COURT OF APPEALS
DATED AND FILED
August 10, 2010
A. John Voelker
Acting Clerk of Court of Appeals
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 Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
In re the commitment of Edwin C. West:
Edwin Clarence West,
from an order of the circuit court for
¶1 PER CURIAM. Edwin Clarence West was
committed as a sexually violent person in 1997.
On April 18, 2008, West filed a petition for supervised release. The circuit court denied West’s
petition. On appeal, West contends that
the circuit court incorrectly assigned the burden of proof under Wis. Stat. § 980.08(4)(cg) and
that by doing so, the circuit court violated West’s Due Process and Equal
Protection rights. Because we rejected
identical arguments in State v. Rachel, 2010 WI App 60, 324
¶2 Prior to August 1, 2006, when faced with a petition for
supervised release, the circuit court was required to “grant the petition
unless the state proves by clear and convincing evidence” either “[t]hat it is
still likely that the person will engage in acts of sexual violence if the
person is not continued in institutional care” or “[t]hat the person has not
demonstrated significant progress in his or her treatment or the person has
refused treatment.” Wis. Stat. § 980.08(4)(b). Under that statute, the State bore the burden
of proof, “by clear and convincing evidence that the person is still a sexually
violent person and that it is substantially probable that the person will
engage in acts of sexual violence if the person is not continued in
institutional care.” State
v. Brown, 2005 WI 29, ¶11, 279
petition for supervised release. Under that statute, the court “may not authorize supervised release unless, based on all of the reports, trial records, and evidence presented, the court finds that all” of the five enumerated criteria are met. See Rachel, 2010 WI App 60, ¶9, 324
¶4 West argues that the change in the statutory language did not shift the burden of proof from the State. He further argues that Wis. Stat. § 980.08(4)(cg) would violate Due Process and Equal Protection if the burden of proof rested with the person seeking a supervised release. Both of West’s arguments were rejected by this court in Rachel.
¶5 In that case, we noted that Wis.
Stat. § 980.08(4)(cg) “begins by directing the court to deny
supervised release unless certain criteria are present” and “sets forth five
criteria that must be demonstrated to overcome the presumption of
2010 WI App 60, ¶11, 324
¶6 We also rejected the argument that the statutory change
rendered Wis. Stat. ch. 980
unconstitutional. We observed that “the
constitutionality of [ch. 980] relies on procedures for periodic review of a
commitment order,” and that “nothing in the revised statute has changed the
requirement for periodic review.” Rachel,
2010 WI App 60, ¶¶15, 16, 324
¶7 Our opinion in Rachel controls this appeal, and, therefore, we affirm the circuit court order denying West’s petition for supervised release.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
v. Arends, 2010 WI 46, __
If the petition alleges sufficient facts, the circuit
court then conducts the review called for by Wis.
Stat. § 980.09(2). That
review is a “limited review of the sufficiency of the evidence.”
The [circuit] court is required to review the items specifically enumerated [in § 980.09(2)] if available, and may order those items to be produced and/or conduct a hearing at its discretion. The circuit court must determine whether the enumerated items contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. If any facts support a finding in favor of the petitioner, the [circuit] court must order a discharge hearing on the petition; if no such facts exist, the court must deny the petition.
Ibid. The supreme court further held that
“[t]he petitioner does not need to prove a change in status in order to be
entitled to a discharge hearing; the petitioner need only provide evidence that
he or she does not meet the requirements for commitment.”
A person committed under ch. 980 who wishes to secure
his or her release may either file a petition for supervised release under Wis. Stat. § 980.08 or file a
petition for discharge under Wis. Stat. § 980.09. Arends, 2010 WI 46, ¶17, __