State v. Thiel

• Decision Date: 17 November 2004
• Docket Number: No. 03-2649.,03-2649.
• Citation: 277 Wis.2d 698,2004 WI App 225,691 N.W.2d 388
• Parties: IN RE the COMMITMENT OF Dennis THIEL: STATE of Wisconsin, Petitioner-Respondent, v. Dennis THIEL, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

277 Wis.2d 698

2004 WI App 225

691 N.W.2d 388

IN RE the COMMITMENT OF Dennis THIEL:

STATE of Wisconsin, Petitioner-Respondent, v. Dennis THIEL, Respondent-Appellant.

No. 03-2649.

Court of Appeals of Wisconsin.

Submitted on briefs September 9, 2004.

Decided November 17, 2004.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Suzanne L. Hagopian, assistant state public defender of Madison. On behalf of the petitioner-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before Anderson, P.J., Brown and Snyder, JJ.

¶ 1. SNYDER, J.

Dennis Thiel appeals a nonfinal order entered following his supervised release petition under WIS. STAT. § 980.08 (2001-02).¹ Thiel contends two examiners should have been appointed: one for the court under § 980.08(3), and one for him under WIS. STAT. § 980.03(4). He further contends that § 980.03(4) grants him his choice of examiner and that his current examiner is not qualified to administer or opine on the relevant test, the Psychopathy Checklist-Revised (PCL-R). He argues that the circuit court's refusal to appoint a court examiner under § 980.08(3) is error, and the court's appointment of a § 980.03(4) examiner who is not certified in the PCL-R test demonstrates an erroneous exercise of discretion. We agree and therefore reverse the order of the circuit court and remand this matter for proceedings consistent with this opinion.

BACKGROUND

¶ 2. The State pursued commitment of Thiel as a sexually violent person under WIS. STAT. ch. 980. Since his commitment in November 1998, two rather protracted proceedings ensued to determine whether Thiel was ready for discharge or for supervised release into the community. Although this appeal arises from Thiel's supervised release petition, we include information regarding the discharge proceedings because, to some extent, the events overlap.

¶ 3. Six months after his commitment, Thiel refused to waive his right to petition for discharge under WIS. STAT. § 980.09(2), thus requiring the circuit court to determine whether probable cause existed to warrant an evidentiary hearing on Thiel's status as a sexually violent person. Relying on a recent re-examination report submitted by the State, the court concluded that probable cause did not exist and no evidentiary hearing was required. Thiel appealed, and we reversed, holding that the circuit court erred when it denied Thiel an independent examiner and when it failed to accept a valid waiver of counsel. See State v. Thiel, 2001 WI App 32, ¶¶ 20-21, 241 Wis. 2d 465, 626 N.W.2d 26 (Thiel I). On remand, the circuit court granted Thiel's request to appoint Dr. Michael Kotkin to examine him and determine his readiness for discharge.

¶ 4. On June 14, 2000, while his discharge proceeding was on appeal, Thiel filed a petition for supervised release and requested that Dr. Kotkin be appointed as his expert in that matter as well. Subsequently, Thiel agreed to adjourn the supervised release matter pending resolution of his discharge hearing and various appeals.

¶ 5. By January 2003, Thiel had completed the Core program, a two-year treatment program, and had been living on the residential unit with the greatest patient privileges. Dr. Kotkin filed his report on February 21, 2003, and recommended supervised release for Thiel, but not discharge.

¶ 6. On March 13, the Sand Ridge Secure Treatment Center (Sand Ridge) informed Thiel of a revision in its policy whereby all patients with a PCL-R score of twenty-seven or above were being moved from the two-year Core treatment program to the five-year Corrective Thinking program. Prior to the new policy, patients with a score above thirty were placed in the Corrective Thinking program. During Thiel's commitment, three doctors scored him differently on the PCL-R. The scores ranged from twenty to twenty-nine, with the average of the highest two test score results exceeding the new threshold score of twenty-seven. As a result, Sand Ridge concluded that under its new test score policy, Thiel would require the five-year Corrective Thinking program.

¶ 7. Dr. Susan Sachsenmaier, senior psychologist at Sand Ridge, filed a report one week later stating that Thiel had a "significant degree of psychopathy, which combined with sexual deviance, creates a high degree of risk of reoffense." In her report, Dr. Sachsenmaier referenced the PCL-R tests used to evaluate Thiel's need for treatment. She also stated that there was no indication Sand Ridge would modify Thiel's reassignment into the Corrective Thinking program to reflect his completion of the Core program. Dr. Sachsenmaier, however, said she did not believe Thiel would need five more years of treatment "to reduce his level of risk to the degree that he could earn a recommendation for supervised release."

¶ 8. Ultimately, the circuit court concluded that the facts did not warrant a discharge hearing, and Thiel requested permission to go forward with his petition for supervised release. He asked the court to appoint Dr. Patricia Coffey as his expert in the supervised release proceeding, pursuant to WIS. STAT. § 980.03(4). The court questioned the need to appoint Dr. Coffey in light of Dr. Kotkin's recent evaluation for the discharge hearing. Thiel argued that, unlike Dr. Kotkin, Dr. Coffey was certified and trained in the use of the PCL-R and would be able to address the issues associated with that evaluation tool.

¶ 9. The circuit court held a hearing to address Thiel's request on July 21, 2003. At the motion hearing, the State agreed with Thiel that Dr. Coffey should be appointed. Nonetheless, the court, by letter dated July 31, advised the parties that WIS. STAT. § 980.03(4) did not apply to Thiel's petition for supervised release and that the court was willing to reappoint Dr. Kotkin as the court's examiner pursuant to WIS. STAT. § 980.08(3). The court's order states in relevant part:

Respondent's request for the appointment of Dr. Patricia Coffey to examine Respondent pursuant to § 980.08(3) is denied for reasons stated on the record. In addition, Dr. Kotkin has already submitted a report stating that the Respondent is appropriate for conditional release while it is unknown whether Dr. Coffey would even support the Respondent's Petition for Conditional Release. To expend the funds for an expert who has not already treated the Respondent, nor has been previously appointed at the request of the Respondent ... would be fiscally irresponsible in light of tight budgets.... The Court previously appointed Dr. Kotkin for the discharge hearing and he is being reappointed. The Court is satisfied and finds that Dr. Kotkin has the requisite specialized knowledge to be appointed in this matter even though not certified to administer the PCL-R test, he has not been shown to be unable to render opinions as to the test or its meaning.

¶ 10. Thiel renewed his objection to the appointment of Dr. Kotkin, adding that the circuit court's appointment of an examiner under WIS. STAT. § 980.08(3) did not address Thiel's right to an examiner of his own under WIS. STAT. § 980.03(4). Thiel then filed a motion seeking to have Dr. Coffey appointed pursuant to § 980.03(4).

¶ 11. At a motion hearing on September 19, the State agreed that the statutes require the circuit court to appoint two evaluators, one for the court, and another for Thiel. Following this hearing, the court revised its earlier ruling and concluded that Thiel is entitled to the appointment of an expert under WIS. STAT. § 980.03(4). However, the court denied Thiel's motion to appoint Dr. Coffey and instead recast Dr. Kotkin's appointment under WIS. STAT. § 980.08(3) as an appointment under § 980.03(4), in effect changing Dr. Kotkin's status from the examiner for the court to Thiel's examiner. The court did not appoint a new examiner for the court under § 980.08(3). Thiel requested permission to appeal the nonfinal order, and we granted his request.

DISCUSSION

¶ 12. Thiel raises three issues on appeal: (1) whether the circuit court must appoint an examiner for the court under WIS. STAT. § 980.08(3) when it has appointed an examiner for the petitioner under WIS. STAT. § 980.03(4); (2) whether an indigent party petitioning for supervised release under § 980.08 is entitled to an examiner of his or her choice under § 980.03(4); and (3) whether the court's appointment of Dr. Kotkin as Thiel's examiner was an erroneous exercise of discretion. We take each issue in turn. Appointment of Experts Under WIS. STAT. §§ 980.08(3) and 980.03(4)

[1, 2]

¶ 13. The circuit court originally appointed Dr. Kotkin under WIS. STAT. § 980.08(3), ordering him to submit his examination report directly to the court. The court subsequently revised its ruling and appointed Dr. Kotkin as Thiel's examiner, with directions to submit his report to Thiel's attorney instead of the court, and left the § 980.08(3) examiner position vacant. We must decide if the appointment of Dr. Kotkin as Thiel's examiner relieved the court of its duty to appoint an examiner for the court under § 980.08(3). The application of a statute to a set of facts is a question of law which this court reviews de novo. Beaudette v. Eau Claire County Sheriff's Dep't, 2003 WI App 153, ¶ 20, 265 Wis. 2d 744, 668 N.W.2d 133.

[3]

¶ 14. WISCONSIN STAT. § 980.08 governs petitions for supervised release, and directs the court as follows: "Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment." Sec. 980.08(3) (emphasis added). Our supreme court has repeatedly held that statutory interpretation first looks to the language of the statute and, "[i]f the meaning of the statute is...