State v. Keith

• Decision Date: 30 December 1997
• Docket Number: No. 96-2332,96-2332
• Citation: 216 Wis.2d 61,573 N.W.2d 888
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ronald KEITH, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 888

573 N.W.2d 888

216 Wis.2d 61

STATE of Wisconsin, Plaintiff-Respondent, v. Ronald KEITH, Defendant-Appellant. ^d

No. 96-2332.

Court of Appeals of Wisconsin.

Submitted on Briefs July 9, 1997.

Opinion Released Dec. 30, 1997.

Opinion Filed Dec. 30, 1997.

[216 Wis.2d 65] On behalf of the defendant-appellant, the cause was submitted on the briefs of T. Christopher Kelly of Thomas, Kelly, Habermehl & Wood, S.C. of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, Attorney General, and Mary E. Burke, Assistant Attorney General.

Before DYKMAN, P.J., and VERGERONT and ROGGENSACK, JJ.

ROGGENSACK, Judge.

Ronald Keith appeals a judgment concluding that he is a sexually violent person, and the subsequent order committing him to the custody of the State of Wisconsin, Department of Health and Family Services for control, care and treatment. Keith maintains that the State's commitment petition should have been dismissed for lack of jurisdiction because it was filed more than ninety days after he had begun to serve a consecutive sentence on a non-violent offense. He also challenges several evidentiary rulings, the prosecutor's comment on his refusal to speak with the State's clinical psychologist, and the constitutionality of ch. 980, S TATS. However, we conclude that a ch. 980 petition need not be filed until ninety days from a release date calculated in any part based on a sexually violent offense, that any evidentiary errors were harmless, that Keith's counsel focused attention on Keith's refusal to be interviewed by the State's expert witness, thereby inviting responsive comments by the prosecutor, and that ch. 980 is constitutional under binding precedent. Accordingly, the judgment and order of the circuit court are affirmed.

BACKGROUND

Keith was convicted of one count of first-degree sexual assault on March 8, 1984 and sentenced to fifty months in prison. On that Before Keith was sentenced on the fourth-degree sexual assault count, his mandatory release date would have been December 11, 1993. ¹ After the fourth-degree sexual assault sentence was added, barring additional time for violations of prison regulations, his release date should have been April 11, 1994. See State ex rel. Parker v. Sullivan, 184 Wis.2d 668, 517 N.W.2d 449 (1994). ² However, based on one of our decisions which was reversed, State ex rel. Parker v. Fiedler, 180 Wis.2d 438, 509 N.W.2d 440 (Ct.App.1993), ³ the Department of Corrections (DOC) recalculated Keith's mandatory release date as June 3, 1994. The supreme court's issuance of Turner II on June 15, 1994, required that all prisoners being detained on the basis of Turner I be released by July 15, 1994, that is, by the date of the opinion's remitter. See State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995). Keith fell into this category, ⁴ and was scheduled for release on July 15, 1994.

same date, he was also convicted of one count of second-degree sexual assault for which he was placed on probation for five years. On September 7, 1989, following a probation revocation, Keith was sentenced to ten years imprisonment on the second-degree sexual assault count, with credit for 462 days served. On November 27, 1990, Keith was convicted of a fourth-degree sexual assault, and was sentenced to serve six months consecutive to the second-degree sexual assault count.

On July 14, 1994, the State filed the present ch. 980 petition alleging that Keith was a sexually violent person. Keith countered that the circuit court lacked jurisdiction to hear the petition because it had not been timely filed, and he moved to dismiss on both jurisdictional and constitutional grounds. The circuit court initially granted Keith's motion to dismiss on the ground that ch. 980 constituted an ex post facto law. However, this court summarily reversed the circuit court order after the Carpenter and Post ⁵ cases were decided by the supreme court on December 8, 1995. The circuit court then denied Keith's motion to dismiss on jurisdictional grounds, ruling that Keith was appropriately detained based on Turner I at the time the petition was filed, and that his continuous sentences should be treated as one sentence for a sexually violent offense.

At the trial of the ch. 980 petition, a jury found that Keith had been convicted of a sexually violent offense, that he had a mental disorder, and that his disorder created a substantial probability that he would engage in future acts of sexual violence. The court entered judgment on the verdict and ordered Keith committed. On appeal, Keith again raises jurisdictional and constitutional challenges, in addition to several alleged evidentiary errors. Additional facts necessary for resolution of these questions will be set forth below.

DISCUSSION

Standard of Review.

Construction of a statute, or its application to undisputed facts, is a question of law, which we decide independently, without deference to the circuit court's determination. Truttschel v. Martin, 208 Wis.2d 361, 364-65, 560 N.W.2d 315, 317 (Ct.App.1997).

The admission of evidence lies within the sound discretion of the circuit court. State v. Pepin, 110 Wis.2d 431, 435, 328 N.W.2d 898, 900 (Ct.App.1982). When we review a discretionary decision, we examine the record to determine if the circuit court logically interpreted the facts, applied the proper legal standard, and used a demonstrated Finally, the application of constitutional principles to a set of facts is a question of law which we decide without deference to the circuit court's ruling. State v. Patricia A.P., 195 Wis.2d 855, 862, 537 N.W.2d 47, 49-50 (Ct.App.1995).

rational process to reach a conclusion that a reasonable judge could reach. State v. Rogers, 196 Wis.2d 817, 829, 539 N.W.2d 897, 901 (1995). In considering whether the proper legal standard was applied, however, no deference is due. This court's function is to correct legal errors. See Vogel v. Grant-Lafayette Elec. Coop., 195 Wis.2d 198, 209, 536 N.W.2d 140, 144 (Ct.App.1995) (rev'd on other grounds) (noting that we may reverse a discretionary decision which was based on an erroneous view of the law). Therefore, we review de novo whether the evidence before the circuit court was legally sufficient to support its rulings. State v. Hanna, 163 Wis.2d 193, 204-06, 471 N.W.2d 238, 244 (Ct.App.1991). Furthermore, if evidence has been erroneously admitted or excluded, we will independently determine whether that error was harmless or prejudicial. See State v. Patricia A.M., 176 Wis.2d 542, 557, 500 N.W.2d 289, 295 (1993).

Chapter 980 Jurisdiction.

Under § 980.02(2)(ag), STATS., a commitment petition must allege that a subject is "within 90 days of discharge or release, on parole or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense...." Second-degree sexual assault is defined as a "sexually violent offense" by § 980.01(6), STATS. Fourth-degree sexual assault does not fall within the statutory definition. The parties agree, therefore, that when the petition was filed, Keith must have been within ninety days of release on the second-degree sexual assault conviction to enable the circuit court to exercise jurisdiction over the petition. Their dispute centers on whether release from a secured correctional facility after a consecutive sentence, following a sentence for a sexually violent offense, falls within the terms of § 980.02(2)(ag).

When we are asked to apply a statute whose meaning is in dispute, our efforts are directed at determining legislative intent. Truttschel, 208 Wis.2d at 365, 560 N.W.2d at 317. In so doing, we begin with the plain meaning of the language used in the statute. Id. If the language of the statute clearly and unambiguously sets forth the legislative intent, our inquiry ends, and we must apply that language to the facts of the case. However, if the language used in the statute is capable of more than one meaning, we will determine legislative intent from the words of the statute in relation to its context, subject matter, scope, history, and the object which the legislature intended to accomplish. Id. We will also look to the common sense meaning of a statute to avoid unreasonable and absurd results. DeMars v. LaPour, 123 Wis.2d 366, 370, 366 N.W.2d 891, 893 (1985).

We conclude that § 980.02(2)(ag), STATS., is ambiguous because it fails to address how consecutive sentences should be treated. Therefore, we look to the subject of consecutive sentence structures in general, and the specific scope and object of the ch. 980 commitment proceedings in order to determine the legislative intent regarding the proper timing of commitment petitions for persons who are serving sentences for both sexually violent and non-violent offenses.

Section 302.11(3), STATS., provides that "consecutive sentences shall be computed as one continuous sentence" in the mandatory parole context. Ashford v. Division of Hearings and Appeals, 177 Wis.2d 34, 42, 501 N.W.2d 824, 827 (Ct.App.1993). ⁶ This includes supervised parole as well as periods of incarceration. Id. at 43, 501 N.W.2d at 827. Thus, Keith's second and fourth-degree sexual assault sentences constituted one continuous term of incarceration for the purpose of determining when he was eligible for parole. The most consistent interpretation of § 980.02(2)(ag), STATS., therefore, would be that a commitment petition must be filed The legislative history of § 980.02(2)(ag), STATS., also supports treating consecutive sentences as one continuous term for the purpose of determining when to file a ch. 980 commitment petition. The Legislative Reference Bureau (LRB) note to the assembly bill which introduced the legislation stated that a petition should allege that a subject be "within 90 days of release from custody, commitment or supervision resulting from a conviction or adjudication for a sexually violent offense." 1994 Assembly Bill ...