State v. Castillo

• Decision Date: 04 September 1996
• Docket Number: No. 95-1628,95-1628
• Citation: State v. Castillo, 556 N.W.2d 425, 205 Wis.2d 599 (Wis. App. 1996)
• Parties: STATE of Wisconsin, Plaintiff-Respondent, dd v. Heriberto CASTILLO, Jr., Defendant-Appellant. d . Oral Argument
• Court: Wisconsin Court of Appeals

Page 425

556 N.W.2d 425

205 Wis.2d 599

STATE of Wisconsin, Plaintiff-Respondent, ^dd v.Heriberto CASTILLO, Jr., Defendant-Appellant. ^d

No. 95-1628.

Court of Appeals of Wisconsin.

Oral Argument Sept. 4, 1996.

Opinion Released Oct. 23, 1996.

Opinion Filed Oct. 23, 1996.

On behalf of the defendant-appellant, there were briefs and oral arguments by Keith A. Findley, Assistant State Public Defender.

On behalf of the petitioner-respondent, there was a brief by James E. Doyle, Attorney General, and Warren D. Weinstein, Assistant Attorney General.There were oral arguments by Warren D. Weinstein.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

SNYDER, Judge.

Heriberto Castillo, Jr., appeals from his ch. 980, STATS., commitment to the Wisconsin Resource Center as a sexually violent person.Castillo contends, inter alia, that his due process rights were violated when the modified commitment order allowed the State to "retain the benefit of its bargain [Castillo's admission to the petition's allegations and waiver of his right to a jury trial] while relieving [it] of its obligation to fulfill its promise of a community placement."We agree and reverse the commitment orders.Consistent with Castillo's requested relief, we remand to the trial court to allow him to withdraw his admission.¹ In May 1990, at the age of fourteen, Castillo was adjudicated delinquent on two counts of first-degree sexual assault for having had sexual intercourse with his sister.²He was placed under supervision at Norris Adolescent Center and was eventually placed at Ethan Allen School.

Prior to his scheduled release date, the State filed a petition to have Castillo committed as a sexually violent person, see§ 980.015(2), STATS., and thereby postpone his release and order his commitment for continuing treatment.A probable cause hearing was held.At that hearing, a psychologist testified for the State that Castillo had a mental disorder, paraphilia, which involves choosing and fantasizing about sexual partners who are inappropriate, either by virtue of their age or relationship to the individual.The psychologist detailed Castillo's family history, the results of treatment and his belief that Castillo continued to pose a threat to his sister.The psychologist also expressed concern that Castillo might choose to have sexual contact with other inappropriate partners since he had done so in the past.³

The court found probable cause to believe that Castillo was a sexually violent person under ch. 980, STATS.However, two mental health experts and the State agreed that supervised release was appropriate.This was in recognition of the ch. 980 requirement that "[t]he department shall arrange for control, care and treatment of the person in the least restrictive manner...."Section 980.06(2)(b), STATS.The State attempted to reach a settlement in order to enter the commitment order specifying supervised release.

While these negotiations were ongoing, the Department of Health and Social Services(DHSS) prepared and filed a predispositional report which recommended institutional placement.Section 980.06(1), STATS., places responsibility for the "control, care and treatment" of any person found to be sexually violent with DHSS.According to the State, DHSS was not supporting community-based supervision "because they don't have a place to put him."Discussions between the State, Castillo's counsel and DHSS followed in an attempt to secure community-based supervision and release.In January 1995, Castillo informed the court that he would admit to the allegations in the petition and waive his trial rights in exchange for a court order requiring DHSS to locate a community placement.The court accepted Castillo's admission and then ordered DHSS to identify a community-based facility.

DHSS attempted to place Castillo in a community-based setting.⁴Ultimately, DHSS recommended placement at Cephas House, a Department of Corrections halfway house run under contract by Lutheran Social Services (LSS).Consideration was also given to placement in a private apartment with intensive supervision by a private social worker.The court accepted the recommendation that Castillo be placed at Cephas House.A final written dispositional order was entered by the court.

Within two weeks, Cephas House, although initially receptive to the placement, declined to accept Castillo.This was based on public reaction to the placement, which had caused LSS to fear that the town would take zoning action against it.Its landlord also threatened not to renew the Cephas House lease if Castillo were placed there.The alternative, placing Castillo in a private apartment under the supervision of a private social worker, was then ordered.This option failed after media attention was focused on Castillo living at the apartment building and the landlord bowed to community pressure by refusing to rent to DHSS.⁵

The State then brought a motion to reopen Castillo's dispositional order and modify it to an institutional placement, since "the attempts to effectuate and execute the court's order for placement have not been successful, [and] a different placement alternative must be established."The trial court concurred, reasoning that "[a]t this time the least restrictive level of treatment is the Resource Center."The court then ordered Castillo committed to the Wisconsin Resource Center, and this appeal followed.

We begin with an analysis of the State's filing of the motion for reconsideration after it became apparent that the State would be unable to fulfill the community placement agreement.A trial court has inherent power to vacate or modify an order.See§ 807.03, STATS.The trial court's power to amend its earlier order when it became apparent that DHSS would be unable to place Castillo in a community-based setting is not at issue.SeeServatius v. Pickel, 30 Wis. 507, 508-09(1872).

Our analysis of the legal effect of the State's motion to revise the dispositional order and the trial court's subsequent modification of that order requires that we apply the principles of fundamental fairness and due process to the facts of the case.We review de novo the application of constitutional principles to undisputed facts.SeeState v. Comstock, 163 Wis.2d 218, 221, 471 N.W.2d 596, 597(Ct.App.1991), rev'd on other grounds, 168 Wis.2d 915, 485 N.W.2d 354(1992).

The supreme court has determined that the provisions of ch. 980, STATS., are constitutional.SeeState v. Carpenter, 197 Wis.2d 252, 276, 541 N.W.2d 105, 114(1995);see alsoState v. Post, 197 Wis.2d 279, 293-94, 541 N.W.2d 115, 118(1995).Furthermore, ch. 980 includes several sections which outline certain rights afforded to persons who face commitment proceedings.Section 980.03(2), STATS., provides that without limitation by enumeration, persons are to be afforded the right to counsel, to remain silent, to present and cross-examine witnesses, and to have any hearing recorded by a court reporter.Additionally, § 980.05(1m), STATS., directly addresses an individual's trial rights when it states: "All constitutional rights available to a defendant in a criminal proceeding are available to the person."

At its most fundamental level, due process concerns the right to be treated fairly.The law is clear that when an individual has given up the right to a jury trial by pleading guilty, fundamental fairness requires that the individual's expectations be fulfilled.SeeState v. Wills, 187 Wis.2d 529, 537, 523 N.W.2d 569, 572(Ct.App.1994).

The United States Supreme Court has stated, "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427(1971).This is reiterated in State v. Bond, 139 Wis.2d 179, 187, 407 N.W.2d 277, 280(Ct.App.1987), when it states that a prosecutorial promise is considered binding and must be fulfilled.This court went on to note that the due process analysis which underpins the law that a prosecutorial agreement with a defendant is binding also has applicability in bargaining contexts outside of plea bargains.Id. at 188, 407 N.W.2d at 281.As we there concluded, "Essentially, any violation of a prosecutorial promise triggers considerations of fundamental fairness and is a deprivation of due process."Id.

It is undisputed that Castillo waived his right to a jury trial when he admitted the allegations which supported the petition that he is a sexually violent person.It is also clear from the record that the reason he admitted to the allegations was to move the dispositional process forward and allow the court to order DHSS to arrange for community-based supervision and treatment.For the reasons outlined in the statement of facts, DHSS was unable to place Castillo in a community-based setting.When this became apparent, the State requested a modification of the dispositional order which had ordered community-based supervision and treatment and instead requested that Castillo be placed in an institutional setting.We conclude that the State's request for a modification of the dispositional order was a breach of its plea agreement with Castillo.

The State disputes this analysis and contends that because Castillo's commitment was a civil proceeding, no "plea agreement" was ever reached.We are not persuaded.Under the language of Santobello and Bond, the designation of the proceeding as civil or criminal is immaterial; rather, the fact that due process rights were waived in exchange for an inducement is critical.

The State further argues that even if the negotiations between Castillo and the State amounted to a plea agreement, it has not breached that agreement because it recommended supervised release.While at the outset the State was a proponent of Castillo's supervision in...