State v. Scott R. Schmidt

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.
July 31, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP1690 Cir. Ct. No. 2009CI1

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE COMMITMENT OF SCOTT R. SCHMIDT:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

SCOTT R. SCHMIDT,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Walworth County:
KRISTINE E. DRETTWAN, Judge. Affirmed.

Before Neubauer, 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. 2023AP1690

¶1 PER CURIAM. Scott R. Schmidt appeals an order denying his WIS.
STAT. ch. 980 (2021-22)1 petition for discharge from commitment as a sexually
violent person. He also appeals from an order denying postcommitment relief. On
appeal, Schmidt argues the circuit court erred by denying his motion for a new
discharge hearing. He contends he is entitled to a new hearing because his trial
counsel was ineffective in counsel’s handling of letters Schmidt received from a
woman named Alisa. Schmidt also argues the circuit court erroneously exercised
its discretion at the postcommitment hearing by not allowing Alisa to testify by
video conference. We affirm.

BACKGROUND

¶2 In 1990, Schmidt repeatedly sexually assaulted a woman that he
followed to her home. He was convicted of four counts of first-degree sexual assault
along with burglary, false imprisonment, and witness intimidation. In 2009, before
Schmidt was set to be released from prison, the State petitioned to have him
committed as a sexually violent person under WIS. STAT. ch. 980. After a jury trial,
the court ordered Schmidt to be committed until he was no longer a sexually violent
person. In 2021, Schmidt petitioned for discharge from his ch. 980 commitment.
The court held a bench trial on Schmidt’s petition.

¶3 At trial, in order to continue Schmidt’s commitment, the State was
required to prove by clear and convincing evidence: (1) Schmidt had been convicted
of a sexually violent offense; (2) Schmidt had a qualifying mental health disorder
under WIS. STAT. § 980.01(2); and (3) it was more likely than not that he would
commit another act of sexual violence. See State v. Hager, 2018 WI 40, ¶7 n.7, 381

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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Wis. 2d 74, 911 N.W.2d 17. Schmidt stipulated that he still met the first two
elements for continued commitment. The trial was therefore limited to whether the
State could prove by clear and convincing evidence that it was more likely than not
that Schmidt would commit another act of sexual violence.

¶4 At trial, Dr. Bradley Allen testified he was a psychologist for the State
of Wisconsin and he prepared Schmidt’s most recent annual report for the
Department of Health Services under WIS. STAT. § 980.07. As relevant to the issues
in this appeal, Allen employed two actuarial risk instruments in his report to
measure Schmidt’s risk of future dangerousness: the Static-99R and the
STABLE-2007. Based on these assessment tools, Allen believed Schmidt’s lifetime
risk of reoffending was 18.7 percent. Allen therefore concluded Schmidt’s risk was
below the “more likely than not” standard required for continued commitment.

¶5 At trial, Allen made some adjustments to his risk assessment after
reviewing records from the time period after he drafted his report. First, Allen noted
he was concerned about some communication between Schmidt and Schmidt’s
friend from Texas, Alisa. Schmidt communicated to Alisa that she would have to
submit to his sexual advances, including anal sex, and she could not say no. Allen
believed Schmidt’s statements to Alisa amounted to stereotypical controlling
behavior. Allen therefore increased his scoring on the dynamic risk factor of
hostility toward women. Allen also testified that he read about Alisa’s response to
Schmidt’s communication, and Alisa indicated she was upset and felt manipulated.
At one point, Alisa referred to Schmidt “as a sexual deviant who was preparing to
rape again.”

¶6 Second, Allen explained that when he wrote his report, one treatment
goal for Schmidt was that Schmidt participate in a penile plethysmograph (“PPG”)

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evaluation and polygraph testing. A PPG evaluation is used to assess the nature and
extent of sexual deviancy. In 2020, Schmidt participated in a PPG evaluation but
the results were determined to be “uninterpretable” because Schmidt did not reach
the minimum arousal threshold. A post-PPG polygraph was then used to verify
whether Schmidt made deliberate attempts to control his arousal and the results
indicated Schmidt was “untruthful” when he denied deliberate attempts to
“dissimulate” his arousal. Allen noted that, in the time between when he wrote his
report and trial, Schmidt had still not participated in a PPG evaluation or polygraph
test. Based on the lack of testing, the communications between Schmidt and Alisa,
and the current high degree of masturbation, Allen concluded that Schmidt was a
high risk on the sex drive and preoccupation dynamic risk factor.

¶7 Third, Allen changed his assessment of the dynamic risk factor of
using sex as coping. Allen noted an increase in stress related to a high degree of
masturbation.

¶8 Allen’s changes in scoring moved Schmidt’s STABLE-2007 score
from an eight to a thirteen or fourteen. This, in turn, caused Allen to opine that
Schmidt’s risk of reoffending within his lifetime was 39 percent as opposed to 18.7
percent. Allen testified that the 39 percent risk level was still below the legal
threshold for continued commitment.

¶9 Allen also testified that the actuarial tools could be overridden if
someone concluded that the offender indicated an intent to reoffend. Allen believed
that Schmidt had not done so in the communication to Alisa, but Allen noted that
some of the letters from Alisa could be interpreted as an intent to reoffend.

¶10 On cross-examination, Allen agreed that the letters changed his risk
assessment slightly, but that even after review, he still believed that Schmidt was

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below the legal threshold for continued commitment. Allen also knew that there
were a number of letters exchanged between the couple. Allen admitted that he had
incorrectly assumed based on the letters that Alisa and Schmidt were no longer in a
relationship. He also expressed a lack of knowledge about more positive messages
in the letters including Alisa’s remorse and desire to continue the relationship.
Allen, however, testified that any remorse from Alisa would not change his opinion
because his opinion was based on Schmidt’s statements to Alisa.

¶11 The circuit court concluded Schmidt’s history was incredibly
concerning. It gave an overview of Schmidt’s criminal history as well as his
sexually inappropriate behaviors, including making unwanted sexual advances,
window peeping, voyeuristic activities with an estimated twenty-to-thirty victims,
exhibitionism, solicitation, and unwanted touching. The court also noted that the
actuarial tests were not crystal balls, have limitations, and were somewhat
subjective. The court emphasized that if Schmidt had been one point higher on the
Static-99R, then his risk would have been over fifty percent.

¶12 The court was also concerned about Schmidt’s manipulation and
domineering behavior toward Alisa with regard to sex and control. The court found
that Schmidt’s communication to Alisa showed a stated intent to reoffend. The
court was also concerned that Schmidt’s last PPG evaluation was in January 2020,
it was uninterpretable, and the follow-up polygraph indicated Schmidt was
untruthful. The court stated “[t]his is extremely concerning to this court and there’s
been no PPG or polygraph since that, over two years ago.” Ultimately, the court
concluded that the State met its burden of proof and denied Schmidt’s petition for
discharge.

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¶13 Schmidt filed a postcommitment motion that alleged, in part, trial
counsel was ineffective for failing to object to the mention of the letters from Alisa.
Alternatively, Schmidt argued trial counsel was ineffective for failing to offer into
evidence additional letters Schmidt received from Alisa. The circuit court
scheduled a Machner2 hearing.

¶14 Schmidt sought to have Alisa testify at the Machner hearing via video
conference.3 Schmidt made an offer of proof that Alisa would authenticate the
letters she wrote to Schmidt, testify that she wrote the letter calling Schmidt a
“sexual deviate” because she was upset that he referred to her by another woman’s
name, and offer her opinion that her “current view” was that Schmidt is not
dangerous. The circuit court excluded Alisa’s testimony on the basis that it was not
relevant to the question of whether trial counsel provided ineffective assistance.

¶15 At the Machner hearing, Schmidt’s trial counsel testified that he knew
about the letters from Alisa and had read them. Counsel testified there were both
complimentary and negative things in the letters. When Allen testified about the
letters, counsel did not object because he did not believe there was a basis to object.
Counsel explained all the letters and the notes about them were in the Sand Ridge
Secure Treatment Center records and the sort of material that an expert would rely
on for an opinion in these types of cases.

¶16 Schmidt’s trial counsel also testified that he made the strategic
decision not to introduce all the letters into evidence at Schmidt’s discharge hearing
because he did not want to distract from the fact that, even with the adjustments

2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
3
Alisa is incarcerated in prison in Texas for murder.

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No. 2023AP1690

Allen made during trial, the State did not have an expert that could testify that
Schmidt still met the criteria for commitment. Counsel explained he elicited
testimony on cross-examination from Allen that demonstrated there were multiple
letters between the couple and they were still in a relationship. The letters were
admitted into evidence.

¶17 The circuit court concluded trial counsel was not deficient for failing
to object to Allen’s mention of the letters from Alisa. The circuit court found that
the information was in Schmidt’s Sand Ridge file and the type of information that
experts would rely on in making risk assessments for WIS. STAT. ch. 980 cases. The
court also concluded that Schmidt was not prejudiced by trial counsel’s failure to
object to Allen’s testimony. The court explained that if trial counsel had objected,
it would not have sustained the objection.

¶18 As to Schmidt’s alternative argument, the circuit court found that
Schmidt’s trial counsel made a strategic and deliberate decision not to introduce the
packet of letters from Alisa because counsel wanted to focus on the fact that Allen
opined Schmidt did not meet the legal threshold for continued commitment. The
court concluded counsel’s decision was not deficient performance. The court also
determined that the letters would not have changed any of the court’s factual
findings at trial and therefore Schmidt had not established prejudice. The court
concluded Schmidt failed to establish counsel was ineffective and denied Schmidt’s
motion. Schmidt appeals.

DISCUSSION

¶19 On appeal, Schmidt first renews his argument that trial counsel was
ineffective in his handling of Alisa’s letters. “Appellate review of an ineffective
assistance of counsel claim is a mixed question of law and fact.” State v. Dalton,

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2018 WI 85, ¶33, 383 Wis. 2d 147, 914 N.W.2d 120. “The circuit court’s findings
of fact will not be disturbed unless they are clearly erroneous.” Id. “However, the
ultimate determination of whether the attorney’s performance falls below the
constitutional minimum is a question of law we review independently of the
determinations rendered by the circuit court[.]” Id.

¶20 To establish a claim of ineffective assistance, a defendant must prove
both: (1) deficient performance by counsel; and (2) prejudice resulting from that
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); State
v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912 N.W.2d 89. We need not address
both elements of the ineffective assistance test if the defendant fails to make a
sufficient showing on one of them. Dalton, 383 Wis. 2d 147, ¶32.

¶21 “To demonstrate deficient performance, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness
considering all the circumstances.” Id., ¶34. “In evaluating counsel’s performance,
this court is highly deferential to counsel’s strategic decisions.” Id., ¶35. We must
make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689. “Counsel’s
performance need not be perfect, or even very good, to be constitutionally
adequate.” Dalton, 383 Wis. 2d 147, ¶35.

¶22 “To prove prejudice, a defendant must establish that ‘particular errors
of counsel were unreasonable’ and ‘that they actually had an adverse effect on the
defense.’” Sholar, 381 Wis. 2d 560, ¶33 (citation omitted). We evaluate whether
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a

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No. 2023AP1690

probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.

¶23 Schmidt first argues trial counsel was deficient for failing to object to
the references to Alisa’s letters. Although Schmidt seemingly acknowledges that
experts are generally permitted to base their opinions on inadmissible evidence,
including hearsay, see WIS. STAT. § 907.03, Schmidt argues that “[n]o reasonable
psychologist would rely upon the unhinged rants of a jilted lover” and, as a result,
counsel was deficient for failing to object to Allen’s references to Alisa’s letters.

¶24 We disagree. Allen testified that after he wrote his report, he became
aware of Alisa’s letters when reviewing Schmidt’s updated treatment notes. He
testified, “I read them in treatment notes. I don’t actually view the letters.” Allen
was permitted to base his opinion that Schmidt was likely to reoffend on treatment
notes and other evidence that would not be admissible at trial. See WIS. STAT.
§ 907.03. Allen discussed the letters in the way that they impacted his opinion of
Schmidt’s risk assessment. Schmidt’s trial counsel was not deficient for failing to
object to Allen’s references to the communications between Schmidt and Alisa and
how they impacted Allen’s conclusions regarding Schmidt’s future risk.

¶25 In any event, Schmidt is also unable to prove he was prejudiced by
trial counsel’s failure to object to Allen’s testimony. The circuit court found that
had counsel objected to the references to Alisa’s letters, the court would have
overruled the objection. See State v. Jacobsen, 2014 WI App 13, ¶49, 352 Wis. 2d
409, 842 N.W.2d 365. The result at trial would have therefore been the same. See
Strickland, 466 U.S. at 694.

¶26 Alternatively, Schmidt argues that his trial counsel was ineffective for
failing to attempt to introduce at trial the letters from Alisa. At the Machner

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hearing, trial counsel testified he made the strategic decision not to introduce the
other letters because he believed it would confuse the issue. Counsel wanted to
focus the case on the fact that Allen’s opinion was that Schmidt should be
discharged. Counsel explained that he established through cross-examination that
Schmidt and Alisa were still in a relationship. We agree with the circuit court that
trial counsel pursued a reasonable trial strategy and therefore Schmidt cannot
establish deficient performance. See Dalton, 383 Wis. 2d 147, ¶¶34-35.

¶27 Additionally, Schmidt cannot establish he was prejudiced by
counsel’s failure to attempt to introduce the letters at trial. At the Machner hearing,
the circuit court reviewed the letters and stated the letters would not have changed
any of the court’s factual findings or its decision. See Strickland, 466 U.S. at 694.

¶28 Finally, Schmidt argues that the circuit court erroneously exercised its
discretion at the Machner hearing by refusing to allow Alisa to testify by video
conference. We review a circuit court’s decision to admit evidence under an
erroneous exercise of discretion standard. State v. Mayo, 2007 WI 78, ¶31, 301
Wis. 2d 642, 734 N.W.2d 115. We will sustain a circuit court’s decision as long as
it “examined the relevant facts, applied a proper legal standard, and reached a
reasonable conclusion using a demonstrated rational process.” Id.

¶29 “A Machner hearing is ‘[t]he evidentiary hearing to evaluate
counsel’s effectiveness, which includes counsel’s testimony to explain his or her
handling of the case.’” State v. Jackson, 2023 WI 3, ¶1 n.1, 405 Wis. 2d 458, 983
N.W.2d 608 (citation omitted). Here, Alisa’s proffered testimony is irrelevant to
Schmidt’s current claims of ineffective assistance of trial counsel. The circuit court
properly excluded her testimony from the Machner hearing.

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No. 2023AP1690

By the Court.—Orders affirmed.

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

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