State v. Hanson

• Decision Date: 03 March 1981
• Docket Number: No. 79-568-CR,79-568-CR
• Citation: 100 Wis.2d 549,302 N.W.2d 452
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Ernest M. HANSON, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 452

302 N.W.2d 452

100 Wis.2d 549

STATE of Wisconsin, Plaintiff-Appellant, v. Ernest M. HANSON, Defendant-Respondent-Petitioner.

No. 79-568-CR.

Supreme Court of Wisconsin.

Argued Feb. 10, 1981.

Decided March 3, 1981.

Timothy R. Young (argued) and Dempsey, Magnusen, Williamson & Lampe, Oshkosh, for defendant-respondent-petitioner.

Pamela Magee-Heilprin, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-appellant.

CALLOW, Justice.

This is a review of a decision of the court of appeals, 98 Wis.2d 80, 295 N.W.2d 209, which reversed an order of the circuit court for Winnebago County, Hon. Edmund P. Arpin, circuit judge, discharging Ernest Hanson (the defendant) from commitment under Chapter 975, Stats., 1975, the Wisconsin Sex Crimes Act. ¹ Hanson, convicted of rape in 1975, petitioned the trial court for an order of discharge pursuant to sec. 975.09, Stats., 1975, ² after the Department of Health and Social Services had failed to conduct a periodic examination in accordance with the terms of that section. At the hearing scheduled in response to the defendant's petition, the trial court decided that the state was required to prove beyond a reasonable doubt that further departmental control of the defendant was necessary. Following the hearing held on March 14, 1979, the court held that the state had failed to carry its burden and ordered the defendant discharged. The state's request for a stay of the order of discharge was denied, and an order discharging Hanson was entered on March 19, 1979.

The state appealed the order of discharge on the grounds that the trial court had improperly placed the burden of proof upon the state instead of the defendant and had improperly required proof beyond a reasonable doubt instead of by a preponderance of the evidence. The court of appeals held that the burden of proof was properly placed with the state but that the standard of proof should have been the lower civil burden the preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt. The order was reversed and the cause remanded for a new hearing. State v. Hanson, 98 Wis.2d 80, 295 N.W.2d 209 (Ct.App. 1980). Before this court the defendant contends that the court of appeals erred in reversing the trial court on the standard of proof and, in addition, raises issues relative to the propriety of the court of appeals' disposition of the case and the sufficiency of the evidence at the March 14 hearing. The state seeks to review the court of appeals' determination on the allocation of the burden of proof, thereby raising other issues relating to appellate procedure. We accepted the review in order to determine the correct standard of proof to be employed in sec. 975.09, Stats., 1975, hearings, and we affirm.

I.

The primary issues presented on this review require that we first attempt to unravel some of the intricacies of the 1975 version of Chapter 975, Stats. Following initial commitment to the Department of Health and Social Services, the duration of departmental control over a committed person is regulated by a variety of factors. As a general matter the department is required to discharge a person as soon as, in its opinion, the person can be discharged without danger to the public. Sec. 975.11, Stats., 1975. ³ Discharge is required by sec. 975.12, Stats., 1975, ⁴ after the expiration of the maximum period for which the person could have been sentenced under the law, which also provides for parole release by applying sentence diminution credits earned pursuant to secs. 53.11 and 53.12, Stats. See: State v. Cramer, 98 Wis.2d 416, 421-24, 296 N.W.2d 921 (1980). However, if the department believes that a person's release pursuant to sec. 975.12 would be dangerous to society, it can order a continuation of control beyond the maximum sentencing period under law and apply to a court for a confirming order. Secs. 975.13 and 975.14, Stats., 1975. ⁵ Thus under Chapter 975 Stats., 1975, discharge from departmental control may occur before the expiration of the maximum sentence for the offense, at the expiration of such period, or after such period.

During the initial commitment period that is, one not extended by operation of sec. 975.13 and 975.14, Stats., 1975 the department is required to conduct periodic examinations, at least annually, "for the purpose of determining whether existing orders and dispositions in individual cases should be modified or continued in force." Sec. 975.09, Stats., 1975. If, based upon one of these examinations, the department formulates the opinion that control of a person is no longer necessary, it must discharge the person pursuant to sec. 975.11, Stats., 1975. The standards for conducting such an examination were the subject of considerable judicial attention culminating in State ex rel. Terry v. Percy, 95 Wis.2d 476, 290 N.W.2d 713 (1980). If the department fails to conduct such an examination, the committed person is entitled to petition the court for an order of discharge under sec. 975.09, "and the court shall discharge him unless it appears in accordance with s. 975.13 that there is necessity for further control." Sec. 975.09. The reference to sec. 975.13 incorporates into this procedure the hearing procedures of sec. 975.14 and thus alters the ultimate inquiry concerning the person's eligibility for discharge. If the department initiates the examination and conducts it according to Terry, discharge would follow a departmental opinion, expressed in sec. 975.11, that "there is reasonable probability that he can be given full liberty without danger to the public"; but if the committed person petitions for an order of discharge, calling into play the judicial processes of secs. 975.13 and 975.14, discharge is predicated upon a finding (by the trial court) that "discharge from the control of the department ... would (not) be dangerous to the public because of the person's mental or physical deficiency, disorder or abnormality." Sec. 975.14(2), Stats., 1975. ⁶ It was in the context of this kind of hearing, and specifically with reference to this finding, that the state was held to proof beyond a reasonable doubt.

(A)

The court of appeals, applying the factors set forth in State v. McFarren, 62 Wis.2d 492, 215 N.W.2d 459 (1974), concluded that the burden of proof properly had been placed upon the state. The state argues that, in reaching that conclusion, the court of appeals did not accord enough significance to the fact that in a sec. 975.09, Stats., 1975, petition-initiated hearing the committee is the one seeking discharge during what otherwise might be a lawful term of confinement. Analogizing to a parole determination situation, the state observes "(n)o one would suggest that the state would have the burden of showing why a legal sentence of a committing court should not be vacated." Because the sec. 975.09 hearing occurs during the initial commitment period, the state claims the burden should be on the committee to establish entitlement to discharge.

The state's position rests too much on its perception of the initial commitment period as being the equivalent of a sentence. It is clear from the provisions of secs. 975.09 and 975.11, Stats., 1975, however, that an initial commitment is not self-perpetuating it does not have the sustaining force or the finality characteristic of a normal sentence. Instead, the commitment must be reviewed by the department at least annually in order to determine the need for continuation or modification of the commitment and, pursuant to sec. 975.11, the committee's eligibility for discharge. This annual obligation to justify continued departmental control is placed by statute upon the department, and yet the state argues that, when the department fails to meet its statutory obligation, the committee must assume the laboring oar and prove that the state is not justified in continuing the commitment.

We do not believe the department's failure to conduct a periodic examination should work such a shift in the burden of going forward. The department's obligation to afford the committee an annual review of the commitment remains unaltered by its failure to do so in the manner prescribed in sec. 975.09, Stats., 1975, and the fact that the committee initiates the statutory alternative procedure as a consequence of the department's failure to act neither changes the basic nature of the determination nor thrusts upon the committee any added duty to carry the burden to proof. The court of appeals noted the possibilities for abuse were it otherwise, and we would add only that the department should not benefit from its own inertia. We affirm the conclusion of the court of appeals that the burden of proof was properly allocated to the state.

(B)

In holding the state to the high criminal standard of proof in demonstrating a need for further departmental control over the defendant in a sec. 975.09, Stats., 1975, hearing, the trial court relied upon the comments of the Jury Instruction Committee explaining the use of different standards of proof for initial commitments under sec. 975.06, Stats., 1975, and continuation of control hearings under sec. 975.14, Stats., 1975. Comments to Wis. JI Criminal 1551-A and 1553 indicate the committee's view that the proper standard for initial commitments under sec. 975.06 should be "the general civil burden: 'to a reasonable certainty by evidence that is clear, satisfactory and convincing,' " ⁷ while the proper standard for continuation of control hearings under sec. 975.14 should be the high criminal standard of beyond a reasonable doubt. Comment 3 to Wis. J I Criminal 1553 states:

"However, Wisconsin's new Mental Health Act, Chapter 430, Laws of 1975, provides for proof 'beyond a reasonable doubt' in all civil commitment proceedings (see sec. 51.20(12) and 51.20(14)(e)). The Committee determined that it was not required to apply the ...