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In re commitment of Carter

Court of Appeals of Wisconsin, District III

January 24, 2017

In re the commitment of Howard Carter: State of Wisconsin, Petitioner-Respondent,
Howard Carter, Respondent-Appellant.

         Recommended for publication in the official reports.

         APPEAL from orders of the circuit court for Brown County Cir. Ct. No. 2007CI3 KENDALL M. KELLEY, Judge. Affirmed.

          Before Stark, P. J., Hruz and Seidl, JJ.

          HRUZ, J.

         ¶1 Howard Carter appeals an order denying without a trial his 2013 petition seeking discharge from his WIS. STAT. ch. 980 commitment as a "sexually violent person, "[1] as well as an order denying his motion for reconsideration. Carter contends his initial attorney rendered constitutionally ineffective assistance by failing to challenge the retroactive application of the then-recently amended WIS. STAT. § 980.09 to his discharge petition. The discharge petition was filed prior to the legislation's effective date, but the circuit court had not yet decided or held a hearing on the petition's sufficiency.

         ¶2 Carter concedes the statutory provisions at issue in this case, WIS. STAT. § 980.09(1) and (2), are procedural. The amendments to those subsections had the effect of accomplishing "a material increase in the petitioner's burden of production" necessary to obtain a discharge trial. State v. Hager, 2017 WI.App. ___, ¶32, ___ Wis.2d___, ___ N.W.2d ___. Whereas a petitioner was previously entitled to a discharge trial if there were any facts upon which a reasonable factfinder could grant relief, the new standard requires the petitioner to "demonstrate a reasonable likelihood of success in order to obtain a discharge trial." Id. Contrary to Carter's arguments, the new legislation did not disturb any vested right of Carter's to a discharge trial, nor does it pose an unreasonable burden to his obtaining a discharge trial. We conclude § 980.09(1) and (2) apply retroactively to Carter's petition.

         ¶3 Because the amendments to WIS. STAT. § 980.09(1) and (2) operate retroactively, Carter's attorney was not ineffective for failing to raise that issue. Carter alternatively argues that if the amendments apply to his discharge petition, they work an unconstitutional deprivation of his due process rights. For the reasons we articulated in Hager, we reject this argument. We therefore affirm the orders in this case.


         ¶4 Carter was civilly committed as a sexually violent person on February 5, 2009, following a jury trial. Carter's commitment was upheld by summary order of this court dated April 6, 2010. In the meantime, Carter underwent an annual examination in connection with his commitment to determine whether he met the conditions for supervised release or discharge. Psychologist Melissa Westendorf diagnosed Carter with paraphilia not otherwise specified and antisocial personality disorder, each of which predisposed him to commit sexually violent acts. She concluded Carter was not a suitable candidate for supervised release or discharge from his commitment.

         ¶5 Carter filed petitions for discharge in 2010, 2011 and 2012, all of which he ultimately withdrew prior to a discharge trial. Carter filed another discharge petition on February 26, 2013, following his annual reexamination, in which the evaluating doctor opined he was not a suitable candidate for supervised release or discharge from his commitment. An amended petition was filed on December 13, 2013. The circuit court appointed Dr. Diane Lytton, a licensed psychologist, as Carter's expert witness.

         ¶6 Lytton's report supported Carter's discharge petition. Lytton disagreed with earlier experts' diagnoses of paraphilia, not otherwise specified, but acknowledged that, due to his rule-breaking and dishonesty, Carter "most likely can continue to be diagnosed with antisocial personality disorder." However, she concluded this condition did not predispose Carter to commit acts of sexual violence. Lytton also opined Carter was not more likely than not to reoffend, citing his scores on two statistical risk assessment instruments, the Static-99R and the MATS-1. Lytton declined to compare Carter's Static-99R score with those of offenders in a "High Risk/Needs" sub sample, which she opined was based in part on out-of-date recidivism rates of a large sample of sex offenders. Lytton also cited as mitigating factors Carter's age[2] and his significant progress in treatment at Sand Ridge Secure Treatment Center. This progress, according to Lytton, included Carter's engagement in treatment, his identification of "aspects of his former distorted thinking about sex and women, " and the absence of signs of deviant sexual interests.

         ¶7 At a motion hearing in February 2014, the State argued the circuit court should apply new amendments to Wis. STAT. § 980.09(1) and (2). These amendments were included in 2013 Wis. Act 84 (hereinafter "Act 84"), which became effective on December 14, 2013. The amendments required the circuit court to deny the discharge petition without a hearing unless the petition alleges facts, supported by the record, "from which the court or jury would likely conclude" Carter's condition had changed since his initial commitment such that he should no longer be civilly committed. See WIS. STAT. § 980.09(1), (2) (emphasis added). Carter's attorney did not argue for the application of the previous "may conclude" standard under § 980.09(1) and (2) (2011-12), nor did he object to the application of the new standard.

         ¶8 The State conceded Carter's petition was facially sufficient under WIS. Stat. § 980.09(1), but it asserted Carter's petition failed upon a review of the record under § 980.09(2) because Carter had not alleged anything "new." The State acknowledged there had been a change in the relevant professional research since Carter's initial commitment trial. However, the State observed that Carter's scores on the Static-99 and the new Static-99R were so high that there "was a very little change" in the respective recidivism rates.[3] Carter emphasized his treatment progress, Lytton's conclusion that he did not have a predisposing mental disorder, and that the State had, according to him, improperly used the Static-99R's "High Risk/Needs" subsample to reach its recidivism estimates.

         ¶9 At a subsequent hearing in June 2014, the State addressed Lytton's reliance on the MATS-1 instrument. The State argued the MATS-1 was "largely based on the Static-99" samples, and therefore it was not "new." The State also observed that the MATS-1 was the "first iteration of that instrument, " and it was both insufficiently reliable and based on assumptions that were not accepted in the field. More generally, the State asserted that arguments regarding the absence of a predisposing mental disorder and criticisms of the Static-99 as overestimating reoffense risk had been heard at Carter's initial commitment trial. The circuit court ...

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