On Point

State v. Anthony A. Parker, 2001 WI App 111

Issue: Whether transfer to an out-of-state prison was a new factor supporting sentence modification.

Holding:

¶11. Parker contends that his transfer out of state is a new factor that frustrates the purpose of his sentence because his placement no longer coincides with the judgment of conviction confining him to ‘Wisconsin state prisons.’ Parker’s reliance upon these words is excessively literal and finds no support in the case law.

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.

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,

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.

State v. Deryl B. Beyer, 2001 WI App 167, PFR filed
For Beyer: Jack E. Schairer, SPD, Madison Appellate

Issue1: Whether the trial court lost competence because the 72-hour time limit for a probable cause hearing, imposed by § 980.04(2), had passed.

Holding: Although the statutory time limit uses the term “shall,” it is directory rather than mandatory. “¶11. Under Wis. Stat. § 980.02(2), the State has only one ninety-day window of opportunity to petition for commitment.

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.

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.

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.

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,”

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;