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In re Commitment of Hager

Court of Appeals of Wisconsin, District III

January 24, 2017

In re the commitment of David Hager, Jr.: State of Wisconsin, Petitioner-Respondent,
David Hager, Jr., Respondent-Appellant.

         Recommended for publication in the official reports.

         APPEAL from orders of the circuit court for Chippewa County Cir. Ct. No. 2007CI1 JAMES M. ISAACSON, Judge. Reversed and cause remanded for further proceedings.

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

          HRUZ, J. David Hager, Jr.

         ¶1 appeals an order denying without a trial his 2014 petition seeking discharge from his WIS. STAT. ch. 980 commitment as a "sexually violent person."[1] Hager also appeals the order denying his motion for reconsideration.

         ¶2 Hager and the State dispute the effects of certain amendments to the discharge statute, WIS. STAT. § 980.09, enacted as part of a legislative overhaul of ch. 980 in 2013. See generally 2013 Wis. Act 84 (hereinafter, "Act 84"). Act 84 changed the standards under both § 980.09(1) and (2) for the circuit court's determination of whether a petitioner will receive a discharge trial. Those subsections now require the court to determine whether, at an ensuing discharge trial, a factfinder "would likely conclude" the petitioner no longer meets the criteria for commitment as a sexually violent person. The previous "may conclude" standard required the court to determine whether it was merely possible for the factfinder to conclude as such.

         ¶3 At oral argument in this case, the parties generally agreed the legislature's substitution of a "would likely conclude" standard for the former "may conclude" standard accomplished a material increase in the burden of production necessary to obtain a discharge trial under both levels of review in WIS. Stat. § 980.09(1) and (2). However, the State also argues the amendments to § 980.09(2) now require the circuit court to weigh the facts in support of the petition against facts unfavorable to the petition in ascertaining whether a factfinder would likely conclude discharge is required. The State argues the amendments to § 980.09(2) effectively abrogated State v. Arends, 2010 WI 46, 325 Wis.2d 1, 784 N.W.2d 513');">784 N.W.2d 513.

         ¶4 We disagree and conclude the process set forth in Arends largely remains good law. The changes to WIS. STAT. § 980.09(2) as a whole do not permit circuit courts to "weigh" the evidence favorable to the petition against the evidence unfavorable to it. Rather, the amendments clarify the statute so as to reflect judicial interpretations of the statutory language since the last major revisions in 2006. At the same time, the amendments undisputedly increase the petitioner's burden of production to convince a circuit court that all evidence within the record favorable to the petitioner, including those facts submitted with the petition, establishes a reasonable likelihood of success at a discharge trial.

         ¶5 Applying this interpretation of WIS. STAT. § 980.09(2) to Hager's petition and the facts of record, we conclude the circuit court erred as a matter of law in failing to set the matter of Hager's discharge for trial. The petition was supported by an expert report applying two actuarial risk instruments that were not available at the time of Hager's initial commitment trial. This new research, combined with changes the expert observed in Hager following his commitment, led this expert to conclude that Hager's lifetime risk of committing another sexually violent offense fell below the requisite fifty percent threshold. This evidence, considered in light of the facts of record, was evidence from which a factfinder "would likely conclude" Hager no longer qualified as a "sexually violent person" under WIS. STAT. ch. 980. We therefore remand for the circuit court to hold a discharge trial in accordance with § 980.09(3) through (5), at which a jury will determine whether Hager no longer meets the criteria to be civilly committed under WIS. STAT. ch. 980. BACKGROUND

         ¶6 Hager was convicted in 1995 of three counts of incest with a child. He was civilly committed as a sexually violent person on September 17, 2008, following a jury trial. At the commitment trial, Dr. Christopher Tyre testified as the State's expert psychologist, while Dr. Robert Barahal testified on Hager's behalf.

         ¶7 Doctor Tyre evaluated Hager in 2004 and 2007. He diagnosed Hager with paraphilia, not otherwise specified, and a personality disorder, not otherwise specified, the latter with antisocial and borderline features.[2] Tyre concluded these disorders predisposed Hager to commit acts of sexual violence. Tyre also concluded Hager was more likely than not to commit a future act of sexual violence. Tyre based this opinion in part on Hager's performance on three actuarial risk instruments, the RRASOR, the Static-99, and the MnSOST-R. Hager's scores on these instruments equated to a "high risk or medium high risk" when compared to their respective offender samples.

         ¶8 Doctor Barahal diagnosed Hager with pedophilia, which predisposed Hager to commit sexually violent acts, and also substance abuse and a learning disability. Like Tyre, Barahal evaluated Hager's reoffense risk using the RRASOR and Static-99 actuarial instruments. Barahal agreed that these instruments placed Hager in a high to medium-high risk category. However, Barahal did not believe there was sufficient evidence "to conclude either way" whether Hager's reoffense risk exceeded fifty percent.

         ¶9 Hager filed a petition for discharge each year from 2009 to 2011, each time voluntarily withdrawing the petition prior to receiving a discharge trial. Hager voluntarily withdrew his 2011 petition prior to a discharge trial despite the State's concession that his petition, together with the accompanying reexamination report by licensed psychologist Hollida Wakefield, was legally sufficient to warrant such a trial.[3] In 2012, Hager filed a pro se discharge petition, which the State opposed and which the circuit court denied as supported only by Hager's own self-evaluation.

         ¶10 Although he was represented by counsel at the time, Hager filed another pro se discharge petition on October 18, 2013. At Hager's attorney's request, the circuit court appointed Wakefield to conduct a psychological examination on Hager's behalf. Hager's counsel filed an amended discharge petition on February 27, 2014, which was supported by Wakefield's report.

         ¶11 In Wakefield's 2014 report, she concluded Hager's "risk for reoffending is below the level of risk required for commitment under Chapter 980." Wakefield diagnosed Hager with a pedophilic disorder that predisposed him to commit sexually violent offenses, but she opined that the disorder had "decreased" in the past several years.

         ¶12 Although Wakefield agreed actuarial risk assessments are more accurate than clinical judgment, she noted their limitations. For example, Wakefield noted the instruments do not permit a numerical calculation of a given individual's level of risk, but rather they inform only what risk group the person belongs to and the recidivism rate of that group. The actuarial instruments measure only static factors, such as criminal offense history, but an individual's dynamic factors may increase or decrease the probabilities associated with the group data.

         ¶13 Wakefield assessed Hager's reoffense risk using two actuarial instruments that the experts at his initial commitment trial had not used, the Static-99R and the MATS-1. According to Wakefield's report, the Static-99 underwent scoring revisions in 2009, with the resulting instrument being called the Static-99R. Wakefield reported the original Static-99 over-estimated recidivism, and new risk tables were presented in the fall of 2008. Based on research published after the Static-99R was released, Wakefield criticized the Static-99R authors' recommendation that the scores of all offenders referred for commitment be evaluated against a "high risk/needs" subgroup. Wakefield, comparing Hager to the "routine" or "aggregate" group of sex offenders, noted that approximately fifteen to thirty percent of sex offenders with a score similar to Hager's sexually recidivated.

         ¶14 According to Wakefield, the MATS-1 was first published in December 2010. The MATS-1 instrument uses the offender's Static-99R score with the age item removed, and then uses actual recidivism data from a group of over 9000 sex offenders to arrive at-in the MATS-1 authors' opinion-a better actuarial estimate of risk by accounting for the effect of age generally on recidivism. Wakefield reported that Hager is in the second age category (ages 40-49.9), and "his risk level on the MATS-1 is 25.5% (with a 95% confidence interval of 19% to 34%). This is similar to the 15% to 30% on the Static-99R."

         ¶15 In addition to changes in the actuarial instruments, Wakefield opined that certain dynamic factors further reduced Hager's reoffense risk since his initial commitment. Although pedophilic disorder tends to be chronic, Wakefield reported that deviant fantasies and behavior generally decrease with age and that Hager's current sexual fantasies are of age-appropriate women, with Hager passing a polygraph test on this issue. Hager was also able to fully suppress his responses to younger children, as measured by a penile plethysmograph. He also repudiated his past distorted attitudes about sexual entitlement and his belief that children enjoy sex with adults.

         ¶16 The State filed a response urging the circuit court to deny Hager's petition without holding a discharge trial. The State argued Act 84 had "fundamentally changed the standard for assessing a discharge petition's sufficiency." Whereas the previous standard required the circuit court to hold a discharge trial if there were facts from which the factfinder "may conclude" the person's condition had changed since his or her initial commitment, the State pointed out that the new standard required facts from which the factfinder "would likely conclude" the person's condition had changed. Compare WIS. STAT. § 980.09(1) and (2) (2005-06) with Wis. STAT. § 980.09(1) and (2). This change, the State argued, "invariably" required the circuit court to "weigh the evidence in support and in opposition to the petition, " thereby abrogating Arends' holding that no such weighing is to occur. See Arends, 325 Wis.2d 1, ¶40. The State asserted that, under this standard, Hager's petition failed because the Static-99 recidivism rates were not "significantly different from the current Static-99R rates for high risk high needs persons."

         ¶17 The circuit court denied Hager's amended discharge petition following a non-evidentiary hearing. At the hearing, the court remarked that Hager was "still the same person he was." The court apparently accepted the State's argument that there was no real difference between the Static-99 and the Static-99R actuarial instruments, and stated it was "not satisfied there has been any change in the expert's knowledge of Mr. Hager or his offense." Hager filed a reconsideration motion, observing that the State was comparing the recidivism rates from the Static-99 and the Static-99R's high risk/needs subgroup, the use of which Wakefield had concluded was inappropriate. Hager also observed the court had not addressed Wakefield's use of the MATS-1. The circuit court denied the reconsideration motion. Hager appeals.

         ¶18 On February 2, 2016, we certified this case and State v. Carter, Appeal No. 2015AP1311, to the Wisconsin Supreme Court. Our certification asked the supreme court to "determine issues related to the effect of 2013 Wis. Act 84, " including whether the amendments to WIS. STAT. ยง 980.09(1) and (2) authorized the circuit court to "weigh" the evidence, how such weighing was to be accomplished, and whether the amended statute was unconstitutional. The supreme court denied certification, and we ordered oral argument. We now reverse the circuit court's determination regarding the sufficiency of Hager's petition. We remand for the court to hold ...

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