State v. Carter (In re Carter)
| Decision Date | 24 January 2017 |
| Docket Number | Case No.: 2015AP1311 |
| Citation | 892 N.W.2d 754,373 Wis.2d 722 |
| Parties | IN RE the COMMITMENT OF Howard CARTER: State of Wisconsin, Petitioner-Respondent, v. Howard Carter, Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the respondent-appellant, the cause was submitted on the brief of and oral argument by Len Kachinsky of Sisson and Kachinsky Law Offices, Appleton.
On behalf of the petitioner-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and Brad D. Schimel, attorney general. There was oral argument by Donald V. Latorraca, assistant attorney general.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 Howard Carter appeals an order denying without a trial his 2013 petition seeking discharge from his WIS. STAT. ch. 980 commitment as a "sexually violent person,"1 as well as an order denying his motion for reconsideration. Carter contends his initial attorney rendered constitutionally ineffective assistance by failing to challenge the retroactive application of the then-recently amended WIS. STAT. § 980.09 to his discharge petition. The discharge petition was filed prior to the legislation's effective date, but the circuit court had not yet decided or held a hearing on the petition's sufficiency.
¶2 Carter concedes the statutory provisions at issue in this case, WIS. STAT. § 980.09(1) and (2), are procedural. The amendments to those subsections had the effect of accomplishing "a material increase in the petitioner's burden of production" necessary to obtain a discharge trial. State v. Hager , 2017 WI App 8, ¶32, 373 Wis. 2d 692, 892 N.W.2d 740. Whereas a petitioner was previously entitled to a discharge trial if there were any facts upon which a reasonable factfinder could grant relief, the new standard requires the petitioner to "demonstrate a reasonable likelihood of success in order to obtain a discharge trial." Id. Contrary to Carter's arguments, the new legislation did not disturb any vested right of Carter's to a discharge trial, nor does it pose an unreasonable burden to his obtaining a discharge trial. We conclude § 980.09(1) and (2) apply retroactively to Carter's petition.
¶3 Because the amendments to WIS. STAT. § 980.09(1) and (2) operate retroactively, Carter's attorney was not ineffective for failing to raise that issue. Carter alternatively argues that if the amendments apply to his discharge petition, they work an unconstitutional deprivation of his due process rights. For the reasons we articulated in Hager , we reject this argument. We therefore affirm the orders in this case.
¶4 Carter was civilly committed as a sexually violent person on February 5, 2009, following a jury trial. Carter's commitment was upheld by summary order of this court dated April 6, 2010. In the meantime, Carter underwent an annual examination in connection with his commitment to determine whether he met the conditions for supervised release or discharge. Psychologist Melissa Westendorf diagnosed Carter with paraphilia
not otherwise specified and antisocial personality disorder, each of which predisposed him to commit sexually violent acts. She concluded Carter was not a suitable candidate for supervised release or discharge from his commitment.
¶5 Carter filed petitions for discharge in 2010, 2011 and 2012, all of which he ultimately withdrew prior to a discharge trial. Carter filed another discharge petition on February 26, 2013, following his annual reexamination, in which the evaluating doctor opined he was not a suitable candidate for supervised release or discharge from his commitment. An amended petition was filed on December 13, 2013. The circuit court appointed Dr. Diane Lytton, a licensed psychologist, as Carter's expert witness.
¶6 Lytton's report supported Carter's discharge petition. Lytton disagreed with earlier experts' diagnoses of paraphilia
, not otherwise specified, but acknowledged that, due to his rule-breaking and dishonesty, Carter "most likely can continue to be diagnosed with antisocial personality disorder." However, she concluded this condition did not predispose Carter to commit acts of sexual violence. Lytton also opined Carter was not more likely than not to reoffend, citing his scores on two statistical risk assessment instruments, the Static-99R and the MATS-1. Lytton declined to compare Carter's Static-99R score with those of offenders in a "High Risk/Needs" subsample, which she opined was based in part on out-of-date recidivism rates of a large sample of sex offenders. Lytton also cited as mitigating factors Carter's age2 and his significant progress in treatment at Sand Ridge Secure Treatment Center. This progress, according to Lytton, included Carter's engagement in treatment, his identification of "aspects of his former distorted thinking about sex and women," and the absence of signs of deviant sexual interests.
¶7 At a motion hearing in February 2014, the State argued the circuit court should apply new amendments to WIS. STAT. § 980.09(1) and (2). These amendments were included in 2013 Wis. Act 84 (hereinafter "Act 84"), which became effective on December 14, 2013. The amendments required the circuit court to deny the discharge petition without a hearing unless the petition alleges facts, supported by the record, "from which the court or jury would likely conclude " Carter's condition had changed since his initial commitment such that he should no longer be civilly committed. See WIS. STAT. § 980.09(1), (2) (emphasis added). Carter's attorney did not argue for the application of the previous "may conclude" standard under § 980.09(1) and (2) (2011-12), nor did he object to the application of the new standard.
¶8 The State conceded Carter's petition was facially sufficient under WIS. STAT. § 980.09(1), but it asserted Carter's petition failed upon a review of the record under § 980.09(2) because Carter had not alleged anything "new." The State acknowledged there had been a change in the relevant professional research since Carter's initial commitment trial. However, the State observed that Carter's scores on the Static-99 and the new Static-99R were so high that there "was a very little change" in the respective recidivism rates.3 Carter emphasized his treatment progress, Lytton's conclusion that he did not have a predisposing mental disorder, and that the State had, according to him, improperly used the Static-99R's "High Risk/Needs" subsample to reach its recidivism estimates.
¶9 At a subsequent hearing in June 2014, the State addressed Lytton's reliance on the MATS-1 instrument. The State argued the MATS-1 was "largely based on the Static-99" samples, and therefore it was not "new." The State also observed that the MATS-1 was the "first iteration of that instrument," and it was both insufficiently reliable and based on assumptions that were not accepted in the field. More generally, the State asserted that arguments regarding the absence of a predisposing mental disorder and criticisms of the Static-99 as overestimating reoffense risk had been heard at Carter's initial commitment trial. The circuit court concluded Carter was not entitled to a discharge trial based on either a favorable change in professional knowledge or sufficient progress in treatment.
¶10 Carter filed a motion for reconsideration claiming ineffective assistance of counsel. Represented by new counsel, Carter alleged his initial attorney was ineffective for, among other things, failing to challenge Act 84's applicability.4 According to Carter, the "may conclude" standard should have applied because his discharge petition was filed prior to Act 84's effective date. Carter "reluctantly" conceded that his discharge petition would not satisfy the new "would likely conclude" standard. However, he argued the legislature's adoption of that standard "dramatically increased the requirements" for obtaining a discharge trial and was therefore unconstitutional.
¶11 Following a Machner5 hearing, the circuit court denied Carter's postcommitment motion. It concluded the Act 84 amendments to WIS. STAT. § 980.09(1) and (2), including the adoption of the "would likely conclude" standard, applied retroactively to Carter's petition. Accordingly, the court rejected Carter's ineffective assistance of counsel claim. The court also rejected Carter's due process challenge to the legislation.
¶12 Carter appealed, and on February 2, 2016, we certified this case and State v. Hager , Appeal No. 2015AP330, to the Wisconsin Supreme Court. The certification asked the supreme court to "determine issues related to the effect of 2013 Wis. Act 84," including whether the new statute authorized the circuit court to "weigh" the evidence to ascertain whether a discharge trial was warranted, how such "weighing" was to be accomplished, and whether the statute was unconstitutional. We also certified the question of Act 84's retroactive application. The supreme court denied certification and we ordered oral argument. We now affirm the circuit court's determination regarding the retroactive application of Act 84 and the insufficiency of Carter's petition.
¶13 Act 84 was enacted on December 12, 2013, published the following day, and became effective on December 14, 2013. This legislation affected the process by which someone committed as a "sexually violent person" under WIS. STAT. ch. 980 may obtain subsequent discharge trials. As relevant here, the previous version of WIS. STAT. § 980.09 (2011-12) required the circuit court to deny a discharge petition unless it found that the petition and record contained "facts from which the court or jury may conclude the person's condition has changed." (Emphasis added.) The statute currently requires a court to deny the petition unless it and the record contain facts from which the court or a jury "would likely conclude" the person's condition had changed. See WIS. STAT. § 980.09(1), (2). It is...
To continue reading
Request your trial