State v. Kenneth William Jaworski

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.
January 11, 2022
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. 2019AP1795 Cir. Ct. No. 2006CI2

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE COMMITMENT OF KENNETH WILLIAM JAWORSKI:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

KENNETH WILLIAM JAWORSKI,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
DENNIS R. CIMPL, Judge. Affirmed.

Before Donald, P.J., Dugan and Graham, 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. 2019AP1795

¶1 PER CURIAM. Kenneth William Jaworski, pro se, appeals from an
order denying his petition for discharge from a WIS. STAT. ch. 980 (2019-20)
commitment.1 We reject his appellate arguments and affirm.

BACKGROUND

¶2 This appeal stems from Jaworski’s petition for discharge from his
commitment as a sexually violent person. At the bench trial on his petition, three
psychologists disagreed over whether Jaworski had a predisposing mental disorder
and whether his risk of committing a future act of sexual violence exceeded the
more likely than not threshold. The circuit court concluded that Jaworski
continued to satisfy the criteria for commitment. In so doing, the circuit court
observed that Jaworski had refused to participate in treatment and lacked insight as
to his sex offending behavior and his sexual deviance. Additional information
relevant to the issues raised on appeal will be provided below.

ANALYSIS

I. Jaworski forfeited his objection to the circuit court’s
consideration of his refusal to participate in treatment.

¶3 Jaworski argues that the circuit court improperly considered his
refusal to participate in treatment when it denied his petition for discharge.
However, “[i]t is a fundamental principle of appellate review that issues must be
preserved at the circuit court. Issues that are not preserved at the circuit court …
generally will not be considered on appeal.” See State v. Huebner, 2000 WI 59,
¶10, 235 Wis. 2d 486, 611 N.W.2d 727.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP1795

¶4 Here, Jaworski, as the party raising the issue on appeal, “bears the
burden of showing that the issue was raised before the circuit court.” See id. He
has not done so. Because Jaworski did not make a timely and adequate objection
to evidence about his refusal to participate in treatment or move to strike the
testimony, we conclude that he forfeited review of this issue.2 See id., ¶11 n.2.

II. The record belies Jaworski’s claim that the circuit court
improperly prevented his trial counsel from questioning
Dr. Fields.

¶5 Jaworski further contends that the circuit court did not allow trial
counsel to re-examine Dr. Sheila Fields after the circuit court completed its own
questioning. The record belies his claim.

¶6 The transcript reflects that after the circuit court completed its
examination of Dr. Fields, the following exchange occurred:

THE COURT: Follow up [trial counsel]?

[TRIAL COUNSEL]: Hold on one second, Judge. No, I’m
done.

[PROSECUTOR]: I have nothing further.

THE COURT: Okay. Thanks, Doctor.

¶7 Contrary to Jaworski’s assertion, the circuit court gave his trial
counsel an opportunity to question Dr. Fields after it questioned her. In his reply

2
At one point, Jaworski’s attorney objected to a question asked of an expert about
whether Jaworski had refused to participate in treatment. Trial counsel did not explain the basis
for the objection, and the circuit court overruled it. Beyond that one vague objection, no other
objections were made to questioning related to Jaworski’s participation in treatment. See WIS.
STAT. § 901.03(1)(a) (providing that for an error to be predicated upon a ruling admitting
evidence, a substantial right of the party must be affected and there must be a timely objection or
motion to strike stating the specific ground of objection, if the specific ground was not apparent
from the context).

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No. 2019AP1795

brief, Jaworski contends that “the transcript is wrong and that is a fact.” The only
support he offers is his contention that the circuit court told his attorney to sit
down when he attempted to question Dr. Fields. This self-serving and conclusory
claim of error is without support and does not provide a basis for granting relief.
Jaworski fails to identify the portions of the trial transcripts that have been
allegedly altered or provide any legal authority in support of his claim.
Consequently, we conclude that this claim of error is inadequately briefed, and
accordingly, we decline to address it any further. See State v. Pettit, 171 Wis. 2d
627, 647, 492 N.W.2d 633 (Ct. App. 1992) (stating that this court will not address
issues on appeal that are inadequately briefed).

III. The circuit court’s failure to consider Jaworski’s
eligibility for supervised release was harmless error.

¶8 Lastly, Jaworski claims that WIS. STAT. § 980.09(4) required the
circuit court to consider whether he was eligible for supervised release when it
denied his discharge petition. That subsection provides that when a factfinder
determines that a person still meets criteria for commitment at a discharge trial,
“the court shall proceed” to determine if the person is eligible for supervised
release “unless the person waives consideration of the criteria in s. 980.08(4)(cg).”

¶9 Jaworski did not waive consideration of the criteria in WIS. STAT.
§ 980.08(4)(cg). Therefore, in seeking supervised release, Jaworski had the
burden to prove by clear and convincing evidence that he met § 980.08(4)(cg)’s
five criteria, including that he “is making significant progress in treatment and

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No. 2019AP1795

the … progress can be sustained while on supervised release.” 3 See
§ 980.08(4)(cg)1. & (cj).

¶10 The State acknowledges that the circuit court did not expressly
consider Jaworski’s eligibility for supervised release after it denied his discharge
petition at trial. However, the three experts at trial agreed, and the circuit court
found, that Jaworski was not participating in treatment.

¶11 Because Jaworski was not participating in treatment, the circuit court
could not find that the first criteria was satisfied. The circuit court could not
authorize supervised release unless it found that all of the WIS. STAT.
§ 980.08(4)(cg) criteria were satisfied. Consequently, we agree with the State that

3
A person has made “significant progress in treatment” when the person is doing all of
the following:

(a) Meaningfully participating in the treatment program
specifically designed to reduce his or her risk to reoffend offered
at a facility described under s. 980.065.

(b) Participating in the treatment program at a level that
is sufficient to allow the identification of his or her specific
treatment needs and demonstrating, through overt behavior, a
willingness to work on addressing the specific treatment needs.

(c) Demonstrating an understanding of the thoughts,
attitudes, emotions, behaviors, and sexual arousal linked to his or
her sexual offending and an ability to identify when the thoughts,
emotions, behaviors, or sexual arousal occur.

(d) Demonstrating sufficiently sustained change in the
thoughts, attitudes, emotions, and behaviors and sufficient
management of sexual arousal such that one could reasonably
assume that, with continued treatment, the change could be
maintained.

WIS. STAT. § 980.01(8)(a)-(d).

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No. 2019AP1795

any error in this regard was harmless.4 See WIS. STAT. § 980.038(6) (providing
that in chapter 980 cases, “[t]he court shall, in every stage of a proceeding under
this chapter, disregard any error or defect in the pleadings or proceedings that does
not affect the substantial rights of either party”).

By the Court.—Order affirmed.

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

4
We acknowledge that the circuit court should have addressed this issue promptly after
concluding that the State had satisfied its burden of proof to show that Jaworski met the criteria
for continued commitment.

6