State v. Schulpius, 02-1056.

• Decision Date: 03 February 2004
• Docket Number: No. 02-1056.,02-1056.
• Citation: 2004 WI App 39,678 N.W.2d 369,270 Wis.2d 427
• Parties: IN RE the COMMITMENT OF Shawn D. SCHULPIUS: STATE of Wisconsin, Petitioner-Respondent, v. Shawn D. SCHULPIUS, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

270 Wis.2d 427

2004 WI App 39

678 N.W.2d 369

IN RE the COMMITMENT OF Shawn D. SCHULPIUS: STATE of Wisconsin, Petitioner-Respondent, v. Shawn D. SCHULPIUS, Respondent-Appellant.¹

No. 02-1056.

Court of Appeals of Wisconsin.

Oral argument January 6, 2004.

Decided February 3, 2004.

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

On behalf of the petitioner-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Warren D. Weinstein, assistant attorney general. There was oral argument by Warren D. Weinstein. Before Wedemeyer, P.J., Fine and Schudson, JJ.

¶ 1. FINE, J.

Shawn D. Schulpius appeals from the order denying his motion to "Enforce the Trial Court's Decision and Order of October 27, 1999 and for a Final Order" directing that he be released from the custody to which he was committed as a "sexually violent person" under WIS. STAT. ch. 980. (Uppercasing omitted.) The encompassing issue presented is whether Schulpius, who was properly committed under ch. 980 as a dangerous sex offender, must be released from that commitment because the responsible government agencies did not comply with subsequent trial-court orders directing that he be placed in the community under supervised release, even though the trial court determined at the most recent court hearing that Schulpius is substantially likely to re-offend if released from his confinement—either under supervised release or outright. We hold that he is not entitled to such release. Accordingly, we affirm.

I.

¶ 2. The procedural history in this case is byzantine and we set it out in some length because it gives needed context. In brief, Schulpius was found to be a "sexually violent person" as that term is defined in WIS. STAT. ch. 980, and was committed to the secure custody of the Department of Health and Family Services for in-patient treatment. Almost immediately, however, the trial court issued a series of orders that directed either the Department or Milwaukee County, or both, to prepare a plan to treat Schulpius on supervised release in the community. When, after several years, Schulpius was still being detained in secure custody, the trial court ruled that Schulpius's constitutional rights were violated and ordered his immediate release. Subsequently, however, the trial court found that Schulpius was no longer suitable for supervised release because of his dangerous mental condition. The history has essentially two phases, which we discuss in turn.

A. Phase One.

¶ 3. In December of 1991, Schulpius, then one week short of eighteen, pled guilty to and was convicted of first-degree sexual assault of a four-year-old boy for whom he was baby-sitting. See WIS. STAT. § 948.02(1) (1991-92). Schulpius, who had previously been waived to adult court for the crime, was sentenced to a stayed prison term of five years and was put on probation for five years. Schulpius's probation was later revoked because he had incest-related pornographic video tapes and magazines in his possession, and repeatedly did not comply with the rules of his probation. Schulpius started to serve his previously stayed five-year term. In October of 1995, shortly before Schulpius was to be released, the State filed a petition seeking his commitment under WIS. STAT. ch. 980 as a sexually violent person.

¶ 4. The baby-sitting sexual assault of the four-year-old boy was not the first time Schulpius had sexually assaulted a child. Schulpius's history of deviant sexual criminality was related in a psychological assessment submitted to the trial court in support of the State's October 1995 WIS. STAT. ch. 980 petition. What the psychologist characterized as Schulpius's "first group of sex offenses" started when Schulpius was fourteen. "He began molesting his step-sister (approximately age 6 at the time), on at least a once weekly basis for six months to a year before he was apprehended. Mr. Schulpius describes his offense as fondling and performing oral sex on his step-sister." As a result, Schulpius was placed at a mental-health facility where, according to the psychological assessment, Schulpius "received approximately three months of individual therapy treatment." Nevertheless, some six months later, Schulpius "began re-assaulting his step-sister again including fondling her, having her fondle him, performing oral sex on her and rubbing his penis between her legs." During this time, Schulpius also "fondled his one[-]year[-]old half-brother."

¶ 5. Schulpius explained his relapse to the psychologist, telling her, as recounted in her psychological assessment, that "the treatment providers" at the mental-health facility to which he was sent after his apprehension for sexually assaulting his six-year-old step-sister "were not prepared to deal with his sex offenses in treatment." Schulpius also claimed that his assault on his one-year-old half-brother was, as also reported in the psychological assessment, "an impulsive act" while Schulpius was changing the baby's diaper.

¶ 6. When Schulpius was fifteen, he began assaulting girls in his neighborhood and, also, one of his biological sisters, who was then approximately eleven or twelve. He also resumed sexually assaulting his younger step-sister. Schulpius was then sent to another facility for treatment. The psychological assessment submitted in support of the October, 1995, petition recounts:

[Schulpius] reports that the treatment may have been effective to prevent him from re-offending, but he was too immature to apply himself at that time in the treatment setting. He reports he cooperated at times, but this mainly involved putting up a front of cooperating, for example writing out very lengthy answers to his assignments, but cramming them with useless information, so that he might avoid working on his offenses or disclosing information.

Schulpius left the treatment facility when he was seventeen and entered a group home. When he lost one of his two part-time jobs, he "offered to babysit for a woman friend's young son." The child was the four-year-old boy whom Schulpius assaulted in the waiver-to-adult-court criminal case that ultimately resulted in his imprisonment following the revocation of his probation.

¶ 7. Following a June 14, 1996, WIS. STAT. ch. 980 bench trial, the trial court found that Schulpius was a sexually violent person. See WIS. STAT. §§ 980.05 (trial), 980.01(7) (1995-96) (definition of "sexually violent person").² A pre-dispositional-investigation report was prepared by Dennis M. Doren, Ph.D., psychology director of forensic/adult services at the Mendota Mental Health Institute. In the course of Dr. Doren's investigation, Schulpius admitted to him that he had, as phrased by Dr. Doren, sexually assaulted others for which he "was never prosecuted (involving reportedly about 20 different victims at least[,] mostly where he `took advantage of the person')." After reviewing possible placements and treatment facilities, as well as what Dr. Doren characterized as Schulpius's then "relatively new earnest efforts to improve himself and learn how to avoid committing sexual violent acts," Dr. Doren concluded that, given the reality of what was available in the community and Schulpius's needs, Schulpius should be committed for treatment at a secure facility. Dr. Doren explained:

Ultimately, this examiner believes that Mr. Schulpius currently has positive intentions for his community adjustment, and much prefers the idea of never recommitting a sex crime. The situation into which he would be released, however, simply seems too insufficient in its educational and supervisory resources to work effectively for him at this time to ensure community safety. Under the above listed circumstances, with the enormous stress of learning to develop a new life in ways unfamiliar to him, with inadequately developed new skills (i.e., treatment effect to date) to address the emotional difficulties he would face, and with the freedom to act as he felt at the time based on his stress, it seems too likely to this examiner that Mr. Schulpius would (like other people in analogous circumstances) go back to old patterns of coping/behavior. This would, for Mr. Schulpius, include testing limits (including of his supervised release set of rules, his own personal "red flags") and actual sexual offense recidivism. From this examiner's perspective, the risk to the community is simply too great at this time to recommend that Mr. Schulpius receive his treatment relevant to his Chapter 980 commitment within a community setting.

Dr. Doren, however, tinctured his recommendation that Schulpius be committed to a secure facility with the acknowledgment that it was based, in part at least, on "the lack of apparent alternatives."

¶ 8. The trial court followed Dr. Doren's recommendation and, on July 31, 1996, ordered Schulpius "committed to institutional care ... [i]n a secure mental health unit or facility" pursuant to WIS. STAT. §§ 980.06 and 980.065 (1995-96). The trial court, however, concluded that Schulpius was more suitable for supervisory release if there was an appropriate community resource, and, in a "supplemental order" issued on August 8, 1996, started the mechanism to find one:

At the commitment hearing, I found that two particular things were required with respect to [Schulpius's] placement: (1) a significant level of supervision, such as is available in residential treatment or a "half-way house" setting; and (2) access to an appropriate sexual assault treatment program. I also found that neither [Schulpius's] circumstances [n]or the protection of the community required prison level security, by which I intended to indicate that placement in a secure mental health facility was not necessary. I ordered institutional care in a secure placement only because the record did not

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