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In re Commitment of Hager

Supreme Court of Wisconsin

April 19, 2018

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

          SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 1, 2017

          Circuit Court, Chippewa (2015AP330), Brown (2015AP1311) County, L.C. No. 2007CI1 & 2007CI3, James M. Isaacson (2015AP330), Kendall M. Kelley (2015AP1311) Judge.

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 373 Wis.2d 692, 892 N.W.2d 740 (2015AP330) and 372 Wis.2d 722, 892 N.W.2d 754 (2015AP1311) PDC No: 2017 WI.App. 8 - Published, (2015AP330) and 2017 WI.App. 9 - Published (2015AP1311)

         REVIEW of two decisions of the Court of Appeals. Reversed and cause remanded in State v. Eager; Affirmed in State v. Carter.

          For the petitioner-respondent-petitioner (2015AP330), there were briefs filed by Thomas J. Balistreri, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Donald V. Latorraca, assistant attorney general.

          For the respondent-appellant (2015AP330), there was a brief filed by and an oral argument by Andrew R. Hinkel, assistant state public defender.

          For the respondent-appellant-petitioner (2015AP1311), there were briefs filed by Len Kachinsky and Kachinsky Law Offices, Neenah. There was an oral argument by Len Kachinsky.

          For the petitioner-respondent (2015AP1311), there was a brief filed by Thomas J. Balistreri, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Donald V. Latorraca, assistant attorney general.

          MICHAEL J. GABLEMAN, J.

         ¶1 This is a review of two published decisions of the court of appeals, State v. Hager, 2017 WI.App. 8, 373 Wis.2d 692, 892 N.W.2d 740, and State v. Carter, 2017 WI.App. 9, 373 Wis.2d 722, 892 N.W.2d 754');">892 N.W.2d 754.[1] Both cases involve the discharge procedure for a person civilly committed as a sexually violent person pursuant to Wis. Stat, ch. 980 (2015-16) ("Chapter 980").[2] David Hager, Jr., and Howard Carter both filed petitions for discharge from commitment as sexually violent persons pursuant to Wis.Stat. § 980.09 with the Chippewa County Circuit Court[3] and Brown County Circuit Court, [4] respectively, and both petitions were denied. Hager and Carter appealed.

         ¶2 In Hager, the court of appeals reversed, concluding that the circuit court erred in two ways: (1) by considering evidence unfavorable to Hager's discharge petition; and (2) by weighing the evidence in favor of the discharge petition against the evidence opposed. Hager, 373 Wis.2d 692, ¶5. Based on its review of the record, the court of appeals concluded that Hager had satisfied his burden of production[5] and reversed and remanded the matter to the circuit court with instructions to conduct a discharge trial pursuant to Wis.Stat. § 980.09 (3)- (4) . Id. In Carter, the court of appeals affirmed the circuit court, concluding that Carter had not satisfied the standard it had established in Hager. Carter, 373 Wis.2d 722, ¶3.

         ¶3 Both cases involve the proper interpretation of Wis.Stat. § 980.09(2), as amended by 2013 Wis. Act 84, [6] which establishes the procedures for discharge from commitment. Carter raises two additional issues before this court: (1) whether § 980.09(2) violates the right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution; and (2) whether Act 84 applies retroactively to Carter. We review this last issue, whether Act 84 applies retroactively to Carter, through the lens of ineffective assistance of counsel because Carter's counsel did not contest the application of the amended standard to Carter. See State v. Erickson, 227 Wis.2d 758, 768, 596 N.W.2d 749 (1999) .

         ¶4 We hold as to both Hager and Carter that the court of appeals erred in concluding that Wis.Stat. § 980.09(2) limits circuit courts to considering only the evidence favorable to petitions for discharge. We hold that circuit courts are to carefully examine, but not weigh, those portions of the record they deem helpful to their consideration of the petition, which may include facts both favorable as well as unfavorable to the petitioner.

         ¶5 We further hold that Wis.Stat. § 980.09(2) does not violate the constitutional right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution, and furthermore, Carter's counsel was not ineffective for failing to challenge retroactive application of Act 84 to Carter.

         ¶6 As to Hager, we reverse the decision of the court of appeals and remand the matter to the circuit court for further proceedings consistent with this opinion; as to Carter, we affirm the decision of the court of appeals, albeit on different grounds.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. State v. Hager

         ¶7 Hager was involuntarily committed in 2008 as a sexually violent person pursuant to Chapter 980[7] as he neared the completion of prison sentences he was serving as a result of having been convicted of two sexual offenses.

         ¶8 He filed the discharge petition we consider herein on February 27, 2014. Hager attached to the petition the report of Hollida Wakefield, M.A. In her report, Wakefield concluded that Hager did not satisfy the third criterion for commitment because he was not likely to engage in acts of sexual violence. She based this conclusion on the results of two actuarial instruments, the Static-99R and MATS-1.[8]

         ¶9 The circuit court denied Hager's petition because Wakefield's report did not indicate any change in Hager; rather, the circuit court found "Mr. Hager is still the same person he was." The circuit court was not persuaded that the development of the Static-99R[9] constituted a change in professional knowledge sufficient to warrant a discharge trial under the standard established in State v. Combs, 2006 WI.App. 137, ¶32, 295 Wis.2d 457, 720 N.W.2d 684');">720 N.W.2d 684.[10] The court did not find "any change in the expert's knowledge of Mr. Hager or his offense."

         ¶10 Hager filed a motion for reconsideration, which was denied. In its order denying Hager's motion for reconsideration, the circuit court amended its reasoning slightly, indicating that it had "tr[ied] to weigh [the] reports, " and concluded that Hager did not satisfy his burden of production. This appeal followed.

         ¶11 The court of appeals determined that Act 84 did not abrogate our decision in State v. Arends, 2010 WI 46, 325 Wis.2d 1, 784 N.W.2d 513');">784 N.W.2d 513. Accordingly, the court of appeals applied our holding in Arends-that circuit courts are not to weigh[11] the evidence in favor of the petition against the evidence opposed-to Hager. Hager, 373 Wis.2d 692, ¶4. Rather, Act 84 both increased the burden of production necessary for committed individuals to receive a discharge trial and codified certain cases, namely Combs and its progeny. Id., ¶¶32, 40-41. The court further concluded that Act 84 did not change our holding in Arends that circuit courts are limited to considering only the items in the record favorable to the petitioner. Id., ¶37. Under the court of appeals' reading of Wis.Stat. § 980.09(2), Hager had alleged sufficient new facts to warrant a discharge trial because Wakefield's report satisfied the criteria set forth in Combs by including new scientific research; namely, the Static-99R and MATS-1. The court of appeals reversed and remanded the matter to the circuit court with instructions to conduct a discharge trial. Id., ¶¶45-46.

         B. State v. Carter

         ¶12 Carter was involuntarily committed as a sexually violent person under Chapter 980 in 2009 as he neared the completion of prison sentences he was serving as a result of convictions of multiple sexual offenses.

         ¶13 He filed the discharge petition we consider herein on December 13, 2013, which was the day before Act 84's publication. Carter's attorney never challenged the application of the new standard to Carter.

         ¶14 Carter attached to his petition the report of Dr. Diane Lytton, Ph.D. Dr. Lytton concluded that Carter did not satisfy the third criterion for commitment. She based this conclusion on three opinions. First, Dr. Lytton stated that in her professional opinion, one of Carter's diagnosed mental disorders, paraphilia not otherwise specified, nonconsent, [12] is not properly applied to a person such as Carter, who has forcibly raped another. Second, Dr. Lytton opined that Carter's other diagnosed mental disorder, antisocial personality disorder, [13] does not make it likely he will engage in acts of sexual violence. Third, Dr. Lytton opined that, based upon her application of the Static-99R and MATS-1 assessments, Carter is not likely to engage in acts of sexual violence.

         ¶15 The circuit court concluded that Dr. Lytton's report was insufficient to satisfy the Act 84 standard. The court observed that relevant information from Carter's past did not appear in Dr. Lytton's report. The court also noted the lack of citation and analysis regarding the validity of the Static-99R and MATS-1, which Dr. Lytton had relied on heavily in her report. The court described Dr. Lytton's report as "essentially an unsupported assertion."

         ¶16 Carter then filed a post-commitment motion alleging that the circuit court's denial of a discharge trial was improper for four reasons: (1) the court committed plain error in applying Act 84 to Carter; (2) Wis.Stat. § 980.09(2) violates his right to due process; (3) he received ineffective assistance of counsel because his attorney failed to contest application of Act 84 to Carter; and (4) he received ineffective assistance of counsel because his attorney failed to contest application of Wis.Stat. § 907.02(1), the rule of evidence governing expert testimony, [14] to the expert reports filed in Carter's case. The circuit court denied the motion, concluding: (1) Act 84 is procedural, and thus applies retroactively to Carter; (2) § 980.09(2) does not violate Carter's right to due process because he can still obtain a discharge trial upon making a sufficient showing; (3) Carter's counsel was not deficient for failing to challenge the application of Act 84 because the act did apply retroactively, and-even if his counsel's performance had been deficient in this regard-Carter suffered no prejudice because the court would have denied the petition even if it had used the prior standard; and (4) Carter's counsel was not deficient for failing to object to application of § 907.02(1) to the expert reports as the decision to do so was a legitimate strategic decision based on counsel's assessment that application of § 907.02(1) usually accrued to the benefit of the committed person, and, furthermore, Carter suffered no prejudice because the court would have made the same conclusions about Dr. Lytton's report under the prior standard.

         ¶17 The court of appeals affirmed, concluding that the amendments made by Act 84 did apply retroactively, therefore Carter's counsel was not deficient for failing to challenge retroactive application of Act 84. Carter, 373 Wis.2d 722, ¶22. The court of appeals further concluded that Wis.Stat. § 980.09(2) does not violate the right to due process because, contrary to Carter's arguments before that court, § 980.09(2) does not require circuit courts to weigh evidence. Id., ¶20. Because Carter did not contend that he had met the burden as established in Act 84, [15] the court of appeals treated its holding that the amendments made by Act 84 applied to Carter as dispositive of his appeal. Id., ¶21. II. STANDARD OF REVIEW

         ¶18 This case requires us to interpret Wis.Stat. § 980.09(2) to determine the burden of production a petitioner must satisfy in order to receive a discharge trial. Statutory interpretation is a question of law we review de novo. Arends, 325 Wis.2d 1, ¶13. We give words their "common, ordinary, and accepted meaning" unless a technical or specialized meaning applies. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110. We interpret the statute in its full context in order to avoid creating absurd results or rendering any statutory language surplusage. Id., ¶46. Though legislative intent may illuminate what the words of a statute mean, "it is the enacted law, not the unenacted intent, that is binding . . . ." Id., ¶44.

         ¶19 We then determine whether Hager and Carter are entitled to discharge trials. We review the circuit court's determination of whether the statutory criteria for a discharge trial have been met de novo. Combs, 295 Wis.2d 457, ¶21.

         ¶20 Carter alleges that Wis.Stat. § 980.09(2) violates the right to due process. The constitutionality of a statute is a question of law we review de novo. State v. Alger, 2015 WI 3, ¶22, 360 Wis.2d 193, 858 N.W.2d 346. A party challenging the constitutionality of a statute carries a heavy burden to overcome the presumption of constitutionality. Id. In a facial challenge, such as the one Carter makes, the "challenger must establish, beyond a reasonable doubt, that there are no possible applications or interpretations of the statute which would be constitutional." State v. Cole, 2003 WI 112, ¶30, 264 Wis.2d 520, 665 N.W.2d 328 (quoting State v. Wants, 224 Wis.2d 679, 690, 592 N.W.2d 645 (Ct. App. 1999)).[16]

         ¶21 Carter alleges that his counsel was ineffective for failing to contest the application of Act 84 to his discharge petition. Ineffective assistance of counsel is a mixed question of law and fact. State v. Lombard, 2004 WI 95, ¶46, 273 Wis.2d 538, 684 N.W.2d 103. The circuit court's factual findings as to what counsel did and did not do are upheld unless clearly erroneous. Id. "Whether counsel's performance was ineffective is a question of law we review de novo." Id.

         III. ANALYSIS

         ¶22 The consolidated appeals of Hager and Carter present three issues for our review. First, we must determine how circuit courts are to apply the "would likely conclude" standard in Wis.Stat. § 980.09(2) . Next, we consider whether § 980.09(2) violates the right to due process. Finally, we address whether Carter's counsel was ineffective for failing to contest retroactive application of Act 84 to Carter.

         A. Wisconsin Stat. § 980.09(2) Permits Circuit Courts to Consider the Entire Record, but Not to Weigh the Evidence Within It, to Determine Whether the Statutory Criteria for a Discharge Trial have been Met.

         1. The changes made to Wis.Stat. § 980.09(2) by Act 84.

         ¶23 In order to fully appreciate the changes made to Wis.Stat. § 980.09(2) by Act 84, we first set forth the statutory criteria for a discharge trial as they existed prior to the changes made to them by Act 84. Prior to those changes, the relevant portion of § 980.09 stated:

The court shall deny the [discharge] petition under this section without a hearing unless the petition alleges facts from which the court or jury may conclude the person's condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person.
(2) The court . . . may hold a hearing to determine if it contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. In determining under this subsection whether facts exist that might warrant such a conclusion, the court shall consider any current or past reports filed under s. 980.07, relevant facts in the petition and in the state's written response, arguments of counsel, and any supporting documentation provided by the person or the state.

Wis. Stat. § 980.09 (1) - (2) (2005-06) (emphasis added).[17] We construed this as creating a two-part review process. Arends, 325 Wis.2d 1, ¶3.

         ¶24 Wisconsin Stat. § 980.09(1) (2005-06) first required a paper review to determine whether the petition presented facts such that the trier of fact "may conclude" that the person no longer fit the criteria for commitment, Arends, 325 Wis.2d 1, ¶27, analogous to a motion to dismiss for failure to state a claim pursuant to Wis.Stat. § 802.06(2)(a)(6), id., ¶29.

         ¶25 Second, Wis.Stat. § 980.09(2) (2005-06) required circuit courts to determine whether the record contained facts that could allow a trier of fact to find that the petitioner was no longer a sexually violent person. Arends, 325 Wis.2d 1, ¶38. Circuit courts were not to weigh any evidence, but merely review the record for any facts in support of discharge. Id., ¶40. We viewed this level of review as analogous to a motion to dismiss at the close of evidence pursuant to Wis.Stat. § 805.14(4). Id. ¶42.

         ¶26 The legislature amended Wis.Stat. § 980.09 in 2013. 2013 Wis. Act 84. The current version states:

(1) The court shall deny the [discharge] petition under this section without a hearing unless the petition alleges facts from which the court or jury would likely conclude the person's condition has changed since the most recent order denying a petition for discharge after a hearing on the merits, or since the date of his or her initial commitment order if the person has never received a hearing on the merits of a discharge petition, so that the person no longer meets the criteria for commitment as a sexually violent person.
(2) In reviewing the petition, the court may hold a hearing to determine if the person's condition has sufficiently changed such that a court or jury would likely conclude the person no longer meets the criteria for commitment as a sexually violent person. In determining under this subsection whether the person's condition has sufficiently changed such that a court or jury would likely conclude that the person no longer meets the criteria for commitment, the court may consider the record, including evidence introduced at the initial commitment trial or the most recent trial on a petition for discharge, any current or past reports filed under s. 980.07, relevant facts in the petition and in the state's written response, arguments of counsel, and any supporting documentation provided by the person or the state.

Wis. Stat. § 980.09(1), (2) (2015-16) (emphasis added).

         2. Circuit courts may consider the entire record when deciding whether the statutory criteria for a discharge trial have been met.

         ¶27 Hager and Carter argue that circuit courts are permitted to consider only those portions of the evidentiary record favorable to discharge when considering a petition for discharge from commitment filed pursuant to Wis.Stat. § 980.09. We disagree. The language of § 980.09(2) permits circuit courts to consider the entire record-not just the facts favorable to the petitioner-when determining whether the statutory criteria for a discharge trial have been met. The legislature set forth a broad scope of materials circuit courts may consider:

In determining . . . whether the person's condition has sufficiently changed such that a court or jury would likely conclude that the person no longer meets the criteria for commitment, the court may consider the record, including evidence introduced at the initial commitment trial or the most recent trial on a petition for discharge, any current or past reports filed under § 980.07, relevant facts in the petition and in the state's written response, arguments of counsel, and any supported documentation provided by the person or the state.

Wis. Stat. § 980.09(2). The result of a plain reading of "the court may consider the record" is that courts are free to review everything in the record, no matter whether it is beneficial or detrimental to the petitioner's cause. In order to illustrate the breadth of materials circuit courts may consider, the legislature included a host of examples of such materials, which by their nature will contain facts detrimental to the petitioner, including (1) "evidence introduced at the initial commitment trial or the most recent trial on a petition for discharge"; (2) "any current or past reports filed under § 980.07"; (3) "relevant facts ... in the state's written response"; (4) "arguments of counsel"; and (5) "any supporting documentation provided by . . . the state." Id. If, as Hager and Carter contend, circuit courts were limited to considering the facts favorable to the petitioner, the legislature would have had no reason to list these materials as examples of what courts may consider during their review of the discharge petition. Accordingly, we reject Hager and Carter's proposed interpretation because we conclude that it would impermissibly render this language surplusage. Kalal, 271 Wis.2d 633, ¶46.

         3. We conclude that circuit courts may not weigh the evidence in determining whether the statutory criteria ...


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