State v. Klapps
| Decision Date | 23 December 2020 |
| Docket Number | Appeal Nos. 2019AP1753-CR,2019AP1754-CR |
| Citation | 954 N.W.2d 38,2021 WI App 5,395 Wis.2d 743 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Benjamin J. KLAPPS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, assistant state public defender of Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. O'Brien, assistant attorney general, and Joshua L. Kaul, attorney general.
Before Neubauer, C.J., Gundrum and Davis, JJ.
¶1 Benjamin J. Klapps appeals from an order revoking his conditional release. Klapps contends the court was objectively biased against him, as evidenced by the court's reference to a psychologist's opinion rendered in reports filed in prior proceedings in which Klapps’ conditional release was revoked. He further contends we should invoke our discretionary reversal power in the interest of justice. Because Klapps failed to seek postrevocation review, as required by WIS. STAT. § 971.17(7m) (2017-18),1 and his claim of objective bias does not rise to the level of showing actual bias amounting to a due process violation, we reject Klapps’ arguments. We affirm.
¶2 In 2000, Klapps pled guilty to sexual assault of a child and felony bail jumping but was found not guilty by reason of mental disease or defect.2 He was committed to the Department of Health and Family Services (Department) at Winnebago Mental Health Institute for twenty-six years and eight months.
¶3 Since his original commitment, Klapps has been conditionally released and revoked and recommitted many times. Most recently, in late February 2019, the Department filed a petition to revoke Klapps’ conditional release to a group home based on several incidents in late 2018 and early 2019. The Department alleged Klapps sexually harassed, made inappropriate comments to, and ultimately threatened to harm, staff at the group home.
¶4 On March 6, 2019, the court held a revocation hearing. The only witness to testify was Klapps’ case manager, Patrick Woodbridge, who testified to the incidents in late 2018 and early 2019 while Klapps was out on conditional release at the group home.
¶5 Woodbridge detailed a series of incidents that demonstrated a "troublesome pattern" over the course of about five weeks, involving inappropriate comments that were often sexual in nature and culminating in "very threatening comments." These included telling his sex offender treatment therapist that he was having sexual fantasies about his case manager. His therapist told Klapps that having sexual fantasies with someone he worked with directly is considered a risk. Woodbridge was assigned to be his new case manager based on Klapps’ self-reported inappropriate fantasies about his other case manager.
¶6 The next day, Klapps told a staff member, D.K., that he had a "hard on for 3 hours but it went away," then continually asked her why she was not doing his room checks anymore, and followed her around. He then asked D.K. if she was afraid of him and when she said, "No," he said, "Good, because if I was going to attack you, I have had plenty of chances" and "I have feelings for you as a staff resident relationship."
¶7 Although Klapps repeatedly was cautioned about his comments and behavior after these incidents, he continued. Three days later, he again approached D.K. and told her he had feelings for her and could not help the way he felt, repeating that if he were going to attack her, he would have already done so, but would not act on his feelings because he did not want to get in trouble.
¶8 Klapps subsequently told D.K. he was having suicidal thoughts, but not an "urge" to kill himself, and that it was his urges that were dangerous. He told D.K. that he was having sexual urges about her since that morning, causing her to go into her office and shut her door, where she then heard Klapps pacing back and forth.
¶9 The staff determined to take Klapps into custody based on his risky behavior. When told of the allegations, he said, "I did not touch [D.K.] or do anything," complained that the staff lied, and said that if he was placed back at the same group home, he would "beat the hell out of them."
¶10 At the hearing on the petition for the termination of his conditional release, the State argued that these incidents, as well as others demonstrating that he was pushing boundaries, established a pattern of escalating risky behavior and threatening sexual comments, which posed a risk to himself and the community, especially staff members.
¶11 Klapps argued that there was no physical contact or specific threats of harm, and he specifically told staff he was not going to act on his thoughts. He argued that because he only saw his therapist every other week, and not for a stretch of three weeks at that time, he had to disclose these thoughts to the staff. He contended that these statements had to be assessed in the context of his therapist's unavailability and the treatment expectation that he disclose his fantasies to reduce the risk he would simply internalize and act on the thoughts.
¶12 The trial court found revocation of Klapps’ conditional release was supported by clear and convincing evidence. The court explained that its ruling was based on "the only evidence before [the] court"—namely, Woodbridge's testimony. The court found that revocation was appropriate because the evidence was that Klapps kept making threats despite being "told numerous times not only to stop talking about his sexual conquests but [also] his urges with staff people and he continues to do it." In his oral ruling, the trial judge also noted that he recalled the conclusions of a psychologist, Dr. Allen Hauer, who had assessed whether Klapps could be safely released to the community and, if so, under what conditions, in reports submitted in prior proceedings from 2015 to 2018. Hauer did not examine or issue a report in the 2019 proceeding. The judge recalled Hauer's conclusion that Klapps’ personality disorder as a sexual predator could not be treated with drugs, and he was unlikely to change. No objection was made to the court's discussion of this recollection.
¶13 The court found Klapps’ statement that he would "beat the hell out of people" if he went back to the group home, along with his repeated, persistent, inappropriate statements and behavior despite being advised to stop, demonstrated that Klapps posed "a substantial risk of bodily harm to others."
¶14 Klapps filed a notice of intent to seek postdisposition relief in the trial court. He did not file a motion for postdisposition relief before filing this direct appeal. Additional facts will be discussed where relevant.
¶15 The State contends that Klapps’ failure to move for postdisposition relief in the trial court forfeits his appellate challenge. To determine whether a motion for postdisposition relief is required we must interpret WIS. STAT. § 971.17(7m). Statutory interpretation presents an issue of law we review de novo. State v. Grady , 2007 WI 81, ¶14, 302 Wis. 2d 80, 734 N.W.2d 364. We review whether a defendant adequately preserved or forfeited his right to appellate review of a particular claim de novo. State v. Coffee , 2020 WI 1, ¶17, 389 Wis. 2d 627, 937 N.W.2d 579.
¶16 Klapps contends that the trial court evidenced objective bias (the appearance of bias) against him by referencing the earlier conclusions of Hauer discussing his mental health and performance on conditional release, denying him due process. He contends that the trial judge's comments indicate that the judge had already decided his case before taking evidence. Klapps acknowledges that he did not object at the time of the hearing such that he forfeited any challenge based on his inability to confront Hauer or the court's reliance on a prior report. He has not challenged his counsel's failure to object with an ineffective assistance of counsel claim; rather, he claims that the error is one that need not be preserved due to its nature as "structural error."
¶17 The State responds to the bias claim by noting that Klapps’ failure to file a postdisposition motion in the trial court to raise his judicial bias claim forfeits his appellate challenge under the controlling statutes governing a party's appellate rights.
¶18 WISCONSIN STAT. § 971.17(7m) provides:
(Emphasis added.)
¶19 When interpreting WIS. STAT. § 971.17(7m), the goal is to give effect to the intent of the legislature, which we assume is expressed in the text of the statute. State ex rel. Kalal v. Circuit Court for Dane Cnty. , 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. To this end, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially-defined words are given their technical or special definitions. Id. , ¶45. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id. , ¶48. Thus, we interpret statutory language "in the...
To continue reading
Request your trial
-
State v. Bayerl
...improperly admitted, and this material obscured a crucial issue and prevented the real controversy from being fully tried.'" State v. Klapps, 2021 WI.App. 5, ¶34, 395 Wis.2d 743, 954 N.W.2d 38 (citation Bayerl argues the real controversy was not fully tried because the "blood" evidence was ......
-
State v. Tuchel
...19 here. We use our discretionary reversal power sparingly and only in the most exceptional cases. State v. Klapps, 2021 WI.App. 5, ¶31, 395 Wis.2d 743, 954 N.W.2d 38. Having rejected all of Tuchel's arguments, we conclude this is not such a case. By the Court.-Judgment and order affirmed. ......
-
State v. Helmeid
... ... § 971.17(3)(a). However, pursuant to the plain language ... of the statute, the factors are non-exhaustive and the court ... may , but it is not required to, consider those ... factors. Sec. 971.17(3)(a); see also State v ... Klapps ... ...