2014 WI 71
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2170
COMPLETE TITLE: In re the commitment of Joseph J. Spaeth:
State of Wisconsin,
Petitioner-Appellant,
v.
Joseph J. Spaeth,
Respondent-Respondent.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 16, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 13, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Thomas J. Gritton
JUSTICES:
CONCURRED:
DISSENTED: PROSSER, J., ABRAHAMSON, C.J., BRADLEY, J.,
dissent. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-appellant, the cause was argued by
Warren D. Weinstein, assistant attorney general, with whom on
the briefs was J.B. Van Hollen, attorney general.
For the respondent-respondent, there was a brief by Shelley
M. Fite, assistant state public defender, and oral argument by
Shelley M. Fite.
2014 WI 71
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2170
(L.C. No. 2010CI1)
STATE OF WISCONSIN : IN SUPREME COURT
In re the commitment of Joseph J. Spaeth:
State of Wisconsin,
Petitioner-Appellant,
FILED
v. JUL 16, 2014
Joseph J. Spaeth, Diane M. Fremgen
Clerk of Supreme Court
Respondent-Respondent.
APPEAL from a judgment and order of the Circuit Court for
Winnebago County, Thomas J. Gritton, Judge. Reversed and cause
remanded.
¶1 MICHAEL J. GABLEMAN, J. This case is before the
court on certification by the court of appeals pursuant to Wis.
Stat. § 809.61 (2011-2012).
¶2 The question before us is whether a petition filed
under Wis. Stat. ch. 980 ("Chapter 980") can be invalidated when
the conviction recited in the petition is later reversed. In
No. 2012AP2170
order to seek commitment of a sexually violent person under
Chapter 980, the State must file a petition that meets the
requirements of Wis. Stat. § 980.02 (2009-10).1 One such
requirement is that the State allege the individual has
committed a sexually violent offense, which we refer to as a
"predicate offense."2 Wis. Stat. § 980.02(2)(a). The central
dispute between the parties in this case is what is necessary to
satisfy this statutory requirement. The State argues that if
the petition met the statutory requirements in Wis. Stat.
§ 980.02 at the time it was filed, it is irrelevant if the
conviction for the predicate offense recited in the petition is
later reversed. Spaeth argues that, because his conviction for
the predicate offense was later reversed, the State's Chapter
980 petition is insufficient to support commitment.
¶3 We hold that the sufficiency of a Chapter 980 petition
should be assessed as of the time of filing. At the time the
State's petition was filed, the statutory requirements in Wis.
Stat. § 980.02 were satisfied. We therefore hold that the
Chapter 980 petition to commit Spaeth should not have been
dismissed. Accordingly, we reverse the circuit court's order to
dismiss the petition, and we remand for further proceedings
consistent with this opinion.
1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
See State v. Gilbert, 2012 WI 72, ¶51, 342 Wis. 2d 82, 816
N.W.2d 215 (adopting the term "predicate offense" to refer to
the sexually violent offense recited in a Chapter 980 petition).
2
No. 2012AP2170
I. FACTS AND PROCEDURAL HISTORY
¶4 The facts in this case are undisputed. In 1993, the
defendant, Joseph J. Spaeth ("Spaeth"), was convicted of first-
degree sexual assault of a child ("the 1993 conviction") in
violation of Wis. Stat. § 948.02(1) (1991-92). Spaeth was
paroled on the 1993 conviction in 2004. In February 2006,
Spaeth submitted to an annual polygraph examination that was
required under the terms of his parole. During the examination,
Spaeth admitted that, while wrestling and tickling his minor
relatives, he had "touch[ed] or brush[ed] their buttocks, breast
and vaginal areas." As a result of these statements, Spaeth's
parole in the 1993 conviction was revoked.
¶5 In addition to the revocation of his parole, Spaeth's
statements during the polygraph examination and his subsequent
statements to police also resulted in new charges in April 2006.
In July 2007, a jury convicted Spaeth of four counts of sexual
assault of a child under 13 years of age in violation of Wis.
Stat. § 948.02(1) (2005–06).3 On October 20, 2008, Spaeth's
convictions were vacated by the circuit court due to prejudicial
and extraneous information in the jury room.4 The State amended
the charges from the 2007 case, and in March 2009, Spaeth pled
no contest to four counts of child enticement contrary to Wis.
Stat. § 948.07(1) ("the 2009 convictions").
3
The Honorable Thomas J. Gritton presided.
4
In June 2008, prior to the circuit court's October 2008
vacatur of the 2007 jury convictions, Spaeth was discharged from
his sentence for the 1993 conviction. However, Spaeth remained
in custody as a result of the April 2006 charges.
3
No. 2012AP2170
¶6 On November 2, 2010, the State filed a petition to
commit Spaeth as a sexually violent person pursuant to Wis.
Stat. § 980.02. The petition alleged, in pertinent part:
The Respondent, Joseph J. Spaeth, has been convicted
of a sexually violent offense(s). Specifically, on or
about July 3, 2007, in Winnebago County Circuit Court
File No. 06CF350, the Respondent was convicted of four
(4) counts of Child Enticement-Sexual Contact in
violation of Wisconsin Statute Section 948.07(1).
Although the petition refers to convictions occurring on July 3,
2007, this appears to be an error, as Spaeth was convicted of
the charges recited in the petition——four counts of child
enticement——in March 2009. As discussed above, the July 3, 2007
convictions were for four counts of sexual assault of a child,
and these convictions were vacated by the circuit court on
October 20, 2008. We assume for the purposes of this opinion
that the State refers to the 2009 convictions in its petition.
¶7 At the time the State's petition was filed, Spaeth was
scheduled for release from detention on the 2009 convictions on
November 9, 2010. In response to the State's petition, however,
Spaeth was transferred to a Department of Health and Family
Services facility.
¶8 In July 2012, this court reversed Spaeth's March 2009
convictions, holding that they were derived from compelled
testimony.5 The State dismissed the charges against Spaeth the
following month. Subsequently, the State informed the circuit
5
State v. Spaeth, 2012 WI 95, ¶79, 343 Wis. 2d 220, 819
N.W.2d 769.
4
No. 2012AP2170
court that it intended to proceed with Spaeth's Chapter 980
commitment, and the State sought to amend the Chapter 980
petition to include Spaeth's 1993 conviction.6 Spaeth opposed
this amendment and argued that the Chapter 980 petition must be
dismissed.
¶9 In September 2012, the circuit court denied the
State's proposed amendment and dismissed the petition. The
circuit court reasoned that, while there was "a legitimate basis
for the State to bring this action" at the time the petition was
filed, once the March 2009 convictions were reversed and the
charges dismissed, the State could no longer rely on those
convictions as a predicate offense to support its petition. In
addition, the circuit court concluded that amending the petition
to include the 1993 conviction would not correct the deficiency,
because Spaeth was not in custody for that offense at the time
the petition was filed as required under Wis. Stat.
§ 980.02(1m).
¶10 The State appealed the circuit court's ruling, and the
court of appeals certified the appeal to this court.
II. STANDARD OF REVIEW
¶11 Under Wis. Const. art. VII, § 3(3), by accepting a
certified appeal, this court acquires jurisdiction of the entire
6
The record is unclear regarding whether the State intended
to replace the 2009 convictions with the 1993 conviction as the
predicate offense, or to simply include the 1993 conviction as
an additional predicate offense. However, in light of our
holding, the distinction is irrelevant.
5
No. 2012AP2170
appeal, not merely the questions certified. State v. Henley,
2010 WI 97, ¶28, 328 Wis. 2d 544, 787 N.W.2d 350.
¶12 This case requires us to interpret Chapter 980, which
governs the civil commitment of sexually violent persons.
Statutory interpretation is a question of law that this court
reviews de novo. Crown Castle USA, Inc. v. Orion Constr. Grp.,
LLC, 2012 WI 29, ¶12, 339 Wis. 2d 252, 811 N.W.2d 332. While we
interpret statutes independently, we benefit from the analyses
of lower courts. Id.
III. DISCUSSION
¶13 The question before us is whether a Chapter 980
petition that was sufficient at the time it was filed is
invalidated when the conviction recited in the petition is later
reversed. The State argues that the validity of the petition
should be assessed at the time of filing. Later reversal of the
conviction recited in the petition is irrelevant, according to
the State, because pursuant to this court's decision in State v.
Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), and the court
of appeals' decision in State v. Virlee, 2003 WI App 4, 259
Wis. 2d 718, 657 N.W.2d 106, a court should consider only the
facts that existed when the petition was filed. The State
maintains that its petition satisfied the statutory requirements
of Wis. Stat. § 980.02(1m)-(2) because Spaeth was in custody for
a sexually violent offense at the time the petition was filed.
Therefore, the State contends that the circuit court improperly
examined the petition based on the facts at the time the State
moved to amend, rather than at the time the petition was filed.
6
No. 2012AP2170
¶14 Spaeth argues the circuit court properly considered
the fact that his 2009 convictions were vacated, because if the
predicate offense recited in the petition is no longer valid,
there is no basis for Spaeth's commitment.
¶15 We conclude that the State's petition satisfies the
requirements of Wis. Stat. § 980.02 and was not invalidated by
the reversal of Spaeth's 2009 convictions. We begin in Part A
by reviewing the statutory requirements for Chapter 980
commitment. In Part B, we address whether the circuit court
properly dismissed the State's Chapter 980 petition. We
conclude that if a Chapter 980 petition satisfies the statutory
requirements in Wis. Stat. § 980.02 at the time it is filed, it
will not be invalidated if the conviction recited in the
petition is later reversed. Consequently, we determine that the
State's petition should not have been dismissed.7
A. Requirements for Chapter 980 Commitment
¶16 Chapter 980 provides the State with a mechanism to
commit, for the purpose of treatment, individuals found to be
"sexually violent person[s]" to the custody of the Department of
Health and Family Services. Wis. Stat. § 980.06. The State
7
In holding that the State's petition meets the statutory
requirements in Wis. Stat. § 980.02, we merely determine that
the State's petition is sufficient to proceed to the next step
in the Chapter 980 commitment process. The State still bears
the burden of establishing "probable cause to believe that the
person named in the petition is a sexually violent person" at a
probable cause hearing, Wis. Stat. § 980.04(3), and if it does
so, the State must prove these allegations "beyond a reasonable
doubt" at trial. Wis. Stat. § 980.05(3)(a).
7
No. 2012AP2170
must seek this commitment by filing a petition pursuant to the
requirements of Wis. Stat. § 980.02. Among other things, Wis.
Stat. § 980.02 explains that a valid Chapter 980 petition must
"be filed before the person is released or discharged."8 Wis.
Stat. § 980.02(1m). In addition, Wis. Stat. § 980.02(2)(a)
directs that a Chapter 980 petition must allege one of the
following criteria:
1. The person has been convicted of a sexually
violent offense.
2. The person has been found delinquent for a
sexually violent offense.
3. The person has been found not guilty of a
sexually violent offense by reason of mental disease
or defect.
The petition must also "state with particularity essential facts
to establish probable cause to believe the person is a sexually
violent person." Wis. Stat. § 980.02(3).
8
The dissent notes that in Gilbert, we explained that in
addition to alleging a sexually violent offense in the petition,
the petition must be "'filed before the person is released or
discharged' from the sentence for that sexually violent
offense." Gilbert, 2012 WI 72, ¶51 (citing Wis. Stat.
§ 980.02(1m)); dissent, ¶57. We do not dispute that "the
sexually violent offense that is a basis for the petition under
§ 980.02 must be the same offense for which the person is
confined at the time of the petition's filing." Dissent, ¶57.
However, the confinement requirement does not extend to the
probable cause hearing under Wis. Stat. § 980.04 or trial under
Wis. Stat. § 980.05. As discussed below, nothing in Chapter 980
provides that the State may produce evidence at the probable
cause hearing and trial only if that evidence was first recited
in the petition. Thus, the State may introduce additional
evidence at these proceedings not connected to the individual's
confinement at the time the petition was filed.
8
No. 2012AP2170
¶17 Once a Chapter 980 petition is filed, the circuit
court "shall hold a hearing to determine whether there is
probable cause to believe that the person named in the petition
is a sexually violent person." Wis. Stat. § 980.04(2a). If
probable cause is found, a trial must commence within 90 days
after the probable cause hearing. Wis. Stat. § 980.05(1). At
trial, the State "has the burden of proving beyond a reasonable
doubt that the person who is the subject of the petition is a
sexually violent person." Wis. Stat. § 980.05(3)(a). "If a
court or jury determines that [the individual] is a sexually
violent person" under the statutory definition, then the court
must order commitment pursuant to Wis. Stat. § 980.06.
¶18 We now turn to the sufficiency of the State's Chapter
980 petition and examine whether the petition was invalidated by
this court's reversal of Spaeth's 2009 convictions.9
B. The State's Chapter 980 Petition
¶19 In its petition, the State explained Spaeth had been
convicted of a sexually violent offense, and he was in custody
for that offense at the time the petition was filed. The
circuit court nevertheless dismissed the State's Chapter 980
petition because the 2009 convictions were later reversed and
the case dismissed.
¶20 We conclude that the circuit court erred in dismissing
the Chapter 980 petition based on the fact that the underlying
9
As discussed supra ¶6, we assume the convictions recited
in the petition are Spaeth's 2009 convictions.
9
No. 2012AP2170
predicate offense was later vacated. To determine whether a
Chapter 980 petition meets the statutory requirements in Wis.
Stat. § 980.02, a court should consider the sufficiency of the
allegations in the petition at the time the petition was filed.
Subsequent facts that impact the status of the allegations in
the petition may be relevant at trial under Wis. Stat. § 980.05,
but they will not invalidate a petition that met the
requirements of Wis. Stat. § 980.02 at the time of filing. In
reaching this conclusion, we examine the statute's plain
language, relevant precedent, and finally, Chapter 980's
underlying purpose.
1. Petitions Filed Under Wis. Stat. § 980.02
¶21 We begin our analysis by examining the statutory
requirements to file a Chapter 980 petition in Wis. Stat.
§ 980.02. Statutory interpretation "begins with the language of
the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry." State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236
Wis. 2d 211, 612 N.W.2d 659). In addition to the plain language
of the statute, "scope, context, and purpose are perfectly
relevant to a plain-meaning interpretation of an unambiguous
statute . . . ." Id. at ¶48.
¶22 Wisconsin Stat. § 980.02(1m) provides that a Chapter
980 petition must "be filed before the person is released or
discharged." (Emphasis added). To assess whether the custody
requirement in Wis. Stat. § 980.02(1m) is satisfied, a court
10
No. 2012AP2170
must simply ask whether the petition was filed while the person
was still in custody for the predicate offense. Nothing in
Chapter 980 suggests that a subsequent change in circumstances
must render the petition invalid.10 Likewise, Wis. Stat.
§ 980.02(2) provides that "[a] petition filed under this section
shall allege" a predicate offense. The provision does not state
that later reversal of the conviction for the predicate offense
will invalidate the petition, and we will not read requirements
into a statute that do not exist. If the statutory requirements
are met, the State may proceed to a probable cause hearing,
10
On the contrary, various provisions in Chapter 980
demonstrate that a subsequent reversal of the conviction recited
in a petition does not automatically invalidate the petition.
For instance, Wis. Stat. § 980.101 addresses the scenario where
an individual has been committed under Chapter 980 and the
conviction for the predicate offense recited in the petition is
later reversed. The statute explains that if "there are other
judgments relating to a sexually violent offense committed by
the person that have not been reversed, set aside, or vacated"
and that were not recited in the State's initial petition for
commitment, "the court shall determine whether to grant the
person a new trial . . . ." Wis. Stat. § 980.101(2)(b).
Although this provision does not apply here because Spaeth has
not been committed at trial, it demonstrates that reversal of a
conviction for a predicate offense will not conclusively
terminate the State's petition. See State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633,
681 N.W.2d 110 ("statutory language is interpreted . . . not in
isolation but as part of a whole . . . ."). Moreover,
§ 980.101(2)(b) informs us this is especially true in cases such
as Spaeth's, where the State can point to an additional
conviction for a sexually violent offense to support commitment.
Other provisions in Chapter 980 permit commitment of an
individual who has never been convicted of a sexually violent
offense at all. See Wis. Stat. §§ 980.01(7), .02(2)(a)(3)
(allowing Chapter 980 commitment for individuals found not
guilty due to insanity, illness, or mental disease or defect).
11
No. 2012AP2170
where it must establish "probable cause to believe that the
person named in the petition is a sexually violent person."
Wis. Stat. § 980.04(2)(a).
¶23 The dissent alleges that the petition is invalid
because a vacated conviction cannot "support probable cause to
believe the person is a sexually violent person" as required
under Wis. Stat. § 980.02(3). Dissent, ¶58. We disagree. The
relevant inquiry is whether, at the time of filing, the facts
recited in the petition satisfied the statutory requirements in
Wis. Stat. § 980.02. Here, the petition relied on a conviction
for a sexually violent offense that was vacated nearly two years
after the petition was filed. Thus, at the time of filing, the
petition recited sufficient facts to satisfy the probable cause
standard in Wis. Stat. § 980.02(3).
¶24 We further note that the requirements in Wis. Stat.
§ 980.02 pertain to the petition only. In asking whether a
petition satisfies this statutory provision, we do not look
ahead to the standard for a probable cause hearing under Wis.
Stat. § 980.04 or a trial under Wis. Stat. § 980.05, which will
necessarily contain testimony and other evidence that may differ
from the bare bones allegations in the State's petition. If the
strength of the State's case has changed because the conviction
in the petition was reversed, that becomes a matter to be
considered by the trier of fact, beginning with the probable
cause hearing. Wisconsin Stat. § 980.04(2)(a) unequivocally
states, "[w]henever a petition is filed under s. 980.02, the
court shall hold a hearing to determine whether there is
12
No. 2012AP2170
probable cause to believe that the person named in the petition
is a sexually violent person." (Emphasis added).
¶25 The dissent also asserts that "[t]he offense listed in
the petition is the offense on which the state must defend its
petition and then demonstrate probable cause." Dissent, ¶61.
To address the dissent's position, we will begin by briefly
discussing the statutory history of Chapter 980. In 2006, the
legislature amended the proof requirement in Wis. Stat.
§ 980.05(3)(a). Prior to this amendment, the statute provided:
"At a trial on a petition under this chapter, the petitioner has
the burden of proving the allegations in the petition beyond a
reasonable doubt." Wis. Stat. § 980.05(3)(a) (2003-04).
However, subsequent to the 2006 amendment, the State is now
required to prove only "that the person who is the subject of
the petition is a sexually violent person." Wis. Stat.
§ 980.05(3)(a). The State is thus no longer limited to the
facts in its petition in order to establish a case for
commitment at trial.
¶26 While the amendment of Wis. Stat. § 980.05(3)(a)
pertained only to Chapter 980 trials, no parallel requirement
ever existed for a probable cause hearing under Wis. Stat.
§ 980.04 that would preclude the State from introducing evidence
not recited in the petition. Thus, the State is not foreclosed
from producing additional evidence at either the probable cause
hearing or at trial, or both, to support its petition.
¶27 The dissent can point to no provision in Chapter 980
that confines the State to its allegations in the petition
13
No. 2012AP2170
during later proceedings. Indeed, such a restriction would
unnecessarily inhibit the State by prohibiting the introduction
of evidence that may emerge after the State's petition has been
filed, such as additional sexually violent conduct. Our role is
to interpret statutes as they are written. If the legislature
wishes to amend the statute, it may do so, but unlike the
dissent, we will not base our interpretation of unambiguous
statutory language on what the legislature "suggest[ed]"11 or
"impl[ied]."12 We are charged simply with determining whether
the State's petition met the statutory requirements in Chapter
13
980, and the answer is plainly, "yes."
2. Application of Wis. Stat. § 980.02 in Prior Cases
¶28 Our statutory interpretation of Chapter 980 is
consistent with precedent concluding that a later change in
circumstances will not invalidate a petition if it was valid at
the time of filing. For instance, in State v. Carpenter, 197
Wis. 2d 252, the Department of Corrections ("DOC") recalculated
the defendant's mandatory release date based on a court of
11
Dissent, ¶¶57, 59.
12
Dissent, ¶56.
13
We note this court has previously held that Spaeth's
statements leading to the 2009 convictions constituted compelled
testimony, the fruits of which are inadmissible at trial.
Spaeth, 343 Wis. 2d 220, ¶¶58, 67. Thus, the State must rely on
other evidence to establish "probable cause to believe that the
person named in the petition is a sexually violent person" at
the probable cause hearing, and, if it is successful in so
doing, to prove its allegations "beyond a reasonable doubt" at
trial. Wis. Stat. §§ 980.04(3), .05(3)(a).
14
No. 2012AP2170
appeals decision that was later reversed by this court. We
examined the facts as they existed "[a]t the time the petition
was initiated" and concluded that the State's Chapter 980
petition was valid even though, as in this case, the defendant's
detention was predicated upon a decision that was later
reversed. Id. at 275. We explained, "[t]he fact that this
court ultimately reversed the court of appeals' decision does
not render the DOC['s detention] 'illegal.'" Id.
¶29 Carpenter was subsequently applied by the court of
appeals in State v. Virlee, 259 Wis. 2d 718. In Virlee, the
defendant was awarded a sentence credit that moved his mandatory
release date to a date prior to when the State filed its Chapter
980 petition. Nevertheless, the court of appeals determined
that the State satisfied the requirements in Wis. Stat. § 980.02
because the petition was valid at the time it was filed. The
court reasoned that "the trial court's subsequent modification
of Virlee's sentence does not change the fact the State filed
the petition within ninety days14 of his actual release from
prison." Id., ¶18. Likewise, our reversal of Spaeth's 2009
convictions——which were the predicate offenses in the State's
Chapter 980 petition——does not somehow immunize Spaeth from a
potential Chapter 980 commitment when he was in custody for a
sexually violent offense at the time the State filed its
petition.
14
Chapter 980 was amended in 2006. Prior to the
amendment, the statute required a petition to be filed when
"[t]he person is within 90 days of discharge or release . . . ."
Wis. Stat. § 980.02(2)(ag) (2003-04).
15
No. 2012AP2170
¶30 As we explained in State v. Gilbert, there are only
two means by which a court may dismiss a Chapter 980 petition:
"1) failure to find probable cause 'to believe that the person
is a sexually violent person' under § 980.04(3), or 2) failure
to prove 'beyond a reasonable doubt that the person is a
sexually violent person' under § 980.05(5)." State v. Gilbert,
2012 WI 72, ¶29, 342 Wis. 2d 82, 816 N.W.2d 215. Later reversal
of the conviction for the predicate offense recited in the
petition, without more, is simply not an appropriate ground for
dismissal of the petition.15
3. The Purpose of Chapter 980
¶31 We may also look to a statute's purpose in examining
its plain meaning. Kalal, 271 Wis. 2d 633, ¶48 (A statute's
"purpose [is] perfectly relevant to a plain-meaning
interpretation of an unambiguous statute . . . ."). The primary
goals of Chapter 980 are "1) the treatment of sexually violent
persons, and 2) the protection of society from those persons."
Gilbert, 342 Wis. 2d 82, ¶23. Our reasoning is consistent with,
and supports, the purpose of Chapter 980.
¶32 The State is required to file its Chapter 980 petition
"before the person is released or discharged." Wis. Stat.
§ 980.02(1m). The State is aided in satisfying this requirement
by Wis. Stat. § 980.015, which requires the agency with custody
over a sexually violent offender to notify the State within 90
15
This is in part because, under Wis. Stat. § 980.04(2)(a),
a probable cause hearing must be held "[w]henever a petition is
filed . . . ."
16
No. 2012AP2170
days of the prisoner's impending discharge or release. Wis.
Stat. § 980.015(2)(a). The practical effect of this provision
is the State will generally have a 90-day window in which to
file its Chapter 980 petition and pursue commitment of an
individual that it believes is sexually violent. It is
therefore essential for the State to be able to rely on the
facts as they exist at the time the petition is filed.
¶33 As illustrated by Carpenter and Virlee, any number of
conceivable circumstances may arise after a Chapter 980 petition
has been filed that relate to its underlying allegations. Under
Spaeth's reasoning, if such circumstances arise after the
individual has been released from custody, the State would be
unable to pursue commitment of the individual even though it
complied with all the statutory requirements in Chapter 980. In
other words, if a later change in circumstances could invalidate
a petition that was otherwise valid at the time of filing, the
State would be at risk of losing its ability to commit a
sexually violent person through no fault of its own, and even
though the State met all the statutory requirements to proceed
to commitment. Such an outcome would be contrary to the primary
purpose of Chapter 980, which is "to treat sexually violent
persons and to protect society from the dangers posed by those
persons." State v. West, 2011 WI 83, ¶27, 336 Wis. 2d 578, 800
N.W.2d 929; see also Kalal, 271 Wis. 2d 633, ¶46 (We must
interpret statutes "reasonably, to avoid absurd or unreasonable
results").
4. Application
17
No. 2012AP2170
¶34 Applying our reasoning to the facts of this case, we
conclude that the State's petition met the statutory
requirements at the time it was filed and should not have been
dismissed.16 First, the petition was filed before Spaeth was
"released or discharged" pursuant to Wis. Stat. § 980.02(1m).
In addition, Spaeth was "convicted of a sexually violent
offense"——the 2009 convictions——pursuant to Wis. Stat.
§ 980.02(2)(a)(1). The State filed a valid petition based on
the facts as they existed at the time. The fact that Spaeth's
conviction was later overturned unquestionably impacts the
strength of the State's case for his commitment, but this does
not negate the validity of the State's petition at the time of
filing.
IV. CONCLUSION
¶35 We hold that the sufficiency of a Chapter 980 petition
should be assessed as of the time of filing. At the time the
State's petition was filed, the statutory requirements in Wis.
Stat. § 980.02 were satisfied. We therefore hold that the
Chapter 980 petition to commit Spaeth should not have been
dismissed. Accordingly, we reverse the circuit court's order to
16
The State makes the alternative argument that, even if
the petition was insufficient because the 2009 convictions were
reversed, the circuit court nevertheless erred in denying its
motion to amend the petition and include the 1993 conviction.
Because we conclude that the State's petition met the statutory
requirements and should not have been dismissed, we need not
address whether the State should have been granted leave to
amend.
18
No. 2012AP2170
dismiss the petition, and we remand for further proceedings
consistent with this opinion.
By the Court.—The order of the circuit court is reversed,
and the cause is remanded.
19
No. 2012AP2170.dtp
¶36 DAVID T. PROSSER, J. (dissenting). The question
presented in this case is whether a petition filed pursuant to
Wis. Stat. § 980.02 (Chapter 980 petition) for the civil
commitment of a sexually violent person must be dismissed when
the conviction for the predicate offense has been reversed and
the charges dismissed. The majority concludes that when
assessing a Chapter 980 petition, a reviewing court may focus on
the sufficiency of the petition solely at the time it was filed,
Majority op., ¶35, enabling the State to prove a different
sexually violent offense at the probable cause hearing and at
trial, even if the different sexually violent offense could not
have been listed in the original petition. Because I strongly
disagree with this conclusion and believe that a petition must
remain viable in its original form or be amended to make it
viable, I respectfully dissent.
FACTUAL AND PROCEDURAL BACKGROUND
¶37 Joseph J. Spaeth (Spaeth) was charged with first-
degree sexual assault of a child1 in 1992 and convicted of the
offense in 1993 (1993 conviction). Twice, on January 9, 2003,
and again on July 12, 2004, a Department of Corrections (DOC)
evaluator determined that Spaeth did not meet the criteria for
commitment under Wis. Stat. ch. 980; thus, on August 8, 2004,
DOC released Spaeth on parole.
¶38 Eighteen months later, on February 15, 2006, Spaeth
was directed to meet with his parole agent to participate in a
compulsory polygraph examination. During the examination
1
Wis. Stat. § 948.02(1) (1991-92).
1
No. 2012AP2170.dtp
process, he admitted to his agent that he "may have brushed up
against his nieces and nephews [sic] vaginas or butts or breast
area." State v. Spaeth, 2012 WI 95, ¶11, 343 Wis. 2d 220, 819
N.W.2d 769. Inasmuch as Spaeth was prohibited from having
unsupervised contact with minors and engaging in physical
contact with minors, the agent immediately commenced parole
revocation proceedings by asking Oshkosh police to take Spaeth
into custody. Id., ¶¶9-11.
¶39 On May 8, 2006, the Wisconsin Division of Hearings and
Appeals revoked Spaeth's parole for the 1993 conviction. He was
eventually discharged from the 1993 conviction in June 2008.
¶40 It should be noted that the State could have filed a
Chapter 980 petition against Spaeth before he was discharged in
2008. But the State had different plans.
¶41 When Oshkosh police took Spaeth into custody on the
parole revocation hold, they questioned him to provide grounds
for new criminal charges. After receiving a Miranda2 warning,
Spaeth admitted to an Oshkosh detective that on February 11,
2006, he started tickling his niece at his brother's house, and
"his hand brushed up against her vagina, buttocks, and chest."
He indicated that a similar incident took place on February 14,
2006, with three of his nieces.
¶42 On April 25, 2006, the State filed a complaint
charging Spaeth with four counts of sexual assault of a child
under 13 years of age as a persistent repeater contrary to Wis.
Stat. §§ 948.02(1), 939.50(3)(b), 939.62(2m)(b)2. On July 3,
2
Miranda v. Arizona, 384 U.S. 436 (1966).
2
No. 2012AP2170.dtp
2007, a jury found Spaeth guilty on all four counts, and a
judgment of conviction was filed on July 5, 2007 (2007
convictions).
¶43 On October 20, 2008, the circuit court vacated
Spaeth's 2007 convictions because it discovered that the jury
had been exposed to prejudicial information regarding Spaeth's
status as a convicted sex offender. See Spaeth, 343
Wis. 2d 220, ¶24.
¶44 On March 13, 2009, Spaeth pled no contest to four
counts of child enticement contrary to Wis. Stat. § 948.07(1)
(2005-06). The court entered a judgment of conviction on those
four counts on May 8, 2009 (2009 convictions). The court
sentenced Spaeth to five years of initial confinement and ten
years of extended supervision for each count, to run
concurrently with all other counts. Because of the length of
his custody before these convictions, Spaeth was eligible for
1254 days of sentence credit.
¶45 On October 22, 2010, a DOC evaluator created a report
diagnosing Spaeth with paraphilia not otherwise specified3——a
condition that the evaluator believed qualified as a mental
disorder under Wis. Stat. ch. 980. Thereafter, on November 2,
3
The evaluator stated, "The essential features of a
Paraphilia are recurrent, intense sexually arousing fantasies,
sexual urges, or behaviors generally involving 1) nonhuman
objects, 2) the suffering or humiliation of oneself or one's
partner, or 3) children or other nonconsenting persons, that
occur over a period of at least 6 months." The "not otherwise
specified" designation means that the person's presentation is
consistent with the general guidelines for a mental disorder but
that there are atypical or mixed symptoms.
3
No. 2012AP2170.dtp
2010, the State filed a Chapter 980 petition to commit Spaeth as
a "sexually violent person." The petition alleged the 2009
convictions as the "predicate offense"4 and noted that Spaeth was
set to be released from the sentence imposed for these
convictions on or about November 9, 2010. In response to the
Chapter 980 petition, the circuit court issued an order
transferring Spaeth from DOC to a facility approved by the
Department of Health and Family Services (DHFS).
¶46 Spaeth had appealed his 2009 convictions. On July 13,
2012, this court reversed these convictions on grounds that they
were derived from compelled testimony to his parole agent and
therefore could not be used against Spaeth in a later criminal
trial. Spaeth, 343 Wis. 2d 220, ¶79. When the case was
remanded to Winnebago County, the district attorney dismissed
the charges. The reversal and the dismissal wholly vacated the
2009 convictions.
¶47 Despite the reversal of the predicate offense and the
dismissal of those charges, the State filed a letter with the
circuit court on August 15, 2012, asserting that the State
intended to proceed with the Chapter 980 petition. In the
letter, the State said that it would rely on the 1993 conviction
to prove that Spaeth is a sexually violent person.
4
For the predicate offense, the petition alleged that "on
or about July 3, 2007, in Winnebago County Circuit Court File
No. 06CF350, the Respondent was convicted of four (4) counts of
Child Enticement-Sexual Contact in violation of Wisconsin
Statute Section 948.07(1)." Spaeth was actually convicted of
the four counts of child enticement in 2009.
4
No. 2012AP2170.dtp
¶48 On August 16, 2012, Spaeth responded to the State in a
letter that was treated as a motion to dismiss. Spaeth argued
that the 2009 convictions were the only offenses listed in the
Chapter 980 petition, and they could not form the basis for
commitment because those convictions were reversed. In
addition, Spaeth contended that since he had been discharged
from the sentence for the 1993 conviction, that conviction could
not be the predicate offense, as he was not in prison for that
offense when the Chapter 980 petition was filed.
¶49 The circuit court granted Spaeth's motion to dismiss
in a written order on September 7, 2012. The court agreed with
Spaeth that the dismissed 2009 convictions could not be the
predicate offense for the Chapter 980 petition, and the State
could not amend the petition to use the 1993 case as the
predicate offense because Spaeth was not in custody for that
offense when the petition was filed.5 The court stayed its order
pending appeal. Thus, during this entire appeal, Spaeth has
remained at Sand Ridge Secure Treatment Center under the
supervision of DHFS.
INTERPRETATION OF CHAPTER 980
¶50 This case requires an interpretation of Wis. Stat. ch.
980. "[S]tatutory interpretation 'begins with the language of
the statute.'" State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(citations omitted). We interpret statutory language in context
5
See supra, paragraph 40.
5
No. 2012AP2170.dtp
and "to avoid absurd or unreasonable results." Id., ¶46
(citations omitted).
¶51 Chapter 980 allows the state to petition for the civil
commitment of sexually violent persons. See generally Wis.
Stat. ch. 980; see also State v. Carpenter, 197 Wis. 2d 252,
259, 541 N.W.2d 105 (1995). The term "sexually violent person"
is defined in the chapter as follows:
"Sexually violent person" means a person who has
been convicted of a sexually violent offense, has been
adjudicated delinquent for a sexually violent offense,
or has been found not guilty of or not responsible for
a sexually violent offense by reason of insanity or
mental disease, defect, or illness, and who is
dangerous because he or she suffers from a mental
disorder that makes it likely that the person will
engage in one or more acts of sexual violence.
Wis. Stat. § 980.01(7).
¶52 As noted, the commitment process begins with the
filing of a petition, under Wis. Stat. § 980.02. Section
980.02(2) reads in 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.[6]
. . . .
(b) The person has a mental disorder.
6
"Sexually violent offense" is defined in Wis. Stat.
§ 980.01(6), which lists qualifying offenses.
6
No. 2012AP2170.dtp
(c) The person is dangerous to others
because the person's mental disorder makes it likely
that he or she will engage in acts of sexual violence.
Notably, the elements that must be listed in the petition are
the same elements needed to prove that someone is a "sexually
violent person." Compare Wis. Stat. § 980.02(2)(a)-(c), with
Wis. Stat. § 980.01(7).
¶53 Subsection (3) of § 980.02 then reads:
A petition filed under this section shall state
with particularity essential facts to establish
probable cause to believe the person is a sexually
violent person. If the petition alleges that a
sexually violent offense or act that is a basis for
the allegation under sub. (2)(a) was an act that was
sexually motivated as provided under s. 980.01(6)(b),
the petition shall state the grounds on which the
offense or act is alleged to be sexually motivated.
¶54 Neither of these subsections——(2) or (3)——contains any
temporal condition. But subsection (1m) does: "A petition filed
under this section shall be filed before the person is released
or discharged." Wis. Stat. § 980.02(1m).
¶55 Subsection (1m) is linked to Wis. Stat. § 980.015(2),
which reads in part:
(2) If an agency with jurisdiction has control
or custody over a person who may meet the criteria for
commitment as a sexually violent person, the agency
with jurisdiction shall inform each appropriate
district attorney and the department of justice
regarding the person as soon as possible beginning 90
days prior to the applicable date of the following:
(a) The anticipated discharge or release,
on parole, extended supervision, or otherwise, from a
sentence of imprisonment or term of confinement in
prison that was imposed for a conviction for a
sexually violent offense . . . .
7
No. 2012AP2170.dtp
¶56 The provisions quoted above imply that Wis. Stat. ch.
980 follows a linear progression from notice that the person
will be released from custody for conviction of a sexually
violent offense to the filing of a petition to commit the person
as a sexually violent person. The petition must identify the
sexually violent offense, stating "with particularity essential
facts to establish probable cause." Wis. Stat. § 980.02(3).
¶57 Previously, this court interpreted Wis. Stat.
§ 980.02(1m) to mean that the petition must be filed before the
person is released or discharged from the predicate offense
listed in the ch. 980 petition. See State v. Gilbert, 2012 WI
72, ¶51, 342 Wis. 2d 82, 816 N.W.2d 215. In Gilbert, the court
stated that Wis. Stat. § 980.02(1m)-(2) "requires, inter alia,
that the State prove that the person 'has been convicted of a
sexually violent offense,' § 980.02(2)(a)1., and that the ch.
980 petition must be 'filed before the person is released or
discharged' from the sentence for that sexually violent offense,
§ 980.02(1m)." Id., ¶51 (emphasis added). The statutory
context and the court's statement in Gilbert strongly suggest
that the sexually violent offense that is a basis for the
petition under § 980.02 must be the same offense for which the
person is confined at the time of the petition's filing.
Moreover, to establish that the subject of the petition is a
"sexually violent person," the state must show that the person
has been convicted of the offense listed in the petition. Id.
¶58 As noted above, a Chapter 980 petition must allege
that all of the following apply:
8
No. 2012AP2170.dtp
(a) The person satisfies any of the following
criteria:
1. The person has been convicted of a
sexually violent offense.
. . . .
(b) The person has a mental disorder.
(c) The person is dangerous to others because
the person's mental disorder makes it likely that he
or she will engage in acts of sexual violence.
Wis. Stat. § 980.02(2). Admittedly, § 980.02(2)(a)1. appears to
require only an allegation that "[t]he person has been convicted
of a sexually violent offense." Id. (emphasis added). However,
the statute goes on to require that the "petition . . . shall
state with particularity essential facts to establish probable
cause to believe the person is a sexually violent person." Wis.
Stat. § 980.02(3). Thus, the statute connects the allegation of
the sexually violent offense in the petition to the probable
cause determination at the hearing. Consequently, the
allegations in the petition must support probable cause to
believe the person is a sexually violent person. If the
predicate offense listed in the petition is not a valid
conviction, the petition is insufficient under Wis. Stat.
§ 980.02(3).
¶59 After the Chapter 980 petition is filed, "the court
shall review the petition to determine whether to issue an order
for detention of the person who is the subject of the petition."
Wis. Stat. § 980.04(1) (emphasis added). Thus, the court's
determination regarding detention is tied to the predicate
offense listed in the petition. The court must also "determine
9
No. 2012AP2170.dtp
whether there is probable cause to believe that the person named
in the petition is a sexually violent person." Wis. Stat.
§ 980.04(2)(a). The requirement in Wis. Stat. § 980.02(3) that
the petition allege facts to establish probable cause suggests
that the probable cause determination must be based on the
allegations in the petition. It is unlikely that the court
would approve going to a probable cause hearing on one offense
and then make a probable cause finding on a completely different
offense.
¶60 Finally, at trial, "the petitioner has the burden of
proving beyond a reasonable doubt that the person who is the
subject of the petition is a sexually violent person." Wis.
Stat. § 980.05(3)(a). If the fact finder determines that the
person is a sexually violent person, "the court shall enter a
judgment on that finding and shall commit the person as provided
under s. 980.06." Wis. Stat. § 980.05(5).
¶61 Looking at the statute as a whole, it is evident that
Chapter 980 centers around the sexually violent offense for
which a person is confined at the time a Chapter 980 petition is
filed. The agency with custody of the person must give notice
to the department of justice and the district attorney that the
person is about to be discharged or released from that sexually
violent offense. Wis. Stat. § 980.015(2). The statute
contemplates the state using that offense as the predicate
offense. The offense listed in the petition is the offense on
which the state must defend its petition and then demonstrate
probable cause.
10
No. 2012AP2170.dtp
¶62 The majority asserts that this reading of the statute
is mistaken——that the petition is separate from the probable
cause hearing and the trial and that the predicate offense in
the petition may be completely abandoned at the probable cause
hearing and the trial.
THE PETITION TO COMMIT SPAETH
¶63 The State's petition to commit Spaeth was valid at the
time it was filed in November 2010 because, at that time, Spaeth
had been convicted of a sexually violent offense (the 2009
convictions) and he was in confinement for that sexually violent
offense.
¶64 The problem is that the listed predicate offense in
the petition has been reversed and dismissed. It was reversed
and dismissed before the circuit court made any finding of
probable cause, and, of course, Spaeth's case never went to
trial. Thus, however valid the petition was when it was filed,
it will not be valid in a future probable cause hearing. The
State cannot meet its burden by showing that Spaeth was
convicted of a sexually violent offense that has been vacated.
¶65 Consequently, the State appears to have only two
options in this case. The State can amend the petition in a
manner that complies with the requirements of the statute, or it
can persuade a court to interpret the statute so that there need
be no connection between the sexually violent offense named in
the petition and the sexually violent offense established at
some later hearing. In short, either the petition must be
amended so that the State can prove its essential elements, or
11
No. 2012AP2170.dtp
the petition must be severed from future proceedings so that the
State may prove a different offense.
¶66 The majority has chosen the second option. In my
view, only the first option is permitted. If the State is
unable to amend the petition, the petition is deficient and must
be dismissed.
¶67 The reason the State's options are limited is obvious.
The State cannot proceed on a petition that relies on a vacated
sexually violent offense. It is inconceivable that the State
would ask a court to find probable cause that a person has been
convicted of a sexually violent offense that has been reversed
and dismissed. If this were possible, the State could proceed
on an offense that was reversed after the person was exonerated
on the basis of DNA evidence or reversed because of other
indicia of actual innocence.
¶68 There are certainly situations in which an overturned
conviction for a predicate offense may be retried. In such a
case, a Chapter 980 petition may be filed during the person's
confinement if the person is again convicted of a sexually
violent offense. That was not possible in this case because the
State had virtually no evidence with which to retry Spaeth, and
thus it dismissed the charges against him.
¶69 Hence, it is necessary to examine the other options.
AMENDMENT
¶70 The State should be able to amend its petition so long
as it is able to comply with the terms of the statute. This
means that the State should be able to substitute a different
12
No. 2012AP2170.dtp
sexually violent offense for the one in the petition so long as
the person named in the petition was being "confined" for the
substituted offense at the time the petition was filed.
¶71 The confinement prerequisite is set out in Wis. Stat.
§ 980.015(2):
(2) If an agency with jurisdiction has control
or custody over a person who may meet the criteria for
commitment as a sexually violent person, the agency
with jurisdiction shall inform each appropriate
district attorney and the department of justice
regarding the person as soon as possible beginning 90
days prior to the applicable date of the following:
(a) The anticipated discharge or release,
on parole, extended supervision, or otherwise, from a
sentence of imprisonment or term of confinement in
prison that was imposed for a conviction for a
sexually violent offense, from a continuous term of
incarceration, any part of which was imposed for a
sexually violent offense, or from a placement in a
Type 1 prison under s. 301.048(3)(a)1., any part of
which was required as a result of a conviction for a
sexually violent offense.
(b) The anticipated release from a juvenile
correctional facility, as defined in s. 938.02(10p),
or a secured residential care center for children and
youth, as defined in s. 938.02(15g), if the person was
placed in the facility as a result of being
adjudicated delinquent under s. 48.34, 1993 stats., or
under s. 938.183 or 938.34 on the basis of a sexually
violent offense.
(c) The anticipated release of a person on
conditional release under s. 971.17, the anticipated
termination of a commitment order under 971.17, or the
anticipated discharge of a person from a commitment
order under s. 971.17, if the person has been found
not guilty of a sexually violent offense by reason of
mental disease or defect.
(d) The anticipated release on parole or
discharge of a person committed under ch. 975 for a
sexually violent offense.
13
No. 2012AP2170.dtp
Wis. Stat. § 980.015(2).7
¶72 Paragraphs (a), (b), (c), and (d) all deal with
persons about to be released from confinement for a sexually
violent offense. Each person is confined for a sexually violent
offense or for a sexually violent offense combined with one or
more other offenses. Paragraph (a) speaks of a person who is
about to be discharged or released "from a continuous term of
incarceration, any part of which was imposed for a sexually
violent offense." Wis. Stat. § 980.015(2)(a) (emphasis added).
This language contemplates confinement for more than one
sexually violent offense or confinement for a sexually violent
offense and some other offense.
¶73 There is a reason why a person's confinement for a
sexually violent offense at the time a Chapter 980 petition is
filed is essential to the statutory scheme. Chapter 980
commitment is a major departure from normal procedure.
Normally, when a defendant completes the period of confinement
required by his sentence, he is discharged or released into the
community. Release under supervision is part of a standard
bifurcated sentence. Outright discharge usually means that a
person has "paid his debt to society" and is no longer under
supervision.
¶74 Chapter 980 was designed to deal with the relatively
small number of persons who are considered so dangerous that
they must remain in confinement. The State asserts that these
7
Wisconsin Stat. § 980.015(2) was expanded substantially in
2006 by 2005 Wisconsin Act 434, §§ 75-78.
14
No. 2012AP2170.dtp
persons have a mental disorder that makes it likely that they
will engage in additional acts of sexual violence. The State is
required to prove to a neutral fact finder that the subject of
the petition is a sexually violent person beyond a reasonable
doubt. Wis. Stat. § 980.05(3)(a).
¶75 If the State has already released a person from
confinement, it cannot easily contend that the person must still
be confined. The State's argument would be inconsistent with
its action. If a person has been released from state
confinement, future state action must be grounded in what the
person does in the community, not on predictions of what the
person is likely to do. The prerequisite of confinement for a
sexually violent offense also assures that people are not
subject to commitment many years after they have been released
from confinement in connection with a sexually violent offense.
¶76 In sum, Wis. Stat. § 980.015(2) requires that the
sexually violent offense named in a Chapter 980 petition be a
sexually violent offense on which the person was confined at the
time of filing. The statute sets a standard; it has been
revised to allow some flexibility. The State cannot disregard
this statutory prerequisite because it does not like the result
any more than it can disregard the fact that its authority to
file a petition is fundamentally diminished once it releases a
person from confinement.
¶77 Once again, the State could have filed a Chapter 980
petition while Spaeth was still in confinement for the 1993
conviction. It did not do so. It could have retried Spaeth on
15
No. 2012AP2170.dtp
the 2009 convictions if it had the ability to do so. It didn't.
The State's present predicament was created by the State and
does not justify rewriting the statute.
THE MAJORITY OPINION
¶78 The majority disagrees and adopts the other option.
It does not dismiss the petition or try to justify amending the
petition. It looks backward, concluding that "[a]t the time the
State's petition was filed, the statutory requirements in Wis.
Stat. § 980.02 were satisfied. We therefore hold that the
Chapter 980 petition to commit Spaeth should not have been
dismissed." Majority op., ¶3. The case is remanded to the
circuit court.
¶79 What the majority opinion fails to do is to look
forward and provide clear guidance to the parties and the court.
¶80 The majority reports that "the State informed the
circuit court that it intended to proceed with Spaeth's Chapter
980 commitment, and the State sought to amend the Chapter 980
petition to include Spaeth's 1993 conviction." Id., ¶8
(emphasis added). In a footnote, the majority adds, "The record
is unclear regarding whether the State intended to replace the
2009 convictions with the 1993 conviction as the predicate
offense, or to simply include the 1993 conviction as an
additional predicate offense. However, in light of our holding,
the distinction is irrelevant." Id., ¶8 n.6.
¶81 The majority cannot duck the responsibility of
determining whether the State can rely in any respect on the
16
No. 2012AP2170.dtp
2009 convictions as it goes forward to a probable cause hearing
and a trial. The majority acknowledges:
[T]his court has previously held that Spaeth's
statements leading to the 2009 convictions constituted
compelled testimony, the fruits of which are
inadmissible at trial. Thus, the State must rely on
other evidence to establish "probable cause to believe
that the person named in the petition is a sexually
violent person" at the probable cause hearing, and, if
it is successful in so doing, to prove its allegations
"beyond a reasonable doubt" at trial.
Majority op., ¶27 n.13 (citations omitted). But it also
interprets Wis. Stat. §§ 980.04(3) and 980.05(3)(a), saying that
"the State is not foreclosed from producing additional evidence
at either the probable cause hearing or at trial, or both, to
support its petition." Id., ¶26; see also id., ¶16 n.8 (stating
that "the State may introduce additional evidence at these
proceedings not connected to the individual's confinement at the
time the petition was filed"). The majority has not absolutely
prohibited all use of the 2007 and 2009 "convictions" at the
probable cause hearing or trial.
¶82 The majority should also discuss whether the petition
can be amended or should be amended, so that the subject of the
formerly valid petition has notice of what the State intends to
prove.
¶83 The majority clearly understands that there had been
no probable cause hearing and no trial. Looking forward, the
State must show probable cause that Spaeth "has been convicted
of a sexually violent offense." That offense cannot be the 2009
convictions, which were vacated. The only other conviction is
17
No. 2012AP2170.dtp
the 1993 conviction, but Spaeth was not in confinement for that
conviction when the petition was filed.
¶84 The court must be saying that the State can rely on
the 1993 conviction at his probable cause hearing and at his
trial. This is completely abandoning the language relating to
the probable cause hearing and the rationale of the statute. It
is saying that once the State gets to the probable cause
hearing, it can rely on any sexually violent offense, no matter
what the circumstances, no matter how old the offense. Once the
"conviction of a sexually violent offense" is cut from its
statutory moorings, the State may prove any such offense that
resulted in a conviction. Unless the majority requires some
valid charging document such as an amended petition, the State
has not given notice of the basis for the commitment proceeding
and arguably may abandon any allegations in the formerly valid
petition that it no longer wishes to utilize in its effort to
commit Spaeth.
¶85 The majority attempts to justify this result by citing
irrelevant authority. For instance, the majority references
Wis. Stat. § 980.101(2)(b) to suggest that a reversal of a
conviction for the predicate offense and the dismissal of the
charges do not necessarily invalidate the Chapter 980 petition.
Majority op., ¶22 n.10. Section 980.101(2)(b) reads:
If the sexually violent offense was the sole
basis for the allegation under s. 980.02(2)(a) but
there are other judgments relating to a sexually
violent offense committed by the person that have not
been reversed, set aside, or vacated, or if the
sexually violent offense was not the sole basis for
the allegation under s. 980.02(2)(a), the court shall
18
No. 2012AP2170.dtp
determine whether to grant the person a new trial
under s. 980.05 because the reversal, setting aside,
or vacating of the judgment for the sexually violent
offense would probably change the result of the trial.
Wisconsin Stat. § 980.101(2)(b). comes into play only after the
state has complied with all sections of Wis. Stat. ch. 980 and
obtained a commitment.8 In those circumstances, the vacatur does
8
Wisconsin Stat. § 980.101(2) reads:
(2) If, at any time after a person is committed
under s. 980.06, a judgment relating to a sexually
violent offense committed by the person is reversed,
set aside, or vacated and that sexually violent
offense was a basis for the allegation made in the
petition under s. 980.02(2)(a), the person may bring a
motion for postcommitment relief in the court that
committed the person. The court shall proceed as
follows on the motion for postcommitment relief:
(a) If the sexually violent offense was the
sole basis for the allegation under s. 980.02(2)(a)
and there are no other judgments relating to a
sexually violent offense committed by the person, the
court shall reverse, set aside, or vacate the judgment
under s. 980.05(5) that the person is a sexually
violent person, vacate the commitment order, and
discharge the person from the custody of the
department.
(b) If the sexually violent offense was the
sole basis for the allegation under s. 980.02(2)(a)
but there are other judgments relating to a sexually
violent offense committed by the person that have not
been reversed, set aside, or vacated, or if the
sexually violent offense was not the sole basis for
the allegation under s. 980.02(2)(a), the court shall
determine whether to grant the person a new trial
under s. 980.05 because the reversal, setting aside,
or vacating of the judgment for the sexually violent
offense would probably change the result of the trial.
(Emphasis added.) This statute applies to a person who has
been committed under Wis. Stat. § 980.06. Spaeth has not
been so committed.
19
No. 2012AP2170.dtp
not render the state's ongoing efforts to advance a Chapter 980
petition noncompliant with the statute. Instead, it
acknowledges that the committed person may no longer fit the
definition of a sexually violent person and allows the court to
consider whether a new trial is necessary. Thus, that section
has no bearing here.
¶86 The majority also cites Carpenter and State v. Virlee,
2003 WI App 4, 259 Wis. 2d 718, 657 N.W.2d 106.
¶87 In Carpenter, the defendant was paroled in 1993.
Carpenter, 197 Wis. 2d at 260, 275. After the parole, the DOC
recalculated Carpenter's mandatory release date based on a court
of appeals decision and reincarcerated him. Id. This court
later reversed that court of appeals decision and ordered that
prisoners incarcerated due to that decision be released by July
15, 1994; Carpenter was not released because the state filed a
Chapter 980 petition on July 14, 1994. Id. at 260. Carpenter
argued that his original release date in 1993 was the date that
applied to the 90-day requirement for filing a Chapter 980
petition and that the State filed the petition too late. Id. at
275. This court determined that because DOC recalculated the
parole date, Carpenter was within 90 days of discharge when the
state filed the Chapter 980 petition even though this court
ultimately reversed the court of appeals decision that justified
DOC's recalculation. Id.
¶88 Similarly, in the Virlee case, Virlee was initially set
to be released from imprisonment for a sexually violent offense
on December 24, 1999. Virlee, 259 Wis. 2d 718, ¶3. The state
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filed a Chapter 980 petition on December 20. Id. The circuit
court subsequently granted Virlee's motion for jail credit,
which moved his mandatory release date up to November 14, over a
month before the state filed the Chapter 980 petition. Id.,
¶¶3-5. The court of appeals cited Carpenter and determined that
"the trial court's subsequent modification of Virlee's sentence
does not change the fact the State filed the petition within
ninety days of his actual release from prison." Id., ¶18.
Thus, it did not matter that Virlee had technically completed
his sentence; the state complied with the statute by filing
within 90 days of Virlee's release.
¶89 These cases are persuasive authority that courts may
look at the sufficiency of a Chapter 980 petition at the time it
was filed when the issue involves timing. In both cases, the
state had no way of knowing that the time for filing the Chapter
980 petition was going to change. The petitions were valid when
they were filed and when they were acted on.
¶90 This case is materially different. Action on any
Chapter 980 petition for Spaeth is ahead of us, not behind us.
The State must disregard its predicate offense because its
original offense has been vacated. It must prove its case in
two future hearings. It must prove a case that complies with
the law.
¶91 The majority cites policy to support its position:
"[I]f a later change in circumstances could invalidate a
petition that was otherwise valid at the time of filing, the
State would be at risk of losing its ability to commit a
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sexually violent person through no fault of its own . . . ."
Majority op., ¶33. In this case, the majority cannot say with a
straight face that the State is in its predicament "through no
fault of its own." We expect the State to follow the law. It
did not.
¶92 The majority seems unmoved by the fact that Spaeth has
been in the custody of DHFS since November 2010 without having
been given any evidentiary hearing and that his confinement from
June 2007 until the reversal of his convictions was based almost
entirely on illegally obtained evidence.
¶93 Chapter 980 has become a valuable component of
Wisconsin law. It should not be altered permanently because the
government screwed up.
¶94 For the reasons stated, I respectfully dissent.
¶95 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.
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