State v. Stowe, Appeal No. 2017AP1891-CR

• Decision Date: 20 June 2019
• Docket Number: Appeal No. 2017AP1891-CR
• Citation: 2019 WI App 39,388 Wis.2d 256,932 N.W.2d 179 (Table)
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Graham L. STOWE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

388 Wis.2d 256

932 N.W.2d 179 (Table)

2019 WI App 39

STATE of Wisconsin, Plaintiff-Respondent,

v.Graham L. STOWE, Defendant-Appellant.

Appeal No. 2017AP1891-CR

Court of Appeals of Wisconsin.

DATED AND FILED June 20, 2019

PER CURIAM.

¶1 Graham Stowe was found not guilty by reason of mental disease or mental defect (NGI) based on charges of violent criminal conduct in 2004 and was committed to the custody of the Department of Health Services (the department). Stowe now appeals a circuit court order denying his most recent petition for conditional release from department custody under WIS. STAT. § 971.17(4) (2017-18), and appeals the court’s order rejecting his arguments that § 971.17(4)(d) is unconstitutional on its face and as applied to him.¹ Stowe also argues that the State failed to prove by clear and convincing evidence that, if conditionally released, he would pose a significant risk of bodily harm to himself or others or a significant risk of property damage. See id. We reject each of Stowe’s arguments and affirm.

BACKGROUND

¶2 A person found NGI, sometimes referred to as an NGI acquittee, may be committed to the custody of the department. See WIS. STAT. § 971.17 ; State v. Fugere , 2019 WI 33, ¶¶32, 44, 386 Wis. 2d 76, 924 N.W.2d 469. NGI acquittees may file periodic petitions for conditional release from custody. See WIS. STAT. § 971.17(4)(a).

¶3 Pertinent to this appeal, when an NGI acquittee petitions for conditional release, the circuit court "shall grant" the petition "unless it finds by clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage if conditionally released." WIS. STAT. § 971.17(4)(d).

¶4 Regarding Stowe’s history, we provided the following pertinent background when we rejected Stowe’s appeal of the circuit court’s denial of an earlier petition for conditional release:

A criminal complaint alleged that, in the early morning hours of February 9, 2004, Stowe entered his ex-girlfriend’s residence and forced her and their two-year-old daughter out of bed at gunpoint. Stowe subsequently tied up and handcuffed his ex-girlfriend, her minor brother, and her father. He beat her father with a baton and doused him with gasoline. Stowe repeatedly stated he was going to take his ex-girlfriend somewhere and force her to watch him commit suicide. He also threatened to kill her father and sister. Stowe’s ex-girlfriend was ultimately able to call 911, and she later escaped with her daughter after police arrived at the residence. While police remained outside the residence, Stowe took some pills—after again indicating he wanted to kill himself—and then passed out. His ex-girlfriend’s father and brother were then able to escape.

Stowe was charged with eleven counts as a result of these events. He entered [NGI] pleas ... to each of the charges against him. Stowe subsequently entered no contest pleas to first-degree recklessly endangering safety, intimidation of a victim, felony bail jumping, and three counts of false imprisonment. The circuit court found Stowe NGI with respect to those offenses, and the remaining charges were dismissed. The court ordered Stowe committed to the Department of Health and Family Services for institutional care for thirty-nine years and six months.

In April 2007, the circuit court entered an order conditionally releasing Stowe. However, in June 2009, the [department] petitioned to revoke Stowe’s conditional release. The petition alleged Stowe had violated his rules of conditional release by entering a bar where his ex-girlfriend worked, and an attached report indicated he had repeatedly violated his rules on other occasions, despite numerous warnings. The circuit court revoked Stowe’s conditional release in July 2009.

Stowe petitioned for conditional release three more times between 2010 and 2012. The circuit court denied each of Stowe’s petitions, and we affirmed those decisions on appeal. SeeState v. Stowe , No. 2012AP2644-CR, unpublished slip op. (WI App July 30, 2013); State v. Stowe , No. 2011AP2920-CR, unpublished slip op. (WI App Oct. 10, 2012); State v. Stowe , No. 2010AP2458-CR, unpublished slip op. (WI App June 7, 2011).

In July 2013, Stowe escaped from a minimum security unit at Mendota Mental Health Institute. The record indicates Stowe "impulsively took off from [Mendota] when he thought that security guards were going to place him in a more secure unit." He evaded capture for over three months. He was subsequently convicted of escape and sentenced to prison. After serving the initial confinement portion of his sentence, Stowe was returned to Mendota to serve the extended supervision portion of his sentence while serving his commitment and was placed in a maximum security unit.

State v. Stowe , No. 2016AP2367-CR, unpublished slip op. at ¶¶2-6 (WI App Dec. 27, 2017) (Stowe 2017 ) (affirming circuit court’s denial of petition for conditional release filed in February 2016).

¶5 In December 2016, Stowe filed the petition for conditional release at issue here. The circuit court appointed clinical psychologist Dr. William Merrick to evaluate Stowe and prepare a psychological evaluation.

¶6 Before the conditional release trial, Stowe asserted briefly that he would be raising facial and as-applied constitutional challenges to unspecified provisions in WIS. STAT. § 971.17, based on the Due Process and Equal Protection Clauses of the federal Constitution. Stowe asserted in this connection that he was "no longer mentally ill and there is no medical justification in continuing to hold him at Mendota Mental Health Institute without providing any treatment for him."

¶7 As of the time of the conditional release hearing, Dr. Merrick had diagnosed Stowe with three mental disorders that Dr. Merrick testified are not treatable through medication but can be treated through "psychotherapeutic techniques

." The parties do not dispute that the personality disorders for which Dr. Merrick diagnosed Stowe do not qualify as NGI diseases or defects for purposes of initial confinement. See WIS. STAT. § 971.15(2) ("As used in this chapter, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct"); Simpson v. State , 62 Wis. 2d 605, 612, 215 N.W.2d 435 (1974) (excluding an "antisocial personality disorder" from the definition of "mental disease or defect" in the meaning of § 971.15 ).

¶8 The court denied the petition for conditional release after concluding that the State had met its burden to show by clear and convincing evidence that release would not be appropriate.

¶9 Stowe filed a motion and brief, more detailed than his pre-hearing submission, challenging the constitutionality of WIS. STAT. § 971.17(4) as applied to him, implicitly challenging in particular the conditional release provision in para. (d), again based on his due process and equal protection rights. The court denied this challenge in a written decision and order.

¶10 Stowe appeals, requesting that we reverse and remand with directions to grant Stowe’s petition for conditional release and to order creation of a conditional release plan.

DISCUSSION

¶11 We address the issues raised on appeal in the same order in which the parties address them.

I. FACIAL CONSTITUTIONAL CHALLENGE

¶12 For his facial constitutional challenge, Stowe renews an argument that we rejected in our unpublished decision in Stowe 2017 , which we now reject again for the same reason. See Stowe 2017 , No. 2016AP2367-CR, ¶39. Stowe argues that WIS. STAT. § 971.17(4)(d) is unconstitutional on its face because it permits the continued confinement of NGI acquittees based on dangerousness alone. We rejected this argument in Stowe 2017 , based on State v. Randall , 192 Wis. 2d 800, 806-07, 532 N.W.2d 94 (1995) (Randall I ) ("[I]t is not a denial of due process for an insanity acquittee who has committed a criminal act to be confined in a state mental health facility for so long as he or she is considered dangerous, provided that the commitment does not exceed the maximum term of imprisonment which could have been imposed for the offense charged.").² See Stowe 2017 , No. 2016AP2367-CR, ¶39. Stowe’s position is that our supreme court incorrectly decided Randall I , and effectively asks us to modify Randall I , which we cannot do. See Cook v. Cook , 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (court of appeals lacks authority to overrule, modify, or withdraw language from a supreme court decision).

II. AS APPLIED CONSTITUTIONAL CHALLENGE

¶13 Stowe argues that WIS. STAT. § 971.17(4)(d), as the circuit court applied it in denying his petition, violates the Due Process Clause because his continued confinement at Mendota has no therapeutic value. See Randall I , 192 Wis. 2d at 817 ("To be constitutionally permissible, the continued confinement of a sane but dangerous [NGI] acquittee in a mental health facility, must have some therapeutic value.").³ We reject this argument based on our interpretation of Randall I in State v. Randall , 222 Wis. 2d 53, 65-66, 586 N.W.2d 318 (Ct. App. 1998) (Randall II ), a published decision of this court.

¶14 A constitutional challenge to the specific application of a statute to the challenger is based on the particular facts of the case, and the issue is whether "the law actually violates the challenger’s rights." Blake v. Jossart , 2016 WI 57, ¶26, 370 Wis. 2d 1, 884 N.W.2d 484. If so, " ‘the operation of the law is void as to the party asserting the claim.’ " Id. (quoted source omitted).

¶15 Stowe apparently intends to challenge the circuit court’s findings that he was offered therapy at Mendota, which he refused to accept, and that, if Stowe had cooperated, this therapy would have had therapeutic value to him. This argument apparently rests on the premise that, under Randall I , the State must establish that the treatment offered to Stowe at Mendota, or that was available to him there,...