State v. Richard (In re Commitment of Richard)

Decision Date19 February 2014
Docket NumberNo. 2012AP2748.,2012AP2748.
PartiesIn re the COMMITMENT OF Herbert O. RICHARD. State of Wisconsin, Petitioner–Respondent, v. Herbert O. Richard, Respondent–Appellant.
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HERE

On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven D. Grunder, assistant state public defender, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Christine A. Remington, assistant attorney general.

Before HOOVER, P.J., MANGERSON and STARK, JJ.

MANGERSON, J.

¶ 1 This case requires us to determine under what circumstances a petitioner committed under Wis. Stat. ch. 980 1 is entitled to a discharge hearing based on amendments to an actuarial instrument 2 used at trial that, in an evaluating expert's opinion, reduce the petitioner's risk to reoffend below the legal threshold of “more likely than not.” We conclude that when a petitioner alleges that he or she is no longer a sexually violent person, and supports his or her petition with a recent psychological evaluation applying new professional research to conclude that the petitioner is no longer likely to commit acts of sexual violence, the petitioner is entitled to a discharge hearing under Wis. Stat. § 980.09. Because the circuit court denied Richard a hearing under those circumstances, we reverse and remand.

BACKGROUND

¶ 2 Richard, who is now fifty-six years old, was committed as a sexually violent person in 2008. The basic facts regarding Richard's commitment were set forth in a previous appeal from the denial of a discharge petition, which we reproduce here:

Richard has a long history of committing sexual assault. In 1977 he was convicted of fourth-degree sexual assault after he snuck into a woman's bedroom and attempted to rape her. Six years later he was convicted of false imprisonment of a ten-year-old girl. Richard stipulated that the victim did not report that she was also sexually assaulted by Richard because Richard threatened to kill her father if she reported the assault. In 1986, after Richard had escaped from prison, he abducted and sexually assaulted a nine-year-old girl. Richard was subsequently convicted of first-degree sexual assault and sentenced to two thirty-year prison terms.

As Richard's mandatory prison release date approached, the State filed a Wis. Stat. ch. 980 petition to have Richard committed as a sexually violent person. In a ch. 980 proceeding, the State must prove beyond a reasonable doubt that the offender is a sexually violent person. Wis. Stat. § 980.05(3). ‘Sexually violent person’ means a person who has been convicted of a sexually violent offense ... and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence.” Wis. Stat. § 980.01(7). “Likely” means “more likely than not,” which means that the offender is more than 50% likely to commit another sexually violent offense. State v. Smalley, 2007 WI App 219, ¶¶ 3, 10, 305 Wis.2d 709, 741 N.W.2d 286.

At Richard's Wis. Stat. ch. 980 trial, two psychologists—Janet Hill and Richard Elwood—testified that Richard is a pedophile with personality disorder. Hill also diagnosed Richard with “paraphilia.” Both psychologists reached the conclusion that Richard was more likely than not to commit another act of sexual violence.

Hill and Elwood each utilized three actuarial tests to assess whether Richard was likely to commit another act of sexual violence. The first test that Hill administered was the Rapid Risk Assessment of Sex Offense Recidivism test (RRASOR), which Richard scored a three on. Hill testified that of the individuals who score a three on this test, 47% of them are reconvicted of another sexually violent offense within seventeen years. Additionally, Hill administered a Static–99 test to Richard. Richard scored an eight on this test. Hill testified that the developers of the Static–99 test lump all individuals who score between six and ten into the same risk category, and that 52% of the members in this cohort were reconvicted of another sexual offense within fifteen years. Finally, Hill administered a Minnesota Sex Offender Screening Tool—Revised test (MnSOST—R). Richard scored a twelve on this test, and Hill testified that 54% of sex offenders who scored between eight and twelve were rearrested for another sexual offense within six years. [Hill also suggested that by doubling the five-year recidivism rate, one could predict the individual's lifetime risk.] Elwood also gave Richard the same scores on the RRASOR, Static–99, and MnSOST—R tests.

In addition to the actuarial tests, the psychologists relied on other factors as well in reaching their conclusion that Richard was more likely than not to commit another act of sexual violence. For example, Elwood noted that Richard was a sexual deviant, that he previously violated the terms of his supervision, that he did not complete sex offender treatment, and that Richard's last crime was an impulsive act. Hill looked at other factors as well.

A jury subsequently found that Richard was a sexually violent person and the circuit court entered an order committing Richard to the Department of Health and Family Services for control, care, and treatment until Richard is no longer a sexually violent person.

In October 2009, Richard filed a petition for discharge on the grounds that his condition changed and that he was no longer a sexually violent person. The basis for Richard's petition was a research paper written by the developers of the Static–99 test arguing that the test should be revised to reflect the lower probability of older sex offenders committing another offense. Under the new scoring system, Richard alleges that he would score a seven instead of an eight on the Static–99 test, and that the likelihood of him committing another sexually violent offense, according to the revised test, would decrease.

State v. Richard, 2011 WI App 66, ¶¶ 2–8, 333 Wis.2d 708, 799 N.W.2d 509.

¶ 3 We concluded Richard's petition did not provide any facts from which a trier of fact could conclude he was no longer a sexually violent person, and was properly denied after a “paper review” by the circuit court. Id., ¶¶ 11, 13–14. Richard's petition did not allege any new historical facts, and the report recommending changes to the Static–99 scoring model was “unassociated with his specific condition.” Id., ¶ 13. We also determined that, absent a new psycho-logical evaluation applying the new Static–99 norms, relief was unavailable pursuant to State v. Pocan, 2003 WI App 233, 267 Wis.2d 953, 671 N.W.2d 860, and State v. Combs, 2006 WI App 137, 295 Wis.2d 457, 720 N.W.2d 684.Richard, 333 Wis.2d 708, ¶¶ 16–19, 799 N.W.2d 509.

¶ 4 Meanwhile, Dr. Lori Pierquet filed an annual progress report in May 2010. 3 She, like Hill and Elwood, scored Richard a three on the RRASOR and an eight on the Static–99. Pierquet also performed the Static–99R, a revised test, scoring Richard a seven. Pierquet stated offenders with similar scores in a “high risk/high needs” subsample were reconvicted of sexual offenses at a rate of 37.9% after five years and 48.6% at ten years.4 Pierquet concluded that Richard was more likely than not to commit another sexually violent offense should he be discharged.

¶ 5 Richard filed a second discharge petition after receiving Pierquet's report. Doctor James Peterson was appointed by the court to conduct an evaluation. Peterson reported that, subsequent to Richard's commitment, the Static–99 had been revised when it was discovered that recidivism decreased with age. In addition, because recidivism rates had declined, “the old Static–99 norms consistently over-predicted recidivism and are now considered obsolete.” On the revised test, the Static–99R, Peterson scored Richard a six. Peterson stated the difference between this score and Richard's score on earlier tests was “accounted for by a one-point age adjustment and the discovery of an apparent error in the original scoring by Dr. Janet Hill, with the error being carried on by subsequent evaluators.” 5 A score of six corresponds with a probability of re-offense between 28% and 42% within ten years. Nonetheless, Peterson opined that Richard did not qualify for discharge. Richard's petition was denied, and he did not appeal.

¶ 6 Richard filed his third petition for discharge in 2012, this time supporting the petition with an evaluation report by psychologist Hollida Wakefield. Wakefield evaluated Richard using only the Static–99R; she did not use the MnSOST–R because its authors “provided no current recidivism data,” nor did she use the RRASOR because the four items in that test were incorporated in the Static–99R.6 Wakefield scored Richard a six on the Static–99R, which she considered high.

¶ 7 Wakefield assessed Richard's likelihood of reoffending at between 15% and 40% based on his Static–99R score. She cited 2010 research concluding sexually violent persons should be compared to the “routine” group, who reoffended at a 15% rate at both five and ten years. She reported that if Richard were compared with the “high risk/high need” subsample, re-offense rates increased to 31% after five years, and 42% after ten years. However, Wakefield stated that the practice among some practitioners of automatically placing all sexually violent persons in the “high risk/high needs” subsample is “controversial and hasn't been peer reviewed.” She concluded that, given Richard's low psychopathy score and his good behavior while incarcerated, Richard was “more similar to the routine group.” Ultimately, Wakefield opined that, given the “new, lower recidivism risk tables,” Richard was not likely to reoffend and was a suitable candidate for discharge.7 She made several supervision recommendations should he...

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