State v. Thomas E. Eake

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 8, 2023
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. 2022AP1051-CRAC Cir. Ct. No. 2015CF144

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS E. EAKE,

DEFENDANT-APPELLANT.

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

Before Gundrum, P.J., Grogan and Lazar, 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. 2022AP1051-CRAC

¶1 PER CURIAM. Thomas E. Eake appeals from an order of the
circuit court denying his petition to modify his bifurcated sentence so as to grant
him early release from the confinement portion of his sentence. He contends the
court erred in concluding he failed to meet his burden of proving sentence
modification is warranted. For the following reasons, we affirm.

Background

¶2 Upon his plea, Eake was convicted in 2015 of second-degree sexual
assault of a child based upon a lengthy sexual relationship he began with a
fourteen-year-old neighbor girl. Eake was fifty-two when the assaults began. The
victim told police Eake first had sex with her in June 2012 and then almost weekly
thereafter, “probably about 100 times,” over the following two years. According
to the complaint, when the victim’s mother learned of the assaults and called the
police, the victim informed Eake of this, and Eake told her she should tell the
police they only had sex “one time.” When the girl’s mother asked Eake how
many times he had had sex with her daughter, he told the mother “it only
happened one time.” Following his plea, Eake admitted to the probation/parole
agent who prepared Eake’s presentence investigation report (PSI) and to the
circuit court at sentencing that he had sex with the victim “20 times.” Eake was
sentenced to ten years of initial confinement followed by five years of extended
supervision.

¶3 In March 2022, Eake filed a petition seeking early release from
confinement under WIS. STAT. § 302.113(9g) (2019-20)1 based upon an

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

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No. 2022AP1051-CRAC

“extraordinary health condition.” January 2022 affidavits submitted with the
petition indicate Eake has a significantly shortened life expectancy because of
cancer. After reviewing the matter, the Department of Corrections Program
Review Committee (PRC) determined the “public interest would be served” by
granting Eake’s request for early release, and the Department of Corrections
(DOC) requested that the circuit court hold a hearing on the petition.

¶4 The local district attorney’s office opposed Eake’s early release
request, stating in part that “[i]n reviewing the materials contained within [the
DOC’s] referral, it is clear that Mr. Eake continues to fail to recognize the severity
of his actions. He continues to blame the victim and provide excuses for his
behavior.” The circuit court denied Eake’s petition, stating in short order that “it
does not meet the public interest.”

Discussion

¶5 Under WIS. STAT. § 302.113(9g)(b), (f), certain inmates, such as
Eake, may petition for early release from the confinement portion of their
bifurcated sentence, with the remaining confinement time then being added on to
the extended supervision portion of their sentence. Upon receiving such a petition,
the PRC at the prison where the inmate is confined determines whether, in its
opinion, early release would serve the public interest. Sec. 302.113(9g)(c), (cm).
If the PRC determines early release is in the public interest,2 as the PRC did in this
case, it “approve[s] the petition for referral to the sentencing court and notif[ies]

2
In deciding whether early release is in the public interest, the PRC may consider the
following factors: (1) risk to the community, (2) institutional adjustment, (3) program
participation, (4) impact on department resources, and (5) release plan. WIS. ADMIN. CODE
§ DOC 302.41(12).

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No. 2022AP1051-CRAC

the department of its approval.” Sec. 302.113(9g)(cm). The DOC then refers the
petition to the sentencing court, which must hold a hearing to determine “whether
the public interest would be served” by the requested modification, a showing the
petitioner must make “by the greater weight of the credible evidence.”
Sec. 302.113(9g)(d), (e).

¶6 On appeal, we may reverse the circuit court’s decision granting or
denying a petition “only if [we] determine[] that the sentencing court erroneously
exercised its discretion.” See WIS. STAT. § 302.113(9g)(h). If the court fails to
explain its decision, as the court so failed in this case, we “may search the record
to determine if it supports” the decision. See Randall v. Randall, 2000 WI App
98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737. Searching the record in this case, we
conclude the court did not erroneously exercise its discretion in denying Eake’s
petition.

¶7 At sentencing,3 it became clear that when Eake’s offense first came
to light, Eake attempted to greatly minimize its significance, telling the victim’s
mother—and telling the victim to so inform authorities—that he only had sex with
the victim “one time.” By the time of sentencing, he had admitted to the
presentence investigation writer and the circuit court that he had sex with her
“around 20 times.” The victim reported that after Eake had sex with her for the
first time in June 2012, he continued to do so almost weekly, “probably about 100
times,” over the following two years.

3
The same judge presided over Eake’s sentencing and the denial of his petition.

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No. 2022AP1051-CRAC

¶8 Prior to his sentencing, Eake failed to accept responsibility for his
criminal conduct, attempted to frame himself in the best possible light despite the
truth, and tended to place significant blame for his crime on the victim. He
expressed to the PSI writer, for example, “I think she actually wanted it more than
I did.” The writer noted that Eake “denies ever cheating on his wife,” yet points
out that he began having sex with the victim more than six months before his wife
passed away. Eake reported to the writer that “he does not view pornography or
engage in any sexual fetishes,” yet the victim reported “she would have to help
him fix his computer due to pornography on it. She reported she remembered
deleting titles of ‘Mother Daughter with Baby Sitter’, ‘Dad walks in on a Baby
Sitter’, and ‘Mother with Twins.’”4 Eake also expressed that he “believes fifteen
and sixteen[-year-olds] are old enough to decide for themselves if they are ready
to have sex.”

¶9 The PSI writer’s “[i]mpressions” were that Eake lacked remorse,
blamed his victim and “fail[ed] to identify the inappropriateness of a sexual
relationship with a teenage girl.” The writer added that Eake “clearly lives by a
set of values that are not accepted by society. His deviant sexual thinking is the
driver of his behaviors.” The writer further noted that “[w]hile [Eake] would have
the court believe his wife’s death and subsequent depression was the reason he
assaulted his victim, he began assaulting his victim months prior to his wife’s
heart attack and death.” The writer opined that Eake “is in need of long term sex
offender treatment (SO-4) which is only available in a correctional facility.”

4
It is common knowledge that babysitters are very frequently teenage girls. We note
that the record also indicates Eake began dating the victim’s mother after his wife died, which
caused the victim’s behavior toward her mother to become more hostile.

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No. 2022AP1051-CRAC

¶10 Doctor Steven Kaplan, who conducted a psychosexual evaluation of
Eake and prepared a report on his behalf prior to sentencing, indicated that Eake

was not altogether open about the events that led to his
charges. His narrative minimizes his responsibility for the
victim’s complaints, and the available data imply that he is
externalizing some of the blame. He expressed regret,
mostly because of what he fears will happen to him, rather
than because of the effects that his choices may have had
on [the victim].

The report indicates that, according to Eake, the day after he first kissed the
victim, she called him to come over to her house, and they then had sex. The
report continues, “[h]e denied having sex with her again for a long period of time,
but other statements he made to me contradicted this assertion.”5 (Emphasis
added.) Eake appeared to blame the victim for the first time he had intercourse
with her because she had called Eake over to her house. Eake expressed to Kaplan
that “[h]e feels [the victim] was the primary instigator of most of their sexual
encounters” and that he viewed her as “hyper-mature.” The report continues:
[Eake’s] narration reveals some cognitive distortion of the
events that led to his arrest. He minimizes his active role,
and he told himself that [the victim] was equally interested
in pursuing a sexual relationship, and that she was actually
the more aggressive one, often actively pursuing him. He
feels she enjoyed his attention as well as the sex.... [H]e
believed that she was mature enough to decide for herself
in sexual matters. He continues to minimize the harm he
likely caused [the victim] ….

[Eake] does not have a great deal of insight into his
behavior…. [H]e also has a[n] overabundance of focus on

5
Further, while Eake told the PSI writer and the court he only had sex with the victim
“one time” before his wife’s death, this number is questionable in that he first had sex with her in
June 2012, the victim reported that after that Eake had sex with her “almost weekly” for the
following two years, and his wife did not pass away until January 1, 2013, more than six months
after Eake first had sex with the victim.

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No. 2022AP1051-CRAC

himself. He has some guilt, but his regret appears to be for
himself rather than for anyone else.

Kaplan’s “Summary/Opinion” states in part:

[Eake] has not yet developed the emotional capacity to
understand the meaning of his offenses to his victim, her
family, or to the community. He is focused on himself, and
I don’t believe he is currently able to take the bulk of the
responsibility for his actions…. [H]e can certainly benefit
from sexual offender treatment.

(Emphasis added.) Kaplan further wrote that Eake “believes that his sexual
appetites are normal for men in his [fifties] age bracket.”

¶11 While that was then, and this is now, Eake does not appear today to
be much safer for the community than he appeared at the time of sentencing. In
addition to indicating that Eake has not even started, much less finished, sex-
offender treatment,6 the report from the PRC referring Eake’s petition to the
circuit court also suggests Eake continues to have difficulty accepting
responsibility for his criminal conduct as it indicates “[h]e reported this offense
was the culmination of him self-isolating due to multiple deaths in the family …
and the victim living in an abusive home. He lost his mother, father, and brother
and pushed everyone away.” The record indicates his father did not pass away
until almost two years after Eake began having sex with the victim, harkening
back to his representation to the PSI writer that he began having sex with the
victim in part because of his wife’s death, even though his wife did not die until
six months after he began having sex with the victim. The report also indicates
Eake was “not willing to state what his struggles were to avoid this situation.”
6
The record indicates Eake’s failure to begin sex-offender treatment may not be his
fault. Regardless, the point is that he has not had sex-offender treatment to help mitigate his
danger to the community.

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No. 2022AP1051-CRAC

Remarkably, he indicated, “I hurt myself more than I hurt anyone because I hurt
my family. I’m not saying this hasn’t hurt her,” echoing Kaplan’s presentencing
observation that Eake “expressed regret, mostly because of what he fears will
happen to him, rather than because of the effects that his choices may have had on
[the victim].” Further, Eake’s victim-blaming and failure to take responsibility for
his criminal choices do not seem to have subsided as the PRC reports that he
indicated, “I know it was wrong from the … first time she called me to come over
and she was laying there bare naked on the couch.” (Emphasis added.)

¶12 The report also indicates that as part of his proposed release plan,
Eake originally planned to live with “a female friend” if his petition was approved.
That plan was “disapproved,” however, because “there were minors in the
residence and he would have a common area bedroom.” We note that the PRC
indicates Eake and this “female friend” “may be interested in pursuing a romantic
relationship, pending the approval of his agent.”

¶13 The PRC noted that Eake will rely for social support on his “family
and friends,” but the record gives reason to question whether these parties will be
of much help in keeping him from committing a similar offense in the future.
Specifically, we note that the PSI indicates that “[i]n a letter … signed ‘The Eake
family’ they placed the blame for [Eake’s] actions on his wife’s death”—which,
again, occurred six months after Eake began having sex with the victim. The PSI
further states “[t]he letter blames the victim and her mother, stating the mother
used Mr. Eake and allowed her daughter to drink and alleges the victim was
‘flirty’ when there were men around.” The PSI writer also indicated Eake’s
daughter “clearly blames the mother of the victim and the victim for [Eake’s]
actions.” As for friends who could provide Eake a base of social support, the PSI
writer noted that Eake “has no close friends.”

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No. 2022AP1051-CRAC

¶14 While the PRC recognizes in its report “the risk associated with an
un-treated sex offender being released to the community,” it nonetheless
concludes that Eake “does not appear to be a risk to the community at this time”
because his current “physical symptoms associated with his extraordinary health
condition and related treatment” eliminate the risk because “[h]e is easily winded,
cannot walk long distances, and has little energy.” Eake’s modus operandi related
to the offense for which he is imprisoned, however, was that he gained the trust of
and worked his way into the family life of his next-door neighbor.7 It would not
take much energy or require walking long distances to gain the trust of a future
neighbor and commit the same type of offense. We note that Eake indicated to the
PRC his intention to begin a “romantic” relationship with a female who has
minors living in her home if he is released early. And on this last point, we add
that despite the PRC’s view on the matter, the record does not convince us Eake is
physically incapable of sexually assaulting another teenage girl in the same
manner he did with the victim here, especially in light of Eake’s own apparent
belief he is capable of beginning a new “romantic” relationship if released early.

¶15 Perhaps sex-offender treatment would have helped Eake to accept
responsibility, gain insight into his criminal conduct and the harm he caused, and
be less of a threat to the public, but he has not had such treatment. The record
thoroughly supports the circuit court’s exercise of discretion in denying Eake’s
petition.

7
At the sentencing hearing, the girl’s mother expressed how Eake was their “neighbor,”
their “friend,” their “family,” and they had “loved” him.

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No. 2022AP1051-CRAC

By the Court.—Order affirmed.

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

10