Commitment – Discharge

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Civil

WI Court of Appeals – District IV

Official – Blanchard P.J., Lundsten, and Higginbotham, JJ

Commitment – Discharge

2014AP2133 State of Wisconsin v. Kerby G. Denman

Appellant Kerby Denman appeals a circuit court order denying without a hearing his 2013 petition for discharge from his commitment as a sexually violent person under WIS. STAT. ch. 980 (2011-12). The court concluded that the psychological report that Denman submitted in support of his 2013 petition did not allege, as required at the time under WIS. STAT. § 980.09(1), “facts from which the court or jury may conclude” that Denman “has changed since the date of his … initial commitment order so that [he] does not meet the criteria for commitment as a sexually violent person.” More specifically, the court concluded that the psychological report contains no new facts or psychological research that could not have been considered at the 2012 discharge hearing at which a prior petition for discharge filed by Denman was denied. In support of his 2013 petition, Denman argues that the 2013 psychological report reflects use of a new risk assessment scale that no expert relied on at the 2012 discharge hearing, and that use of the new risk assessment scale constitutes a change that could persuade a fact finder that his condition has improved since commitment such that he no longer meets the criteria for commitment. We agree with Denman that a fact finder at a new discharge hearing could conclude, based on an expert opinion accompanying his 2013 petition, that the new risk assessment scale yields a more accurate, and reduced, prediction of Denman’s lifetime risk to reoffend if discharged, and thus could make a difference in determining whether he still meets the standard of dangerousness required for continued commitment. Accordingly, we.

Holding

Reversed

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