On Point: H. Ch. 980, SVPs

State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Evidence that SVP respondent would be under DOC supervision if not committed under ch. 980 properly excluded as irrelevant, ¶¶8-14 (“the fact of supervision is irrelevant to whether Budd is a sexually violent person under § 980.01(7),” ¶14).The court in essence follows its statement in State v. Charles W.

State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the trial court erred in admitting evidence as to the “screening process” for referring SVP cases, which had the effect of informing the jury that fewer than 5% of eligible sex offenders are selected for commitment proceedings.

Holding:

¶16   We need not conclude, as Budd urges,

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: “(T)he phrase ‘more likely than not’ in the statute means what it says: that an event is more likely to occur than not to occur; that is, has a greater than 50% chance of happening. Thus, in order to find Smalley a sexually violent person,

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate

Issue/Holding:

¶18      Smalley notes that the actuarial instruments fail to take an individual’s mental disorder into account, and that they therefore predict dangerousness in general, rather than dangerousness due to mental disorder. He argues that because a jury in a Wis. Stat. ch.

State v. Steven C. Feldmann, 2007 WI App 35, PFR filed 3/23/07
For Feldmann: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: The ch. 980 omission of required proof of a recent overt act of sexual violence does not violate equal protection, as compared with the ch. 51 mental health commitment requirement of proof of a recent overt act demonstrating dangerousness.

The supreme court refused to impose such requirement under ch.

State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers

Issue/Holding:

¶15      … Even under the “more likely than not” standard, there must be a strong nexus between the person’s mental disorder and that person’s level of dangerousness. Under this standard, the likelihood that the person will engage in an act of sexual violence is more than 50%. 

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: State SVP expert’s unobjected-to misstatement of test for measuring reoffense risk (“more likely than not” means “any chance greater than zero” rather then more than 50%) didn’t support reversal in the interest of justice:

¶10      First, Dr. Jurek’s statement was an isolated occurrence in a three-day trial.

State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62, 2005 WI App 62
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue: Whether evidence of probation supervision was relevant to future dangerousness, and therefore should have been admitted into evidence.

Issue:

¶41      … (T)he plain language of Wis. Stat. § 980.01(7) makes the existence of a mental disorder—not any extrinsic factors—the first step in determining dangerousness and the substantial probability of the person engaging in future acts of sexual violence.

State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding1: Failure to place Schulpius on court-ordered supervised release did not “shock the conscience,” hence did not violate substantive due process, where the failure occurred despite good-faith, substantial efforts to comply with the order, ¶31.

Issue/Holding2: Failure to place Schulpius on court-ordered supervised release violated procedural due process.

State v. Terry L. Olson, 2006 WI App 32, PFR filed 3/16
For Olson: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether ch. 980 is unconstitutional because the SVP definition of “dangerousness” is not linked to imminent risk.

Holding:

¶5       We deem Olson’s reliance on Lessard misplaced. In 2002, our own supreme court considered a challenge to Wis.