State v. Zanelli
| Decision Date | 13 May 1997 |
| Docket Number | No. 96-2159,96-2159 |
| Citation | 569 N.W.2d 301,212 Wis.2d 358 |
| Parties | STATE of Wisconsin, Petitioner- Respondent,d v. Ronald J. ZANELLI, Respondent- Appellant.dd . Oral Argument |
| Court | Wisconsin Court of Appeals |
On behalf of the respondent-appellant, the cause was submitted on the briefs and oral argument by Jane Krueger Smith of Oconto Falls.
On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Mary E. Burke, Assistant Attorney General and oral argument by Mary E. Burke of Madison.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Ronald Zanelli appeals his civil commitment as a sexually violent person pursuant to ch. 980, STATS., sometimes called the sexual predator law. Zanelli makes the following claims: (1) The trial court lacked subject matter jurisdiction because the State's petition was filed prematurely; (2) the State's pursuit of a civil commitment violated a plea agreement in an earlier criminal proceeding; (3) an unsworn petition is constitutionally defective; (4) his right to remain silent was violated at trial; (5) use of material from prior criminal presentence investigation reports (PSIs) violated the confidentiality provisions of § 972.15, STATS.; (6) testimony from the State's experts violated the psychologist-patient privilege of § 904.04(2), STATS.; (7) the use of pattern jury instruction WIS J I--CRIMINAL 2502 violated his right to due process because it fails to define the term "substantially probable" (that he will engage in acts of sexual violence); and (8) there was insufficient evidence from which the jury could find that Zanelli had a "mental disorder" and from which it could find that there was a "substantial probability" that he would reoffend.
Because we conclude that comments by a psychologist and the prosecutor at trial concerning Zanelli's refusal to be interviewed violated his right to remain silent as provided in § 980.05(1m), STATS., we reverse the judgment of commitment and order a new trial. Because some of the remaining issues Zanelli raises are likely to arise again, we address them as well. 1
Zanelli was criminally convicted in 1992 of two counts of sexual contact with a child, contrary to § 948.02(2), STATS. The court sentenced him to five years in prison on the first count, and sentence was withheld on the second count and he received ten years' probation to run consecutive to the five-year prison sentence. Shortly before parole was granted on the first count, the State filed a ch. 980, STATS., petition alleging that Zanelli had a mental disorder and was dangerous to others because the disorder created a substantial probability of additional sexual violence. The petition recited Zanelli's 1992 convictions as predicate offenses.
A probable cause hearing was held where the court found the existence of probable cause. See § 980.04(2), STATS. Zanelli filed numerous objections to the commitment proceeding, which the trial court denied. At trial, the State's case included the testimony of Dr. Susan Curran, who performed a pre-petition evaluation of Zanelli. Curran performed her examination based solely on Zanelli's medical and corrections records after Zanelli chose to remain silent. Zanelli did participate in Dr. Ronald Sindberg's evaluation. Both experts testified that Zanelli suffered from a mental disorder within the meaning of § 980.01(2), STATS., which created a substantial probability that he would reoffend, within the meaning of § 980.01(7), STATS. Both recommended Zanelli be committed to the care of the Department of Health and Social Services for treatment. Zanelli's first commitment trial ended in a hung jury. A second trial, largely on the same evidence, resulted in a jury verdict finding Zanelli to be a sexually violent person. He was ordered committed to the care of the Department of Health and Social Services. Zanelli now challenges his commitment.
Zanelli's first contention is that the circuit court lacked subject matter jurisdiction. Failure to comply with a statutory mandate, such as the time a certain procedure must be taken, is more accurately described as a loss of competence to proceed in a particular case. In re B.J.N., 162 Wis.2d 635, 656, 469 N.W.2d 845, 853 (1991). Zanelli is relying upon the provisions of § 980.02(2)(ag), STATS., which contemplates the filing of a sexually violent person petition only where "[t]he person is within 90 days of discharge or release, on parole or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense ...." He contends that he was not within ninety days of discharge or release from a sentence. Zanelli had been sentenced after conviction on two counts of sexual contact with a person under the age of sixteen. He was sentenced to a five-year prison sentence on the first count, and sentence was withheld and a ten-year period of probation running consecutive to his prison sentence was imposed on count two. When Zanelli was later scheduled for release on the five-year prison term on July 5, 1995, a petition for a ch. 980, STATS., civil commitment was filed June 29, 1995.
Zanelli contends that he was still in custody on count two based upon language in the written judgment of conviction that provided in part: "If and when [defendant] is considered for parole [on count one], he should be released to an intensive sanction status ...." It is Zanelli's position that because a Department of Intensive Sanctions (DIS) placement is considered a custodial placement with the Department of Corrections, § 301.048(4), STATS., he was not within ninety days of release from a sentence. We agree with the State that Zanelli's premise that the court imposed a DIS sentence as to count two is inaccurate.
Although the written judgment states that Zanelli "should" be placed in intensive sanctions status, the sentencing hearing transcript shows that the court stated it was "going to recommend" intensive sanctions status. The trial court's statement from the bench unequivocally demonstrates that the court was not imposing a DIS sentence. When a trial court's unambiguous oral pronouncement of sentence conflicts with the written judgment of conviction, the oral pronouncement controls. State v. Perry, 136 Wis.2d 92, 114, 401 N.W.2d 748, 758 (1987). The court did not impose a DIS sentence. 2 Thus, even if we assume without deciding that a ch. 980, STATS., petition is premature as to a defendant who has yet to serve a DIS sentence, we are not confronted with that situation here. At the time the petition was filed, Zanelli was within ninety days of his discharge or release within the meaning of § 980.02(2)(ag), STATS.
Zanelli suggests that the prosecution of the ch. 980, STATS., petition violated the plea agreement reached in his 1992 criminal prosecution. Prior to his plea in that matter, the State had agreed to certain limits to its sentencing arguments in exchange for Zanelli's pleas. Zanelli argues that the State breached that agreement by arguing for additional civil incarceration as a sexual predator. We reject Zanelli's analysis.
When the relevant facts are undisputed, whether a prosecutor's conduct violated the terms of a plea agreement is a question of law reviewed de novo. State v. Poole, 131 Wis.2d 359, 361, 394 N.W.2d 909, 910 (Ct.App.1986). The defendant bears the burden of clear and convincing evidence that a breach actually occurred and that it was material and substantial. State v. Windom, 169 Wis.2d 341, 349, 485 N.W.2d 832, 835 (Ct.App.1992).
We first note that the parties' 1992 plea agreement was silent regarding future ch. 980, STATS., proceedings. Thus, the record does not reflect that Zanelli bargained for the State's promise to forego a future ch. 980 proceeding. In addition, State v. Myers, 199 Wis.2d 391, 394, 544 N.W.2d 609, 610 (Ct.App.1996), holds that a potential ch. 980 petition at some time in the future is merely a "collateral consequence" of a guilty plea. Thus, a defendant is not entitled to relief in the form of a plea withdrawal on grounds that he was unaware of a potential for a later sexual predator commitment. Such consequences "have no definite, immediate or largely automatic effect on the range of the pleader's punishment." Id. (citing State v. James, 176 Wis.2d 230, 238, 500 N.W.2d 345, 348 (Ct.App.1993)). Instead, any future ch. 980 proceeding will "depend on [the defendant's] condition at the time of the ch. 980 proceeding and the evidence that the State will then present on his condition." We conclude that under the circumstances, there was no breach of the criminal plea agreement by virtue of the State's pursuit of a sexual predator petition following completion of the criminal sentence.
Zanelli next asserts that the commitment petition was defective because the petition was not sworn. Zanelli concedes that the language of ch. 980, STATS., does not explicitly require a sworn petition. However, he asserts that § 980.05(1m), STATS., implies such a requirement. This subsection states: Zanelli reads the last sentence quoted as a mandate for a sworn petition based upon his belief that a defendant in a criminal proceeding has a constitutional right to a sworn complaint. 3 Zanelli, however, fails to offer any authority for his assertion that an accused has a constitutional right to a sworn complaint in a criminal proceeding. We know of none and we reject his claim in this respect. 4
We next address Zanelli's contention that the State violated his...
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