text:
    In the Matter of the Commitment of Glenn Allen Thayer: State of Wisconsin, Plaintiff-Respondent, v. Glenn Allen Thayer, Respondent-Appellant.

    Court of Appeals

      No. 98-3691.

      Submitted on briefs October 2, 2000.

    Decided January 24, 2001.

    2001 WI App 51
    (Also reported in 626 N.W.2d 811.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jane Krueger Smith of Oconto Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   SNYDER, J.

¶ 1. Glenn Allen Thayer, a WiS. Stat. ch. 980 committed patient, appeals a trial court's orders denying his motion for an evidentiary hearing pursuant to Wis. Stat. § 980.09(2)(b) (1997-98), his petition for discharge and his motion for a new § 980.09(2)(a) hearing. Thayer argues that he had the right to present documentary evidence at the § 980.09(2)(a) probable cause hearing, that the burden of persuasion was erroneously placed, upon him at the probable cause hearing, that the facts introduced at the probable cause hearing warranted a full evidentiary hearing pursuant to § 980.09(2)(b), that the trial court misconstrued its role at the probable cause hearing, and that the late appointment of counsel prior to the probable cause hearing violated his due process rights. We disagree with all of these contentions and affirm the trial court's orders.

FACTS

¶ 2. Thayer was initially committed to the Wisconsin Resource Center (WRC) as a sexually violent person pursuant to WlS. STAT. § 980.06 in February 1996 in Calumet county. In 1998, as part of Thayer's annual review, Kurt Schwebke, a WRC staff psychologist, prepared a reexamination report pursuant to WlS. STAT. § 980.07(1). At the time of the reexamination, Thayer did not waive his right to petition for release pursuant to § 980.07(1) and thus the hearing provisions of WlS. STAT. § 980.09 were triggered.

¶ 3. A WlS. STAT. § 980.09(2)(a) probable cause hearing was held on September 21, 1998, before Judge Fred H. Hazlewood. Attorney Garrett Kavanagh of the State Public Defender's office represented Thayer at that hearing. The only evidence presented at this probable cause hearing to determine if Thayer was still a sexually violent person was Schwebke's reexamination report. At the close of the hearing, Judge Hazlewood declined to grant Thayer a § 980.09(2)(b) evidentiary hearing and an appeal followed.

¶ 4. The appellate division of the public defender's office originally handled the initial appeal. However, the appellate attorney filed a motion to withdraw as counsel. Withdrawal was allowed and present counsel was appointed on February 24, 1999. On March 26, 1999, we ordered this matter remanded to the trial court for the filing of motions. A motion for a new WlS. Stat. § 980.09(2)(a) hearing based upon ineffective assistance of counsel was heard on November 3, 1999. The motion was ultimately denied. Thayer appeals this decision.

DISCUSSION

¶ 5. Thayer challenges the application of various provisions of WlS. Stat. ch. 980. The interpretation or construction of a statute as applied to a set of undisputed facts is a question of statutory construction that we review de novo. See State v. Paulick, 213 Wis. 2d 432, 435, 570 N.W.2d 626 (Ct. App. 1997). We will address each of Thayer's issues separately.

Right to Present Evidence

¶ 6. Thayer argues that he had the right to present documentary evidence, including an expert's report, at the WlS. STAT. § 980.09(2)(a) probable cause hearing; consequently, Kavanagh's ignorance of this right constitutes ineffective assistance of counsel. Thayer misunderstands § 980.09(2)(a) procedure.

¶ 7. Wisconsin Stat. § 980.09(2)(a) reads:

A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under s. 980.07(1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to be present at the probable cause hearing.

This § 980.09(2)(a) probable cause hearing is merely a paper review of all reexamination reports accompanied by argument from counsel and is designed to allow the trial court to eliminate any frivolous petitions. See Paulick, 213 Wis. 2d at 438-39. The legislature did not intend for a § 980.09(2)(a) probable cause hearing to be the equivalent of a full evidentiary hearing. See Paulick, 213 Wis. 2d at 438. Thus, at this stage Thayer was not entitled to present any or all evidence that he wanted.

¶ 8. However, as noted in Paulick, the WlS. STAT. § 980.09(2)(a) probable cause hearing is a paper review of any reexamination reports submitted to the court pursuant to WlS. STAT. § 980.07. The use of reexamination reports is governed by § 980.07, which states in pertinent part:

(1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge. At the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her.
(2) Any examiner conducting an examination under this section shall prepare a written report of the examination no later than 30 days after the date of the examination. The examiner shall place a copy of the report in the person's medical records and shall provide a copy of the report to the court that committed the person under s. 980.06.

Subsection (1) allows a WlS. STAT. ch. 980 patient to retain an independent medical examiner and then submit a second, independent medical report to the court.

¶ 9. Thayer argues that Kavanagh's ignorance of Thayer's right to present evidence at the WlS. STAT. § 980.09(2)(a) probable cause hearing constitutes ineffective assistance of counsel. However, as noted, this right to present evidence is limited to the right to present an independent reexamination report. Thus, the only evidence Thayer arguably had a right to present would be a second, independent medical report.

¶ 10. Kavanagh testified at the November 3, 1999 motion hearing that based upon his reading of Paulick, he did not believe Thayer had the right to present any evidence at the probable cause hearing. Kavanagh testified that a reading of WlS. STAT. § 980.09(2)(a) suggests that a committed person has the right to a court-appointed examination prior to the hearing, but Kavanagh believed that in Paulick, "the Court of Appeals clearly stated [Thayer] did not have such a right." Kavanagh therefore concluded that Thayer was not "entitled to an additional psychological exam at this point" because 'Paulick . . . clearly states that [Thayer] has no right to present anything further at that point.... [I]t's a paper review and the court is to review the documents filed, which is the doctor's report and non-waiver by the respondent." Kavanagh misunderstands the holding of Paulick.

¶ 11. In Paulick, we held that WlS. STAT. ch. 980 affords annual review of a commitment and "allows the committed person to petition for release, with the trial court acting as the gatekeeper weeding out frivolous petitions by committed persons who allege that they are no longer dangerous and are fit for release." Paulick, 213 Wis. 2d at 434. We did not interpret WlS. STAT. § 980.09(2)(a) as requiring more than a paper review "unless facts exist that warrant a hearing on whether the committed person is a sexually violent person." Paulick, 213 Wis. 2d at 434.

¶ 12. We concluded that WlS. STAT. § 980.09(2)(a), providing for a probable cause hearing, was ambiguous and that the statute was silent as to the precise procedural requirements of the hearing. See Paulick, 213 Wis. 2d at 436. We thus considered the language of § 980.09 in its entirety and related sections and concluded that § 980.09(2)(b) requires the court to set a second evidentiary hearing only if it determines at the § 980.09(2)(a) probable cause hearing that "probable cause exists to believe that the committed person is no longer a sexually violent person . . . ." Section 980.09(2)(b). We held that because "the second hearing under paragraph (b) specifically entitles the committed person to the listed due process protections, as well as the right to be present at the hearing," the probable cause hearing in paragraph (a) "does not contemplate an evidentiary probable cause hearing . . . ." Paulick, 213 Wis. 2d at 437. Instead, "the paragraph (a) probable cause hearing is a hurdle for the committed person to clear before he or she receives a paragraph (b) discharge hearing — once adequate cause is shown, a discharge hearing must be held." Id. We specifically stated that "the probable cause hearing is a paper review of the reexamination report(s) with argument that provides an opportunity for the committing court to weed out frivolous petitions by committed persons alleging that they are no longer dangerous and' are fit for release." Id. at 438-39 (emphasis added).

¶ 13. Nowhere in Paulick did we explicitly prohibit the submission of a second, independent medical reexamination report. In fact, the language of Paulick presupposes the submission of a second reexamination report through its use of the word "report(s)." The question remains, however, does Kavanagh's misreading of Paulick constitute ineffective assistance of counsel? We conclude that it does not.

¶ 14. The familiar two-pronged test for an ineffective assistance of counsel claim requires Thayer to establish (1) deficient performance and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996). The issue of performance and prejudice presents mixed questions of fact and law. See State v. Matek, 223 Wis. 2d 611, 616, 589 N.W.2d 441 ( Ct. App. 1998). Findings of fact will not be upset unless they are clearly erroneous; however, questions regarding the deficiency of an attorney's performance are legal issues we review independently of the trial court. See id. To establish deficient performance, Thayer must demonstrate specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. To prove prejudice, Thayer must show that counsel's errors were so serious that he was deprived of a fair and reliable outcome. See id. at 687. If, however, case law on an issue can be reasonably analyzed in two different ways, the law is unclear; counsel is not required to argue a point of law that is unclear. See State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 ( Ct. App. 1994).

¶ 15. As noted above, Paulick implicitly allows for the submission of a second, independent medical examination. However, WlS. STAT. § 980.07(1) states that "[a]t the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her." (Emphasis added.) There is no evidence in the record that at the time of the reexamination, Thayer requested and/or retained an independent medical examiner. If § 980.07(1) mandates that the second, independent medical examiner be retained at the time of the reexamination, then Kavanagh's understanding of Paulick, that he was prohibited from presenting any evidence at the probable cause hearing, is a reasonable one because Thayer did not request or retain an independent examiner at the time of his reexamination.

Burden of Persuasion

Erroneously Placed Upon Thayer

¶ 16. Thayer argues that both the trial court and his counsel erroneously placed the burden of persuasion upon him at the September 21, 1998 probable cause hearing. We disagree.

¶ 17. Wisconsin Stat. § 980.09(2)(a) does not assign the burden of persuasion at the probable cause hearing to either Thayer or the State. The trial court must simply conduct a paper review to determine whether sufficient facts exist to warrant a full eviden-tiary hearing on whether the committed person is still a sexually violent person. See id.

¶ 18. There is nothing in the record to indicate that the trial court or counsel assigned the burden of persuasion to Thayer. On more than one occasion, the trial court set forth the proper standard. The trial court initially stated, "If I'm reading the statute right... it would appear that at this particular hearing . . . the Court is really concerned with one thing and that is whether or not there's a factual basis, at least from a review of the exam, to conclude that there's probable cause to believe that Mr. Thayer is a sexually violent person . . . ." The trial court concluded that "there are no facts presented at this time that would warrant a hearing on whether Mr. Thayer is a sexually violent person" and that there was no factual basis "to justify further proceedings under the provisions of s. 980.09." Furthermore, the district attorney correctly stated the applicable standard: "There is no cause for this Court to make a determination that Mr. Thayer is not a sexually violent person nor is there cause presented in the report or anything presented by Mr. Thayer or counsel that would require an evidentiary hearing on this matter."

¶ 19. As Thayer notes in his brief, Paulick alluded to the burden of persuasion issue by quoting a footnote in a Drafter's Note from Assembly Bill 955: "This redraft does not shift the burden to the committed person to prove . . . that he or she is no longer dangerous . . . [because] the redraft creates certain hurdles for a committed person to clear before he or she even gets a hearing [which] effectively requires a person to present some evidence that there is a real question as to whether he or she is still dangerous.” Paulick, 213 Wis. 2d 437 n.2 (citation omitted). We conclude that Thayer's opportunity to present independent evidence as to dangerousness or in support of a full evidentiary hearing, in addition to the reexamination report review contemplated in the statute, does not impermissibly shift the burden of persuasion to Thayer.

Full Evidentiary Hearing Warranted

¶ 20. Thayer argues that sufficient facts were introduced at the September 21, 1998 WlS. STAT. § 980.09(2)(a) probable cause hearing to warrant a § 980.09(2)(b) full evidentiary hearing. We disagree.

¶ 21. The trial court will order a full evidentiary hearing only if sufficient facts exist to warrant such a hearing. See WlS. Stat. § 980.09(2)(a). Again, a § 980.09(2)(a) probable cause hearing is simply a paper review of all reexamination reports, with argument by counsel. See Paulick, 213 Wis. 2d at 438-39. Here, the trial court held that "there are no facts presented at this time that would warrant a hearing on whether Mr. Thayer is a sexually violent person" and that there was no factual basis "to justify further proceedings under the provisions of s. 980.09."

¶ 22. We must segregate factual determinations from conclusions of law and apply the appropriate standard of review to each. See Meyer v. Classified Ins. Corp. of Wis., 179 Wis. 2d 386, 396, 507 N.W.2d 149 (Ct. App. 1993). While findings of fact will not be set aside unless clearly erroneous, the application of these facts to a legal standard, such as probable cause, is a question of law that we review independently of the trial court. See id.

¶ 23. The only evidence before the court at the probable cause hearing was staff psychologist Schwebke's August 24, 1998 report. Schwebke noted that Thayer had previously been diagnosed with atypical paraphilia and a personality disorder with antisocial and narcissistic features. The report acknowledged that Thayer had actively participated in the full Sexually Violent Persons (SVP) Treatment Program and had completed seven of the eight-plus trimesters of the sex offender treatment program. The report also noted that Thayer had demonstrated a more uniform effort in his participation and had made some progress.

¶ 24. However, while Thayer had made additional progress in sex offender treatment, Schwebke concluded that Thayer would still present a substantial risk for further sexual violence. Thayer continued to suffer from the previously diagnosed mental disorders that affect his emotional or volitional capacity, causing him to commit sexually violent acts. According to the report, Thayer remained defensive regarding treatment concerns and still allowed "himself to engage in violent sexual fantasies"; instead of practicing therapeutic techniques to help him modulate his emotions, Thayer sought changes in medication. Thayer himself admitted to Schwebke that he still allowed himself to nurture deviant sexual fantasies and that he had only revealed about seventy percent of his thoughts and feelings. Furthermore, Thayer personally estimated his own risk of recidivism at between twenty-five to thirty percent and admitted he was still likely to engage in future sexual violence. Schwebke reported that Thayer appeared to want to underestimate his risk to reoffend, had the tendency to become lax in his efforts, and needed to invest a consistently strong effort to reflect upon and incorporate corrective feedback from facilitators.

¶ 25. According to Schwebke, Thayer continued to display dangerous and sexually inappropriate behavior when he was involved in treatment programs and still had important issues to address. Thayer continued to engage in distortions and justifications that reflected criminal thinking, and continued to view himself as the victim of others and the victim of depression; he engaged in closed-channel thinking and used emotional reasoning to try to control and manipulate others. Thayer's treatment team recommended that he receive additional treatment, including AODA treatment, covert sensitization treatment, aversion therapy and depression treatment. Schwebke noted that the facts supporting Thayer's 1996 Wis. Stat. ch. 980 commitment remained current and relevant.

¶ 26. A full evidentiary hearing was unwarranted. The only evidence before the trial court indicated that the grounds for Thayer's original WlS. STAT. ch. 980 commitment remained current and relevant, that Thayer continued to display dangerous and sexually inappropriate behavior while involved in treatment programs, that he still had important treatment issues to address and that he was still likely to engage in future sexual violence. The report did not present any facts that would warrant a full evidentiary hearing pursuant to WlS. Stat. § 980.09(2)(b).

Trial Court Usurped Role

At "Paper Hearing"

¶ 27. Thayer argues that the trial court misconstrued its role at the WlS. STAT. § 980.09(2)(a) probable cause hearing and usurped the "function of the factfinder at the full evidentiary hearing under sec. 980.09(2)(b) Stats." Presumably Thayer is attempting to argue that the trial court applied the wrong standard at the probable cause hearing and instead applied the standard to be utilized at the full evidentiary hearing. This argument is similar to Thayer's previous argument that the trial court erroneously placed the burden of persuasion upon Thayer and is equally without merit.

¶ 28. Wisconsin Stat. § 980.09(2)(a) creates certain hurdles for a committed person to clear before he or she even gets a full evidentiary hearing; this effectively requires a person to present some evidence that there is a real question as to whether he or she is still dangerous. See Paulick, 213 Wis. 2d at 437 n.2. Clearly, some weighing of factual evidence must take place if the court is to determine if some evidence exists sufficient to warrant the evidentiary hearing.

¶ 29. On more than one occasion, the trial court set forth and utilized the proper standard. The trial court initially stated, "If I'm reading the statute right ... it would appear that at this particular hearing . . . the Court is really concerned with one thing and that is whether or not there's a factual basis, at least from a review of the exam, to conclude that there's probable cause to believe that Mr. Thayer is a sexually violent person . . . The trial court concluded that "there are no facts presented at this time that would warrant a hearing on whether Mr. Thayer is a sexually violent person" and that there was no factual basis "to justify further proceedings under the provisions of s. 980.09."

¶ 30. The trial court's role is to evaluate the evidence and determine if sufficient facts exist to warrant a full evidentiary hearing. The trial court fulfilled this role, utilizing the appropriate standard.

Appointment of Counsel

¶ 31. Thayer contends that his due process rights were violated by the lateness of his appointment of counsel. Specifically, Thayer argues that counsel was not appointed for him until September 15,1998, with a hearing date scheduled for September 21,1998. Thayer argues that pursuant to WlS. STAT. § 980.07(1), he has an absolute right to an independent expert examination. However, because of the lateness of the appointment of counsel, it was impossible "to find an expert, make and keep an appointment for a client and produce a written report for court" before the hearing. Thus, Thayer contends that his "statutory rights under sec. 980.07(1) had, for all practical purposes, evaporated due to the passage of time" and he was effectively deprived of his statutory right to an independent examination. This argument is without merit.

¶ 32. Wisconsin Stat. §980.03 addresses the rights of persons subject to WlS. STAT. ch. 980 commitments. Paragraph (2)(a) states:

(2) Except as provided in ss. 980.09(2)(a) and 980.10 and without limitation by enumeration, at any hearing under this chapter, the person who is the subject of the petition has the right to:
(a) Counsel. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under s. 977.07(1) and, if applicable, the appointment of counsel.

Wisconsin Stat. § 977.07(l)(a) states, in relevant part, that "[d]etermination of indigency for persons entitled to counsel shall be made as soon as possible ...." Thus, there is no specific statutory time established to appoint counsel for an indigent ch. 980 patient. Counsel must simply be appointed as soon as possible.

¶ 33. By failing to waive his right to petition for discharge on August 15, 1998, Thayer was effectively petitioning the court for discharge on that date. Kava-nagh was appointed as Thayer’s counsel on or about September 15,1998, for a September 21,1998 hearing. Not once during the September 21, 1998 probable cause hearing did Kavanagh assert that he did not have sufficient time or ask for additional time to prepare for the Wis. Stat. § 980.09(2)(a) probable cause hearing.

¶ 34. At the November 3, 1999 motion hearing, Thayer, through successor counsel, questioned Kava-nagh about the timing of his appointment, asking him if he had sufficient time to prepare for the probable cause hearing. Kavanagh responded that he did. Thayer also specifically asked Kavanagh the following questions:

Did you consider the question of whether or not [§ ] 980.09(1) provided counsel to an indigent defendant sufficiently early in the process that he can prepare to have a meaningful analysis, even the paper analysis provided in the (2)(a) hearing?
. . . Did you consider the question of whether or not those provisions of [§ ] 980.09(2)(a) dealing with appointment of counsel were sufficient to provide Mr. Thayer actual and effective representation or whether or not they might violate due process and equal protection; did you look at that issue?

¶ 35. The above questions appear to request Kav-anagh to reflect on whether the cited Wis. Stat. ch. 980 provisions regarding appointment of counsel violated Thayer's due process rights. However, judging from Kavanagh's response to the questions and Thayer's current argument, we assume that Thayer was attempting to ask Kavanagh if his appointment six days prior to the probable cause hearing implicated due process rights by not allowing sufficient time to prepare for the hearing. We conclude that Thayer's due process contention is that he and Kavanagh had insufficient time to prepare for the probable cause hearing.

¶ 36. Thayer suggested that there was insufficient time to prepare for the probable cause hearing in his November 3, 1999 statements that "it is clear that [§ ] 980.09(2) applied to the defendant, who has the same liberty interests that a Chapter 51 individual has, a higher burden of proof, and that's a violation of equal protection, as well as due process, because ... he does not have access to an attorney who talks to him until the day of the hearing" and that a patient "has no meaningful process, because nobody tells him and nobody assists him_" However, Thayer never explicitly argued that the timing of Kavanagh's appointment violated his due process rights and the trial court never addressed or ruled on that issue.

¶ 37. It is Thayer's burden to establish on the record that the late appointment of counsel resulted in a due process violation. See Allen v. Allen, 78 Wis. 2d 263, 270, 254 N.W.2d 244 (1977). Normally, a party must raise and argue an issue with some prominence to allow the trial court to address the issue and make a ruling. See Lenz Sales & Serv. v. Wilson Mut. Ins. Co., 175 Wis. 2d 249, 257, 499 N.W.2d 229 (Ct. App. 1993). We will, however, consider Thayer's due process issue in the interest of good judicial administration, see State v. Dyess, 124 Wis. 2d 525, 535-36, 370 N.W.2d 222 (1985), and we conclude that the timing of Kavanagh's appointment as Thayer's counsel did not violate Thayer's due process rights.

¶ 38. Kavanagh was appointed as Thayer's counsel on or about September 15,1998, for a September 21, 1998 hearing. Kavanagh admitted that he considered whether the timing of his appointment allowed sufficient time to prepare a meaningful analysis for the hearing, but then concluded that he did not "see how any more time would have been of any benefit." Kava-nagh stated that he had had an opportunity to review the psychologist's reexamination report several times and that he had read about "10 pounds" of paper work related to WlS. Stat. ch. 980 law. Most importantly, Kavanagh asserted that had he felt he needed more time to prepare or to gather evidence for the hearing, he simply would have asked the court for additional time. Kavanagh stated:

[I]f I ever felt I didn't have enough time, I would tell the Court that. I have cases scheduled quite often to be heard before I'm ready and I just tell the Court I'm not ready and I insist on having more time and I get it. If I needed more time here I would have gotten it.... I didn't need any more time that I know of.

Kavanagh insisted that no prejudice accrued to Thayer because of the timing of the appointment. Kavanagh's somewhat tardy appointment as Thayer's counsel did not in this instance violate Thayer's due process rights because Kavanagh did not need additional time to prepare for the hearing and Thayer was not prejudiced by the timing of the appointment.

CONCLUSION

¶ 39. Thayer did not have the right to submit all evidence that he wanted to at his Wis. Stat. § 980.09(2)(a) hearing but could only have submitted a second medical examination report if he had requested one at the time of his reexamination. He did not. Therefore, his counsel was not deficient for failing to present evidence at the September 21, 1998 hearing. The burden of persuasion was not erroneously placed upon Thayer at this hearing nor did the trial court misconstrue its role. The facts presented at this hearing were insufficient to warrant a full evidentiary hearing, and Thayer's due process rights were not violated by the timing of counsel's appointment. The orders of the trial court are therefore affirmed.

By the Court. — Orders affirmed.

      All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       According to Thayer's original WlS. Stat. ch. 980 commitment petition, atypical paraphilia indicates a disorder involving recurrent intense sexual urges and sexually arousing fantasies.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    In re the Commitment of Dennis R. Thiel: State of Wisconsin, Petitioner-Respondent, v. Dennis R. Thiel, Respondent-Appellant.
    Court of Appeals

      No. 99-0316.

      Oral argument November 13, 2000.

    Decided January 24, 2001.

    2001 WI App 52
    (Also reported in 625 N.W.2d 321.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of John D. Lubarsky, assistant state public defender, Madison. There was oral argument by John D. Lubarsky.

    On behalf of the petitioner-respondent, the cause was submitted on the briefs of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Sally L. Wellman.

    Before Brown, P.J., Anderson and Snyder, JJ.

      Petition to review denied.

   ANDERSON, J.

¶ 1. At the direction of the Wisconsin Supreme Court, we have considered what is the appropriate remedy for the new statutory interpretation announced in State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94. We conclude that the requirement that the State must prove beyond a reasonable doubt that a WlS. STAT. ch. 980 (1997-98) detainee is within ninety days of release shall be applied retroactively, and Thiel shall receive the benefit of retroactive application. We further conclude that the Double Jeopardy Clause does not prevent a remand to the circuit court for a trial limited to the issue of whether Thiel was within ninety days of his release when the State filed the ch. 980 petition.

¶ 2. On October 27,1999, we certified to the Wisconsin Supreme Court the question of "whether the State must affirmatively prove that a ch. 980, STATS., respondent is within ninety days of release or discharge." The supreme court accepted certification and ruled that "in a commitment trial pursuant to Wis. Stat. ch. 980, the State must prove beyond a reasonable doubt that the subject of the petition is within 90 days of release or discharge from a sentence imposed on the basis of a sexually violent offense." Thiel, 2000 WI 67 at ¶ 1.

¶ 3. In reaching this conclusion, the supreme court, using generally accepted principles of statutory interpretation, found that the statutory language was clear and unambiguous that the legislature intended the State to prove beyond a reasonable doubt that an individual was within ninety days of release. See id. at ¶¶ 10,19. The supreme court found support for its conclusion in the legislative history of Wis. Stat. ch. 980 as well as two recent decisions it had issued. See Thiel, 2000 WI 67 at ¶¶ 22-24. The supreme court observed that the result in Thiel was preordained because both State v. Kienitz, 227 Wis. 2d 423, 429 n.6, 597 N.W.2d 712 (1999), and State v. Curiel, 227 Wis. 2d 389, 396 n.4, 597 N.W.2d 697 (1999), correctly stated the law that the State had the burden of proving beyond a reasonable doubt all of the allegations in the petition for commitment, including that the person was within ninety days of discharge. See Thiel, 2000 WI 67 at ¶¶ 23-25.

¶ 4. The supreme court went on to scour the record to determine if the State satisfied its burden in this case. See id. at ¶¶ 26-34. The court reached the conclusion that "the trial record in this case does not establish beyond a reasonable doubt that the State filed its commitment petition within 90 days of Thiel's release." Id. at ¶ 35. The supreme court then turned to the appropriate remedy:

In response to a question at oral argument regarding remedies, the State referenced several remedy-issues, none of which have been briefed or argued before this court.
These issues include whether our decision should have retroactive or prospective application, and whether a decision affects only the "pipeline" cases on direct appeal or also reaches to cases on collateral review. Another remedy concern referenced by the State is whether the court may remand the narrow issue involving proof of the 90-day requirement, as is done in other civil cases with respect to specific issues such as the appropriate measure of damages. As the State notes, concerns of claim preclusion or double jeopardy may also arise.
In light of the significant remedy issues, we hesitate to decide the question of appropriate remedy without affording the parties an opportunity to address adequately the above and other remedy issues. Rather, we believe the more prudent course is to remand the cause to the court of appeals and direct the court to address the issue of the appropriate remedy.

Id. at ¶¶ 35-37.

Retroactive or Prospective Application

¶ 5. Thiel now argues that Griffith v. Kentucky, 479 U.S. 314, 328 (1987), insures his "right to benefit from his own litigation." He contends that the supreme court's decision did not announce a new rule of substantive criminal law that requires this court to engage in an analysis of whether the decision should be applied retroactively. He argues that the State's mistaken view of its burden of proof is "not the sort of compelling inequity that would warrant only a prospective application of the court's decision." Rather, Thiel' insists that the decision did nothing more than illuminate the plain language of the two statutes involved, and he is entitled to the benefit of his labors and have the decision apply to him.

¶ 6. The State urges us to apply what it describes as a new statutory interpretation, totally prospectively. The prospective application of a court decision is often called "sunbursting." The State reasons that prospective application is called for because the decision does not call into question jury verdicts finding that an individual was a proper person for commitment as a sexually violent offender because the ninety-day filing requirement is not a substantive criterion of commitment. See State v. Post, 197 Wis. 2d 279, 325, 541 N.W.2d 115 (1995). The State asserts that prospective application will not be unfair to Thiel because he has never claimed that he was not within ninety days of release when the commitment petition was filed. The State also argues that retroactive application will impose a burden on courts having to relitigate commitments and put the public at risk because of the potential that sex offenders will walk the streets unsupervised.

¶ 7. We disagree with Thiel that he is entitled to the benefit of the decision in his case because it does not announce a new rule of substantive criminal law. His approach is too simplistic and fails to take into consideration the history and use of retroactivity analysis in this state. Wisconsin generally adheres to the "Blackstonian Doctrine," which provides that a decision that clarifies, overrules, creates or changes a rule of law is to be applied retroactively. See Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 575, 157 N.W.2d 595 (1968). In spite of this, an appellate court may employ the technique of prospective application — "sunbursting"—to mitigate hardships that may arise with the retroactive application of a new rule of law. See Harmann v. Hadley, 128 Wis. 2d 371, 378—79, 382 N.W.2d 673 (1986). "Sunbursting" is an approved method of dealing with both changes within the common law as well as changes in the way that courts interpret statutes. See Colby v. Columbia County, 202 Wis. 2d 342, 364, 550 N.W.2d 124 (1996). Whether to limit, a new rule of law to prospective application is a policy question for the appellate court that we review de novo. See Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 613, 563 N.W.2d 154 (1997).

¶ 8. Griffith is a decision from the United States Supreme Court that abandoned a three-pronged analysis for claims of retroactivity of hew constitutional rules of criminal procedure in favor of an easier approach that provides that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases pending on direct review or not yet final. See Griffith, 479 U.S. at 320, 328. The Griffith approach is applicable in Wisconsin. See State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993).

¶ 9. However, Griffith is not applicable to Thiel because this case is not a criminal prosecution. See State v. Carpenter, 197 Wis. 2d 252, 271-72, 541 N.W.2d 105 (1995). Accordingly, we will not apply the Griffith approach and mechanically hold that the decision announced in Thiel will be applied retroactively to all cases on direct review or not yet final. We choose to apply the analysis that is used when a new rule of substantive or procedural civil law is announced. The application of such an analysis is supported by the application of civil rules of procedure to WlS. Stat. ch. 980 commitment proceedings. See State v. Brown, 215 Wis. 2d 716, 718-19, 573 N.W.2d 884 (Ct. App. 1997) ("Chapter 980, containing the civil commitment procedure for sexually violent persons, is subject to the provisions of Chapters 801 to 847."). Moreover, the use of the same analysis as used in civil cases was approved by the Wisconsin Supreme Court in an area of the law where there are fundamental liberty interests protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Walworth County DHS v. Elizabeth W., 189 Wis. 2d 432, 436, 525 N.W.2d 384 (Ct. App. 1994).

Although serious human rights are implicated in the termination-of-parental rights proceedings, the proceeding is civil in nature. Accordingly, we conclude that it is appropriate in determining the question of retroactivity or not to apply the test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), approved by this court in Kurtz v. City of Waukesha, 91 Wis. 2d 103, 109, 280 N.W.2d 757 (1979).

M.W. v. Monroe County DHS, 116 Wis. 2d 432, 442, 342 N.W.2d 410 (1984).

¶ 10. In Kurtz, the Wisconsin Supreme Court adopted the retroactivity analysis set forth by the United States Supreme Court in Chevron Oil. The three prongs of that analysis require consideration of whether: (1) the decision creates a new principle of law, either by overruling clear past precedent on which parties have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) retrospective application will promote or retard the operation of the rule recognized or established by the decision; and (3) retrospective application could produce substantial inequitable results. See Kurtz, 91 Wis. 2d at 112. Wisconsin's adherence to the "Blackstonian Doctrine," favoring retroactivity, requires that all three factors must be satisfied in order for Thiel to apply retroactively. See Browne v. WERC, 169 Wis. 2d 79, 112, 485 N.W.2d 376 (1992).

¶ 11. This analysis recognizes that "the use of the sunbursting technique relieves some pressure against departure from precedent and serves the same social interest in stability that is the root of stare decisis." Harmann, 128 Wis. 2d at 379. We are cautioned that limiting a new rule to prospective application only or "sunbursting" is appropriate only if there is a compelling judicial reason to limit its application to future litigants. See Dupuis v. Gen. Cas. Co., 36 Wis. 2d 42, 45, 152 N.W.2d 884 (1967). Unfortunately, there is no simple rule to guide us in deciding whether to "sunburst"; we are required to consider the particular equities of the new statutory interpretation in deciding whether to apply it retroactively or to "sunburst." See Harmann, 128 Wis. 2d at 379.

A. New Principle of Law

¶ 12. This Chevron Oil factor asks if the new rule or new statutory interpretation is a "clear break" from prior law. See Browne, 169 Wis. 2d at 112. In applying this factor, we first consider whether a substantial number of people relied upon a statutory interpretation that relieved the State from proving beyond a reasonable doubt that an individual was within ninety days of release. We also must take into account whether considerable harm or detriment will come to them if the new rule is applied prospectively. See Jacque, 209 Wis. 2d at 625.

¶ 13. Since 1995, the jury instruction used in commitment proceedings has not required that the State prove an individual was within ninety days of mandatory release. With more than thirty reported appeals from commitment proceedings under Wis. Stat. ch. 980, it is reasonable to infer that a substantial number of people have relied upon the old statutory interpretation. Because the ninety-day period is not a substantive criterion of commitment but is only a pleading criterion, see Post, 197 Wis. 2d at 325, we are concerned with the application of a procedural rule which does not affect the basic accuracy of the fact-finding process at the commitment proceeding. See State v. Benzel, 220 Wis. 2d 588, 592, 583 N.W.2d 434 (Ct. App. 1998). We cannot say with any confidence that if a person subject to ch. 980 had been aware of this new interpretation of the statute that he or she would have had the opportunity to conduct himself or herself in a manner that took the person outside of the commitment criteria. See State v. Jason J.C., 216 Wis. 2d 12, 20, 573 N.W.2d 564 (Ct. App. 1997). Therefore, we conclude that those who relied upon the old interpretation of the statute were not substantially harmed by that reliance and that the change in the proof requirement is not a "clear break" from past practice.

¶ 14. The new statutory interpretation imposing an obligation upon the State to prove beyond a reasonable doubt that an individual is within ninety days of release did not come as a complete surprise. As the supreme court explained in Thiel, the burden on the State was foreshadowed by the legislative history of WlS. Stat. ch. 980 and the court's decisions in Kienitz and Curiel. See Thiel, 2000 WI 67 at ¶¶ 22-24. We can hardly conclude that the rule announced in Thiel unexpectedly overruled old precedent or caught a substantial number of people by surprise. Cf. Browne, 169 Wis. 2d at 112.

B. Effect on Operation of Rule

¶ 15. We must consider whether retroactive application will promote or retard operation of the new requirement that the State prove that an individual is within ninety days of release. We do not see how retroactive application would retard the implementation of the new statutory interpretation. Before Thiel, courts and prosecutors throughout the state were operating on the belief that before the commitment proceeding could go forward, the fact that the individual was within ninety days of release had to be established. See Wis JI — Criminal 2502. All the new rule does is to elevate the formality of establishing that the individual is within ninety days of release to a formal proof requirement.

C. Equity

¶ 16. The final Chevron factor is whether retroactive application will cause substantial inequitable results. Here, we consider not just the inequity imposed on Thiel, but also the potential unfairness to others who are in a similar situation. We do so in light of our conclusion that reliance on the old interpretation of the statute did not substantially harm any individual because it did not call into question the basic accuracy of the fact-finding process. The equity factor requires us to take into account the desirability of treating similarly situated parties alike. See Beavers v. Johnson Controls World Servs., Inc., 881 P.2d 1376, 1382-83 (N.M. 1994). Equity necessitates a retroactive application of the new rule to make certain that other Wis. Stat. ch. 980 detainees, who properly raised a challenge to the State's failure to prove that they were within ninety days of release, receive the benefit of the Thiel decision.

¶ 17. When the equity prong of the Chevron test is analyzed, we also have to consider the inequities that may be imposed on the administration of justice and the public. See Fitzgerald, 38 Wis. 2d at 576-77. We have no doubt that a retroactive application will have a negative impact on the circuit courts of this state because there will be cases that will have to be reliti-gated. In an era of tight judicial resources, unwarranted consumption of those resources must be avoided. We agree with the State that a retroactive application could have a negative impact on public safety with the potential that individuals adjudged to be sexually violent could be released and there would be little or no supervision.

¶ 18. The above analysis utilizing the Chevron Oil factors does not.establish a compelling judicial need to limit the Thiel decision to a prospective application. Thiel does not represent a significant departure from Wis. Stat. ch. 980 commitment hearing procedures that would mandate a prospective application only. It does not enhance the basic accuracy of the fact-finding process. Equity does insist on giving Thiel, and similarly situated individuals, the benefit of the rule. Finally, the potential negative impact on the administration of justice and public safety is not enough to require a prospective application only. Therefore, we conclude that the new statutory interpretation announced in Thiel is to be applied retroactively.

¶ 19. However, we do not apply it retroactively to all detainees under Wis. Stat. ch. 980. Rather, it is applicable to Thiel and to all cases on direct appeal that have not been finalized as of the date of the release of Thiel, June 23, 2000. To be eligible for retroactive application of the rule, a challenge to the sufficiency of the evidence specifically citing to the failure of the State to prove beyond a reasonable doubt that the individual was within ninety days of release must have been made in the trial court. In the alternative, a challenge to the sufficiency of the evidence or lack of evidence — the State's failure to prove beyond a reasonable doubt — that the individual was within ninety days of release must have been prominently raised in a direct appeal.

¶ 20. We conclude that in respect to cases of this nature — the commitment of sexually violent individuals — it would be contrary to public policy to permit the review of any case in which a direct appeal is no longer available. See M.W., 116 Wis. 2d at 442; see also State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 256, 548 N.W.2d 45 (1996) ("a new rule of criminal procedure should not be applied retroactively to cases on collateral review").

Appropriate Remedy

¶ 21. If we apply the new rule to him, Thiel seeks to have his commitment vacated, arguing that the evidence as to an essential element was lacking. He relies upon State v. Smith, 229 Wis. 2d 720, 726, 600 N.W.2d 258 (Ct. App. 1999), and WlS. STAT. § 980.05(lm) to support his argument that all of the constitutional rights available to a criminal defendant in a criminal proceeding are available to an individual in a WlS. STAT. ch. 980 commitment proceeding. He includes in these rights: (1) the due process right not to be committed except upon proof beyond a reasonable doubt; (2) the double jeopardy prohibition against a second commitment proceeding if there is a failure of proof at the first proceeding; and (3) the general concepts of due process and fair play.

¶ 22. The State counters that there is no prohibition against remanding this case to the circuit court for an evidentiary hearing focused on the question of whether Thiel was within ninety days of his release date when the petition was filed. The State offers alternative arguments. First, it continues its theme that a WlS. Stat. ch. 980 proceeding is a civil proceeding and double jeopardy does not apply because there is no punishment intended by the statutory scheme. Second, citing to Burks v. United States, 437 U.S. 1 (1978), the State asserts that double jeopardy is not violated if the reason for a second trial is trial court error. Third, WlS. Stat. § 980.05(lm) does not create constitutional rights that bar retrial. Finally, the result of the new statutory interpretation does not entitle Thiel to a judgment of acquittal invoking double jeopardy because the State proved each of the criterion for commitment.

¶ 23. We approach this issue with a clean slate. We have neither guidance from the supreme court nor the benefit of a circuit judge's legal reasoning. Therefore, we will apply our de novo standard of review.

¶ 24. Before we address the appropriate remedy for Thiel and others who are similarly situated, a brief review of the purpose of the Double Jeopardy Clause is in order. The Double Jeopardy Clause of the Fifth Amendment has been interpreted to include three constitutional protections: "It protects against a second prosecution for the same offense after an acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense." State v. Kurzawa, 180 Wis. 2d 502, 515, 509 N.W.2d 712 (1994) (citation omitted). Whether this case is remanded for an evidentiary hearing or whether Thiel is entitled to a vacation of his commitment invokes the first protection of the Double Jeopardy Clause.

¶ 25. Contrary to Thiel's argument that the first protection of the Double Jeopardy Clause applies through the application of WlS. Stat. § 980.05(lm) and bars any remand, we conclude that it does not apply to WlS. Stat. ch. 980 commitment proceedings. Section 980.05(lm) provides:

At the trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person.

This section operates to give an individual the same constitutional rights he or she would have in a criminal proceeding. See Smith, 229 Wis. 2d at 727 ("Because a defendant in a criminal proceeding has a fundamental constitutional right to be competent at trial, we must conclude that § 980.05(lm), Stats., grants ch. 980 respondents the same right...

¶ 26. This section does not grant all constitutional rights available to a criminal defendant to an individual in a WlS. STAT. ch. 980 proceeding. In Carpenter, 197 Wis. 2d at 270-71, the Wisconsin Supreme Court embraced Allen v. Illinois, 478 U.S. 364 (1986), where the United States Supreme Court held that the "decision ... to provide some of the safeguards applicable in criminal trials cannot itself turn these proceedings into criminal prosecutions requiring the full panoply of. rights applicable there." Id. at 372. From this statement, we conclude that some of the fundamental constitutional rights that are available are limited to those that a criminal defendant enjoys during the course of a criminal prosecution. See Smith, 229 Wis. 2d at 727 (right to be competent); State v. Watson, 227 Wis. 2d 167, 202, 595 N.W.2d 403 (1999) (right to confront witnesses); State v. Zanelli, 212 Wis. 2d 358, 371-72, 569 N.W.2d 301 (Ct. App. 1997) (right to remain silent).

¶ 27. The first protection of the Double Jeopardy Clause is not a trial right enjoyed during a criminal prosecution. The double jeopardy bar operates to prohibit second and subsequent criminal prosecutions when a defendant is acquitted. A "criminal prosecution" is a term of art; when people speak of prosecutions, they usually mean a proceeding in which guilt is to be determined. See State v. Petty, 201 Wis. 2d 337, 356-57, 548 N.W.2d 817 (1996). According to Bla ck's Law Dictionary 1221 (6th ed. 1990), a "criminal prosecution" is "[a] criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime." The first protection afforded by the Double Jeopardy Clause only operates after acquittal in a criminal prosecution and the State attempts to commence a second criminal prosecution.

¶ 28. Even if we were to hold that the first protection of the Double Jeopardy Clause is available to a WlS. STAT. ch. 980 detainee through operation of WlS. STAT. § 980.05(lm), we would still hold that it is not available where the error is the State's failure to prove beyond a reasonable doubt that an individual was within ninety days of release. In Burks, the United States Supreme Court was confronted with the court of appeals reversing a conviction for armed robbery finding that the prosecution had failed to rebut the defendant's proof as to insanity. See Burks, 437 U.S. at 3-4. The federal court of appeals remanded the case to the trial court to determine whether to enter a judgment of acquittal or order a new trial. See id. at 4. The United States Supreme Court held, however, that "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient." Id. at 18.

¶ 29. Burks is instructive in this case. Writing for a unanimous court, Chief Justice Burger found it necessary to clarify double jeopardy analysis by distinguishing reversals due to trial error and those resulting from evidentiary insufficiency. See id. at 14-15.

In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.
The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

Id. at 15-16 (citation and footnote omitted).

¶ 30. The Wisconsin Supreme Court's reversal was not premised on insufficiency of the evidence supporting the statutory criteria for commitment. The reversal was premised on an incorrect interpretation of the State's burden of proof on the issue of whether Thiel was within ninety days of release. The court, prosecution and Thiel shared the mistaken belief that it was not necessary to prove beyond a reasonable doubt that Thiel was within ninety days of release. Because of this mistaken belief, the State was not given a fair opportunity to present competent evidence of Thiel's release date. The State did not fail in an attempt to prove Thiel's release date because it never attempted to present evidence. We are satisfied that the Double Jeopardy Clause does not prohibit a remand of this case limited to providing the State the opportunity to present competent evidence regarding Thiel's release date.

¶ 31. There is no need to remand for an entire new trial. Thiel does not challenge the prosecution's evidence on the criteria for commitment. See Post, 197 Wis. 2d at 325; WlS. STAT. § 980.02(2)(a)l, (b), (c). In State v. Peete, 185 Wis. 2d 4, 23, 517 N.W.2d 149 (1994), the supreme court affirmed a conviction of possession of cocaine with intent to deliver but reversed and remanded for a new trial on the limited issue of whether Peete was in possession of a dangerous weapon. We have the same situation — there is no challenge to the sufficiency of the evidence supporting the criteria for commitment and there is no need to have a new trial on those issues; all that is necessary is a trial limited to whether Thiel was within ninety days of his release. See State v. Weber, 146 Wis. 2d 817, 822, 433 N.W.2d 583 (Ct. App. 1988) (a remand permitting a retrial of all issues would be "contrary to good use of judicial time and resources").

Conclusion

¶ 32. We conclude that there is no compelling judicial reason to limit the new interpretation of Wis. STAT. §§ 980.02(2) and 980.05(3)(a) to only prospective application because (1) it is not a clear break from the prior interpretation; (2) the operation of the new interpretation will be promoted by a retroactive application; and (3) the balancing of the equities calls for retroactive application. Thiel and others who are similarly situated are entitled to the benefit of retroactive application of this new statutory interpretation. But public policy and the interest of finality do not permit retroactive application to any case in which a direct appeal is no longer available. The retroactive application of the new statutory interpretation can be achieved by remanding for an evidentiary hearing at which the State will be permitted to attempt to prove beyond a reasonable doubt that Thiel was within ninety days of release without offending the Double Jeopardy Clause.

By the Court. — Order reversed and cause remanded with directions.

      All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. § 980.02(2) governs the contents of a petition seeking to commit an individual as sexually violent. The statute provides in relevant part:
      (2) A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:
      (a) The person satisfies any of the following criteria:
      1. The person has been convicted of a sexually violent offense.
      (ag) The person is within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense, from a secured correctional facility, as defined in s. 938.02(15m)....
      (b) The person has a mental disorder.
      (c) The person is dangerous to others because the person's mental disorder creates a substantial probability that he or she will engage in acts of sexual violence.
      The issue certified required that § 980.02(2) be read in conjunction with WlS. Stat. § 980.05(3)(a), which states that "[a]t a trial on a petition under [WlS. Stat. ch. 980], the petitioner has the burden of proving the allegations in the petition beyond a reasonable doubt."

       After this case was returned to us, we ordered supplemental briefs limited to the issues as framed by the supreme court in its remand; additionally, oral argument was conducted. The facts and procedural history of this case can be found in the decision of the Wisconsin Supreme Court and will not be repeated here.

       The origin of this colorful nickname was explained in Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 623 n.5, 563 N.W.2d 154 (1997):
      Judge Thomas Fairchild has suggested that "[i]f one thinks of a judicially pronounced new rule of law as the rosy dawn of a new day, 'sunbursting' has an appropriate connotation." Thomas E. Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: "Prospective Overruling" or "Sunbursting", 51 Marq. L. Rev. 254, 255 (1967-68). However, the illustrative nature of the term is purely coincidental. Prospective overruling earned the nickname "sunbursting" from the name of a party to litigation involving prospective application. Great Northern Railway Company v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932).

       The three-pronged analysis used prior to Griffith v. Kentucky, 479 U.S. 314 (1987), considered: "(1) the effect of the new rule on the fact finding process; (2) the extent of reliance by law enforcement authorities on the old standards; and (3) the effect on the administration of justice of a retroactive application of the new standards." State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993).

       The United States Supreme Court has abandoned the Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), three-pronged analysis in favor of an approach patterned after Griffith. In Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993), the Supreme Court held:
      When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

        Id. at 97.
      We decline to follow Harper and adopt its approach that makes all new rules retroactive. First, Harper only applies to the interpretation of federal law by the United States Supreme Court. See id. Second, a radical change in the manner in which Wisconsin appellate courts approach retroactivity analysis is within the exclusive superintending authority of the Wisconsin Supreme Court. See Arneson v. Jezwinski, 206 Wis. 2d 217, 225, 556 N.W.2d 721 (1996). Finally, it is within the inherent power of the state's highest court to give a decision prospective or retrospective application without offending constitutional principles. See Great Northern Ry. Co., 287 U.S. at 364. As the New Mexico Supreme Court explained, this principle of federalism permits each state to give full faith and credit to the juristic philosophy of the state and its conception of law, its origin and nature. See Beavers v. Johnson Controls World Servs., Inc., 881 P.2d 1376, 1380 (N.M. 1994) (citing Justice Cardozo's opinion in Great Northern Railway).

       The Criminal Jury Instructions Committee's commentary to Wis JI — Criminal 2502, "Commitment As A Sexually Violent Person Under Chapter 980," provides:
      Subsection (2)(ag) of § 980.02 requires that the petition further allege that the person is within 90 days of discharge or release from a sentence imposed for the sexually violent offense. The Committee concluded that this fact need not be submitted to the jury, though it certainly must be established before the trial can go forward.

       The substantive criteria for commitment of individuals under WlS. Stat. ch. 980 apply only to "those who have been convicted of specific sexually violent acts in the past and who are substantially probable to engage in sexually violent acts in the future because their current mental disorder predisposes them to engage in such conduct." State v. Post, 197 Wis. 2d 279, 325, 541 N.W.2d 115 (1995).

       In Wisconsin, the phrase "similarly situated parties" is narrowly defined to be factually and legally similar cases that share similar procedural histories. See Bell v. County of Milwaukee, 134 Wis. 2d 25, 28, 40-41, 396 N.W.2d 328 (1986).

      A case is not yet final when "prosecution is pending, no judgment of conviction has been entered, the right to a state court appeal from a final judgment has not been exhausted, and the time for certiorari review in the United States Supreme Court has not expired." Koch, 175 Wis. 2d at 694 n.3.


author: SNYDER, J.

text:
    In re the Commitment of Dennis R. Thiel: State of Wisconsin, Petitioner-Respondent, v. Dennis R. Thiel, Respondent-Appellant.
    Court of Appeals

      No. 00-0142.

      Submitted on briefs November 22, 2000.

    Decided January 24, 2001.

    2001 WI App 32
    (Also reported in 626 N.W.2d 26.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs oí John D. Lubarsky, assistant state public defender, of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the briefs of Sally L. Wellman, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Dennis R. Thiel appeals the circuit court's order denying his petition for discharge pursuant to WlS. STAT. § 980.09(2) (1997-98). The circuit court held that insufficient facts were presented at the § 980.09(2)(a) probable cause hearing to warrant a full evidentiary hearing pursuant to § 980.09(2)(b). The circuit court also denied Thiel's request for a second, independent examination pursuant to WlS. STAT. § 980.07. Thiel argues that he was entitled to counsel at his § 980.09(2)(a) hearing and that the standards set forth in State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), for determining the validity of a waiver of the right to counsel apply. Thiel also argues that he was entitled to the appointment of an expert to conduct a second, independent examination. We agree with both contentions. We therefore reverse the order of the circuit court and remand this matter for proceedings consistent with this opinion.

FACTS

¶ 2. Thiel was civilly committed pursuant to WlS. Stat. ch. 980 on November 6,1998. A reexamination of Thiel's condition was held on May 4, 1999, as required by WlS. Stat. § 980.07; and on May 11,1999, a report of that examination was filed with the circuit court that committed him. The report, written by Psychologist/Senior Doctorate Travis Hinze and SVP Clinical Director Anthony Thomella, concluded that Thiel remained a sexually violent person and recommended continued confinement in a secure mental health facility.

¶ 3. Thiel did not waive his right to petition for discharge and the committing court, Judge Peter L. Grimm, scheduled a probable cause hearing pursuant to WlS. Stat. § 980.09(2)(a) to determine if sufficient evidence existed to warrant a full evidentiary hearing. On August 9, 1999, Thiel wrote to the circuit court, requesting information on his reexamination. Thiel asked the court to appoint an expert to assist him during the reexamination process and advised the court that he was indigent.

¶ 4. The circuit court responded in a letter dated August 30,1999, advising Thiel that he had the right to an attorney at the probable cause hearing and that he could contact the State Public Defender's office for assistance if he was indigent. The circuit court advised Thiel that if the State Public Defender's office declined to appoint him counsel, Thiel could petition the county for assistance. The court denied Thiel's request for another expert at county expense.

¶ 5. On August 29, 1999, Thiel again wrote the court, requesting permission to proceed pro se, noting that he did not want to incur more debt. Thiel again asked the court to appoint him an expert to assist him. On September 2,1999, Thiel sent the court an affidavit of indigency, and again asked the court to appoint him an expert to assist him. There is no evidence that the circuit court responded to this letter.

¶ 6. The WlS. STAT. § 980.09(2)(a) probable cause hearing was held on October 15, 1999. Thiel appeared by telephone without counsel. At the start of the hearing, the circuit court, at the suggestion of the district attorney, asked Thiel his position regarding counsel. Thiel answered, "At the present time I would like to proceed without counsel. The only thing that I was looking for was a motion for the expert witness psychologist to present my side of the case." There was no more discussion regarding Thiel's request to proceed pro se.

¶ 7. The court then considered and rejected Thiel's request for the appointment of an expert. At the end of the hearing, the circuit court concluded that there were insufficient facts to warrant a full eviden-tiary hearing regarding Thiel's condition. A written order memorializing this decision followed.

¶ 8. Thiel petitioned the circuit court for the appointment of counsel to pursue an appeal and filed another affidavit of indigency. The circuit court referred Thiel's request to the State Public Defender's office. On January 14, 2000, Thiel filed a notice of appeal.

¶ 9. On January 24, 2000, Thiel filed a motion with this court to stay further proceedings in this matter to permit a remand to the circuit court for an evidentiary hearing regarding the validity of his waiver of his right to counsel at the probable cause hearing pursuant to Klessig. On February 9, 2000, we denied this motion, noting that a threshold question existed as to the applicability of Klessig to WlS. STAT. ch. 980 proceedings.

DISCUSSION

¶ 10. We must decide whether the standards set forth in Klessig regarding the validity of a waiver of the right to counsel apply to WlS. STAT. ch. 980 proceedings and whether the decision to appoint an expert for an independent examination pursuant to WlS. STAT. § 980.07 is discretionary. Both issues involve questions of constitutional law and statutory interpretation. We are not bound by the circuit court's conclusions of law and decide these issues de novo. State v. Smith, 229 Wis. 2d 720, 724, 600 N.W.2d 258 (Ct. App. 1999).

¶ 11. Wisconsin Stat. § 980.07 allows for periodic reexaminations of WlS. STAT. ch. 980 patients and states in relevant part:

(1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge. At the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her.

After his § 980.07 reexamination, Thiel petitioned the circuit court for discharge and a probable cause hearing was scheduled pursuant to Wis. STAT. § 980.09(2)(a). Section 980.09 states in relevant part:

(2)(a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under s. 980.07(1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objections. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to be present at the probable cause hearing. (Emphasis added.)

This § 980.09(2)(a) probable cause hearing is merely a paper review of all reexamination report(s) accompanied by argument from counsel, designed to allow the circuit court to eliminate any frivolous petitions, but not intended to be the equivalent of a full evidentiary hearing. State v. Paulick, 213 Wis. 2d 432, 438-39, 570 N.W.2d 626 (Ct. App. 1997). As noted, § 980.09(2)(a) specifically grants the committed person the right to counsel at this hearing.

¶ 12. Thiel argues that because Wis. Stat. § 980.09(2) guarantees the right to counsel at the probable cause hearing, the same standards and procedures for resolving right to counsel issues in a criminal context should apply to the § 980.09(2)(a) probable cause hearing. We agree.

¶ 13. While WlS. Stat. ch. 980 actions are civil commitment proceedings, they share numerous procedural and constitutional features with criminal proceedings. Smith, 229 Wis. 2d at 727—28. WISCONSIN Stat. § 980.03(2) addresses the rights of persons subject to a ch. 980 petition and states:

(2) Except as provided in ss. 980.09(2)(a) and 980.10 and without limitation by enumeration, at • any hearing under this chapter, the person who is the subject of the petition has the right to:
(a) Counsel. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under s. 977.07(1) and, if applicable, the appointment of counsel.
(b) Remain silent.
(c) Present and cross-examine witnesses.
(d) Have the hearing recorded by a court reporter.

While § 980.03(2) does except hearings under WlS. Stat. § 980.09(2), both statutes specifically provide the right to counsel.

¶ 14. Wisconsin Stat. § 980.05 addresses Wis. Stat. ch. 980 commitment trials and states in relevant part:

(1m) At the trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person.

¶ 15. All of the criminal trial safeguards available to a defendant in a criminal proceeding are specifically accorded to a WlS. Stat. ch. 980 patient at trial, not at reexamination; however, the same interests that direct those rights at trial are at stake at reexamination. The purposes of a ch. 980 commitment, at both the commitment and reexamination stage, are the protection of the community and the treatment of persons suffering from disorders that predispose them to commit sexually violent acts. State v. Post, 197 Wis. 2d 279, 313, 541 N.W.2d 115 (1995). However, Thiel's right to be free from physical restraint is "always ... at the core of the liberty protected" by the United States Constitution. Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (citation omitted). We have held that WlS. STAT. §§ 980.03(2) and 980.05(lm) essentially incorporate the constitutional rights available to those accused of a crime into all ch. 980 proceedings. State v. Zanelli, 212 Wis. 2d 358, 370, 569 N.W.2d 301 (Ct. App. 1997). If a waiver of the right to counsel must comply with the mandates of Klessig during criminal proceedings, those same mandates must also apply to ch. 980 proceedings where the committed person is statutorily entitled to counsel.

¶ 16. Furthermore, individuals involuntarily committed pursuant to WlS. STAT. ch. 980 are also entitled to the patient's rights set forth in WlS. STAT. ch. 51, Wisconsin's Mental Health Act. Post, 197 Wis. 2d at 313-14; State v. Anthony D.B., 2000 WI 94, ¶ 13, 237 Wis. 2d 1, 614 N.W.2d 435. Chapter 980 committed patients are defined as patients under ch. 51, Wis. Stat. § 51.61(1), and thus are afforded the same rights as other mental health patients. Post, 197 Wis. 2d at 313-14.

¶ 17. Wisconsin Stat. § 51.20 addresses the involuntary civil commitment of patients. Section 51.20(16) specifically addresses the reexamination of patients and allows for reexamination hearings. Section 51.20(16)(c). Section 51.20(5) addresses hearing requirements and states in relevant part:

The hearings which are required to be held under this chapter shall conform to the essentials of due process and fair treatment including . . . the right to counsel....

Moreover, in S.Y. v. Eau Claire County, 162 Wis. 2d 320, 469 N.W.2d 836 (1991), the Wisconsin Supreme Court applied the criminal standards regarding waiver of the right to counsel to a WlS. STAT. ch. 51 proceeding. S.Y., 162 Wis. 2d at 335. Thus, in ch. 51 proceedings, the Klessig standards apply to waivers of the right to counsel. Because the rights guaranteed to ch. 51 patients are also guaranteed to WlS. Stat. ch. 980 patients, the same Klessig standards must apply to all ch. 980 proceedings where the patient is statutorily entitled to counsel.

¶ 18. While WlS. Stat. chs. 980 and 51 both govern individuals committed as sexually violent persons, Anthony D.B., 2000 WI 94 at ¶ 11, ch. 980 actually affords a patient greater protections than ch. 51. For example, a person can only be committed under ch. 980 if a twelve-person jury unanimously finds that the commitment petition has been established beyond a reasonable doubt. WlS. STAT. § 980.03(3). This contrasts with ch. 51, which permits commitment on a five-sixths jury verdict by clear and convincing evidence. WlS. STAT. § 51.20(11), (13)(e). Despite some fundamental similarities to other commitment proceedings, ch. 980 ultimately is unique and distinct from other civil commitment chapters. Smith, 229 Wis. 2d at 728. If anything, a ch. 980 case is more akin to a criminal proceeding. Id. Thus, we conclude that the same Kles-sig standards used to determine the validity of a waiver of the right to counsel in criminal proceedings must apply to all ch. 980 proceedings where the committed person is statutorily entitled to counsel.

¶ 19. When an individual elects to proceed pro se, the circuit court must insure that the individual (1) has knowingly, intelligently and voluntarily waived his or her right to counsel, and (2) is competent to proceed pro se. Klessig, 211 Wis. 2d at 203. The specific requirements for a valid waiver of counsel, were set forth by the Wisconsin Supreme Court in Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980). See also Klessig, 211 Wis. 2d at 204. To establish a valid waiver of counsel, the circuit court must conduct a colloquy designed to ensure that the individual (1) made a deliberate choice to proceed without an attorney; (2) was aware of the challenges and disadvantages of self-representation; (3) was aware of the seriousness of the charges against him or her; and (4) was aware of the general range of penalties that could be imposed. Id. at 206.

¶ 20. When an adequate colloquy is not conducted and relief is later sought from the circuit court's judgment, the circuit court must hold an evidentiary hearing to determine if the waiver was knowing, intelligent and voluntary. Id. at 206-07. Nonwaiver is presumed unless waiver is affirmatively shown to be knowing, intelligent and voluntary; the State has the burden of overcoming this presumption. Id. at 204. In this case, the testimony regarding Thiel's decision to proceed pro se was minimal:

DISTRICT ATTORNEY: But there may, first of all, be a question of Mr. Thiel's desire for an attorney. I know the Court sent a letter to Mr. Thiel telling him about his right to a lawyer and he might inquire of the public defender if he could not afford one.
COURT: . . . What is your statement on your retention or obtaining legal counsel?
MR. THIEL: At the present time I would like to proceed without counsel.

As the circuit court did not conduct a colloquy in this case, it must now hold an evidentiary hearing to determine whether Thiel knowingly, intelligently and voluntarily waived his right to the assistance of counsel. Id. at 206. The State will then be required to prove by clear and convincing evidence that Thiel's waiver of counsel was knowing, intelligent and voluntary in order to satisfy the State's burden of overcoming the presumption of nonwaiver. Id. at 207.

¶ 21. Thiel also argues that the circuit court erred when it denied his request for the appointment of an expert pursuant to WlS. STAT. § 980.07. We agree.

¶ 22. At the time of Thiel's reexamination, WlS. STAT. § 980.07(1) provided in relevant part:

At the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her.

However, § 980.07(1) was amended by 1999 Wis. Act 9, § 3232 (effective October 28, 1999) and now reads in relevant part:

At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner as provided under s. 980.03(4).

Wisconsin Stat. § 980.03(4) mandates the appointment of an examiner on the patient's behalf at his or her request whenever the patient is required to submit to an examination under WlS. STAT. ch. 980.

¶ 23. The circuit court found Wis. Stat. § 980.07(1) to be discretionary and denied Thiel's request for a separate examination. We disagree with this interpretation of § 980.07.

¶ 24. Our decision turns upon the meaning of the word "may" as used in WlS. Stat. § 980.07(1). The mere presence of the word "may" does not always give rise to a discretionary power or duty. Klisurich v. DHSS, 98 Wis. 2d 274, 278, 296 N.W.2d 742 (1980). In some cases, the term "may" is properly construed as mandatory. Id. If the word "may" means "may" and is discretionary, the circuit court had the authority to deny Thiel's request; however, if "may" means "must" or "shall" and is thus mandatory, the circuit court erred. City of Wauwatosa v. Milwaukee County, 22 Wis. 2d 184, 188, 125 N.W.2d 386 (1963). The latter "may" in the sentence must be read in light of the statute's amended language.

¶ 25. The first use of the word "may" in WlS. STAT. § 980.07(1) ("the person who has been committed may retain ....") affords Thiel the option of requesting a second expert. Thus, it is within Thiel's discretion whether to ask for an independent examination. However, if Thiel is indigent, as he alleged, and requests assistance from the court to obtain the second examination, the second use of the word "may" in § 980.07(1) is not discretionary, but mandatory. The second use of "may" does not offer the discretion to refuse such a request, but instead the latter "may" simply endows the circuit court with the authority to honor Thiel's request. The new language of the statute, obligating the court to appoint an expert upon an indigent patient's request, demonstrates that the legislature intended for the latter "may" to be mandatory. Thiel's § 980.07(1) request for the appointment of an expert was erroneously denied.

CONCLUSION

¶ 26. Because Thiel was statutorily entitled to counsel at his WlS. STAT. § 980.09(2)(a) probable cause hearing, the Klessig standards for determining the validity of his waiver of the right to counsel apply. In addition, the circuit court erred when it denied Thiel's request for appointment of an expert pursuant to WlS. STAT. § 980.07. We therefore reverse the order of the circuit court and remand this matter for proceedings consistent with this opinion, including an evidentiary hearing to determine if Thiel's waiver of counsel was knowingly, voluntarily and intelligently made.

By the Court. — Order reversed and cause remanded with directions.

      All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

      Wisconsin Stat. § 51.20(16)(g) also demands that § 51.20(10) through (13) govern reexamination hearing procedures and provides that "[t]he privileges provided in ss. 905.03 and 905.04 shall apply to reexamination hearings." WISCONSIN Stat. § 905.03 addresses the lawyer-client privilege. The application of the lawyer-client privilege during reexamination proceedings implies the right to counsel during said proceedings.

         State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997), overruled Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980), only to the extent that the court mandated the use of a plea colloquy in every case where an individual sought to proceed pro se, in order to demonstrate a knowing and voluntary waiver of the right to counsel.