00-2524 In Re: the Commitment of Kenneth Parrish

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“We also conclude that although evidence introduced at a pre-parole commitment trial may be relevant to a post-parole-revocation trial, and although a court may consider the record of a pre-parole commitment trial in order to determine the merits of a motion, based on issue preclusion, to dismiss a post-parole-revocation commitment petition, the trial court is not, as a matter of law, required to examine the record of the pre-parole trial in order to decide the motion….

“The State next responds by emphasizing that in Parrish’s pre-parole commitment trial, ‘all that was litigated was whether Parrish was a sexually violent person in need of commitment at that time.’ While that temporal limitation is obvious, it also is important. In fact, just recently, this court accentuated the singular significance of the present-time focus of a ch. 980 commitment trial. In State v. Treadway, 2002 WI App 195, __ Wis. 2d __, __ N.W.2d __, we considered whether a ch. 980 petition must be filed within ninety days of a defendant’s release from his aggregate sentence, or within ninety days of his completion of his sentence for a sexually violent offense where he also was serving consecutive time for non-sexually-violent offenses. We rejected what we deemed the absurd construction of Wis. Stat. sec. 980.02(2)(ag), which would have required that the petition be filed within ninety days of his completion of the sentence for the sexually violent offense, notwithstanding the fact that release was many years away. We explained:

“After all, if the State were required to file its Wis. Stat. ch. 980 petition within ninety days of the conclusion of a sentence for a sexually violent offense, despite the fact that the subject of the petition still could be serving additional time in an unbroken string of sentences, the petition could not accurately address the defendant’s circumstances, mental condition, and treatment needs at the time of scheduled release. Discharge or release could be many months or, as in this case, many years away.”Moreover, in some cases, concurrent sentences, or concurrent and consecutive sentences, interlace, and some are further complicated by sentences after revocation….

“Here, Parrish’s second ch. 980 trial differed from his first not simply because it involved a different release date, but also because it came years after the first trial, thus requiring the court to consider new facts and circumstances.”

And, even though the trial court erred in ruling that “evidence of volitional impairment was not required,” we conclude, on the strength of the state Supreme Court’s decision in State v. Laxton, 2002 WI 82, that the court nevertheless found such evidence that did indeed establish the requisite nexus establishing petitioner’s “serious difficulty in controlling his behavior.”

Judgment and orders affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Konkol, J., Schudson, J.

Attorneys:

For Appellant: Charles B. Vetzner, Madison

For Respondent: Robert D. Donohoo, Milwaukee; Diane M. Welsh, Madison