State v. Roy C. O'Neal

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.
June 2, 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. 2020AP1270 Cir. Ct. No. 1996CI842

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE COMMITMENT OF ROY C. O’NEAL:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

ROY C. O’NEAL,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
BEAU LIEGEOIS, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.
No. 2020AP1270

¶1 HRUZ, J. Roy O’Neal appeals from an order denying his petition
for discharge from a WIS. STAT. ch. 980 (2019-20),1 commitment. He contends he
was entitled to a hearing on the discharge petition because he provided a new
expert opinion citing research published after his last discharge hearing and
alleging new facts about his conduct on supervision. We affirm.

BACKGROUND

¶2 In 1996, O’Neal stipulated to a WIS. STAT. ch. 980 commitment as a
sexually violent person, based upon his 1975 conviction on the predicate offenses
of second-degree murder and attempted rape. O’Neal obtained supervised release
in the community in 2015.

¶3 In 2018, O’Neal petitioned for discharge from his commitment
based upon treatment progress. The circuit court held a discharge hearing at
which three psychologists appeared as expert witnesses, and another psychologist
testified as to O’Neal’s treatment progress. The treating psychologist,
Laura DeMarzo, observed that O’Neal had been making overall positive progress
in sex offender and anger management treatment , but he still struggled with
impulse control issues that led to some nonsexual rule violations. DeMarzo
further noted that O’Neal had begun to earn some unsupervised privileges, but he
was still heavily monitored in most situations beyond his own property.

¶4 All three experts diagnosed O’Neal as having some combination of
mental disorders, each including sexual sadism and antisocial personality disorder,

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

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that affected his emotional or volitional capacity and predisposed him to engage in
acts of sexual violence. All three experts then employed actuarial instruments
incorporating both static and dynamic risk factors to evaluate O’Neal’s likelihood
of committing further sexually violent offenses. Dawn Pflugradt testified for the
State that O’Neal remained more likely than not to commit another act of sexual
violence within his lifetime. Charles Lodl and David Thornton each testified for
the defense that O’Neal’s lifetime risk of reoffending was less than fifty percent.

¶5 The circuit court gave greater weight to Pflugradt’s testimony and
concluded “by the razor thin edge” that the State had shown O’Neal was more
likely than not to reoffend. The court also noted that it would like to see a greater
period of time over which to evaluate O’Neal’s performance with more
unsupervised privileges, given that he was still being heavily monitored. The
court denied the discharge petition, and this court affirmed on appeal.

¶6 In 2019, DeMarzo provided the circuit court with another annual
treatment progress report pursuant to WIS. STAT. § 980.07(4), and Pflugradt
provided the court with another annual examination report pursuant to
§ 980.07(1). DeMarzo noted that O’Neal participated in weekly treatment
sessions during the review period and demonstrated a high level of treatment
engagement. He was managing his mental health conditions through medication.
He self-reported having reduced deviant fantasies and masturbatory behavior and
successfully using coping mechanisms to deal with two instances of intrusive
deviant thoughts—although he had not taken any new polygraphs during the
reporting period to verify his self-reports. O’Neal’s substantial rule compliance,
transparency and treatment engagement resulted in increased unsupervised
privileges.

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¶7 Pflugradt acknowledged that O’Neal continued to make progress in
treatment, was working to gain vocational skills, and had earned additional
unsupervised privileges. Pflugradt noted, however, that O’Neal had reacted
poorly to the denial of his first discharge petition, initially threatening to reduce
his participation in treatment so that he would not be giving his treatment
providers “ammunition” against him. In addition, O’Neal had experienced a
behavioral lapse during the reporting period by masturbating to a sexual fantasy
involving aggressive sex with a teenaged girl he saw at church. Pflugradt
concluded that O’Neal’s scores on the actuarial instruments and lifetime risk of
reoffending remained the same, and they would do so until O’Neal could
“demonstrate maintenance of the changes he has made (with no lapses) while his
community privileges increase.”

¶8 Following the filing of DeMarzo’s and Pflugradt’s 2019 reports,
O’Neal filed a pro se discharge petition asserting that his risk to reoffend was now
below the threshold and that his mental disorders were in remission due to his
medication. Subsequently appointed counsel requested an additional
court-ordered evaluation of O’Neal pursuant to WIS. STAT. § 980.031. Counsel
then filed a supplemental discharge petition on O’Neal’s behalf, based upon the
opinion of the court-appointed psychologist, Sharon Kelley, that O’Neal no longer
met the criteria for commitment as a sexually violent person.

¶9 In addition to administering two of the same actuarial instruments
that had been discussed by the expert witnesses at O’Neal’s first discharge
hearing, Kelley also considered what she termed one of the “protective factors” of
“[t]ime free.” Kelley cited professional research published after O’Neal’s last
discharge hearing showing that for each year in an average community setting in
which a sexual offender has not been convicted of any further offenses (either

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sexual or nonsexual), the risk of committing future sexual offenses decreases in a
linear and incremental manner. Kelley noted that O’Neal’s unsupervised
privileges had been expanded since his last discharge hearing to include: going to
a coffee bar once per month; using a taxi service once every other week; walking
for exercise three days a week; and going to meals and events with his pastor.

¶10 The circuit court held oral argument regarding whether a discharge
hearing was warranted. O’Neal asserted he was entitled to a hearing because there
had been changes in both the science and the amount of his unsupervised time in
the community since his last hearing. The State responded that the concept of
offense-free time in the community was already accounted for in the actuarial
instruments, and Kelley had not explained how it further lowered O’Neal’s risk in
this case. The State acknowledged that “increased freedoms over time” could
warrant a hearing, but it argued that the changes that had occurred since the last
review period were “not enough.”

¶11 The circuit court observed that the additional privileges O’Neal had
earned since his last hearing involved “simple basic tasks, devoid of any of the
regular daily stresses that people have in the community, where a significant
amount of structure and monitoring is still required.” Thus, the court reasoned, the
additional privileges did not alleviate the court’s expressed concern at the last
hearing that there had been an insufficient opportunity to evaluate O’Neal’s
unsupervised behavior. The court further noted that Kelley’s report did not assert
that the new study provided anything significantly new to the professional body of
knowledge, as opposed to reaffirming prior available information. The court
denied the discharge petition without a hearing, and O’Neal now appeals.

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DISCUSSION

¶12 A person committed under WIS. STAT. ch. 980 is entitled to periodic
reexamination and may petition the circuit court for discharge at any time. WIS.
STAT. §§ 980.07 and 980.09(1). However, the court shall deny a discharge
petition without an evidentiary hearing unless the petition alleges facts from which
the court or a jury likely would conclude that the petitioner’s condition has
changed since the initial commitment or most recent discharge petition, such that
the petitioner no longer meets the criteria for commitment as a sexually violent
person. Sec. 980.09(1). This court will independently review whether the
statutory criteria for obtaining a discharge hearing have been satisfied. State v.
Hager, 2018 WI 40, ¶19, 381 Wis. 2d 74, 911 N.W.2d 17.

¶13 In making the determination of whether a discharge hearing is
warranted, a circuit court may consider the entire record, including the facts
alleged in the petition and the State’s response, evidence introduced at the initial
commitment trial or most recent trial on a petition for discharge, any past or
current evaluations in the record or other documents provided by the parties, and
arguments by counsel. WIS. STAT. § 980.09(2). This limited paper review tests
the sufficiency of the petition and is aimed at weeding out meritless or
unsupported petitions. State v. Arends, 2010 WI 46, ¶¶26-30, 325 Wis. 2d 1,
784 N.W.2d 513.

¶14 A three-justice plurality of our supreme court has instructed that a
court should “carefully examine, but not weigh” facts both favorable and

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unfavorable to the petition.2 Hager, 381 Wis. 2d 74, ¶30. That is to say, a court
should scrutinize the parties’ submissions “to ensure they contain facts upon
which a trier of fact could reasonably rely” in determining whether the petitioner
is no longer sexually violent, but it should not choose between conflicting sets of
facts or allegations satisfying that threshold. Id.; see also Arends, 325 Wis. 2d 1,
¶¶30, 39. A trier of fact cannot reasonably rely upon a new expert opinion that the
petitioner is no longer sexually violent unless that opinion is based upon
“something more than facts, professional knowledge, or research that was
considered by an expert testifying in a prior proceeding that determined the person
to be sexually violent.” State v. Combs, 2006 WI App 137, ¶32, 295 Wis. 2d 457,
720 N.W.2d 684.

¶15 The new expert opinion on which O’Neal relies in his current
discharge petition was based in part upon: (1) new research and professional
knowledge regarding the effect that “time free” in the community has upon a sex
offender’s risk to reoffend; and (2) the additional time O’Neal has spent under
supervision in the community since his last discharge hearing, with increased
privileges and without committing any new sexual offenses. O’Neal contends the
circuit court erred by “weighing” this evidence when it dismissed the new research
as insignificant and deeming the amount of time O’Neal had been on supervised
release since his last hearing to be insufficient. We disagree.

2
Two concurring justices viewed WIS. STAT. § 980.09(2) as authorizing the circuit court
to permissibly weigh evidence to determine whether a jury “would likely conclude” the
petitioner’s condition had sufficiently changed. State v. Hager, 2018 WI 40, ¶¶66, 77, 381
Wis. 2d 74, 911 N.W.2d 17. Two dissenting justices viewed the statute as impermissibly
authorizing the court to weigh evidence. Id., ¶84. We treat the lead opinion as controlling as to
the holding that the court cannot weigh evidence when reviewing a petition for discharge. See
State v. Griep, 2015 WI 40, ¶36, 361 Wis. 2d 657, 836 N.W.2d 567.

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¶16 We conclude that the circuit court was not weighing the evidence
because it was not choosing among conflicting factual allegations as to O’Neal’s
conduct since the last hearing or differing expert opinions as to the validity or
applicability of the new research into the effect of time free on recidivism rates.
Rather, the court was considering whether a trier of fact could reasonably rely
upon Kelley’s new expert opinion to “likely conclude” that O’Neal’s condition
had sufficiently changed since his last hearing, such that he no longer met the
criteria for commitment as a sexually violent person.

¶17 Based upon her scoring of the Static-99R and VRS-SO actuarial
instruments, Kelley calculated O’Neal to have a 25% risk of sexual recidivism
over the next ten years. Taking into account the non-actuarial factor of O’Neal’s
time free in the community, Kelley extrapolated that O’Neal had a 27% risk of
sexual recidivism over twenty years. Further considering the probability that
actuarial data on recidivism based on disclosed offenses could underestimate
actual recidivism, Kelley concluded there was a 34% risk that O’Neal would
commit another sexually violent act in his lifetime.

¶18 At O’Neal’s prior discharge hearing, however, the circuit court
rejected Lodl’s expert opinion—based on his distinct scoring of the actuarial
instruments—that O’Neal’s risk of sexual recidivism over a ten-year period was
between 26.7% and 37.9%. The court instead accepted the shared expert opinion
of both Pflugradt and Thornton that O’Neal’s risk of sexual recidivism based on

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their scoring of actuarial instruments was about 43% over a ten-year period and
about 52% over a fifteen-year period.3

¶19 Pflugradt’s scoring of the actuarial instruments did not change in her
updated 2019 report. Kelley’s report offered a different scoring of the same
actuarial instruments, but it did not directly link that difference to the new research
and additional facts about O’Neal’s performance on supervision. Instead, Kelley
incorporated the theorized impact of O’Neal’s time free in the community into her
assessment of his lifetime sexual recidivism risk after calculating a much lower
baseline ten-year sexual recidivism risk from the actuarial instruments than the
circuit court had previously accepted. Thus, her ultimate conclusion was largely
based upon an already rejected premise.

¶20 By Kelley’s own analysis, O’Neal’s lifetime risk of sexual
recidivism would be over one-third higher than the baseline ten-year risk
established by the actuarial instruments—even taking into account O’Neal’s time
free in the community. Kelley did not offer any opinion that O’Neal’s lifetime
risk of reoffending would be less likely than not if starting from the ten-year
baseline of the 43% risk of sexual recidivism the circuit court previously accepted
rather than Kelley’s 25% ten-year baseline.

¶21 Aside from the limited utility of new research and numerical risk
calculations here, we also agree with the circuit court that changes in O’Neal’s
privileges and behavior since his last hearing were insufficient to warrant a

3
The circuit court rejected Thornton’s subsequent downward adjustment of the risk that
O’Neal would engage in future acts of sexual violence based upon Thornton’s evaluation of
other, non-actuarial factors.

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hearing. A fact finder previously concerned about the lack of a sufficient
opportunity to evaluate O’Neal’s unsupervised conduct would not likely conclude
that the incremental increases in O’Neal’s unsupervised privileges demonstrated
that he no longer met the criteria for commitment as a sexually violent person.
This circuit court determination is further supported when taking into
consideration O’Neal’s poor reaction to the denial of his prior petition and his
behavioral lapse involving masturbating to an aggressive sexual fantasy with a
teenaged girl. Based upon the available record as a whole, we conclude that the
circuit court properly denied O’Neal’s discharge petition without a hearing.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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