State v. Joseph J. Spaeth

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:

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.

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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):

(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

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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

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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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