State v. Sanders (In re Sanders), 2010AP658.

• Decision Date: 23 August 2011
• Docket Number: No. 2010AP658.,2010AP658.
• Citation: 2011 WI App 125,806 N.W.2d 250,337 Wis.2d 231
• Parties: In re the COMMITMENT OF Paschall Lee SANDERS:State of Wisconsin, Petitioner–Respondent, v. Paschall Lee Sanders, Respondent–Appellant.†
• Court: Wisconsin Court of Appeals

2011 WI App 125

337 Wis.2d 231

806 N.W.2d 250

In re the COMMITMENT OF Paschall Lee SANDERS:State of Wisconsin, Petitioner–Respondent,

v.Paschall Lee Sanders, Respondent–Appellant.†

No. 2010AP658.

Court of Appeals of Wisconsin.

Submitted on Briefs June 23, 2011.Opinion Filed Aug. 23, 2011.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Ellen Henak, assistant state public defender of Milwaukee.

On behalf of the petitioner-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general and, Aaron R. O'Neill, assistant attorney general.

Before CURLEY, P.J., FINE and BRENNAN, JJ.

FINE, J.

Paschall Lee Sanders appeals the judgment and order entered on a jury verdict finding that he was “a sexually violent person,” and committing him “to the Department of Health Services for control, care and treatment until such time as [he] no longer” was. See Wis. Stat. ch. 980. Sanders complains that the jury instructions were flawed even though his trial lawyer did not object to them. See Wis. Stat. Rule 805.13(3) (“Failure to object [to the proposed jury instructions] at the [jury-instruction] conference constitutes a waiver of any error in the proposed instructions or verdict.”). After Sanders filed his notice of appeal, he sought, and we granted, a remand to the circuit court to, as phrased by our order, “permit him to pursue a post-commitment motion that will raise issues of ineffective assistance of counsel.” The circuit court denied his motion for post-commitment relief. Accordingly, his appeal encompasses that order as well. See Wis. Stat. § 808.04(8) (“If the record discloses that the judgment or order appealed from was entered after the notice of appeal or intent to appeal was filed, the notice shall be treated as filed after that entry and on the day of the entry.”).

Sanders does not argue on appeal that his trial lawyer gave him constitutionally deficient representation because, relying on State v. McMahon, 186 Wis.2d 68, 85, 519 N.W.2d 621, 628 (Ct.App.1994) (“We think ineffective assistance of counsel cases should be limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue.”), he asserts that his appellate “argument is relatively novel in Wisconsin, the law and counsel's duty were not clear, especially as trial counsel relied upon the standard pattern jury instructions. Thus, a claim of ineffective assistance of counsel is inappropriate.” Instead, Sanders wants us to reverse pursuant to Wis. Stat. § 752.35, arguing that “the real controversy has not been fully tried.” ¹ We affirm.

I.

¶ 3 The State filed a petition in August of 2004 alleging that Sanders should be committed under Wis. Stat. ch. 980 as a sexually violent person before he was released from prison for his 1993 conviction of second-degree sexual assault of a child.² The jury heard the following evidence, none of which Sanders contends on appeal was erroneously received into evidence.

¶ 4 A Department of Corrections probation and parole agent assigned, as he testified, to “handle cases involved in the Chapter 980 process,” told the jury about some of Sanders's criminal history. Sanders was born in 1947, and was convicted in 1974 of sexually assaulting two women. According to the uncontroverted testimony of the agent, Sanders took the first victim to the basement of his aunt's house, “tore the clothing off her body” and forcibly had penis/vagina sexual intercourse. “Following this act, Mr. Sanders placed his erect penis into the rectum of the victim and continued until orgasm, then placed his mouth on the mouth of the victim.... Shortly after that, he placed his erect penis into her rectum another time.”

¶ 5 The next day, Sanders went to the second victim's home and pointed a “loaded handgun” at her. Sanders made her disrobe and remove a “Tampax from her vagina.”

Then Mr. Sanders placed his mouth on the vagina of his victim. This occurred for approximately 15 minutes.

Approximately five minutes later, Mr. Sanders, placed his mouth on the vagina of the victim, again for another 15 minutes. Mr. Sanders then forced the victim to roll on her stomach, at which point he placed his penis into her anus. Mr. Sanders stole $43 from the purse of the victim. Stayed at the residence. The following morning Mr. Sanders forced the victim to drive to O'Hare airport in Illinois and back to Milwaukee. This was all done at gunpoint.

Mr. Sanders then forced the victim into her apartment. He tied the victim's hands together. He then removed the victim's clothing and placed his penis into her vagina against her will. Then [he] removed his penis from her vagina before he had an orgasm. Mr. Sanders then placed his penis into the mouth of the victim, at which point he had an orgasm. Mr. Sanders then pointed the gun at the victim's head and forced her to drive him to Monona, Wisconsin.

In Monona, Mr. Sanders left the victim alone in the car for approximately five minutes. Mr. Sanders returned to the car and forced the victim to drive him back to Milwaukee. Once in Milwaukee, they drove to a back alley. Mr. Sanders forced the victim into the back seat of the car. He placed the gun against the victim's chest and told her he was going to shoot her in the heart. He cocked the gun repeatedly, but never shot her. At that point he fled the vehicle.

As a result, Sanders was sent to prison in 1975, ostensibly for twenty years; he was paroled in June of 1976. His parole was revoked in January of 1977 for driving a car without the owner's consent. According to the agent, some two years later, Sanders was sent to prison again, this time for “two counts of armed robbery.” He was paroled in 1986. The agent told the jury that “Mr. Sanders' supervision was revoked in 1993 after he absconded from supervision.” As noted earlier, Sanders was convicted in 1993 of second-degree sexual assault of a child, the crime that immediately underlies these Wis. Stat. ch. 980 proceedings.³

The jury also heard from three psychologists, one presented by the State, and two presented by Sanders. We look at their testimony in turn.

¶ 7 The State's psychologist, Dale Bespalec, told the jury that Sanders suffered from:

• “Paraphilia Not Otherwise Specified” and

• “Antisocial personality disorder.”

Dr. Bespalec explained the two diagnoses:

Paraphilias are a category of sexual disorders. They feature enduring patterns recurrent, thoughts, urges or behaviors and fantasies of sexual issues that usually involve non-human [ sic ] objects, suffering humiliation of one's self or one's partner or children or other non-consenting adults. That is one piece of it.

The second part is that those things have to have occurred; those behaviors, those urges, those behaviors, urges and fantasies have to occur for more than six months within an individual. And then the third piece to that is that they have to cause impairment or distress to the individual.

...

[Antisocial personality disorder] is a pervasive pattern of disregard for [ sic “or”] violation of rights of others. There is often lots of problems failing to conform to social norms, not following typical rules of society, lying, getting involved in physical fights, reckless disregard for safety and numerous other things and that has to occur since age 15. But also, there has to be some evidence of some conduct disorder with onset earlier then 12. So, in other words, it has to be something that looks like it started very early and has continued on through adulthood.

Dr. Bespalec testified that Sanders's juvenile history was consistent with an early onset of antisocial personality disorder. He also told the jury “to a reasonable degree of professional and scientific certainty” that Sanders's antisocial personality disorder and paraphilia predisposed him to “engage in future acts of sexual violence.” Noting that Sanders was born in 1947, Dr. Bespalec told the jury that he also considered Sanders's age and concluded that even though Sanders was then sixty-two he “was more likely than not to commit another act of sexual violence” if he were not committed.

¶ 8 The first psychologist to testify for Sanders was Susan Sachsenmaier, who had first evaluated him in 2004 when the State filed the petition. She also evaluated Sanders in 2006 and some twelve days before the trial. Although in 2004 Dr. Sachsenmaier concluded that Sanders “had high risk and did meet the State's threshold of more likely than not to commit another sexually violent offense,” she told the jury that she no longer believed that Sanders met that threshold. She explained:

On the one hand, I have a long history of high psychopathy, antisocial behavior. A lot of criminal acts dating back to ages 11 and 12. Sexual crimes, armed robbery, theft, taking cars without owner's permission, escaping from institutions, trying to jump out of a courthouse window or perhaps falling, although it is difficult to fall out of a window and some malingering of illnesses to try to get off by being not guilty by reason of insanity.

On the other hand, Dr. Sachsenmaier noted that Sanders was then sixty-two and had Hepatitis C. This softened her appraisal despite what she characterized as his “very bad history.” She testified:

So, much as I would like to be able to give you a very firm opinion on which weighs more; the very bad history or the science that says people over age 60 are really not likely to offend, I still see them as balancing each other out. The science doesn't quite, it isn't strong enough to say that even with a very bad history this man is more likely than not to re-offend. Predisposed, yes. But high enough to meet the threshold I cannot quite get there.

She conceded, however, that she still, as she had in 2004, believed that Sanders had paraphilia and an antisocial personality disorder. Further, when asked by the State on cross-examination whether “both of those diagnoses predisposes Mr....