State v. Smith, 99-0477.

• Citation: 229 Wis.2d 720,600 N.W.2d 258
• Decision Date: 30 July 1999
• Docket Number: No. 99-0477.,99-0477.
• Parties: IN RE the COMMITMENT OF Giles L. SMITH: STATE of Wisconsin, Petitioner-Respondent, v. Giles L. SMITH, Respondent-Appellant.
• Court: Court of Appeals of Wisconsin

229 Wis.2d 720

600 N.W.2d 258

IN RE the COMMITMENT OF Giles L. SMITH:

STATE of Wisconsin, Petitioner-Respondent, v. Giles L. SMITH, Respondent-Appellant.

No. 99-0477.

Court of Appeals of Wisconsin.

Submitted on briefs June 21, 1999.

Decided July 30, 1999.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Jay E. Heit and Roger M. Hillestad & Associates of Durand.

On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sally L. Wellman, assistant attorney general, of Madison.

Before Cane, C.J., Myse, P.J., and Hoover, J.

HOOVER, J.

Giles Smith appeals an order denying his request to stay his ch. 980, STATS.,¹ trial while incompetent.² The circuit court determined that Smith was incompetent and was not likely to become competent, but ordered that he nonetheless proceed with his ch. 980 trial. The question before this court is whether a person found incompetent and unlikely to become competent can be tried under ch. 980. We hold that the legislature, by according to persons tried under ch. 980 all of the constitutional rights available to a defendant in a criminal proceeding, thereby intended to include the right to be competent at trial.

We further hold that the procedure to afford that right should adhere to § 971.14, STATS., to the extent possible. We therefore reverse the circuit court's order and remand for proceedings consistent with this opinion.

FACTS

In 1989, Smith was convicted of first-degree sexual assault of a child. He was scheduled to be released on his maximum discharge date in January 1999. In December 1998, the attorney general filed a petition to commit Smith under ch. 980, STATS. The petition alleged that Smith suffers from pedophilia and paraphilia and that because of those disorders, there is a substantial probability he will engage in acts of sexual violence. The petition also alleged additional charges of sexual assault in 1991 and 1995 but does not disclose their disposition.

At the probable cause hearing, Smith's counsel questioned Smith's competency. Nevertheless, the circuit court decided to proceed and, based on testimony received, found probable cause to believe Smith is a sexually violent person. The court ordered Smith to undergo both ch. 980, STATS., and competency evaluations, although the court was "not certain at this point what [competency] means." The court stayed the ch. 980 proceedings pending a competency determination. The circuit court held a competency hearing on February 5, 1999. The State acknowledged that it would not be able to meet its burden of proof to show that Smith is competent.³ The court heard evidence that Smith suffers from mental retardation, was not competent to proceed with a ch. 980, STATS., proceeding and would be unable to attain competence. The court found that Smith "is not competent to stand trial and not likely to become competent." It denied Smith's request that the ch. 980 matter not proceed to trial while he is incompetent. Smith filed for leave to appeal the interlocutory order, and on March 10, 1999, we granted that request.

STANDARD OF REVIEW

[1]

Whether a ch. 980, STATS., proceeding may proceed to trial against an incompetent respondent involves questions of constitutional law and statutory interpretation. We are not bound by the trial court's conclusions of law and decide the matter de novo. State v. Curiel, No. 97-1337, slip op. at 12 (Wis. July 2, 1999).

ANALYSIS

The issue is whether a person who is incompetent may be tried in a ch. 980, STATS., proceeding. Although the State acknowledges that trying an incompetent for a crime violates the Fourteenth Amendment's due process clause, it argues that ch. 980 is a civil proceeding in the nature of a civil commitment and the right not to be tried if incompetent has never been extended to prohibit involuntary commitments.⁴ The State also asserts that the legislature never intended to extend the right to be competent at trial to a ch. 980 respondent.

Smith directs us to § 980.05(1m), STATS., which provides ch. 980 respondents with all of the constitutional rights afforded a defendant in a criminal action. This, he argues, includes the due process right not to be tried as an incompetent.

[2-4]

Whether § 980.05(1m), STATS., provides Smith with the right not to be tried while incompetent is a question of statutory construction. Our goal in statutory construction is to discern the intent of the legislature. See State v. Rosenburg, 208 Wis. 2d 191, 194, 560 N.W.2d 266, 267 (1997). To determine the legislature's intent, a court must first look to the language of the statute. See N.E.M. v. Strigel, 208 Wis. 2d 1, 7, 559 N.W.2d 256, 258 (1997). If that language unambiguously sets forth legislative intent, it is the court's duty to apply that intent to the case at hand and not look beyond the statute's language to determine its meaning. Id. If, however, a statute is ambiguous, a court should examine the scope, history, context, subject matter and purpose of the statute in order to determine the legislature's intent. See State ex rel. Jacobus v. State, 208 Wis. 2d 39, 48, 559 N.W.2d 900, 903 (1997). A statute is ambiguous if it is capable of being understood by reasonably well-informed persons in more than one way. See id.

Section 980.05(1m), STATS., provides in part:

At the trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person. (Emphasis added.)

We do not perceive any ambiguity in the language, nor have the parties described any. Under the statute, all constitutional rights available to a defendant in a criminal proceeding are available to Smith at his ch. 980 trial. If a criminal defendant has a right to be competent at trial, then so too does a ch. 980 respondent. This necessitates a review of the constitutional rights available to a defendant in a criminal proceeding with respect to competency.

[5]

The right to be competent during a criminal trial flows from the Fourteenth Amendment's due process clause. See Medina v. California, 505 U.S. 437, 439 (1992). It is well settled that trying an incompetent accused of a crime violates due process. Pate v. Robinson, 383 U.S. 375, 378 (1966). The criminal trial of an incompetent violates that person's right to a fair trial. Id. at 385. Competence to stand trial is rudimentary, for upon it depends the effective exercise of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). The right is so fundamental that an attorney in a criminal case has an affirmative obligation to raise the question when it exists, regardless of any strategic considerations. State v. Johnson, 133 Wis. 2d 207, 219-21, 395 N.W.2d 176, 182-83 (1986). Because a defendant in a criminal proceeding has a fundamental constitutional right to be competent at trial, we must conclude that § 980.05(1m), STATS., grants ch. 980 respondents the same right in order to give effect to the statute's clear language.

The unambiguous language of § 980.05(1m), STATS., notwithstanding, the State asserts that the legislature has not recognized a competency right in any involuntary commitment proceeding. It contends that such a right makes no sense because when a criminal defendant is incompetent, the State may pursue involuntary civil commitment⁵ and ch. 980, STATS., is a civil commitment proceeding. While logical, the State's analysis ignores legislative intent as evidenced by the plain meaning of § 980.05(1m), and therefore we must reject it.

[6]

Although a ch. 980, STATS., action is a civil commitment proceeding. State v. Carpenter, 197 Wis. 2d 252, 258, 541 N.W.2d 105, 107 (1995), it shares many of the same procedural and constitutional features present in a criminal prosecution. See Curiel, slip op. at 25. Chapter 980 affords a respondent greater protections than a ch. 51, STATS., respondent. For example, a person can be committed under ch. 980 only if a twelve-person jury unanimously finds that the petition is proven beyond a reasonable doubt. See § 980.03, STATS. This contrasts with ch. 51, which permits commitment on a five-sixths jury verdict by clear and convincing evidence. See § 51.20(11) and (13)(e), STATS.

Despite some fundamental similarities to other commitment proceedings, ch. 980, STATS., ultimately is unique and distinct from the civil commitment chapters, addressing a particular type of individual who poses a specific threat. If anything, a ch. 980 case is more akin to a criminal proceeding because of the rights § 980.05(1m), STATS., affords.⁶ That the legislature has not extended the competency right to other involuntary commitment proceedings is irrelevant. By virtue of § 980.05(1m), it has extended that right here. The State may, if it chooses, proceed with an involuntary commitment of an incompetent under another chapter.

The State further contends that our analysis should focus on the due process purposes underlying the competency requirement and that none of those purposes exist in ch. 980, STATS., actions. It asserts that due process does not require competency in a civil commitment because there are other procedural safeguards, and competency is largely meaningless in a commitment context. The commitments, it maintains, are based largely on psychiatric/psychological evaluations and are essentially determined by experts. We reject these contentions. These arguments similarly ignore the statutory, as opposed to constitutional, basis of the competency right in ch. 980, STATS., proceedings. If w...