On Point blog, page 4 of 5
SVP Commitments – Discharge Petition, § 980.09 (2005-06) – Allegations Sufficed for Evidentiary Hearing
State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky
Issue/Holding:
¶24 In his petition, Arends alleged that his condition had changed such that he no longer met the definition of a sexually violent person because (1) “the passage of time demonstrated that anti-social behavior expected under an earlier diagnosis did not occur,” (2) a lower PCL -R score showed a change in Arends’ condition,
SVP – Post-Disposition – Discharge Petition – Probable Cause Hearing, § 980.09(2) (2001-02)
State v. Robert L. Kruse, 2006 WI App 179, PFR filed 9/11/06
For Kruse: Donald T. Lang, SPD, Madison Appellate
Issue/Holding1:
¶2 We agree with Kruse that at a probable cause hearing under Wis. Stat. §980.09(2)(a), the role of the circuit court is to determine whether there is plausible testimony or evidence that, if believed, would establish probable cause that the petitioner is no longer a sexually violent person.
SVP – Post-Disposition – Petition for Discharge Procedure, § 980.09(2)(a) (2006) – Timely Probable Cause Hearing, Due Process
State v. Deryl B. Beyer, 2006 WI 2, on certification; prior history: 2001 WI App 167, cert. denied, Beyer v. Wisconsin, 537 U.S. 1210 (2003)
For Beyer: Donald T. Lang, SPD, Madison Appellate
Issue1: Whether due process was violated by delay of over 22 months between the time the first annual periodic examination report was provided to the circuit court under § 980.07 and the circuit court’s probable cause hearing under § 980.09(2)(a).
SVP – Post-Disposition – Discharge Procedure – Probable Cause Determination, Insufficient Showing on Particular Facts
State v. Robert M. Fowler, 2005 WI App 41, PFR filed 3/9/05For Fowler: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding:
¶30 Dr. Harasymiw’s report concludes that Fowler still is a sexually violent person. This was sufficient to support the trial court’s conclusion that it was substantially probable that Fowler would engage in acts of sexual violence. …¶31 … Although Dr. Maskel disagreed with certain conclusions,
SVP – Post-Disposition: Petition for Discharge Procedure, § 980.09(2) (2004) – Probable Cause Hearing / Full Evidentiary Hearing
State v. Dennis R. Thiel, 2004 WI App 140, PFR filed 7/16/04
For Thiel: Suzanne L. Hagopian
Issue: Whether an examiner’s recommendation of supervised release established probable cause that Thiel was no longer a sexually violent person and therefore supported a full evidentiary hearing on release, pursuant to § 980.09(2).
Holding:
¶15. Thiel’s claim falls under Wis. Stat. § 980.09(2), which sets forth the procedural posture for a committed individual’s petition for discharge without the approval of the secretary of the Department of Health and Human Services.
SVP – Post-Disposition: Petition for Discharge Procedure – Delay in Implementing Remand Order of Appellate Court
State v. Dennis R. Thiel, 2004 WI App 140, PFR filed 7/16/04
For Thiel: Suzanne L. Hagopian
Issue/Holding:
¶27. We now turn to the second issue on appeal-that being, whether Thiel’s due process rights were violated because the circuit court failed to initiate proceedings following remand by this court and therefore nothing occurred until Thiel initiated proceedings by writing to the court nearly ten months later.
SVP – Post-Disposition – Discharge Petition — Probable Cause Hearing
State v. Henry Pocan, 2003 WI App 233
For Pocan: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Pocan established probable cause for a discharge hearing where the psychologist conducting the reevaluation and using actuarial tables unavailable at the time of original commitment found no substantial probability of reoffending:
¶11. The State argues that Wis. Stat. ch. 980 thus requires the court to focus on progress or improvement in Pocan’s condition.
SVP – Postdisposition – Burden of persuasion, petition for discharge probable cause hearing
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the trial court improperly assigned the burden of persuasion to the inmate at the § 980.09(2)(a) probable cause hearing.
Holding: The burden of persuasion is assigned to neither party at a § 908.09(2)(a) hearing, the purpose of which is simply to conduct a paper review to determine whether a full evidentiary hearing is necessary.
SVP – Postdisposition – Discharge Procedure – Right to full evidentiary hearing after “paper review”
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the patient was entitled to a full evidentiary hearing on release following the reexamination probable cause “paper review.”
Holding:
¶26 A full evidentiary hearing was unwarranted. The only evidence before the trial court indicated that the grounds for Thayer’s original WIS.
SVP – Postdisposition – Discharge Procedure – Right to counsel, timing of appointment
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the lateness of counsel’s appointment, six days before the paper review probable cause hearing, violated due process.
Holding: Construing Thayer’s argument to raise a contention that due to lateness of the appointment, counsel “had insufficient time to prepare for the probable cause hearing,”