On Point blog, page 176 of 215
SVP – Trial: Evidence – Other Crimes
State v. David J. Wolfe, 2001 WI App 136, 246 Wis.2d 233, 631 N.W.2d 240, PFR filed 5/18/01
For Wolfe: Ann T. Bowe
Issue: Whether evidence of the respondent’s arson adjudication, and institutional violations and misconduct while at an adolescent treatment center were admissible under § 904.04.
Holding:
¶37 Diagnoses of a mental disorder and dangerousness are directly foretold through past conduct.
SVP – Jury Waiver – Advisal of Right to Jury Unanimity
State v. Kerby G. Denman, 2001 WI App 96, 243 Wis. 2d 14, 626 N.W.2d 29.
For Denman: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether a Ch. 980 respondent’s jury waiver requires advice of the right to a unanimous verdict.
Holding: The court “look(s) to WIS. STAT. § 980.05(2), rather than the case law governing the waiver of a the constitutional right to a jury trial in criminal cases,
SVP – Postdisposition: Expert – Right to, Re-exam
State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court properly exercised discretion in refusing the indigent’s request for an independent expert on a § 980.07(1) (1997-98) reexamination.
Holding:
¶25 The first use of the word ‘may’ in WIS. STAT. § 980.07(1) (‘the person who has been committed may retain ….’) affords Thiel the option of requesting a second expert.
SVP – Qualifying Predicate Offense
State v. Aaron K. Gibbs, 2001 WI App 83, 242 Wis. 2d 640, 625 N.W.2d 666
For Gibbs: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether a delinquency adjudication under former Wis. Stat. Ch. 48 (1993-94) supports a Ch. 980 petition.
Holding:
¶7 The question is whether in 1997 the circuit court had the authority under the 1997-98 version of WIS.
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,”
SVP – Substantive Due Process – Automatic SVP commitment to secure confinement
State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
For Ransdell: Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether the automatic initial commitment to institutional care provision, § 980.06, on its face violates substantive due process.
Holding: A person challenging the constitutionality of a statute must show its infirmity beyond reasonable doubt; a statute restricting liberty implicates a “strict-scrutiny” test. ¶5. Applying this test, § 980.06 does not violate due process: requiring that a commitment subject first undergo evaluation and treatment in an institutional setting before a decision is made as to supervised release is a reasonable legislative policy determination;
Sentencing – Factors – Exercising Right to Trial/Evaluation of Defendant’s Testimony
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the sentencing court punished the defendant for going to trial and by stressing the perceived falsity of the theory of defense.
Holding:
¶66. We do not agree with Gribble’s claim that the trial court was punishing him for “defense counsel’s lawful efforts to support the defendant’s claim of innocence.”
Sentencing – Review – Factors — Use of Pretrial Psychiatric Evaluation
State v. Joshua Slagoski, 2001 WI App 112, PFR filed 4/27/01
For Slagoski: Christopher William Rose
Issue1: Whether the results of a competency examination, which suggested that defendant presented a homicide-suicide risk, amounted to materially inaccurate information used at sentencing.
Holding:
¶9 We conclude that it is entirely reasonable that a mental competency examination designed to address a defendant’s ability to understand the proceedings and assist counsel may also address issues of future dangerousness.