State v. Richard L. Wasley

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.
February 17, 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. 2021AP487-CR Cir. Ct. No. 2017CF2198

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICHARD L. WASLEY,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
CHRIS TAYLOR, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Nashold, 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. 2021AP487-CR

¶1 PER CURIAM. Richard Wasley appeals a circuit court order
revoking his conditional release from the custody of the Department of Health
Services (the department). Wasley argues that the State failed to meet its burden
of proving by clear and convincing evidence that a rule or condition of release was
violated, or that the safety of Wasley or others required that conditional release be
revoked. WIS. STAT. § 971.17(3)(e) (2019-20).1 For the reasons discussed below,
we affirm the order of the circuit court.

¶2 Wasley was committed to the department’s custody after he was
found not guilty by reason of mental disease or mental defect (NGI) based on
charges of criminal conduct that occurred in 2017. Among other crimes, the State
charged Wasley with first-degree recklessly endangering safety, as a repeater, for
allegations that Wasley approached a university student on State Street in Madison
and lunged at the student’s shoulder, near his neck, with a knife.

¶3 Relevant to this appeal, Wasley petitioned for conditional release
from the department’s custody, and his petition was granted on July 13, 2020.
Shortly thereafter, the State filed a petition for revocation of Wasley’s conditional
release. Following a hearing held on September 29, 2020, the circuit court entered
an order revoking Wasley’s conditional release. Wasley appealed.

¶4 Under WIS. STAT. § 971.17(3)(e), a court may revoke a person’s
conditional release if the State shows by clear and convincing evidence that a rule
of conditional release has been violated, or that the safety of the person or others
requires that conditional release be revoked. “[W]e view the finding that the

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

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No. 2021AP487-CR

safety of others requires revocation as a mixed question of fact and law.” State v.
Burris, 2004 WI 91, ¶71, 273 Wis. 2d 294, 682 N.W.2d 812. The circuit court’s
factual findings based on its evaluation of the evidence presented at the revocation
hearing are upheld unless clearly erroneous. Id. Whether those facts prove by
clear and convincing evidence that the safety of others requires revocation is a
question of law. Id. “Normally, an appellate court reviewing determinations of
law does so without deference to the circuit court.” Id. However, because the
circuit court’s factual findings regarding the safety of others “are so closely
intertwined” with the court’s legal determination that the safety of others requires
revocation, “a reviewing court ‘should give weight to the trial court’s decision,
although the trial court’s decision is not controlling.’” Id. (quoting Wassenaar v.
Panos, 111 Wis. 2d 518, 525, 331 N.W.2d 357 (1983)).

¶5 On appeal, Wasley challenges hearing evidence adduced by the State
regarding three incidents that took place at Mendota Mental Health Institute
(MMHI) on July 11, 2020, July 30, 2020, and September 11, 2020. As to the
incidents that took place on July 30 and September 11, Wasley argues that the
circuit court erred in relying on expert testimony as a conduit for inadmissible
hearsay regarding the facts of what occurred on those dates. We need not consider
the incidents that occurred on July 30 and September 11, 2020, nor whether
evidence of those incidents was admissible, because we affirm the circuit court on
the basis that the evidence of the incident that occurred on July 11, 2020, was
sufficient to revoke Wasley’s conditional release. See Gross v. Hoffman, 227
Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issue need be addressed).

¶6 Evidence of the incident that occurred on July 11, 2020 was elicited
through the hearing testimony of Dr. Victor Witkovsky, who treated Wasley at
MMHI. Wasley concedes in the appellant’s brief that the State was permitted to

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No. 2021AP487-CR

introduce Wasley’s statements to Witkovsky concerning the July 11 incident as an
admission by a party opponent under WIS. STAT. § 908.01(4)(b). Wasley asserts
that, even though the circuit court could properly consider the reported
conversation between Wasley and Witkovsky as evidence of the July 11 incident,
that evidence alone was not sufficient to meet the State’s burden of proof by clear
and convincing evidence. We disagree.

¶7 Witkovsky testified that he spoke with Wasley in mid-July of 2020
after hearing reports from nursing staff that Wasley had been demonstrating some
distress at nighttime and had been dancing around and making loud noises in his
room. Witkovsky met with Wasley, who said that he was experiencing some
thoughts about being physically aggressive toward other people. Witkovsky
testified that Wasley “said something about cutting open their jugular vein and just
watching them die—to bleed to death.” Witkovsky asked whether Wasley had
anyone in particular in mind, and Wasley said that he did not, but found the image
and those thoughts somewhat gratifying. When Witkovsky questioned Wasley
further about cutting veins and jugulars, Wasley said that was what he had done
and what got him into MMHI. Witkovsky testified that “in some ways, it felt like
he—saying he wanted to repeat that.”

¶8 Witkovsky informed other staff members about what Wasley had
said on July 11, 2020, and also discussed with staff the fact that Wasley was in a
position to be released soon to a receiving agency in the community. Witkovsky
testified, “I had spoken with the social worker staff to see if the receiving agency
would probably want to know about this because placement could be made
difficult by somebody who wants to dance around in the middle of the night and
talk about cutting people’s jugulars.” Witkovsky acknowledged in his testimony
that this “kind of behavior might jeopardize a placement.”

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No. 2021AP487-CR

¶9 In rendering its decision to revoke Wasley’s conditional release, the
circuit court found that the State had proven, by clear and convincing evidence,
that the safety of Wasley or others required revocation. Under the standard of
review articulated in Burris, 273 Wis. 2d 294, ¶71, we give weight to the circuit
court’s determination. The circuit court specifically referenced Wasley’s
statement to Witkovsky about “ruminating on cutting open people’s jugulars and
watching them bleed to death” and “[i]n some ways … saying he wanted to repeat
the crime.” The court’s comments regarding the July 11, 2020 incident and the
statements Wasley made to Witkovsky about it show that the court relied heavily
on the evidence regarding that incident. The court stated that “on that basis alone”
there was enough to indicate how problematic Wasley’s behavior and response
were, and went on to revoke his conditional release.

¶10 We are satisfied, in light of the evidence discussed above and the
deferential standard of review under Burris, that the evidence of the July 11, 2020
incident was both admissible and sufficient to establish, by clear and convincing
evidence, that the safety of Wasley or others required revocation of his conditional
release.

By the Court.—Order affirmed.

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

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