COURT OF APPEALS
DATED AND FILED
February 15, 2011
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.
IN COURT OF APPEALS
In re the commitment of Kenneth R. Parrish:
Kenneth R. Parrish,
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶<![if !supportFields]>1<![endif]> KESSLER, J. Kenneth R. Parrish appeals from an order dismissing his petition for discharge as a sexually violent person under Chapter 980 of the Wisconsin Statutes on the grounds that: (1) the trial court prematurely dismissed his petition even though he requested and was entitled to the appointment of an examiner pursuant to Wis. Stat. § 980.07(1) (2009-10)<![if !supportFootnotes]><![endif]> before an evaluation of his petition; and (2) the trial court erred in dismissing the petition because the allegation of a change in diagnosis was sufficient to require a hearing on the petition. We affirm.
¶<![if !supportFields]>2<![endif]> On June 20, 2000, following a court trial, Parrish was committed to the Department of Health and Family Services (DHS)<![if !supportFootnotes]><![endif]> pursuant to Wis. Stat. ch. 980 as a sexually violent person. Parrish’s commitment was based on his initial diagnosis of borderline personality disorder and antisocial personality disorder—both qualifying mental disorders for ch. 980 purposes.
¶<![if !supportFields]>3<![endif]> Pursuant to Wis. Stat.
§ 980.07, Parrish underwent yearly evaluations by psychological
examiners to determine whether he continued to meet the criteria for commitment
as a sexually violent person. In April
2008, Dr. Robert Barahal evaluated Parrish and in his report, diagnosed Parrish
as only having antisocial personality disorder and stated “Rule out ‘Paraphilia
NOS.’” Parrish was again evaluated by
Dr. Barahal the following year. Dr.
Barahal’s report, filed by the
The “rule out” designation simply means there is still insufficient evidence to confidently rule out (or rule in) sexual deviance, and consideration of a paraphilia in addition to antisocial personality remains an unresolved diagnostic issue with important treatment implications.
Antisocial Personality Disorder is a mental disorder as defined by Chapter 980, and predisposes Mr. Parrish to sexual violence.
Dr. Barahal’s report also stated that Parrish’s diagnosis of antisocial personality disorder “affects [Parrish’s] emotional or volitional capacity, and predisposes him to commit sexually violent acts as defined by Chapter 980.”
¶<![if !supportFields]>4<![endif]> Prior to Dr. Barahal’s 2009 evaluation, in February 2009, Parrish was given a “Request For Appointment Of Counsel And/Or Examiner” form prepared by the DHS, which Parrish left blank and did not sign.
¶<![if !supportFields]>5<![endif]> On March 30, 2009, Parrish filed a Petition for Discharge, stating that his condition had changed since his initial commitment trial and he no longer met the criteria for commitment as a sexually violent person. Parrish’s petition argued that the evaluations of both Dr. Barahal as well as Dr. Hollida Wakefield, his previous independent examiner from 2007, supported his contention that a change in diagnosis no longer rendered him sexually violent and in need of commitment. On April 16, 2009, Parrish filed a document entitled “The Facts in Support Of The Alleged Error(s) Upon Which The Motion Is Based Are Follows ‘Diagnosis,’” in which he again argues the change in diagnosis as the basis of his petition.
¶<![if !supportFields]>6<![endif]> A hearing was held on May 1, 2009, at which Parrish appeared, pro se, by video conference. The court questioned Parrish as to whether he would like an attorney, to which Parrish responded:
I don’t want a attorney representing me because the State doctors agreed saying the same thing that I’m saying.
On the second page of the report the State doctor filed with this court … he says four ways you can get out and grant a new trial … the second was a change of a diagnosis, and my diagnosis has been changed, and that’s why I’m requesting a jury trial based on discharge, your Honor, because my diagnosis has been changed.
(Grammar as in original transcript.)
¶<![if !supportFields]>7<![endif]> Parrish eventually requested a court-appointed attorney at the hearing and the court extended the time limits for hearing the petition for discharge. Parrish did not request an independent examiner at the hearing.
¶<![if !supportFields]>8<![endif]> Between the May 1, 2009 hearing and the final hearing on September 17, 2009, three status conferences were held at which Parrish was represented by Attorney Mike Plaisted, and Parrish filed two documents on his own, both arguing that his change of diagnosis entitled him to a discharge hearing. No mention of an independent examiner was made at any of the conferences, nor did Parrish request an examiner in either document.
¶<![if !supportFields]>9<![endif]> On September 17, 2009, a hearing on the State’s motion to dismiss Parrish’s petition was held at which Parrish appeared by video conference. Parrish again argued his change in diagnosis and for the first time since his evaluation process began in February 2009, made mention of an independent examiner by stating, “I talked to a doctor on the phone last week, Michael B. First, that is willing to be my expert.” The trial court dismissed the petition, finding that no basis existed to support the petition at that time, but that Parrish could re-file his petition at any time so long as he provided support for his grounds. This appeal follows. Additional facts are included in the discussion as necessary.
¶10 Parrish argues on appeal that he requested and was entitled to an independent examination prior to the court’s evaluation of his petition. He also argues that the change in his diagnosis was sufficient to entitle him to a hearing on his petition. We disagree.
¶11 Wisconsin Stat. ch. 980 “‘provides a
process for the civil commitment of persons, previously convicted of a sexually
violent offense, who currently suffer from a mental disorder that predisposes
them to repeat such acts.’” State
v. Kaminski, 2009 WI App 175, ¶11, 322
¶12 Wisconsin Stat. § 980.07(1) provides that committed individuals are to undergo an annual mental examination conducted by a department examiner and also provides the individual with the right to request a court-appointed independent examiner. Such requests must be made at the time of the department-conducted annual examination. The statute provides in relevant part:
If a person is committed under s. 980.06 and has not been discharged under s. 980.09(4), the department shall appoint an examiner to conduct a reexamination of the person’s mental condition within 12 months after the date of the initial commitment order under s. 980.06 and again thereafter at least once each 12 months to determine whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. … At the time of a reexamination under this section, the person who has been committed may retain or have the court appoint an examiner as provided under s. 980.031 (3).
individuals may petition the committing court for discharge at any time. See Wis. Stat. § 980.09. Petitions must be denied without a hearing
“unless the petition alleges facts from which the court or jury may conclude
the person’s condition has changed since the date of his or her initial
commitment order so that the person does not meet the criteria for commitment
as a sexually violent person.”
A. The Trial Court did not Prematurely Dismiss Parrish’s Petition.
¶14 Parrish contends that the trial court prematurely dismissed his petition for discharge even though he requested and was entitled to a court-appointed examiner prior to an evaluation of his petition. Because we find Parrish’s request equivocal and untimely, we disagree.
¶15 Parrish’s first mention of an independent examination came on September 17, 2009, at the hearing on the State’s motion to dismiss the petition. However, his statements cannot be construed as an unequivocal request for a court-appointed examiner. Parrish, who appeared by video, and his counsel had the following exchange at the hearing:
Attorney: I guess I will ask Mr. Parrish to address some of this, but I have not asked that the Court appoint a doctor to examine Mr. Parrish because my understanding is that he does not want a doctor to examine him as far as our support of the petition if we can get it from an expert. So that’s why nothing has been requested at this point.
Court: I guess if he doesn’t want a doctor to evaluate him, then we don’t get to go any further.
Parrish: Yeah. You know, your honor, first of all, I do have a doctor to appoint to be examining me, his name is Michael B. First. I have talked to him on the phone and I have written to him.
Parrish: I talked to a doctor on the phone last week, Michael B. First, that is willing to be my expert.
Parrish: If you
review my file, I was committed with several diagnosis. I am no longer suffering from any of them
diagnosis… And I got support behind me,
the head doctor, Mike B. First, in
¶16 Parrish’s statements do not affirmatively ask the court to appoint an independent examiner, nor did his counsel’s, as his counsel was apparently under the impression that Parrish was not going to make such a request at all. Parrish’s statements seem to imply that he may have retained Dr. First himself and are unclear with regard to whether he was requesting that the court appoint an examiner for him.
¶17 Even if
we consider Parrish’s statements at the hearing as a request for an independent
examination, his request was woefully late. While Wis.
Stat. § 980.07 does allow petitioners the right to request
independent examinations by court-appointed examiners, such a request should be
made “[a]t the time of a reexamination.”
B. Change in Diagnosis.
¶18 Parrish also argues that the trial court erred in dismissing the petition because the allegation of a change of diagnosis was sufficient to warrant a hearing on Parrish’s discharge petition. We disagree.
¶19 Parrish’s initial diagnosis of two qualifying mental disorders for Wis. Stat. ch. 980 purposes were: (1) borderline personality disorder; and (2) antisocial personality disorder. Parrish’s 2009 evaluation by Dr. Barahal indicated only one qualifying disorder: antisocial personality disorder. Parrish contends that this change in diagnosis was sufficient to survive dismissal of his petition. He is mistaken.
¶20 Wisconsin Stat. § 980.09 requires
not merely that the mental disorder diagnosed is changed, but also that there
are facts from which a jury could conclude that “the person does not meet the
criteria for commitment as a sexually violent person.”
It is my opinion to a reasonable degree of psychological certainty that Mr. Parrish is diagnosed with Antisocial Personality Disorder, which is an acquired or congenital mental disorder, affects his emotional or volitional capacity, and predisposes him to commit sexually violent acts as defined by Chapter 980.
It is my opinion to a reasonable degree of psychological certainty that Mr. Parrish does not meet criteria for supervised release under Chapter 980.07(4).
It is also my opinion to a reasonable degree of psychological certainty that Mr. Parrish is still “more likely than not” to commit sexually violent acts.
Therefore, I am recommending that the court not consider Mr. Parrish for supervised release or discharge.
supreme court recently clarified the process trial courts are to employ in
determining whether an individual committed under Wis. Stat. ch. 980 should get a hearing after filing a
petition for discharge. In Arends,
the court held that under Wis. Stat. § 980.09(1),
trial courts are to engage in a “paper review of the petition only, including
its attachments, to determine whether it alleges 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.”
¶22 Parrish’s petition for discharge is based entirely on his change of diagnosis; Dr. Barahal’s report establishes a changed diagnosis, but the remaining diagnosis does not preclude a finding of sexual violence. In addition, Dr. Barahal indicates that Parrish remains “more likely than not” to commit sexually violent acts. The petition does not otherwise allege facts from which a trier of fact could conclude that Parrish no longer meets the criteria for commitment as a sexually violent person. The trial court correctly found that no support for the discharge petition existed.
¶23 For all the foregoing reasons we conclude that the trial court did not err in dismissing Parrish’s petition for discharge.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
<![if !supportFootnotes]><![endif]> All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.