PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
November
24, 1999
Marilyn L. Graves
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
§ 808.10 and Rule 809.62, Stats.
No. 98-2883
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
IV
In re the Commitment of
William E. Marberry:
State of Wisconsin,
Petitioner-Respondent,
v.
William E. Marberry,
Respondent-Appellant.
APPEAL from an order of the circuit court for Dane County:DANIELR. MOESER,
Judge.Affirmed.
Before Dykman, P.J., Eich and Deininger, JJ.
¶1. DEININGER,J.William Marberry appeals an order committing him to the
Department of Health & Family Services (DHFS) for institutional care under ch. 980,
Stats. Marberry claims that the order must be vacated because the DHFS failed to conduct
an examination of his mental condition within six months after his "initial
commitment," which he asserts occurred in November 1996. We conclude that the
six-month period for re-examination under §980.07(1), Stats., does not begin to run
until the court has conducted a dispositional hearing and issued an "initial commitment
order" under §980.06(2), Stats.1 The court did not enter the relevant order until
July 1998, and nothing in the record indicates that the DHFS did not re-examine him within
six months thereafter. Accordingly, we reject Marberry's first claim of error.
¶2. Marberry also claims that the term "substantially probable" is
unconstitutionally vague, and that not defining "substantially probable" as
"extremely likely" violates his right to equal protection of the laws as guaranteed
by the Fourteenth Amendment to the U.S. Constitution. These arguments were recently
rejected by the supreme court in State v. Curiel, 227 Wis.2d 389, 597
N.W.2d 697 (1999). Finally, Marberry claims that the trial court erred by applying the
wrong standard in determining that it is substantially probable that he will reoffend. We
conclude that the record supports a finding that Marberry was much more likely than not to
reoffend, and thus the trial court did not err in finding that it was substantially probable that
Marberry would reoffend. Accordingly, we affirm the appealed order.
BACKGROUND
¶3. Marberry was convicted in 1987 of three counts of second-degree sexual
assault and was sentenced to a prison term of ten years. Prior to his scheduled release in
1995, the State filed a petition alleging that Marberry was a sexually violent person eligible
for commitment under ch. 980, Stats. The trial court found there was probable cause to
believe that Marberry was a sexually violent person and ordered a trial pursuant to
§980.05, Stats.2
¶4. In order to find a person to be "a sexually violent person," the
fact finder must be convinced beyond a reasonable doubt that the person "`(1)was
convicted, found delinquent, or found not guilty by reason of mental disease or defect of a
sexually violent offense; (2)is within 90 days of release from a sentence, commitment, or
secured correctional facility arising from a sexually violent offense; (3)has a mental disorder;
and (4)is dangerous because that mental disorder creates a substantial probability that he or
she will engage in acts of sexual violence.'" State v. Curiel, 227
Wis.2d at 396 n.4, 597 N.W.2d at 700 (citation omitted); see also
§980.02(2), Stats.
¶5. At the court trial in October 1996, Marberry disputed the fourth element,
whether it was substantially probable that he would engage in future acts of sexual violence.
Each party called an expert to testify on this issue. The State's expert, Dr. Dennis Doren,
testified that, in his opinion, Marberry suffers from an antisocial personality disorder that
makes it substantially probable that he will engage in future acts of sexual violence. Because
"substantially probable" was not defined in the statute, Doren interpreted this
term to mean "much more likely than not."
¶6. In formulating his opinion, Doren considered a list of thirty-one "risk
factors" that are considered to be predictive of future sexually violent acts. Doren
determined that twenty-five of these risk factors were present in Marberry's case. In
particular, Doren concluded that Marberry (1)exhibits a high degree of psychopathy; (2)had
been the victim of sexual abuse as a child; (3)had exhibited juvenile antisocial behavior;
(4)had a history of substance abuse; (5)had been diagnosed with a personality disorder;
(6)had never been married; and (7)chose a victim outside of his family. Because a large
number of risk factors apply to Marberry, Doren concluded that "a substantial risk for
reoffense exists." Doren also relied on the "Warkworth sexual behavior clinic
scale." This scale uses four factors to determine a patient's probability to
reoffend:(1)the patient's history of sexual offenses; (2)his or her criminal
"personality"; (3)the results of a deviant sexual arousal test; and (4)the patient's
social competence. After examining Marberry, Doren awarded a "low,"
"moderate" or "high" ranking to each of these factors. Based on
these rankings, Doren concluded that Marberry "falls in the 59th to 84th percentile
group for risk" of reoffense.
¶7. Marberry called Dr. Charles Lodl to counter Doren's testimony. Lodl
testified that in his opinion Marberry does not suffer from a mental disorder that substantially
predisposes him to engage in acts of sexual violence. When asked to define
"substantially probable," Lodl said that he applies this term to patients who
demonstrate a seventy percent risk of reoffense. In concluding that Marberry is not
substantially predisposed to reoffend, Lodl relied on several factors. Most significantly, Lodl
concluded that Marberry does not exhibit a high degree of psychopathy. In addition, Lodl
disagreed with Doren's conclusion that Marberry suffered from an antisocial personality
disorder. Finally, Lodl determined that Marberry's risk of recidivism has been reduced
"to at least some degree" by various treatment programs.
¶8. After reviewing the testimony of these two witnesses and the evidence
presented at trial, the trial court concluded that the State had met its burden to prove beyond
a reasonable doubt that Marberry suffers from a mental disorder that makes it substantially
probable that he will engage in future acts of sexual violence. Consequently, the court found
Marberry to be a sexually violent person and ordered him committed to the custody of the
DHFS. The court entered a document entitled "Findings of Fact, Judgment, Initial
Commitment Order, and Order for Predisposition Investigation." In it, the court
instructed the department to conduct a predisposition investigation under §980.06(2)(a),
Stats., "to assist the court in framing the final Commitment Order." The
dispositional hearing in this case was delayed due to the illness of the trial judge, and the
case was eventually assigned to Judge Moeser. Judge Moeser conducted the dispositional
hearing in March and June 1998, and in July 1998, he ordered Marberry committed to the
department "for institutional care in a secure mental health unit or facility."
Marberry appeals the order.
ANALYSIS
¶9. Chapter 980 sets forth procedures by which persons convicted of certain
"sexually violent offenses" can be classified as "sexually violent
persons" and committed for treatment after they have served their criminal sentences.
The State, as petitioner, bears the burden of proving that the person has a mental disorder
which creates a substantial probability that he or she will engage in future acts of sexual
violence. See §980.02(2)(b) and (c), Stats.; §980.05(3), Stats. If
the court or a jury determines that a person is a "sexually violent person," the
court must order the person committed to the custody of the DHFS for care and treatment.
See §980.06(1), Stats. The court's "initial commitment order"
must specify whether the committed person will undergo institutional care or be under
supervised release. See §980.06(2).
¶10. Within six months after an "initial commitment under s.
980.06," and every twelve months thereafter, the DHFS must conduct re-examinations
of the committed person's mental condition to determine whether he or she should be
discharged or transferred to a less restrictive treatment setting. See
§980.07, Stats. Marberry claims that his "initial commitment" occurred in
November 1996 when the trial court entered its "Findings of Fact, Judgment, Initial
Commitment Order, and Order for PreDisposition Investigation," which, among other
things, ordered Marberry "committed to the custody of the D[HFS] until such time as
he is no longer a sexually violent person." It is undisputed that the DHFS did not
conduct a re-examination of Marberry within six months of the November 1996 order.
Thus, Marberry argues his commitment must be vacated because the time limit of
§980.07 is mandatory, and a violation renders the trial court incompetent to proceed.
We disagree with Marberry's contentions.
¶11. The interpretation and application of statutes to undisputed facts are
questions of law which we review denovo. See School Bd. v.
Bomber, 214 Wis.2d 397, 402, 571 N.W.2d 189, 192 (Ct. App. 1997). When
we construe a statute, our primary purpose is to ascertain the intent of the legislature.
See Anderson v. City of Milwaukee, 208 Wis.2d 18, 25, 559
N.W.2d 563, 566 (1997). In our effort to discern the legislature's intent, we first look to the
language of the statute. See Jungbluth v. Hometown, Inc.,
201 Wis.2d 320, 327, 548 N.W.2d 519, 522 (1996). If its meaning and application are
plain, we look no further. See id. We
conclude that the plain language of §§980.06 and .07, Stats., establishes that the
six-month period for the first re-examination does not begin to run until the trial court
conducts a dispositional hearing and issues an "initial commitment order" under
§980.06(2), Stats.
¶12. We note first that §980.06(2)(a), Stats., requires the trial court to
"enter an initial commitment order under this section pursuant to a hearing held
as soon as practicable after the judgment that the person ... is a sexually violent person
is entered" (emphasis added). Furthermore, the "order for commitment under
this section [980.06]" must specify whether the committed individual is to be
institutionalized or placed on supervised release. See §980.06(2)(b). The
language of these two paragraphs plainly establish that there can be no "initial
commitment order under" §980.06 until the court has conducted a hearing, and
until it has determined whether the person should be institutionalized or subject to supervised
release. The order of November 19, 1996, met neither of these requirements:it was not
entered pursuant to a dispositional hearing under §980.06(2), and it did not specify
whether Marberry was to receive institutional care or be under supervised release. These
requirements were not met until the completion of the June 1998 hearing and the entry of the
"Disposition Order" thereafter.
¶13. Further support for our conclusion is found in §980.05, Stats.
Subsection (5) provides that after a court or jury finds that a person is a "sexually
violent person," the court must "enter a judgment on that finding and ...
commit the person as provided under s. 980.06." Section 980.05(5)
(emphasis added). The next subsection explains that the post-trial judgment is
"interlocutory to a commitment order under s. 980.06." Section 980.05(6).
And, if the court "lacks sufficient information" to make the institutional care
versus supervised release determination "immediately after trial," the court
"may adjourn the hearing" and order a "predisposition investigation."
See §980.06(2)(a), Stats. Applying these subsections to the present facts,
it is clear that the November 1996 order, notwithstanding its title and some of its language,
was not the initial commitment order contemplated by §§980.06(2) and .07,
Stats. Rather, the November 1996 document constituted (1)the judgment that Marberry was
a sexually violent person under §980.05(5), Stats.; (2)an order for the adjournment of
the dispositional hearing under §980.06(2)(a), Stats; and (3)an order to the DHFS to
conduct the predisposition investigation described in that paragraph.
¶14. We conclude therefore that "an initial commitment" of
Marberry did not occur until after the requirements of §980.06, Stats., were met upon
completion of the dispositional hearing on June 8, 1998. Marberry appeals the commitment
order of July 15, 1998, and nothing in the record indicates that the DHFS did not re-examine
him within six months after his initial commitment. Accordingly, we reject Marberry's first
claim of error.
¶15. Marberry makes one additional argument regarding the timing of
re-examinations for persons committed under ch. 980, Stats. He asserts that there is no time
limit set forth in §980.06(2)(a), for completing the predisposition investigation and
conducting the hearing, and thus, persons found to be sexually violent persons "will be
compelled to wait additional months, indeed a year, to secure the reexamination required by
the legislature." We do not agree that the statute permits the State to keep a person
indefinitely in the limbo between judgment and commitment under ch. 980.
¶16. Although it is true that the statute sets no specific time period for the
completion of a predisposition investigation and the resumption of an adjourned hearing, it
does provide that the dispositional hearing should be "held as soon as practicable after
the judgment." See §980.06(2)(a), Stats. A person in Marberry's
position, having been adjudged to be a sexually violent person but not yet having been
committed under §980.06, is not powerless to ensure that a dispositional hearing is
conducted "as soon as practicable" after the entry of judgment. He or she may
file a motion or request in the trial court, or in an extraordinary case, may petition this court
for a supervisory writ. There is no indication in the record that Marberry made any motion
or request to expedite the investigation or to schedule the dispositional hearing.3
¶17. In addition to his claim regarding the timing of his re-examination,
Marberry raises two constitutional issues addressing the definition of the term
"substantially probable" in ch. 980, Stats. He first contends that the term
"substantially probable" is unconstitutionally vague unless it is explicitly defined,
and next, that defining "substantially probable" as anything other than
"extremely likely" violates his right to equal protection because the term is
defined differently under ch. 51, Stats. The supreme court has resolved both of these issues
in State v. Curiel, 227 Wis.2d 389, 597 N.W.2d 697 (1999). The court
concluded in Curiel that "substantially probable" means
"much more likely than not," and that the term is not unconstitutionally vague.
See id. at 414-15, 597 N.W.2d at 708-09. The court also
concluded that the definition does not violate equal protection because persons committed
under ch. 980, Stats., are not treated differently than persons committed under ch. 51, Stats.
See id. at 413-14, 597 N.W.2d at 708.
¶18. As his final claim of error, Marberry contends that the trial court did not
apply the proper standard in determining that it is substantially probable that he will engage
in future acts of sexual violence. He clarifies in his reply brief that the issue he wishes to
raise is not the sufficiency of the evidence, but his "right to have the finder
of fact weigh the evidence and assess the credibility of the competing witnesses under the
governing legal standard." He likens this claim of error to one challenging a jury
instruction which incorrectly states the elements of an offense. We reject this final claim
because (1)the record does not establish that the trial court applied an incorrect standard;
(2)there is sufficient evidence in the record to establish that it is "much more likely
than not" that Marberry will reoffend; and (3)Marberry thus suffered no prejudice,
even though the trial court did not explicitly adopt this definition in reaching its findings and
conclusions.
¶19. The trial court determined in its written decision that the State had met its
burden to show, beyond a reasonable doubt, that Marberry's mental disorder "creates a
substantial probability that he will engage in acts of sexual violence." We agree with
Marberry that the court did not, in the remainder of its decision, clearly adopt a specific
definition of the term "substantially probable." But the court was not required to
do so. See §805.17(2), Stats. (providing that after a court trial, a
memorandum decision is sufficient "if the findings of ultimate fact and conclusions of
law appear therein").
¶20. In stating its ultimate conclusion as to the likelihood that Marberry would
reoffend, the court applied the correct standard-"substantially probable." The
court thus made a sufficient finding or conclusion to support its judgment, and no additional
discussion by the trial court was necessary. The supreme court has since clarified that
"substantially probable" means "much more likely than not."
See Curiel, 227 Wis.2d at 414, 597 N.W.2d at 708. The question we
must address, therefore, is whether the present record supports a finding that it is much more
likely than not, and thus, substantially probable, that Marberry will reoffend. We conclude
that it does.
¶21. A reviewing court must apply the criminal standard of review when
determining whether the evidence is sufficient to prove that a person is a sexually violent
person under ch. 980, Stats. See State v. Kienitz, 227
Wis.2d 423, 434, 597 N.W.2d 712, 717 (1999). Thus, we will not reverse a
commitment:
`unless the evidence, viewed most favorably to the state and
the [commitment], is so insufficient in probative value and force that it can be said as a
matter of law that no trier of fact, acting reasonably, could have found [the defendant to be a
sexually violent person] beyond a reasonable doubt.'
Id. (citations omitted). We conclude
that the evidence is sufficient to support the trial court's finding that it is substantially
probable that Marberry will engage in future acts of sexual violence, because the court could
have reasonably found on this record that it is "much more likely than not" that
Marberry will reoffend.
¶22. The trial court based its determination, in part, on the expert testimony of
Dennis Doren. Doren explicitly defined "substantially probable" as "much
more likely than not" and testified that in his expert opinion it is substantially probable
that Marberry will engage in future acts of sexual violence. The trial court also relied on the
fact that Marberry exhibited sexually violent behavior after sentencing and while on parole,
and that his involvement and success in therapy was "ambiguous at best." A trial
court is entitled to rely on behavioral history as well as expert testimony in determining
whether it is substantially probable that a person will reoffend. See
Kienitz, 227 Wis.2d at 436, 597 N.W.2d at 718.
¶23. Thus, after reviewing the record, we conclude that the evidence was not
"so lacking in probative value that no trier of fact, acting reasonably, could have ...
[found] beyond a reasonable doubt" that Marberry is a sexually violent person.
See id. at 437, 597 N.W.2d at 718. We therefore reject
Marberry's final challenge. Regardless of whether the trial court had in mind the precise
definition of "substantially probable" set forth in Curiel, the
record supports the court's finding under the correct definition. Marberry thus suffered no
prejudice, and we will not set aside a judgment that is properly supported by sufficient
evidence in the record. See §805.18(2), Stats. (directing that "[n]o
judgment shall be reversed or set aside ... unless in the opinion of the court to which the
application is made ... it shall appear that the error complained of has affected the substantial
rights of the party seeking to reverse ... the judgment").
CONCLUSION
¶24. For the reasons discussed above, we affirm the appealed order.
By the Court.-Order affirmed.
Recommended for publication in the official reports.
1 All statutory references in this opinion are to the Wisconsin Statutes, 1997-98, unless
otherwise indicated.
2 Section 980.05(1), Stats., provides that a trial must be held "no later than 45 days
after the date of [a] probable cause hearing...." The trial court conducted a probable
cause hearing in June 1995. A month later, however, the court held that ch. 980, Stats., was
unconstitutional and dismissed the State's commitment petition. The State appealed the
dismissal, and this court stayed the appeal pending the supreme court's review of the
constitutionality of ch. 980. After the supreme court upheld the constitutionality of ch. 980
in State v. Post, 197 Wis.2d 279, 541 N.W.2d 115 (1995), and
State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995), we
reversed the trial court's dismissal order and remanded the case for trial.
3 It appears that the lengthy delay in this case between the judgment and the commitment
order stemmed largely from the unavailability of the original trial judge for medical reasons.
The record discloses the following sequence of events following the entry of judgment on
November 19, 1996: Marberry filed "Motions after Decision," which were
denied after a hearing on January 3, 1997. Transcripts of the trial and motion hearing were
prepared for "appeal purposes." Marberry requested on April 1, 1997, that
another judge enter a written order denying the motions so that an appeal could be initiated,
and Judge Moeser entered the order on April 3. (The record does not indicate whether
Marberry petitioned for an interlocutory appeal of that order.) In May, the case was
"randomly reassigned" during Judge Torphy's unavailability to Judge
DeChambeau, but he recused himself because he had prosecuted Marberry. Judge Moeser
was then assigned and he conducted a scheduling conference on June 30, 1997, and set the
case for dispositional hearing on October 20, 1997. On a "jt. request for
setover," the court rescheduled the hearing for March 12, 1998. The dispositional
hearing was not completed that day, and was continued until June 8, 1998. The court
entered the "Disposition Order" on July 15, 1998.
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