State v. Sprosty

Decision Date27 September 2001
Docket NumberNo. 00-2404.,00-2404.
Citation636 N.W.2d 213,248 Wis.2d 480,2001 WI App 231
PartiesIN RE the COMMITMENT OF Larry J. SPROSTY: STATE of Wisconsin, Petitioner-Respondent, LA CROSSE COUNTY, Intervenor-Respondent, v. Larry J. SPROSTY, Respondent-Appellant.
CourtWisconsin Court of Appeals

On behalf of the respondent-appellant, the cause was submitted on the brief of Jack E. Schairer, assistant state public defender of Madison, and Roseann T. Oliveto, assistant state public defender of Lancaster.

On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general.

Before Vergeront, P.J., Dykman and Roggensack, JJ.

¶ 1. DYKMAN, J.

Larry Sprosty was committed to the Wisconsin Resource Center as a sexually violent person in 1995. His petition for supervised release was later granted, but the circuit court relieved the State from its order when it concluded that new evidence demonstrated that it was substantially probable Sprosty would reoffend. Sprosty appeals from the order granting the State's motion for relief and from an order denying Sprosty's motion to vacate the order for relief. Sprosty argues that no extraordinary circumstances have occurred under WIS. STAT. § 806.07(1)(h) (1999-2000)2 that would justify relieving the State from the 1996 order granting Sprosty's petition for supervised release. In addition, Sprosty contends that the circuit court erred both when it allowed one of the State's experts to testify, even though he was not a psychologist licensed in Wisconsin, and later when it denied his motion to vacate the order for relief after it was discovered that the same witness had given misleading or false testimony.

¶ 2. We conclude that the circuit court did not exercise its discretion erroneously either when it determined that there were extraordinary circumstances justifying relief under WIS. STAT. § 806.07(1)(h) or when it allowed one of the State's witnesses to give an expert opinion. Further, the circuit court did not err by denying Sprosty's motion to vacate its order. Accordingly, we affirm.

I. Background

¶ 3. This case has taken a long and circuitous path through the Wisconsin courts. Larry Sprosty was convicted of first-degree sexual assault of a child, sexual exploitation of a child, and child enticement in 1991. The circuit court sentenced him to five years in prison. Before Sprosty was scheduled to be released, the State filed a petition under WIS. STAT. § 980.01(2) and (7) (1993-94) to commit Sprosty as a "sexually violent person." After a trial, the circuit court concluded that Sprosty was a sexually violent person and committed him to the Wisconsin Resource Center for an indeterminate amount of time.3

¶ 4. On February 1, 1996, Sprosty petitioned the circuit court for an order granting him supervised release under WIS. STAT. § 980.08 (1993-94). After a hearing on September 27, 1996, the circuit court granted Sprosty's petition for supervised release and ordered the Department of Probation and Parole to prepare a treatment plan. When Crawford County failed to find a placement for Sprosty, the circuit court denied Sprosty supervised release "on the grounds that necessary accommodations for his needs for treatment, for supervision, and for the protection of the community are unavailable in Crawford County and elsewhere." Sprosty appealed the order and we reversed, concluding that, under § 980.08(5), a person must be released if the circuit court determines that release is appropriate, regardless whether the Department of Health and Family Services (DHFS) locates a placement. State v. Sprosty, 221 Wis. 2d 401, 403, 585 N.W.2d 637 (Ct. App. 1998). The supreme court affirmed, holding that the circuit court was required to ensure that Sprosty was placed in an appropriate program once it ordered supervised release. State v. Sprosty, 227 Wis. 2d 316, 320, 595 N.W.2d 692 (1999). The supreme court remanded the case to the circuit court to designate and order a county to develop a supervised release plan for Sprosty. Id. at 337.

¶ 5. Sprosty was never released. First, the circuit court ordered Dane County to prepare a plan for Sprosty because it concluded that Crawford County did not have adequate services and resources for him. However, the court later withdrew this order after it concluded that WIS. STAT. § 980.08(5) (1993-94) did not allow Sprosty to be placed in Dane County. The court then ordered La Crosse County to prepare a plan, in time for a release date of February 1, 2000. When Sprosty was not released on February 1, the court extended the time for release to March 1, 2000.

¶ 6. A hearing was held on February 23, 2000, to show cause why Sprosty had not yet been placed and to determine what efforts La Crosse County was making to meet the March 1 deadline. Although the court found the efforts of La Crosse County lacking, it extended the time for release to April 1, 2000.

¶ 7. On March 13, 2000, the State filed a motion with the circuit court to reconsider its order for supervised release, alleging that Sprosty had made sexual advances on a seventeen-year-old cellmate in the Crawford County Jail4 during February 2000, making supervised release no longer appropriate. After the circuit court concluded that the time for filing a motion to reconsider had long since passed, the State moved the court for an order granting relief from the trial court's 1996 order granting supervised release to Sprosty under WIS. STAT. § 806.07(1)(h).

¶ 8. The circuit court held hearings on May 25, 2000, and July 13, 2000. M.L.B., who was seventeen years old at the time the incident occurred, testified that he shared a cell with Sprosty at the Crawford County Jail for approximately two weeks. M.L.B. stated that one evening Sprosty left a letter on his (Sprosty's) bed. Although Sprosty never actually gave the letter to M.L.B., M.L.B. believed it was clear that Sprosty intended for him to read it. M.L.B. stated: "He [Sprosty] walked out. He looked at me. Sat it down so I'd see him sit it down. He sat it right where I could see." After Sprosty left the cell, M.L.B. picked up and read the letter when he saw his name written at the top. The letter was an offer from Sprosty to perform oral sex on M.L.B.5 The next day, M.L.B. informed prison officials of the letter and Sprosty was taken out of the cell. M.L.B. also testified that Sprosty never verbalized his offer and did not attempt any sexual contact with him before or after he saw the letter. Sprosty did not testify.

¶ 9. Two experts testified for the State. Raymond Wood is a clinical psychologist, licensed in Wisconsin, and the clinical director for the Sexually Violent Person Program in Illinois. Previously, Wood had contact with Sprosty as a therapist at the Wisconsin Resource Center. During the hearing, Wood testified that he believed Sprosty was still a sexually violent person and that it was substantially probable that he would reoffend if placed on supervised release. He further stated that the significance of the incident in the Crawford County Jail was "enormous" and that there were no conditions that could be placed on Sprosty that would make supervised release appropriate.

¶ 10. Anthony Thomalla, a clinical psychologist who was the Treatment Director at the Sand Ridge Care Center, concurred with Wood that supervised release would be inappropriate. In 1999, he had prepared an examination report concluding that Sprosty should not be placed on supervised release. He testified that the incident at the Crawford County Jail confirmed his earlier concerns.

¶ 11. Two experts also testified for Sprosty. Janet Weber provides treatment for sexual offenders and prepared the treatment plan for Sprosty to be implemented upon his release. She has a master's degree in social work, but is not a psychologist. Weber testified that her treatment plan would not have been affected by the incident in the Crawford County Jail and she believed Sprosty handled the incident appropriately. She based her conclusion in part on a "decision matrix" that Sprosty had prepared after he wrote the letter to M.L.B. According to Weber, part of Sprosty's treatment was to create a matrix when he was at risk to reoffend in order to assess alternatives to inappropriate sexual behavior. The decision matrix listed a number of reasons Sprosty believed he should not have sexual contact with M.L.B., including "He is still a child," and "It is wrong and against everything I believe." In addition, Weber noted that Sprosty spoke to a patient care technician at the jail after he wrote the letter, never verbalized his offer to M.L.B., and had not created the situation in which he was placed. However, the trial court would not allow Weber to give her opinion regarding whether there was a substantial probability that Sprosty would reoffend.

¶ 12. Diane Lytton is a licensed psychologist with a Ph.D. in clinical psychology. She is also trained in the evaluation and treatment of sex offenders. She testified that the incident at the jail did not substantially raise Sprosty's risk to reoffend. Similar to Weber, Lytton based her conclusion on the decision matrix, and the lack of any sexual contact with or a verbal proposition to M.L.B. Lytton also noted that Sprosty had asked to be placed in a cell by himself.

¶ 13. At the close of the hearing, the circuit court concluded that M.L.B. was telling the truth, that Sprosty had intentionally left the letter on his bed for M.L.B. to read, and that sexual contact would have occurred had M.L.B. consented. The court also found that Sprosty had requested twice to be moved out of the cell and that Sprosty was not aware that M.L.B. was seventeen years old.

¶ 14. Regarding the expert opinions, the court stated that the opinions of Wood and Thomalla "were the more appropriate, acceptable, and reasonable," and that "Dr....

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