carpenter is a sexually violent person pursuant to § 980.01(7). Carpenter appeals this order, arguing that probable cause was lacking because he was not within 90 days of discharge or release as required by Wis.Stat. § 980.02(2)(ag), and asserting that the petition was deficient because the State failed to allege an overt act. 4
In March 1992, Schmidt was convicted of two counts of fourth-degree sexual assault and placed on probation for three years as a result of having sexual intercourse with his 14-year-old girlfriend. That probation was subsequently revoked. In late 1992, he was convicted of two counts of first-degree sexual assault and sentenced to three years in prison as a result of digitally penetrating the anus of his two-year-old nephew.
The State filed a petition against him pursuant to Wis.Stat. § 980.02(1)(a). In addition to the sexual assaults for which Schmidt was incarcerated, the petition alleged that Schmidt was found to have engaged in penis-to-anus penetration of a five-year-old boy in 1985 and that he had not successfully completed a sex offender treatment program offered while in prison. The petition also summarized the opinion of Dr. Ken Lerner, who diagnosed Schmidt as suffering from the mental disorder, pedophilia. Lerner concluded that Schmidt was dangerous to others because he suffered from a mental disorder that makes it substantially probable that he would engage in acts of sexual violence.
The trial court subsequently found probable cause to believe that Schmidt is a sexually violent person pursuant to § 980.01(7). Schmidt then filed motions challenging the constitutionality of the statute. The court granted Schmidt's motion to dismiss on the grounds that the statute violated both the Double Jeopardy and the Ex Post Facto Clauses of the United States Constitution. The State sought and obtained from the court of appeals a stay of Schmidt's release pending appeal.
Both the United States and Wisconsin Constitutions protect criminal defendants from being subjected to double jeopardy. 5 Because these provisions are the same in scope and purpose, we have routinely followed decisions of the United States Supreme Court as governing the double jeopardy provisions of both constitutions. State v. Killebrew, 115 Wis.2d 243, 246 n. 2, 340 N.W.2d 470 (1983).
The United States Supreme Court has recognized that "the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). Respondents argue that ch. 980 subjects them to multiple punishment for the same underlying sexual offense.
A party challenging the statute must show it to be unconstitutional beyond a reasonable doubt. State v. Iglesias, 185 Wis.2d 117, 133, 517 N.W.2d 175 (1994), cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 547 (1994). In doing so, the challenging party must overcome the presumption that the statute is constitutional, which we have summarized as follows:
Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality. The court cannot reweigh the facts found by the legislature. If the court can conceive any...
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