State v. Stanley E. Martin

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.
April 20, 2021
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 No. 2019AP1794 Cir. Ct. No. 1996CF962979

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE COMMITMENT OF STANLEY E. MARTIN:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

STANLEY E. MARTIN,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
PEDRO COLON, Judge. Affirmed.

Before Brash, P.J., Graham and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1794

¶1 PER CURIAM. Stanley E. Martin appeals the order denying his
petition for discharge from a WIS. STAT. ch. 980 commitment. Martin argues that
the trial court failed to make ultimate findings of fact to support his continued
commitment. We reject his argument and accordingly, we affirm.

BACKGROUND

¶2 Martin was initially committed as a sexually violent person pursuant
to WIS. STAT. § 980.05 (1995-96) after the trial court found him to be a sexually
violent person following a jury trial in 1996.1 He has filed numerous petitions,
motions, and appeals in the intervening years.2 Underlying this appeal, Martin
petitioned for discharge from commitment, pursuant to WIS. STAT. § 980.09
(2019-20)3 on May 18, 2018. The State did not contest Martin’s right to a trial
after conceding that Martin “proffered sufficient evidence to justify a full
evidentiary hearing on his discharge petition.”

¶3 The trial court conducted a court trial on Martin’s discharge petition
on September 27, 2018. The State called Dr. Bradley Allen, a licensed

1
The Honorable Jeffrey A. Kremers presided over the trial and entered the commitment
order. The Honorable Pedro Colon presided over the discharge trial and entered the order
denying discharge.
2
See State v. Martin, No. 1997AP668, unpublished slip op. (WI App Apr. 7, 1998);
State v. Martin, No. 2006AP2413, unpublished slip op. (WI App Jan. 15, 2008), clarified on
reconsideration (WI App Mar. 31, 2008), State v. Martin, No. 2013AP1442-NM, unpublished
op. and order (WI App Nov. 7, 2014). The record further includes at least one motion for habeas
corpus in 1998, which was denied in 2000; petitions for supervised release in 1997 and 1999; and
petitions for discharge in 2000, 2002, 2010, 2012, 2015, 2017, as well as the petition underlying
this appeal in 2018. This court has accepted his voluntary dismissal of appeals in 2002, 2006,
2009, 2010, and 2018.
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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psychologist employed as a Chapter 980 evaluator at Sandridge Secure Treatment
Center, the facility where Martin is committed. Dr. Allen testified that he
evaluated Martin “upon a record review” because Martin “declined an interview”
with him. To perform a record review, Dr. Allen explained his methodology:

Sandridge maintains an extensive record database of each
patient. And so I review all of the available 980 related
documents. I conduct an assessment of risk using
actuarials. I assess long-term vulnerabilities or dynamic
factors using structured professional judgment. I assess
protective factors. I assess psychopathy. I determine
whether or not the person fulfills diagnostic criteria under
the DSM-[V] for any types of mental disorders. I analyze
whether or not the person is ready for supervis[ed] release
based upon statutory criteria, and then I also analyze
whether the person is appropriate for discharge based upon
statutory criteria.

¶4 Dr. Allen’s Chapter 980 evaluation report was admitted as evidence.
He testified to the three elements necessary for continued commitment as a
sexually violent person, under WIS. STAT. ch. 980: (1) conviction(s) for sexually
violent offenses; (2) a predisposed mental health condition or a diagnosis that
predisposes the person to commit acts of sexual violence; and (3) that the person
must be more likely than not to commit another sexually violent offense.

¶5 Dr. Allen reviewed Martin’s criminal history: a charge of robbery at
age seventeen in 1975, charges of rape and attempted murder in 1976 with a
conviction of endangering safety regardless of life for which his sentence was
imposed and stayed, and a charge of rape that resulted in a conviction only for
endangering safety regardless of life in 1978, for which he was confined in prison
until 1984. Dr. Allen’s report showed that while in prison, Martin masturbated in
the presence of a female officer and received a conduct report. After his release,
he absconded from parole supervision in July 1984, and was subsequently
apprehended in Illinois for aggravated assault, for which his parole was revoked.

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On parole in 1987, he was charged with first-degree sexual assault and false
imprisonment and convicted of second-degree sexual assault as a repeater, for
which he was sentenced to prison and released on parole in 1994. During that
prison term, he was convicted of battery by prisoner and received two conduct
reports for exposing himself and touching a female officer and grabbing and
kissing the hand of a female officer. In 1995, his probation was revoked for
making romantic advances to a female caseworker, testing positive for cocaine in
a urinalysis, and threatening a resident. While in the House of Corrections
awaiting a placement in a halfway house as an alternative to revocation, he
received numerous conduct reports for disrespect toward female officers including
shouting obscenities, exposing himself, and masturbating in front of female
officers.

¶6 Dr. Allen determined that Martin had three relevant diagnosable
mental illnesses: “other specified paraphilia disorder, exhibitionistic disorder, and
other specified personality disorder with anti-social traits.” Dr. Allen diagnosed
the paraphilia disorder because Martin’s sexual behavior was “directed at other
people. He repeatedly raped and/or sexually assaulted [at least three] adult
women” and “his behavior was not inhibited by signs of distress or the pain and
suffering of the person.” For the exhibitionistic disorder, Dr. Allen considered this
a “compulsive” behavior and that “exposing himself and masturbating in front of
staff” during multiple incarcerations was aggressive. The final diagnosis for

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“other specified personality disorder with the anti-social features” was based on
his “failure to conform to social norms with respect to lawful behavior.”4

¶7 Dr. Allen’s testimony then turned to the question of Martin’s risk of
committing another sexually violent offense if he were discharged. See WIS.
STAT. §§ 980.02(2), 980.09(3). Dr. Allen testified that Martin has not participated
in any sex offender treatment at Sandridge. He noted that in his review of
Martin’s records, he found no evidence of Martin admitting he committed the
offenses for which he was convicted or taking responsibility for them. Dr. Allen
testified that according to “actuarial assessments,” not participating in treatment
does not increase an offender’s risk, but “it depends on their behavior…. Those
types of things have an impact with increasing risk potentially, even in a secured
structured setting.”

¶8 Dr. Allen acknowledged that Martin had not received any behavioral
reports during the 2018 review period, but Dr. Allen explained that fact did not
equate to Martin no longer being a danger. Dr. Allen stated that “[m]any
offenders are able to conform to a structured supervised setting.” He
acknowledged that Martin has functioned relatively well in a structured setting and
has had improved behavior in the past several years. However, Dr. Allen was
concerned that behaviors emerge “when offenders are released to a less restrictive
setting.” He noted that “Martin was revoked on three separate occasions from
community placement” and Dr. Allen considered that Martin had “difficulties
when that structure is removed or lessened.”

4
Dr. Allen considered that Martin might have antisocial personality disorder, but
Dr. Allen lacked information about Martin’s life and criminal activities prior to his fifteenth
birthday, which is necessary for that diagnosis.

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¶9 Dr. Allen explained that part of his risk determination was based on
the Static-99R assessment tool,5 which is a ten point scale of “static factors” based
on “concrete information” including “[a]ge, previous offenses, convictions,
charges, convictions for sexual offenses, whether or not the victim was a male[,]
whether or not the victim was related, whether or not the person was convicted of
a non contact sexual assault, [and] whether or not the index offense included
violence.” Dr. Allen determined that Martin’s score was “originally … a seven.
And because he turned 60, then it is a reduction of two points so it would be a
five.”

¶10 Dr. Allen testified that he placed Martin in the “high risk/high
needs” base group “[b]ased upon his dynamic risk factors [and] long term
vulnerabilities.” To assess Martin, he considered whether Martin’s “Static-99R
score represented his lifetime risk of reoffending” and Dr. Allen had to “consider[]
undetected offending as well.” Dr. Allen ultimately determined that Martin met
the criteria to continue being committed, with a lifetime risk of more than 50%
likely to commit another sexually violent offense. In his report, he stated “at this
time, to a reasonable degree of psychological certainty, that Mr. Martin’s degree
of risk is in a category that exceeds the legal threshold of ‘more likely than not’
that he will commit another sexually violent offense should he be discharged.”

¶11 Martin’s counsel questioned Dr. Allen about his methodology.
Dr. Allen explained he applied extrapolation based on “empirical research” to

5
Dr. Allen explained to the court that the Static-99R is an actuarial assessment that
considers unchanging factors but also considers differences in age over time. The factors are
derived from analyses of studies of sexual offenders and sexual offending risks. The assessor
tallies each factor presented by the subject out of a total of ten possible points.

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No. 2019AP1794

determine Martin’s real and lifetime risk. Dr. Allen explained that the actuarial
tools and assessments are time limited, and by statute, the Chapter 980 evaluator
must determine “absolute lifetime risk” and consider “undetected” offenses.

¶12 In support of his petition for discharge, Martin called Dr. David
Thornton, a psychologist who has researched the evaluation and assessment of sex
offenders. Martin consented to be interviewed by Dr. Thornton for the creation of
his report, dated April 6, 2018, which was received into evidence. During the
trial, Dr. Thornton testified that he believed there were significant changes in
Martin over the years. The first change he noted was that statistically “the older
somebody is when they are released the less their risk of all kinds of future
offending is. But, specifically, we know this applies to sexual offending.” The
second change he noted was Martin’s “behavior record,” which Dr. Thornton
described in his testimony as showing “no sexual misconduct … no violence. He
does sometimes become agitated or upset about things, but he controls himself.”
Dr. Thornton opined that Martin should be discharged in his report and he recited
the same at the trial.

¶13 Dr. Thornton diagnosed Martin “with a personality disorder and also
disorders related to the use of stimulants and alcohol.” He assessed Martin using
“the Static-99R,” and used a tool that measured his “long term structured risk
score.” His method is to “develop a risk estimate based on criminal history, age,
and long term psychological risk factors … and then look at change, and then
abate risk to some degree below that that initial estimate depending on how much
change there has been.” Similar to Dr. Allen, Dr. Thornton scored Martin a five
on the Static-99R. Also similar to Dr. Allen, Dr. Thornton assessed Martin “as
having an elevated level of physiological risk factors in his history” and
determined Martin would fall into the “High Risk/High Need Norms” category.

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¶14 Dr. Thornton explained that the benefit of treatment was to change
behavior, and while Martin has not participated in treatment, he has changed his
behavior. In contrast to Dr. Allen, Dr. Thornton highlighted that Martin has made
his own changes, and that meant his changes would be “potentially more stable
than” if they had resulted from institutional treatment. Based on his review, he
opined that Martin’s ultimate risk for new acts of sexual violence is “certainly
below 40 percent. I think, it’s probably more likely in the range of 25 or 30
percent.”

¶15 On October 19, 2018, the trial court issued an oral decision, stating
that it reviewed the parties’ letter briefs, and the reports from the two doctors. In
determining whether to grant or deny Martin’s petition for discharge, the court had
to consider the “likelihood of re-offense” and how the assessments evaluated the
effect of “advanced age.” The trial court summarized that there is no dispute “that
Mr. Martin has not … availed himself of any of the treatment” at Sandridge.
Although the court considered Dr. Thornton’s ideas that lack of treatment could be
indicative that Martin may be ready for release, it ultimately concluded that:

without treatment it is impossible to in any way quantify
what measure of likely decrease of, you know, future
sexual behavior would be. And that based on what I have
reviewed, I think, that treatment is an indicator which
would perhaps strengthen Mr. Martin’s position at some
point. But based on what I have heard today it does not.

¶16 The court denied Martin’s petition. The trial court referred to this
matter as a petition for supervised release on the record, but clarified that it was
denying discharge. The court then memorialized its decision in a written order,
which stated: “On this date the Trial Court found, based on all of the reports, trial
records, testimony, and evidence … that the Respondent, Stanley Martin Jr.

8
No. 2019AP1794

continues to meet the criteria as a Sexually Violent Person under WIS. STAT.
§ 980.01(7), and therefore does not meet the criteria for discharge.”

¶17 We granted extensions for the appointment of postconviction
counsel and ordering transcripts. This appeal follows.

DISCUSSION

¶18 Martin argues that the trial court failed to find the ultimate facts that
the State met its burden to show that he was a sexually violent person in need of
continued commitment. See WIS. STAT. § 805.17(2). First, Martin argues that the
trial court’s findings were insufficient. Second, he argues that because the trial
court found that it was impossible to quantify Martin’s risk, the State was unable
to meet its burden and Martin should be discharged. Finally, he argues that the
trial court failed to follow mandatory statutory procedure to address supervised
release in the event that the court denies the discharge petition and continues an
offender’s commitment.

¶19 Martin first argues that the trial court’s finding were insufficient
under WIS. STAT. § 805.17(2). Although the trial court’s oral ruling and written
order are brief, we are persuaded that the court found that Martin continued to
meet each of the three criteria for commitment. We consider this statement by the
trial court highly relevant:

And I know that the Defense argues that there are reasons
by which—for which I shouldn’t let [sic] any credence to
Dr. Allen’s conclusions. And just to be clear, I think, that
those reasons are frankly not enough to dispel Dr. Allen’s
rationale for coming up to his conclusion which indicates
that Mr. Martin is not ready for [discharge].

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We interpret this statement by the trial court as a finding that Dr. Allen was
credible, and that the court was adopting Dr. Allen’s conclusions that Martin met
the criteria for commitment. Our interpretation is bolstered by the court’s written
order, entered the same day, stating that Martin “continues to meet the criteria as a
Sexually Violent Person under WIS. STAT. § 980.01(7).”

¶20 The balance of Martin’s argument fundamentally misstates our
function on appellate review. “At trial, the State has the burden of proving by
clear and convincing evidence that the person meets the criteria for commitment as
a sexually violent person.” WIS. STAT. § 980.09(3). Only last year our supreme
court reaffirmed that the standard of review appropriate to commitment under ch.
980 is that standard we use to review criminal convictions. See State v.
Stephenson, 2020 WI 92, ¶31, 394 Wis. 2d 703, 951 N.W.2d 819 (citing State v.
Curiel, 227 Wis. 2d 389, 417, 597 N.W.2d 697 (1999)).

¶21 Under that standard, we will not reverse an order denying a
discharge petition based on insufficient evidence unless the evidence, viewed most
favorably to the State and the commitment, is so insufficient in probative value
and force that it can be said as a matter of law that no reasonable factfinder could
have found by clear and convincing evidence that the defendant still met the
criteria for commitment as a sexually violent person. See id., ¶30. If there is any
possibility that the factfinder could have drawn the appropriate inferences from the
evidence proffered at trial to find that the defendant is a sexually violent person,
we must affirm the verdict unless the evidence on which the inference is based is
incredible as a matter of law. See State v. Kienitz, 227 Wis. 2d 423, 434-35, 597
N.W.2d 712 (1999). We will not disturb the trial court’s factual findings unless
they are clearly erroneous and we accept reasonable inferences from the facts

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available to the trial court. See Outagamie Cnty. v. Melanie L., 2013 WI 67, ¶38,
349 Wis. 2d 148, 833 N.W.2d 607.

¶22 In a trial on a petition for discharge, “the [S]tate has the burden of
proving by clear and convincing evidence that the person meets the criteria for
commitment as a sexually violent person.” WIS. STAT. § 980.09(3). In order to
continue Martin’s commitment under chapter 980 on the ground that he remains a
sexually violent person, the State was required to prove three elements by clear
and convincing evidence: (1) that Martin has been convicted of a sexually violent
offense; (2) that Martin has a mental disorder that predisposes him to acts of
sexual violence; and (3) that Martin is dangerous to others because the mental
disorder makes it more likely than not that he will engage in one or more future
acts of sexual violence. See Stephenson, 394 Wis. 2d 703, ¶7.

¶23 When we consider the State’s evidence showing that Martin remains
a sexually violent person, it rests in part on Dr. Allen’s testimony. As discussed
above, it is clear that of the two experts, the trial court relied upon Dr. Allen and
found him credible. “The credibility of the witnesses is properly the function of
the jury or the trier of fact, in this case the trial judge.” Gauthier v. State, 28 Wis.
2d 412, 416, 137 N.W.2d 101 (1965). We will sustain the trial court’s fact finding
unless the evidence “is inherently or patently incredible.” Id. Here, the trial
court’s findings are not clearly erroneous because Dr. Allen’s testimony and report
are not inherently or patently incredible.

¶24 The State established the first element for continued commitment
with Dr. Allen’s testimony and report that showed Martin was convicted of several
sexually violent offenses. Dr. Allen testified that the 1978 “conviction appeared to
be sexually motivated.” Further, he testified that Martin has “received sanctions

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for his institutional violations of sexual conduct,” which included masturbating in
the presence of female officers and exposing himself. In our review of the record,
the original petition for commitment was predicated on a conviction for sexual
assault pursuant to WIS. STAT. § 940.225, which falls within the definition of
“sexually violent offense” under WIS. STAT. § 980.01(6). We conclude sufficient
evidence exists that the State proved the first element by clear and convincing
evidence.

¶25 The State established the second element with Dr. Allen’s testimony;
Martin’s expert witness, Dr. Thornton, also concluded Martin had a mental
disorder. In this context, a “‘[m]ental disorder’ means a congenital or acquired
condition affecting the emotional or volitional capacity that predisposes a person
to engage in acts of sexual violence.” WIS. STAT. § 980.01(2). At trial, Dr. Allen
testified that Martin had three relevant diagnosable mental illnesses: “other
specified paraphilia disorder, exhibitionistic disorder, and other specified
personality disorder with anti-social traits.” We conclude sufficient evidence
exists that the State proved the second element by clear and convincing evidence.

¶26 In support of the third element, the State again relied upon
Dr. Allen’s testimony. Dr. Allen testified that when he assessed Martin’s lifetime
risk of reoffending, as required by statute, he considered multiple issues including
static factors such as Martin’s score of five on the Static-99R and his placement in
“high risk/high needs” base group “[b]ased upon his dynamic risk factors [and]
long term vulnerabilities.” We note that Martin’s own expert, Dr. Thornton,
assessed Martin the same score and base grouping. Dr. Allen applied
extrapolation based on “empirical research” to determine Martin’s “absolute
lifetime risk” based on known and “undetected” offenses. Dr. Allen ultimately
concluded that Martin met the criteria to continue being committed: a lifetime risk

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that he was more likely than not to commit a sexually violent offense if he were
discharged.

¶27 Martin contends that the State failed to meet its burden on the third
element, showing that Martin was more likely than not to reoffend, because the
trial court made a finding that it was impossible to quantify Martin’s risk of
reoffending. This is an improper characterization of the trial court’s finding. We
acknowledge that, at one point, the trial court stated that it agreed “with Dr. Allen
that in the absence of treatment there is no way to quantify the likelihood that
[Martin] will not re-offend.” However, the record shows that Dr. Allen did
quantify the likelihood that Martin would reoffend. At another point, the trial
court stated that “without treatment it is impossible to in any way quantify what
measure of likely decrease of, you know, future sexual behavior would be.” The
court then went on to state that treatment was an “indicator which would perhaps
strengthen Mr. Martin’s position at some point [in the future]. But based on what
I have heard today it does not.” In other words, treatment might result in a
decrease in Martin’s risk to reoffend, but he has not participated in treatment.
Therefore, the court concluded it would be illogical to consider Martin’s argument
and Dr. Thornton’s theory that Martin’s risk of reoffending was reduced.

¶28 Considering the third element, a reasonable factfinder, based on
Dr. Allen’s testimony and report, could conclude that Martin would, more likely
than not, commit another act of sexual violence if he were released into the
community. Here, as discussed above, the trial court made that conclusion. We
acknowledge that Martin’s expert offered an alternate interpretation of Martin’s
risk to the community; however, we do not perform an independent review of Dr.

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Thornton’s evidence.6 We instead look to the record to see if a reasonable
factfinder could have come to the conclusion that Martin’s petition for discharge
should be denied. See Stephenson, 394 Wis. 2d 703, ¶37; State v. Poellinger, 153
Wis. 2d 493, 506-07, 451 N.W.2d 752 (1990). Here, the record supports that the
State proved by clear and convincing evidence that Martin continues to “meet[]
the criteria for commitment as a sexually violent person.” WIS. STAT. § 980.09(3);
see Stephenson, 394 Wis. 2d 703, ¶40. We conclude that there was sufficient
evidence in the record to affirm the trial court order. See Curiel, 227 Wis. 2d at
419.

¶29 The final issue is that the trial court did not address the procedure to
consider authorizing supervised release. “If the court or jury is satisfied that the
[S]tate has met its burden of proof … the court shall proceed under [WIS. STAT.
§] 980.08(4) to determine whether to modify the person’s existing commitment
order by authorizing supervised release ….” See WIS. STAT. § 980.09(4). We
conclude that this failure was harmless error because the trial court’s findings
would not support supervised release. We affirm trial court decisions “if that court
reached a result that the evidence would sustain had a specific finding supporting
that result been made.” State v. Robert K., 2005 WI 152, ¶34, 286 Wis. 2d 143,
706 N.W.2d 257 (citation omitted). The trial court found that Martin was not
participating in treatment at Sandridge. By statute, a trial court must find that five

6
We note that Dr. Thornton characterizes Martin’s behavior changes as “potentially
more stable” because Martin did not participate in treatment, Dr. Thornton relies upon omissions
to show improved behavior, and he speculates that the changes in Martin’s behavior will continue
even in an entirely different environment. Dr. Thornton’s testimony does not raise concerns that
the State’s evidence was of such insufficient probative value that we would question sustaining
the trial court order.

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No. 2019AP1794

criteria are satisfied prior to authorizing supervised release.7 The first criterion is
that the person “is making significant progress in treatment and the person’s
progress can be sustained while on supervised release.” Sec. 980.08(4)(cg)1.
Because Martin was not participating in treatment, the trial court could not find
that the first criteria was satisfied. Therefore, although we acknowledge that the
trial court should have addressed this issue, its failure to address it was harmless.
See Evelyn C.R. v. Tykila S., 2001 WI 110, ¶28, 246 Wis. 2d 1, 19, 629 N.W.2d
768 (“If the error at issue is not sufficient to undermine the reviewing court’s
confidence in the outcome of the proceeding, the error is harmless.”).

7
The court may not authorize supervised release unless, based on
all of the reports, trial records, and evidence presented, the court
finds that all of the following criteria are met:

1. The person is making significant progress in treatment
and the person’s progress can be sustained while on supervised
release.

2. It is substantially probable that the person will not
engage in an act of sexual violence while on supervised release.

3. Treatment that meets the person’s needs and a
qualified provider of the treatment are reasonably available.

4. The person can be reasonably expected to comply
with his or her treatment requirements and with all of his or her
conditions or rules of supervised release that are imposed by the
court or by the department [of health services].

5. A reasonable level of resources can provide for the
level of residential placement, supervision, and ongoing
treatment needs that are required for the safe management of the
person while on supervised release.

WIS. STAT. § 980.08(4)(cg).

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CONCLUSION

¶30 We conclude that sufficient evidence exists in the record to support
the trial court order denying Martin’s discharge petition in accordance with WIS.
STAT. §§ 980.01(7), 980.09. First, the State showed that Martin was convicted of
a sexually violent offense. Second, the State showed that Martin suffered from a
mental disorder that predisposed Martin to commit acts of sexual violence. Third,
the State showed through expert testimony that Martin was more likely than not to
commit another sexually violent offense if discharged. We reject Martin’s
arguments to the contrary and affirm the trial court.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

16