State v. Treadway, 00-2957.

• Decision Date: 30 July 2002
• Docket Number: No. 00-2957.,00-2957.
• Parties: IN RE the COMMITMENT OF Thomas TREADWAY: STATE of Wisconsin, Petitioner-Respondent, v. Thomas TREADWAY, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

257 Wis.2d 467

2002 WI App 195

651 N.W.2d 334

IN RE the COMMITMENT OF Thomas TREADWAY:

STATE of Wisconsin, Petitioner-Respondent, v. Thomas TREADWAY, Respondent-Appellant.¹

No. 00-2957.

Court of Appeals of Wisconsin.

Submitted on briefs June 5, 2002.

Decided July 30, 2002.

On behalf of the respondent-appellant, the cause was submitted on the brief of Lynn Ellen Hackbarth of Law Offices of Lynn Hackbarth, of Milwaukee.

On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.

Before Wedemeyer, P.J., Schudson and Curley, JJ.

¶ 1. SCHUDSON, J.

Thomas Treadway appeals from the trial court order denying his postverdict motions "to have his commitment as a sexually violent person reversed or vacated, and to have the [petition alleging that he is a sexually violent person] dismissed for want of jurisdiction," or, alternatively, to be granted a new trial "upon his additional claims of error." Contending that his commitment is unlawful, he argues that: (1) the State did not timely file the petition; (2) the trial court allowed him fewer peremptory strikes than he should have received, given that commitment could, in effect, be comparable to a sentence of life imprisonment; (3) the trial court improperly failed to strike a juror for cause, thus forcing him to use one of his peremptory strikes; (4) the trial court erred in allowing his probation officer to offer an opinion that he was a "high risk" to reoffend; and (5) the evidence was insufficient to prove that he was a sexually violent person.

¶ 2. Alternatively, Treadway argues that trial counsel was ineffective for failing to raise some of these arguments. Additionally, the parties address the nature of this court's jurisdiction over Treadway's appeal, given Treadway's failure to file postverdict motions within twenty days of the jury's verdict.

¶ 3. We conclude that, in WIS. STAT. ch. 980 proceedings, postverdict motions must be filed within twenty days of the commitment order and, therefore, Treadway, by filing his motions within twenty days of the commitment order, preserved his appeal as a matter of right.² We also conclude, however, that Treadway's other arguments fail. Accordingly, we affirm.

I. BACKGROUND

¶ 4. On August 31, 1999, a jury found Treadway to be a sexually violent person. See WIS. STAT. § 980.05(5) (1997-98). Following a dispositional hearing, the trial court, on November 16, 1999, entered a judgment finding Treadway to be a sexually violent person, and an order committing him to the custody of the Wisconsin Department of Health and Family Services (the Department) for institutional care in a secure mental health unit or facility. See WIS. STAT. § 980.065 (1999-2000).

¶ 5. On December 1, 1999, Treadway's trial counsel filed "Motions After Judgment and Order for Commitment (Post Verdict Motions)," essentially presenting the arguments offered in this appeal. Following consideration of two sets of briefs by the parties, the trial court, in a written decision filed July 26, 2000, denied Treadway's motions.

II. DISCUSSION

A. Timeliness of Appeal

[1]

¶ 6. Treadway filed his "Motions After Judgment and Order for Commitment (Post Verdict Motions)" fifteen days after entry of the order committing him to the custody of the Department, but three months after the verdict. The trial court, after reviewing the briefs it had requested regarding the timeliness of the motion, concluded, however, that "[d]ue to the hybrid nature of sexual predator cases, the jury's verdict does not represent the final disposition of the case as in civil trials." The court, therefore, went on to order additional briefs and, ultimately, to address the merits of Treadway's claims.

¶ 7. The State maintains that because WIS. STAT. ch. 980 proceedings are governed by the rules of civil procedure, and because Treadway failed to file his postverdict motions within twenty days of the verdict, as required in civil proceedings, he has waived his appeal as a matter of right. The State concedes, however, that this court nevertheless has discretion to retain jurisdiction and address Treadway's arguments. See Hartford Ins. Co. v. Wales, 138 Wis. 2d 508, 516-18, 406 N.W.2d 426 (1987)

.³ Treadway responds that because ch. 980 trials, like criminal trials, necessarily anticipate a separate dispositional phase, the timeliness of his motions should be pegged to the date of disposition.

¶ 8. The State acknowledges "the arguable logic in the circuit court's approach — that postverdict motions should await the final disposition of a chapter 980 case." The State maintains, however, that in the absence of any "express provision on the timing of postverdict (or postdisposition) motions" in WIS. STAT. ch. 980, WIS. STAT. § 805.16(1) of the rules of civil procedure governs;⁴ thus, the State argues, defense counsel was required to file postverdict motions within twenty days of the jury's verdict. Consequently, the State contends, our review is limited to: (1) a discretionary determination, in the interest of justice; and/or (2) a consideration of whether counsel was ineffective for failing to file postverdict motions within twenty days of the jury's verdict.

¶ 9. WISCONSIN STAT. ch. 980 is silent on this issue. As the parties recognize, however, in a ch. 980 proceeding, postverdict motions filed within twenty days of a verdict would, in most cases, be but a prelude to additional postdisposition motions. As the trial court observed in concluding that Treadway's motions were timely, "piecemeal appeals would . . . result" if the civil timeline for postverdict motions were applied.

¶ 10. We agree. Indeed, whether viewed as an appeal as a matter of right, or as an appeal addressed under either the interest-of-justice or ineffective-assistance-of-counsel standards the State suggests, a sexually violent person's challenges must not be precluded by counsel's failure to file postverdict motions within twenty days of the verdict. Concluding that such a failure constitutes waiver of appellate rights would work a manifest miscarriage of justice. See WIS. STAT. § 752.35 (1999-2000). And, clearly, if counsel's failure were deemed to preclude appellate review (and if, in this context, the ch. 980 proceedings were deemed quasi-criminal), the failure would be deficient and prejudicial, thus constituting ineffective assistance of counsel. See State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990)

; Strickland v. Washington, 466 U.S. 668, 687 (1984).

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¶ 11. We conclude, therefore, that while the legislature may choose to clarify this point by amending WIS. STAT. ch. 980, we need not, in the meantime, require counsel to jump through two hoops in order to preserve appellate rights. Accordingly, we conclude that a sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within twenty days of the commitment order. Thus, we now address the merits of Treadway's claims.

B. Timeliness of State's Petition

[3]

¶ 12. Treadway argues that the State failed to file its WIS. STAT. ch. 980 petition within ninety days of his release from a sentence for a sexually violent offense. See WIS. STAT. § 980.02(2)(ag) (1997-98);⁵ see also State v. Thiel, 2000 WI 67, ¶ 38, 235 Wis. 2d 823, 612 N.W.2d 94

("[I]n a trial on a commitment petition filed under Wis. Stat. § 980.02(2), the State bears the burden to prove beyond a reasonable doubt that the petition was filed within 90 days of the subject's release or discharge from a sentence based on a sexually violent offense."); see also, State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321,

review denied, 2001 WI 88, 246 Wis. 2d 165, 630 N.W.2d 219 (No. 99-0316).

¶ 13. In 1981, Treadway was convicted of attempted second-degree sexual assault, an offense that qualifies as a "[s]exually violent offense" under WIS. STAT. § 980.01(6), thus potentially establishing the predicate offense for a WIS. STAT. ch. 980 petition. See WIS. STAT. § 980.01(6) (1997-98). His sentence for that offense, however, was only five years. But shortly after his 1984 mandatory-release parole for that offense, Treadway committed and was convicted of false imprisonment and three counts of reckless use of a weapon, as a habitual criminal. His parole was revoked and he returned to prison for nineteen additional months on the sexual assault sentence. He also received an aggregate sentence of seventeen years' imprisonment — eight years for the false imprisonment, and three years, consecutively, for each count of reckless use of a weapon, to be served concurrently with the sexual assault sentence. False imprisonment, however, is not a "sexually violent offense" under § 980.01(6) unless it is determined, in a proceeding under WIS. STAT. § 980.05(3)(b), that it was sexually motivated. See WIS. STAT. § 980.01(6)(b) (1997-98).⁶

¶ 14. Thus, approximately twelve years before his 1998 release from the seventeen-year aggregate sentence for false imprisonment and reckless use of a weapon, Treadway had completed his sentence for second-degree sexual assault. The State, however, filed its WIS. STAT. ch. 980 petition within ninety days of Treadway's completion of his final sentence — the seventeen-year aggregate sentence. Thus, Treadway asserts that the petition was untimely.

[4]

¶ 15. Wisconsin appellate courts have not determined whether a WIS. STAT. ch. 980 petition is timely, if filed within ninety days of an offender's discharge or release, when the offender has been serving concurrent sentences — for at least one sexually violent offense, for which the sentence was completed more than ninety days before the petition was filed; and for an offense that was not deemed a sexually violent offense, for which the sentence still was being served at the time the petition was filed. In State v. Keith, 216 Wis. 2d 61, 573...