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Sufficiency of Evidence

By: Derek Hawkins//May 2, 2018//

Sufficiency of Evidence

By: Derek Hawkins//May 2, 2018//

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WI Supreme Court

Case Name: State of Wisconsin v. David Hager, Jr.,

Case No.: 2018 WI 40

Focus: Sufficiency of Evidence

This is a review of two published decisions of the court of appeals, State v. Hager, 2017 WI App 8, 373 Wis. 2d 692, 892 N.W.2d 740, and State v. Carter, 2017 WI App 9, 373 Wis. 2d 722, 892 N.W.2d 754. Both cases involve the discharge procedure for a person civilly committed as a sexually violent person pursuant to Wis. Stat. ch. 980 (2015-16) (“Chapter 980”). David Hager, Jr., and Howard Carter both filed petitions for discharge from commitment as sexually violent persons pursuant to Wis. Stat. § 980.09 with the Chippewa County Circuit Court and Brown County Circuit Court, respectively, and both petitions were denied. Hager and Carter appealed.

In Hager, the court of appeals reversed, concluding that the circuit court erred in two ways: (1) by considering evidence unfavorable to Hager’s discharge petition; and (2) by weighing the evidence in favor of the discharge petition against the evidence opposed. Hager, 373 Wis. 2d 692, ¶5. Based on its review of the record, the court of appeals concluded that Hager had satisfied his burden of production and reversed and remanded the matter to the circuit court with instructions to conduct a discharge trial pursuant to Wis. Stat. § 980.09(3)-(4). Id. In Carter, the court of appeals affirmed the circuit court, concluding that Carter had not satisfied the standard it had established in Hager. Carter, 373 Wis. 2d 722, ¶3. Both cases involve the proper interpretation of Wis. Stat. § 980.09(2), as amended by 2013 Wis. Act 84, which establishes the procedures for discharge from commitment. Carter raises two additional issues before this court: (1) whether § 980.09(2) violates the right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution; and (2) whether Act 84 applies retroactively to Carter. We review this last issue, whether Act 84 applies retroactively to Carter, through the lens of ineffective assistance of counsel because Carter’s counsel did not contest the application of the amended standard to Carter. See State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999).

We hold as to both Hager and Carter that the court of appeals erred in concluding that Wis. Stat. § 980.09(2) limits circuit courts to considering only the evidence favorable to petitions for discharge. We hold that circuit courts are to carefully examine, but not weigh, those portions of the record they deem helpful to their consideration of the petition, which may include facts both favorable as well as unfavorable to the petitioner. We further hold that Wis. Stat. § 980.09(2) does not violate the constitutional right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution, and furthermore, Carter’s counsel was not ineffective for failing to challenge retroactive application of Act 84 to Carter.

As to Hager, we reverse the decision of the court of appeals and remand the matter to the circuit court for further proceedings consistent with this opinion; as to Carter, we affirm the decision of the court of appeals, albeit on different grounds.

Reversed and Remanded in part. Affirmed in part.

Concur: KELLY, J., concurs, joined by R.G. BRADLEY, J. (opinion filed).

Dissent: ABRAHAMSON, J., dissents, joined by A.W. BRADLEY, J. (opinion filed).

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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