State v. Sepulveda
| Decision Date | 27 June 1984 |
| Docket Number | No. 82-1496-CR,82-1496-CR |
| Citation | 350 N.W.2d 96,119 Wis.2d 546 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Daniel J. SEPULVEDA, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
David J. Becker, Asst. Atty. Gen. (argued), for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on the briefs.
Mark Lukoff, First Asst. State Public Defender (argued), for defendant-appellant.
This is a review of an unpublished court of appeals decision, 114 Wis.2d 591, 337 N.W.2d 856, which reversed a judgment of conviction rendered by Honorable Max Raskin, Reserve Circuit Judge, in Kenosha county circuit court.
On August 20, 1981, the defendant, Daniel J. Sepulveda, confronted a thirteen-year-old girl as she was leaving a grocery store. The defendant showed her a badge and told her that some people from the store had informed him that she had stolen an item from the store by putting it in her shirt. He then told her to remove her shirt. When the girl refused, the defendant told her that she had to get into his car. He repeated this to her several times, and, when she failed to follow his demands, he grabbed her by the wrist. The victim tried to pull away from him, and the defendant released her only when he saw a woman approaching them. He told the victim that he would follow her home and left the area.
The defendant was arrested that same day, and a criminal complaint was filed on August 24, 1981. On December 21, 1981, a jury trial was commenced in the Kenosha county circuit court, before Honorable Max Raskin, Reserve Circuit Judge. At the trial, the state introduced evidence of the above incident and one which had occurred two days prior to it, on August 18, 1981. On that date, the defendant had approached a ten-year-old girl at the same grocery store. After showing her a badge and telling her that he was a police officer, he accused her of stealing and offered to drive her home. She refused and walked home.
On December 23, 1981, the jury returned a verdict, finding the defendant guilty of abduction, contrary to section 940.32(3), Stats., and personating a peace officer, contrary to section 946.70. The sentencing hearing was conducted on December 30, 1981. As part of the disposition of the case, the parties agreed to read in two counts of lewd and lascivious behavior, in violation of section 944.20(2), arising from two incidents on July 7, 1981, and August 19, 1981, in which the defendant had exposed himself.
The state recommended that the defendant be imprisoned. The defendant's attorney, on the other hand, recommended that the defendant be placed on probation and allowed to continue outpatient treatment with his psychologist, Dr. Richard Fogle. Dr. Fogle testified that the defendant's behavior could effectively be controlled by virtue of this therapy. The probation agent who had prepared the presentence report, Mark Colby, recommended that the defendant be placed on probation with the condition that he voluntarily admit himself to the Mendota Mental Health Institute for intensive inpatient therapy.
At the conclusion of the sentencing hearing, the trial judge sentenced the defendant to thirty days in the county jail for the charge of personating a peace officer. He stayed this sentence and placed the defendant on probation for one year. Concerning the abduction charge, the judge sentenced the defendant to a term not to exceed six years at the Green Bay Correctional Institution. He also stayed this sentence and placed the defendant on probation for three years, with certain conditions. The first of these conditions was that the defendant voluntarily admit himself to the Mendota institute "for the intensive care and treatment that the Court feels that he must have in order to live a peaceful and nonviolative life in this community." A further condition concerned the requirement that the court be notified of the defendant's release from Mendota. The final condition addressed the remaining period of probation and provided for the defendant's continued therapy on an outpatient basis and the court's notification should the defendant no longer need such treatment. Additionally, the defendant was to abide by all rules and regulations of the probation department while he was still on probation following his release from Mendota.
On January 14, 1982, the defendant was interviewed by psychiatrist James Richard Thiel of the Mendota institute. Based upon this interview, the defendant was denied admission to the institution. Dr. Thiel concluded that the defendant suffered from a personality disorder, or antisocial personality, and, in the doctor's opinion, psychotherapy has had "very little if any success" in treating such disorders.
Subsequently, the probation department attempted to revoke the defendant's probation. However, at the revocation hearing no probable cause was found to revoke the defendant's probation, and the proceedings were dismissed.
On February 4, 1982, the state filed a motion for reconsideration of the sentence imposed by the court on December 30, 1981. A hearing was conducted on February 11, 1982, during which Dr. Thiel testified as to the reasons why the defendant was denied admission to the mental health institute.
At the conclusion of the hearing, the trial judge set aside the previous sentence and imposed the following sentence: That the defendant be confined at the Green Bay state reformatory for an undetermined period of not more than three years on the abduction charge and that the defendant be confined for thirty days on the charge of personating a peace officer, to run concurrently with the three-year sentence. The judge reasoned that the defendant's denial of any responsibility for his actions, which led to his rejection from admission to Mendota, was a "new factor" which necessitated the vacation of the previous sentence and the imposition of a new one. The court referred to the definition of "new factor" as set forth in Rosado v. State, 70 Wis.2d 280, 234 N.W.2d 69 (1975). 1
The defendant subsequently moved the court to vacate the February 11, 1982, sentence, alleging that there was no statutory authority for the state to have requested the defendant's resentencing and that the court's action had violated the double jeopardy clauses of the Wisconsin and United States Constitutions. The court denied the defendant's motion and, on August 6, 1982, issued a written decision adhering to its former view that the defendant's nonacceptance at Mendota constituted " 'identifiable factual data not known to the trial judge at the time of the original sentencing proceedings,' " citing North Carolina v. Pearce, 395 U.S. 711, 751, 89 S.Ct. 2072, 2089, 23 L.Ed.2d 656 (1969) (White, J., concurring). The trial judge also relied on language found in the case of State v. Dean, 102 Wis.2d 300, 306 N.W.2d 286 (Ct.App.1981) [Dean I ], which was subsequently withdrawn in the later appeal of State v. Dean, 111 Wis.2d 361, 365, 330 N.W.2d 630 (Ct.App.1983) [Dean II ]. 2
On August 6, 1982, the defendant appealed his second amended judgment of conviction to the court of appeals. In a brief, unpublished opinion, the court of appeals reversed and remanded the cause to the circuit court with directions. The court concluded that the case fit squarely within the holding of Dean II and that Sepulveda's resentencing after being placed on probation violated his constitutional rights. The trial court was directed to reimpose the original sentence, and modification of probation conditions through the proper administrative procedures was ordered.
The state subsequently petitioned this court for review, and we granted the petition.
On review, then, we are faced with the following two issues: (1) Did the trial court have the authority to modify the defendant's probation from institutionalization in a mental hospital to incarceration in a state prison; and (2) when a trial court grants probation as the form of disposition in a criminal case and imposes the condition that the defendant must voluntarily admit himself to a mental health institution for intensive treatment, does modification of the order of probation to include imprisonment when the defendant is denied admission to the institution violate double jeopardy?
We note that for purposes of this review, the state has conceded that the original imposition of probation constituted a form of punishment.
The defendant argues that the trial court did not have the authority to modify or set aside the defendant's probation in such a manner as to change the terms from institutionalization to incarceration. As support, the defendant directs our attention to section 973.09(1)(a) and (3)(a) and section 973.10(2), Stats. The relevant portions of those statutes read as follows:
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