State v. Benjamin J. Klapps

2021 WI APP 5

COURT OF APPEALS
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
2019AP1753-CR
Case No.:
2019AP1754-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BENJAMIN J. KLAPPS,

DEFENDANT-APPELLANT.

Opinion Filed: December 23, 2020
Submitted on Briefs: July 16, 2020

JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Jefren E. Olsen, assistant state public defender of Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Daniel J. O’Brien, assistant attorney general, and Joshua L.
Kaul, attorney general.
2021 WI App 5

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 23, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal Nos. 2019AP1753-CR Cir. Ct. Nos. 2000CF255
2000CF284
2019AP1754-CR

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BENJAMIN J. KLAPPS,

DEFENDANT-APPELLANT.

APPEALS from an order of the circuit court for Winnebago County:
SCOTT C. WOLDT, Judge. Affirmed.

Before Neubauer, C.J., Gundrum and Davis, JJ.

¶1 NEUBAUER, C.J. Benjamin J. Klapps appeals from an order
revoking his conditional release. Klapps contends the court was objectively biased
against him, as evidenced by the court’s reference to a psychologist’s opinion
Nos. 2019AP1753-CR
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rendered in reports filed in prior proceedings in which Klapps’ conditional release
was revoked. He further contends we should invoke our discretionary reversal
power in the interest of justice. Because Klapps failed to seek postrevocation
review, as required by WIS. STAT. § 971.17(7m) (2017-18),1 and his claim of
objective bias does not rise to the level of showing actual bias amounting to a due
process violation, we reject Klapps’ arguments. We affirm.

BACKGROUND

¶2 In 2000, Klapps pled guilty to sexual assault of a child and felony bail
jumping but was found not guilty by reason of mental disease or defect.2 He was
committed to the Department of Health and Family Services (Department) at
Winnebago Mental Health Institute for twenty-six years and eight months.

¶3 Since his original commitment, Klapps has been conditionally
released and revoked and recommitted many times. Most recently, in late February
2019, the Department filed a petition to revoke Klapps’ conditional release to a
group home based on several incidents in late 2018 and early 2019. The Department
alleged Klapps sexually harassed, made inappropriate comments to, and ultimately
threatened to harm, staff at the group home.

¶4 On March 6, 2019, the court held a revocation hearing. The only
witness to testify was Klapps’ case manager, Patrick Woodbridge, who testified to

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Klapps resolved two cases with his guilty pleas, and filed two appeals, which have been
consolidated on appeal.

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the incidents in late 2018 and early 2019 while Klapps was out on conditional
release at the group home.

¶5 Woodbridge detailed a series of incidents that demonstrated a
“troublesome pattern” over the course of about five weeks, involving inappropriate
comments that were often sexual in nature and culminating in “very threatening
comments.” These included telling his sex offender treatment therapist that he was
having sexual fantasies about his case manager. His therapist told Klapps that
having sexual fantasies with someone he worked with directly is considered a risk.
Woodbridge was assigned to be his new case manager based on Klapps’ self-
reported inappropriate fantasies about his other case manager.

¶6 The next day, Klapps told a staff member, D.K., that he had a “hard
on for 3 hours but it went away,” then continually asked her why she was not doing
his room checks anymore, and followed her around. He then asked D.K. if she was
afraid of him and when she said, “No,” he said, “Good, because if I was going to
attack you, I have had plenty of chances” and “I have feelings for you as a staff
resident relationship.”

¶7 Although Klapps repeatedly was cautioned about his comments and
behavior after these incidents, he continued. Three days later, he again approached
D.K. and told her he had feelings for her and could not help the way he felt, repeating
that if he were going to attack her, he would have already done so, but would not
act on his feelings because he did not want to get in trouble.

¶8 Klapps subsequently told D.K. he was having suicidal thoughts, but
not an “urge” to kill himself, and that it was his urges that were dangerous. He told
D.K. that he was having sexual urges about her since that morning, causing her to

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go into her office and shut her door, where she then heard Klapps pacing back and
forth.

¶9 The staff determined to take Klapps into custody based on his risky
behavior. When told of the allegations, he said, “I did not touch [D.K.] or do
anything,” complained that the staff lied, and said that if he was placed back at the
same group home, he would “beat the hell out of them.”

¶10 At the hearing on the petition for the termination of his conditional
release, the State argued that these incidents, as well as others demonstrating that he
was pushing boundaries, established a pattern of escalating risky behavior and
threatening sexual comments, which posed a risk to himself and the community,
especially staff members.

¶11 Klapps argued that there was no physical contact or specific threats of
harm, and he specifically told staff he was not going to act on his thoughts. He
argued that because he only saw his therapist every other week, and not for a stretch
of three weeks at that time, he had to disclose these thoughts to the staff. He
contended that these statements had to be assessed in the context of his therapist’s
unavailability and the treatment expectation that he disclose his fantasies to reduce
the risk he would simply internalize and act on the thoughts.

¶12 The trial court found revocation of Klapps’ conditional release was
supported by clear and convincing evidence. The court explained that its ruling was
based on “the only evidence before [the] court”—namely, Woodbridge’s testimony.
The court found that revocation was appropriate because the evidence was that
Klapps kept making threats despite being “told numerous times not only to stop
talking about his sexual conquests but [also] his urges with staff people and he

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continues to do it.” In his oral ruling, the trial judge also noted that he recalled the
conclusions of a psychologist, Dr. Allen Hauer, who had assessed whether Klapps
could be safely released to the community and, if so, under what conditions, in
reports submitted in prior proceedings from 2015 to 2018. Hauer did not examine
or issue a report in the 2019 proceeding. The judge recalled Hauer’s conclusion that
Klapps’ personality disorder as a sexual predator could not be treated with drugs,
and he was unlikely to change. No objection was made to the court’s discussion of
this recollection.

¶13 The court found Klapps’ statement that he would “beat the hell out of
people” if he went back to the group home, along with his repeated, persistent,
inappropriate statements and behavior despite being advised to stop, demonstrated
that Klapps posed “a substantial risk of bodily harm to others.”

¶14 Klapps filed a notice of intent to seek postdisposition relief in the trial
court. He did not file a motion for postdisposition relief before filing this direct
appeal. Additional facts will be discussed where relevant.

DISCUSSION

Standard of Review

¶15 The State contends that Klapps’ failure to move for postdisposition
relief in the trial court forfeits his appellate challenge. To determine whether a
motion for postdisposition relief is required we must interpret WIS. STAT.
§ 971.17(7m). Statutory interpretation presents an issue of law we review de novo.
State v. Grady, 2007 WI 81, ¶14, 302 Wis. 2d 80, 734 N.W.2d 364. We review
whether a defendant adequately preserved or forfeited his right to appellate review

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of a particular claim de novo. State v. Coffee, 2020 WI 1, ¶17, 389 Wis. 2d 627,
937 N.W.2d 579.

A Motion for Postdisposition Relief is Required by WIS. STAT. § 971.17(7m) for New
Issues

¶16 Klapps contends that the trial court evidenced objective bias (the
appearance of bias) against him by referencing the earlier conclusions of Hauer
discussing his mental health and performance on conditional release, denying him
due process. He contends that the trial judge’s comments indicate that the judge
had already decided his case before taking evidence. Klapps acknowledges that he
did not object at the time of the hearing such that he forfeited any challenge based
on his inability to confront Hauer or the court’s reliance on a prior report. He has
not challenged his counsel’s failure to object with an ineffective assistance of
counsel claim; rather, he claims that the error is one that need not be preserved due
to its nature as “structural error.”

¶17 The State responds to the bias claim by noting that Klapps’ failure to
file a postdisposition motion in the trial court to raise his judicial bias claim forfeits
his appellate challenge under the controlling statutes governing a party’s appellate
rights.

¶18 WISCONSIN STAT. § 971.17(7m) provides:

(7m) MOTION FOR POSTDISPOSITION RELIEF AND APPEAL.

(a) A motion for postdisposition relief from a final order or
judgment by a person subject to this section shall be made in
the time and manner provided in [WIS. STAT. §§] 809.30 to
809.32. An appeal by a person subject to this section from a
final order or judgment under this section or from an order
denying a motion for postdisposition relief shall be taken in
the time and manner provided in [WIS. STAT. §§] 808.04(3)
and 809.30 to 809.32. The person shall file a motion for

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postdisposition relief in the circuit court before a notice of
appeal is filed unless the grounds for seeking relief are
sufficiency of the evidence or issues previously raised.
(Emphasis added.)

¶19 When interpreting WIS. STAT. § 971.17(7m), the goal is to give effect
to the intent of the legislature, which we assume is expressed in the text of the
statute. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110. To this end, we begin with the language of the statute
and give it its common, ordinary, and accepted meaning, except that technical or
specially-defined words are given their technical or special definitions. Id., ¶45.
We also consider the scope, context, and purpose of the statute insofar as they are
ascertainable from the text and structure of the statute itself. Id., ¶48. Thus, we
interpret statutory language “in the context in which it is used; not in isolation but
as part of a whole; in relation to the language of surrounding or closely-related
statutes;” and we interpret it reasonably to avoid absurd or unreasonable results. Id.,
¶46. If the meaning of the statute is plain, then we apply that language to the facts
at hand. See id., ¶¶45-50.

¶20 Employing these principles, we conclude that the plain meaning of
WIS. STAT. § 971.17(7m) requires a postdisposition motion when an issue has not
been previously raised. The use of “shall” requiring the petitioner “to file a motion
for postdisposition relief in the circuit court” if the issue was not previously raised
is unambiguous. Klapps does not argue otherwise.

¶21 The same provision also directs that postdisposition motions “shall”
be made in the time and manner provided in WIS. STAT. RULE 809.30. In turn,
RULE 809.30(2)(h) reiterates the same requirement, providing: “The person shall
file a motion for postconviction or postdisposition relief before a notice of appeal is

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filed unless the grounds for seeking relief are sufficiency of the evidence or issues
previously raised.”

¶22 Notably, WIS. STAT. § 971.17(7m), the statute dealing with
postdisposition motions, was created by 2009 Wis. Act 26. It not only incorporates
and reiterates the above-discussed requirement of WIS. STAT. RULE 809.30(2)(h), it
mirrors WIS. STAT. § 974.02, which deals with the closely related issue of
postconviction motions challenging judgments of conviction prior to appeal. Like
§ 971.17(7m) does for postdisposition motions, § 974.02(1) also requires motions
for postconviction relief to be made in the time and manner provided in
RULE 809.30, with § 974.02(2) providing: “An appellant is not required to file a
postconviction motion in the trial court prior to an appeal if the grounds are
sufficiency of the evidence or issues previously raised.”

¶23 Our supreme court has made clear that WIS. STAT. § 974.02 requires
that, for new issues on appeal to be considered as a matter of right, they must be
raised in a postconviction motion. State v. Monje, 109 Wis. 2d 138, 325 N.W.2d
695, 327 N.W.2d 641 (1982) (on reconsideration);3 see also State ex rel. Rothering
v. McCaughtry, 205 Wis. 2d 675, 678 n.3, 556 N.W.2d 136 (Ct. App. 1996); Coffee,
389 Wis. 2d 627, ¶¶31, 41 (“[W]hile an objection may be the best practice, a
postconviction motion is also a timely manner in which to assert that claim ….”).

¶24 We see no basis to interpret the circumstances under which a
postdisposition motion is required to be any different than that of a postconviction

3
While State v. Monje, 109 Wis. 2d 138, 325 N.W.2d 695, 327 N.W.2d 641 (1982) (on
reconsideration), only acknowledged an exception for sufficiency of the evidence, the legislature
has since amended WIS. STAT. § 974.02(2) to also allow the direct appeal of “issues previously
raised” in the trial court. Id.

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motion. The procedural statutes governing this issue employ identical language and
equally mandate the raising of new issues prior to appeal, whether it be in a
postdisposition or postconviction context. Klapps provides no argument, much less
legal authority, to the contrary.

¶25 Likewise, the rationale for the rule in postconviction proceedings is
equally applicable to postdisposition proceedings after the revocation of supervised
release. This is not a mere rule of convenience: it is essential to the orderly
administration of justice, as it promotes efficiency and justice by giving the parties
and the trial judge notice, allowing the trial court to correct or avoid the alleged
error, encouraging the attorneys to prepare diligently, and avoids sandbagging by
failing to object and later claiming error, all to the end of eliminating the need for
appeal. State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727.

¶26 In sum, WIS. STAT. § 971.17(7m) makes clear that in pursuing
postdisposition relief after the revocation of supervised release, a petitioner may file
a direct appeal to address sufficiency of the evidence or issues that have already
been raised and a postdisposition relief motion to address those issues that have not
been raised, including claims of judicial bias.4

¶27 It is undisputed that Klapps’ judicial bias challenge was not
“previously raised.” Had Klapps filed a postdisposition motion, the trial court could

4
While Klapps suggests a postdisposition motion would be fruitless before a biased judge,
he fails to identify any authority to support this contention, and our review indicates this procedure
is routinely employed. See State v. Herrmann, 2015 WI 84, ¶21, 364 Wis. 2d 336, 867 N.W.2d
772 (defendant filed postconviction motion alleging prejudging and seeking resentencing); State v.
Marcotte, 2020 WI App 28, ¶¶1, 17, 392 Wis. 2d 183, 943 N.W.2d 911 (postconviction motion
filed challenging court’s alleged objective bias in prejudging sentence); State v. Goodson, 2009 WI
App 107, ¶6, 320 Wis. 2d 166, 771 N.W.2d 385 (“Goodson filed a motion for postconviction relief,
arguing that he had been deprived of the right to an impartial judge because the court prejudged the
reconfinement sentence.”).

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have directly addressed the claim. Klapps deprived the trial court of that
opportunity before appealing directly to this court, raising the issue for the first time.

Our Review of Forfeited Objections Is Under Our Discretionary Reversal Authority

¶28 Klapps contends that, despite his failure to file a postdisposition
motion in the trial court, his claim of objective judicial bias is a structural
constitutional violation that cannot be forfeited, and which requires a new hearing.
We disagree as, absent a challenge based on ineffective assistance of counsel,
our review is limited to our discretionary reversal authority under
WIS. STAT. § 752.35. Accordingly, we first review case law addressing forfeiture,
and then explain our denial of Klapps’ claim seeking discretionary reversal.

¶29 First, the State aptly points out that our supreme court has made clear
that failure to object, even to a claimed structural constitutional violation, forfeits
the challenge. State v. Pinno, 2014 WI 74, ¶¶55-63, 356 Wis. 2d 106, 850 N.W.2d
207 (claimed denial of the structural public trial right at voir dire was forfeited by
failure to timely object). Review is available under an ineffective assistance of
counsel framework, in which the defendant has the burden of proof to show both
deficient performance and prejudice. See Kimmelman v. Morrison, 477 U.S. 365,
375 (1986); Coffee, 389 Wis. 2d 627, ¶22; Pinno, 356 Wis. 2d 106, ¶¶81-86.5

¶30 Likewise, the United States Supreme Court has affirmed that, even as
it applies to alleged structural errors, absent an objection at trial and on appeal, the
issue is to be reviewed under an ineffective assistance of counsel framework.

5
We note that newly discovered evidence supports a claim for further review. For
example, State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, involved a
collateral attack on the court’s impartiality with a claim that new evidence showed that the court
had prejudged the defendant’s sentence. Klapps does not argue that there is newly discovered
evidence here.

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Weaver v. Massachusetts, 137 S. Ct. 1899, 1910-13 (2017) (“[T]he burden is on the
defendant to show either a reasonable probability of a different outcome in his or
her case or ... to show that the particular public-trial violation was so serious as to
render his or her trial fundamentally unfair.”); see also United States v. Williams,
974 F.3d 320, 344 (3d Cir. 2020) (applying Weaver and explaining that “[t]he
unique considerations raised by appeal on an unpreserved error should not be
disregarded simply because of the nature of the error”); Ahmed v. Madden,
No. 3:18-CV-2309-H-JLB, 2019 WL 4254500, at *7 (S.D. Cal. Sept. 9, 2019)
(applying Weaver to ineffective assistance of counsel claims for, among other
things, trial counsel’s failure to seek recusal of “biased” judge and explaining that
the judge’s challenged rulings “do not suggest judicial bias” and “[b]ecause
Petitioner does not demonstrate prejudice, these claims to ineffective assistance of
counsel are without merit”).

¶31 We may also invoke our power of discretionary reversal under WIS.
STAT. § 752.35. See State v. Beasley, 2004 WI App 42, ¶17 n.4, 271 Wis. 2d 469,
678 N.W.2d 600 (we may address forfeited errors under our discretionary reversal
authority set out at § 752.35). Section 752.35 permits us to reverse despite a party’s
forfeiture where “the real controversy has not been fully tried” or where “it is
probable that justice has for any reason miscarried.” We exercise our discretionary

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reversal power under § 752.35 “sparingly and only in the most exceptional cases.”
State v. Schutte, 2006 WI App 135, ¶62, 295 Wis. 2d 256, 720 N.W.2d 469.6

¶32 While Klapps contends that a claim of objective judicial bias should
be treated differently than the failure to object to the public trial violations at issue
in Pinno and Weaver, he does not identify any cases in which such a claim was
exempt from the requirement that a forfeited claim must be brought before this court
within the context of an ineffective assistance of counsel or interest of justice
framework. Most importantly, he points to no authority expressly providing the
court of appeals, as compared with the Wisconsin Supreme Court, with the authority
to overlook an unobjected to error outside of these established frameworks. As

6
The federal avenue to challenge an unobjected error is plain error, even in the context of
a judicial bias claim. Plain error review requires a four-part showing: (1) that an error occurred;
(2) which was clear or obvious; (3) which not only affected defendant’s substantial rights; (4) but
also seriously impaired the fairness, integrity, or public reputation of judicial proceedings. United
States v. Barnhart, 599 F.3d 737, 743 (7th Cir. 2010); see Fed. R.
Crim. P. 52(b); see also United States v. Boling, 648 F.3d 474, 482 (7th Cir. 2011) (Court will only
reverse for judicial bias when it was not raised in the trial court if defendant “can show (1) that the
district court judge demonstrated actual bias regarding [defendant’s] honesty or guilt and (2) that
[defendant] suffered serious prejudice as a result. Because [defendant] did not timely object to the
judge’s actions, we again review only for plain error.”).

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such, we conclude, our review is limited to one under our power of discretionary
reversal.7

We Decline to Exercise Our Power of Discretionary Reversal

¶33 Regardless of forfeiture, Klapps asks that we exercise our power of
discretionary reversal, arguing that he is entitled to a new revocation proceeding
before an unbiased judge in the interest of justice. Klapps’ specific challenge is to
the consideration of the psychologist’s conclusions which, he argues, is evidence
that the trial court had already decided the case. Klapps asserts that the real focus
of the controversy should have been on whether he was dangerous at the time of the
revocation hearing as evidenced by his behavior while at the group home, but the

7
Klapps points to State v. Carprue, 2004 WI 111, ¶¶57-59, 274 Wis. 2d 656, 683 N.W.2d
31, in support of his argument that his claim of judicial bias cannot be forfeited. Carprue addressed
both a claim of a statutory violation and a claim of due process violation based on judicial bias
arising from the trial judge’s calling and questioning of witnesses. Id., ¶¶29, 31, 58. Our supreme
court found that the issues presented by the trial court’s actions “could be addressed under any of
three legal theories”—a statutory violation, ineffective assistance of counsel, or a violation of
“Carprue’s due process rights to a fair trial before an impartial judge.” Id., ¶29. The supreme court
held that Carprue’s statutory violation claim had been forfeited, id., ¶35, and rejected his ineffective
assistance of counsel claim on the merits, but then went on to also address the due process claim
on the merits even though Carprue had not preserved it with a contemporaneous objection, id., ¶58.
The court concluded that the due process claim failed, not because it was forfeited, but because
Carprue “present[ed] no basis” for finding bias and did “no more than allege that [the judge]
harbored general bias in favor of the State in criminal prosecutions.” Id., ¶60.

While we question the basis for the court’s unexplained conclusion that the alleged
structural error “could not be waived,” id., ¶57, we see no indication, and Klapps has provided
none, that the decision permits this court to analyze Klapps’ claim outside of our statutory
discretionary reversal authority, see Vollmer v. Luety, 156 Wis. 2d 1, 16-17, 456 N.W.2d 797
(1990) (the common law “integrity of the fact-finding” exception grants the supreme court the
power to review waived error that is unavailable to the court of appeals; there are only two grounds
for the court of appeals to reverse a judgment under WIS. STAT. § 752.35: (1) when the real
controversy has not been fully tried; or (2) when it is probable that justice has for any reason
miscarried and the appellate court can conclude that a new trial would probably produce a different
result); State v. Schumacher, 144 Wis. 2d 388, 410, 424 N.W.2d 672 (1988) (the supreme court
has a general power of review not available to the court of appeals).

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judge’s focus on Hauer’s earlier statements obscured and prevented the real
controversy from being fully tried.

¶34 Discretionary reversal may be warranted if the court “had before it
testimony or evidence which had been improperly admitted, and this material
obscured a crucial issue and prevented the real controversy from being fully tried.”
See State v. Schumacher, 144 Wis. 2d 388, 400, 424 N.W.2d 672 (1988).8 Klapps
correctly notes that, when the real controversy has not been fully tried, we may
exercise our power of discretionary reversal without finding the probability of a
different result on retrial. See Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797
(1990). Nevertheless, Klapps’ claim lacks merit because, as we discuss below, the
real controversy of his present dangerousness was fully and fairly tried. Klapps’
contention that the court’s comments rise to the level of evidencing a great risk of
actual bias amounting to denial of due process fails.

¶35 As we are reviewing a claim of judicial bias, we consider the relevant
standard of review and applicable law. “Whether a judge was objectively not
impartial is a question of law that we review independently.” State v. Pirtle, 2011
WI App 89, ¶34, 334 Wis. 2d 211, 799 N.W.2d 492; see also State v. Goodson,
2009 WI App 107, ¶7, 320 Wis. 2d 166, 771 N.W.2d 385 (“Whether a circuit
court’s partiality can be questioned is a matter of law that we review
independently.”).

¶36 There is a presumption that a judge acted fairly, impartially, and
without prejudice. Goodson, 320 Wis. 2d 166, ¶8. “A defendant may rebut the

8
Klapps only argues that the real controversy was not tried and does not make any
miscarriage of justice argument nor does he argue that his judicial bias challenge is entitled to a
plain error review. See WIS. STAT. § 901.03(4); Schumacher, 144 Wis. 2d at 402 (concluding that
the plain error doctrine has been limited to evidentiary issues).

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presumption by showing that the appearance of bias reveals a great risk of actual
bias.” State v. Herrmann, 2015 WI 84, ¶3, 364 Wis. 2d 336, 867 N.W.2d 772.
“Such a showing constitutes a due process violation.” Id. Where such an error
occurs, it is “so intrinsically harmful as to require automatic reversal.” Neder v.
United States, 527 U.S. 1, 7 (1999); see Williams v. Pennsylvania, 136 S. Ct. 1899,
1909 (2016) (“[A]n unconstitutional failure to recuse constitutes structural error.”).

¶37 We pause here briefly to set forth the standard governing the trial
court’s decision at the revocation hearing. WIS. STAT. § 971.17(3)(e) provides, in
pertinent part, as follows:

The state has the burden of proving by clear and convincing
evidence that any rule or condition of release has been
violated, or that the safety of the person or others requires
that conditional release be revoked. If the court determines
after hearing that any rule or condition of release has been
violated, or that the safety of the person or others requires
that conditional release be revoked, it may revoke the order
for conditional release and order that the released person be
placed in an appropriate institution under [WIS. STAT.
§] 51.37(3) until the expiration of the commitment or until
again conditionally released under this section.

Thus, at the revocation hearing, the court was charged with reviewing the evidence
to determine whether Klapps had violated any of the rules of his conditional release
or presented a danger to himself or others. See § 971.17(3)(e). Whether Klapps’
behavior established that Klapps presented a danger to himself or others was the
real controversy to be tried at the hearing.9

¶38 We conclude this is not the sort of “exceptional case[]” warranting
discretionary reversal under WIS. STAT. § 752.35. See Schutte, 295 Wis. 2d 256,
¶62. While this doctrine does not, by definition, arise unless there is a failure to

9
The court did not identify any rules Klapps violated and the State does not argue that this
basis supported revocation.

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object, we nonetheless think it significant that if the real controversy had not been
tried, there was not one, but three prior opportunities to make such a case, including
a potential ineffective assistance of counsel claim. Although not before us, even if
Klapps had availed himself of the latter claim, his argument would fail, as there is
no reasonable probability of a different outcome.

¶39 As to the substance of the trial court’s comments, while Klapps
forfeited a challenge to the lack of notice and opportunity to address Hauer’s earlier
conclusions, Klapps has provided no rebuttal to the substance of the psychologist’s
testimony had the State called him to set forth the conclusions recounted. 10 Most
importantly, Klapps does not argue that the trial judge’s recollection of the
psychologist’s conclusions was inaccurate.

¶40 We also fail to understand how Klapps’ complaint that a fact-finding
judge recalls information from a prior revocation proceeding evidences
prejudgment, unless, of course, the stated recollection is objected to as inaccurate.
In short, we do not see how Klapps’ apparent belief that the bell should be unrung

10
We agree with the State that an individual’s prior revocations and the basis for the same
continue to inform and are relevant to a determination of dangerousness. We cannot conceive of
any grounds to distinguish what may be considered in a recommitment proceeding as opposed to
that considered in the initial or release determinations. See State v. Wood, 2010 WI 17, ¶37, 323
Wis. 2d 321, 780 N.W.2d 63 (in making a release determination, “the court considers the same
factors as it did with the initial commitment, such as the nature of the crime and that person’s
history of mental illness to inform its determination”). While the initial considerations “taken
together, create at least an implicit finding of dangerousness, if not an express finding,” and they
“continue to be present until they are changed or upset,” the question for revocation is whether the
individual’s behavior demonstrated that change continued after release. Id., ¶38. A “non-
exhaustive list of factors” may be considered by the court, but it is not required to consider them in
determining dangerousness. State v. Randall, 2011 WI App 102, ¶16, 336 Wis. 2d 399, 802
N.W.2d 194. The factors include the nature and circumstances of the crimes, the person’s mental
history and present mental condition, and his or her past performance while institutionalized and
conditionally released.

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2019AP1754-CR

works as a practical matter, unless, again, the information is erroneous. Klapps does
not contend it is.

¶41 Moreover, as Klapps had been committed and this proceeding was to
revoke his release for the fifth time, he was undoubtedly aware of Hauer’s
conclusions and did not choose to have an independent psychological evaluation in
the proceeding, as was his right. See WIS. STAT. § 971.17(7)(c).

¶42 To summarize, there is nothing to support Klapps’ argument that the
real controversy—whether he was dangerous at the time of the revocation hearing
as evidenced by his behavior at the group home in the days before the hearing—was
not tried. The entire focus of the revocation hearing was on Klapps’ conduct at the
group home. Klapps does not develop any argument that there was insufficient
evidence to support the trial court’s conclusion that he presented a substantial risk
of serious bodily harm to others. Instead, he points only to the court’s rejection of
his argument that his comments demonstrated a “measure of improved control”
given his therapist’s unavailability. Klapps’ disagreement with the trial judge’s
conclusion is nothing more than that. He fails to address the threat to “beat the hell”
out of staff when learning they believed his behavior was dangerous, or how
repeated sexual comments, discussion of hypothetical attacks based on sexual
impulses, and following staff around, either shows improvement or is therapeutic.

¶43 Ultimately, Klapps fails to explain how the trial judge’s recollection
of the psychologist’s conclusions from prior proceedings transforms into
prejudgment as compared to simply finding that Klapps’ comments and behavior at
the group home were sexually predatory—not only highly inappropriate, but
persistent, intimidating, and threatening. That the judge found his behavior was not
treatable with drugs and was unlikely to change is all part and parcel of the facts

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2019AP1754-CR

supporting a conclusion of continuing dangerousness in Klapps’ fifth revocation
hearing.

¶44 In short, Klapps has failed to show that the trial court’s conclusion
based on the facts presented evidenced prejudgment as compared to simply
disagreeing with Klapps’ characterization of his behavior. He also has failed to
show that the issue of his dangerousness at the time of the revocation hearing was
not fully or fairly tried. We see no serious prejudice to Klapps or grounds to
conclude that the proceeding was unfair, lacked integrity, or amounted to a denial
of due process.

¶45 For these and the above reasons we reject Klapps’ judicial bias claim.
We see no reason to exercise our discretionary reversal authority. We reject Klapps’
request for reversal, as we cannot conclude that the real controversy was not fully
tried.

By the Court.—Order affirmed.

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