State v. Schulpius (In re Commitment of Schulpius), 2011AP2565.
| Decision Date | 27 November 2012 |
| Docket Number | No. 2011AP2565.,2011AP2565. |
| Citation | 825 N.W.2d 311,345 Wis.2d 351,2012 WI App 134 |
| Parties | In re the COMMITMENT OF Shawn David SCHULPIUS. State of Wisconsin, Petitioner–Respondent, v. Shawn David Schulpius, Respondent–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the respondent-appellant, the cause was submitted on the briefs of Ellen Henak and Hannah B. Schieber assistant state public defenders of Milwaukee. There was oral argument by Hannah B. Schieber.
On behalf of the petitioner-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Warren D. Weinstein assistant attorney general. There was oral argument by Warren D. Weinstein.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ.
[345 Wis.2d 354]¶ 1 Shawn David Schulpius, in July 1996, was civilly committed by the State as a sexually violent person under Wis. Stat. ch. 980 (2009–10). 1 In January 2010, his petition for discharge was denied after a hearing before a jury. He now appeals from the circuit court's order denying his subsequent August 2010 petition for discharge without a hearing. Schulpius argues that: (1) the circuit court applied the wrong standard to determine whether his August 2010 petition entitled him to a hearing pursuant to Wis. Stat. § 980.09(2); and (2) even if we accept the State's standard for determining when a hearing is required under § 980.09(2), he made a sufficient showing in his August 2010 petition to require a hearing.
¶ 2 More specifically, Schulpius argues that Wis. Stat. § 980.09(2) entitles a petitioner to a hearing if, after considering evidence of the petitioner's progress since the date of his initial commitment, the court determines that the evidence shows that a reasonable trier of fact could determine that the petitioner currently fails to meet the criteria for commitment as a sexually violent person. Schulpius argues that the circuit court erred by construing the statute to require evidence of a change in the petitioner's status since the date of his last discharge hearing.
[345 Wis.2d 355]¶ 3 The State agrees that Wis. Stat. § 980.09(2) requires the circuit court to consider all of the evidence of the petitioner's progress since the initial commitment hearing, but argues that the petitioner is entitled to a discharge hearing only where there is also new evidence, not previously considered by a trier of fact, from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person.
¶ 4 Based on our independent review of Wis. Stat. § 980.09(2), we agree with the State that, while the circuit court must consider all of the evidence in the record when determining whether a discharge hearing is warranted, the petitioner must also produce some new evidence, not previously considered by a trier of fact, which demonstrates that he does not meet the criteria for commitment under Wis. Stat. ch. 980. Because Schulpius has not set forth the requisite new evidence—to wit, an expert opinion, based on new facts, new professional knowledge, or new research—demonstrating that he does not meet the criteria for commitment as a sexually violent person, we affirm the denial of his request for a discharge hearing.
¶ 5 The circuit court found Schulpius to be a sexually violent person under Wis. Stat. ch. 980 in July 1996, based upon predicate offenses that occurred when he was a juvenile.3 The circuit court originally determined that supervised release was appropriate, but following controversy and difficulties concerning Schulpius's placement, the circuit court committed Schulpius to institutional care in Sand Ridge Secure Treatment Center (“Sand Ridge”) in November 2000. This appeal concerns: (1) the evidence presented to the jury at Schulpius's January 2010 discharge hearing, which was based on consolidated annual re-examination reports from 2006, 2007, 2008, and 2009; and (2) the evidence in the record supporting Schulpius's August 2010 petition for discharge.
¶ 6 On July 19, 2006, pursuant to Wis. Stat. § 980.07, the Department of Health and Family Services (“the Department”) filed its annual re-examination report, accompanied by a treatment progress report.4 Dr. William A. Schmitt recommendedthat the circuit court not consider Schulpius for either supervised release or discharge. The circuit court then appointed an examiner to serve as Schulpius's court-appointed expert pursuant to Wis. Stat. § 980.03(4) (2003–04).5 That examiner, Dr. Luis Rosell, filed a report with the court on March 28, 2007, in which he concluded that Schulpius had made sufficient progress for the court to consider whether he still met the definition of a sexually violent person under Wis. Stat. ch. 980.
¶ 7 At a June 2007 hearing, the circuit court found probable cause for discharge based upon the experts' reports.6 As such, at a later court date, the circuit court set the case for a discharge hearing.7 Before the discharge hearing could be held, the Department filed its annual reports for 2007, 2008, and 2009. The parties agreed that all four reports—from 2006, 2007, 2008, and 2009—would be considered at the discharge hearing.
[345 Wis.2d 358]¶ 8 On July 12, 2007, the Department filed its annual re-examination report (again, completed by Department-appointed examiner Dr. Schmitt), accompanied by the treatment progress report. Again, Dr. Schmitt recommended that the circuit court not consider Schulpius for either supervised release or discharge.
¶ 9 On July 10, 2008, the Department filed its annual re-examination report (this time completed by Department-appointed examiner Dr. Robert Barahal), accompanied by the treatment progress report. In his report, Dr. Barahal: (1) diagnosed Schulpius with pedophilia, which “predisposes him to commit sexually violent actions as defined by Chapter 980”; (2) opined that Schulpius “is still more likely than not to commit additional sexually violent acts” and has not yet progressed sufficiently in treatment; and (3) recommended that the circuit court not consider either discharge or supervised release for Schulpius.
¶ 10 On November 20, 2008, the Department filed an addendum to Dr. Barahal's July 2008 report. In the addendum, Dr. Barahal changed his opinion on whether Schulpius was still dangerous, stating that changes in protocols for scoring the Static–99 8 actuarial exam led him to re-evaluate his position. As such, he stated that it was “no longer [his] opinion to a reasonable degree of professional certainty that ... Schulpius remains more likely than not to commit sexually violent acts.”
¶ 11 Following Dr. Barahal's change in position, the State successfully sought an adjournment. On August 5, 2009, the Department filed its annual re-examination report (again, completed by Dr. Barahal) and report of treatment progress. In his latest report, Dr. Barahal stated that Schulpius
¶ 12 The discharge hearing on the 2006, 2007, 2008, and 2009 annual re-examinations was held before a jury on January 4 through January 6, 2010. Three key witnesses testified on behalf of the State: Dr. Anthony Jurek, Dr. Barahal, and Dr. Richard McKee. Dr. Rosell testified for the defense.
¶ 13 As relevant to Schulpius's appeal, Dr. Barahal testified that he reviewed more than 1000 pages of records and interviewed Schulpius twice before he rendered an opinion. When asked his opinion on whether Schulpius's risk level made it more likely than not that he would engage in future acts of sexual violence, Dr. Barahal said he was “not sure.” He added:
I think he has, his risk is in a category, I believe the statutory criterion, as I understand it, is that the offender, it isn't whether he's dangerous or not dangerous. It's whether he's more than 50 percent likely to do it again. And I think he's in a category which probably approaches 50 percent, but may or may not be above that.
Dr. Barahal also testified that he scored Schulpius a six on the Static–99.
¶ 14 Following the experts' testimony, the jury found that Schulpius was still a sexually violent person, and the circuit court denied his petition for discharge. Schulpius's appellate counsel filed a no-merit report with this court, and we summarily affirmed the circuit court's order to deny the petition. State v. Schulpius, No. 2010AP2865–NM, unpublished slip op. (WI App Apr. 11, 2012).
¶ 15 On July 22, 2010, approximately six months after the January 2010 discharge hearing, the Department filed its annual re-examination report (again, completed by Dr. Barahal) and treatment progress report.
¶ 16 In his July 2010 report, Dr. Barahal concluded, “to a reasonable degree of psychological certainty[,] that ... Schulpius does not meet criteria for supervised release under Chapter 980.07(4).” Dr. Barahal also found that:
Schulpius'[s] probability of committing another sexually violent act approaches, but is not clearly above or beneath, 50%. Therefore, it [was Dr. Barahal's] opinion to a reasonable degree of psychological certainty that ... Schulpius'[s] degree of risk does not meet the legal criterion ... required for continued civil commitment under Chapter 980.
¶ 17 The July 2010 treatment report, completed by staff at Sand Ridge, described the sexually-violent-person treatment program at the institution, explaining that it consisted of three phases, followed by a fourth phase intended to be completed during supervised release. The report noted that Schulpius was in phase one when the report was written and described phase one as providing an “opportunity to improve his general self-management skills...
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