State v. Joseph J. Spaeth

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Appeal No. = 2012AP2170 Cir. Ct No. 2010CI1

WISCONSIN COURT OF APPEALS
DISTRICT i

IN RE THE COMMITMENT OF JOSEPH J. SPAETH:

STATE OF WISCONSIN,
FILED
PETITIONER-APPELLANT,
Jul 31, 2013
V.
Diane M. Fremgen
JOSEPH J. SPAETH, Clerk of Supreme Court

RESPONDENT-RESPONDENT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Neubauer, PJ., Reilly and Gundrum, JJ.

Pursuant to WIS. STAT. RULE 809.61 (2011-12),' this appeal is
certified to the Wisconsin Supreme Court for its review and detennination.

ISSUE

WISCONSIN STAT. § 980.02(1m) and (2) require that a commitment
petition be filed “before the person is released or discharged” and allege that a
person has been convicted of a sexually violent offense. Does § 980.02
additionally require that the commitment petition be filed before the person is

' All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise
noted.

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2
released or discharged from a sentence that was imposed for the same sexually
violent offense that is alleged in the petition as the predicate offense, as stated in
State v. Gilbert, 2012 WI 72, ¶51, 342 Wis. 2d 82, 816 N.W.2d 215?
BACKGROUND
In 1993, in case No. 1992CF328 (the 1992 case), Spaeth was
convicted of first-degree sexual assault of a child. In 2004, Spaeth was paroled.
While on parole, Spaeth reoffended, and his parole was revoked. Spaeth was
discharged from this 1993 conviction in June 2008.
In 2007, in case No. 2006CF350 (the 2006 case), Spaeth was
convicted of child enticement, based on his conduct while out on parole on the
1992 case. In October 2008, the circuit court vacated Spaeth’s conviction and
ordered a new trial due to prejudicial and extraneous information in the jury room.
In early 2009, Spaeth pled no contest to amended charges for child enticement and
was convicted and sentenced. The 2009 conviction was reversed by the supreme
court on July 13, 2012, State v. Spaeth, 2012 WI 95, ¶3, 343 Wis. 2d 220, 819
N.W.2d 769, and Spaeth’s conviction was vacated on August 20, 2012, and the
child enticement charges were dismissed on August 21, 2012.
In the meantime, on November 2, 2010, the State filed a petition for
Spaeth’s WIS. STAT. ch. 980 commitment as a sexually violent person. The
petition cited the 2006 case as the predicate offense. See Gilbert, 342 Wis. 2d 82,
¶4 n.4 (using phrase “predicate offense” to refer to the sexually violent offense
specified in the petition). While the petition was pending,2 the supreme court
2 Spaeth’s probable cause hearing was delayed at his request.

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overturned his conviction. By letter dated August 15, 2012, the State informed the
circuit court that it intended to continue with the petition, relying on the 1992 case
instead of the 2006 case. Spaeth responded that the petition expressly relied upon
only the 2006 case. Further, argued Spaeth, even if amended to rely on the 1992
case, the petition was untimely because Spaeth had been discharged from that case
in 2008, well before the petition was filed on November 2, 2010. The circuit court
agreed with Spaeth, ruling that neither the 2006 case nor the 1992 case could form
the predicate offense for the petition because Spaeth had been discharged from one
conviction (from the 1992 case) and the other convictions had been overturned and
vacated, and the enticement charges dismissed (from the 2006 case). The circuit
court denied the State’s motion to amend and dismissed the petition.
The State appeals, arguing that the circuit court erred in denying
amendment of the petition to specify the 1992 case as the predicate offense.
DISCUSSION
WISCONSIN STAT. ch. 980 Petition Procedure
A commitment petition under WIS. STAT. ch. 980 must be filed
“before the person is released or discharged.” WIS. STAT. § 980.02(1m). Among
other things, the petition must allege that the person has been convicted of, found
delinquent for, or found not guilty by reason of mental disease or defect of a
sexually violent offense. Sec. 908.02(2)(a)1.-3. The controversy in this case
surrounds the required allegation that the person has been convicted of a sexually
violent offense. Paragraph one of the petition states:
The Respondent, Joseph J. Spaeth, has been convicted
of a sexually violent offense(s). Specifically, on or about
July 3, 2007, in Winnebago County Circuit Court File No.
06CF350, the Respondent was convicted of four (4) counts

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of Child Enticement-Sexual Contact in violation of [WIS.
STAT. §] 948.07(1).… On May 8th, 2009 the Respondent
was sentenced to five (5) years Wisconsin State Prison and
ten (10) years of extended supervision on each count
concurrent to one another.
Spaeth was in custody for the 2006 case when the petition was filed, but his
conviction was subsequently overturned by the supreme court and the child
enticement charges were dismissed. Spaeth, 343 Wis. 2d 220, ¶3. The dispute is
whether the circuit court erred in denying the State’s proposed amendment of the
petition to specify the intact, though discharged, 1992 case as the predicate
offense. This presents two separate questions, which we address in turn. Was it
error for the circuit court to assess the viability of the petition at the time of the
requested amendment? Can a ch. 980 petition specify a predicate offense that is
not the same offense for which the person is in custody? Although the first of
these is governed by established case law, we address it in order to better present
the second.
Petition’s Viability Is Examined at the Time of Filing
Under State v. Virlee, 2003 WI App 4, ¶¶17-18, 259 Wis. 2d 718,
657 N.W.2d 106 (2002), the requirement that the petition be filed within ninety
days of release, which has since been amended to provide that the petition be
“filed before the person is released or discharged,” WIS. STAT. § 980.02(1m), is to
be assessed at the time the petition is filed. See also State v. Carpenter, 197 Wis.
2d 252, 275, 541 N.W.2d 105 (1995) (looking to “the time the petition was
initiated”). After the State filed the petition, Virlee received sentence credit that
changed his release date to before the petition was filed. Virlee, 259 Wis. 2d 718,
¶¶3, 5. Virlee argued that the change in his release date, with the new date prior to
the State’s filing of the petition, meant that the circuit court was no longer

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competent to proceed on the petition. Id., ¶15. We rejected that position, holding
that “the trial court’s subsequent modification of Virlee’s sentence does not
change the fact the State filed the petition within ninety days of his actual release
from prison.” Id., ¶18.
Under Carpenter and Virlee, the viability of the petition to commit
Spaeth is examined in view of the circumstances on November 2, 2010, the date
the petition was filed. At that time, Spaeth was in custody from a sentence that
was imposed for a conviction for a sexually violent offense (in the 2006 case, in
which the 2009 conviction had not yet been overturned). Thus, we turn to the
question presented here: Did the court err in denying the amendment request and
dismissing the petition because the proffered predicate offense was not the same
offense for which Spaeth was in custody?
Must Custody at the Time of Filing Be for the Predicate Offense?
As noted above, the statute itself does not require that custody stem
from the predicate offense alleged in the petition. WIS. STAT. § 980.02(1m). In
2005, the legislature repealed § 980.02(2)(ag) (2003-04), see 2005 Wis. Act 434,
§ 83, which required that the petition allege that the person was within ninety days
of discharge or release, on parole, extended supervision, or otherwise, “from a
sentence that was imposed for a conviction for a sexually violent offense.” The
new paragraph, § 980.02(1m), does not require that the petition specify that the
sentence was imposed for a conviction for the specific predicate offense alleged in
the petition. 2005 Wis. Act 434, § 82; § 980.02(1m). Rather, the new paragraph
only requires that the petition “be filed before the person is released or
discharged.”

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Based on the language of the statute, the State argues that the
petition can specify a predicate offense other than the offense for which the person
is in custody at the time of the filing of the petition. Spaeth, however, points to the
supreme court’s decision in Gilbert. Gilbert stated, “This section requires, inter
alia, that the State prove that the person ‘has been convicted of a sexually violent
offense,’ [WIS. STAT.] § 980.02(2)(a)1., and that the [WIS. STAT.] ch. 980 petition
must be ‘filed before the person is released or discharged’ from the sentence for
that sexually violent offense, § 980.02(1m).” Gilbert, 342 Wis. 2d 82, ¶51
(emphasis added). Gilbert addressed the narrow question of whether a person’s
revocation of parole or extended supervision and reincarceration required
dismissal of a pending ch. 980 commitment petition. Gilbert, 342 Wis. 2d 82, ¶2.
The defendants in Gilbert were not in a situation like Spaeth, who is the subject of
a petition that specifies a subsequently overturned conviction. In deciding that the
ch. 980 petition was still viable even though Gilbert had been reincarcerated due to
revocation of parole, the supreme court recognized that ch. 980 only permits
dismissal of the petition for failure to find probable cause or failure to prove the
person is a sexually violent person, Gilbert, 342 Wis. 2d 82, ¶29, that the statute
does not set a time period for execution of a commitment order, id., ¶35, and that
the statute allows simultaneous commitment and incarceration, id., ¶42.
Arguably, the quoted statement from Gilbert about WIS. STAT.
§ 980.02(1m) was not necessary to the court’s conclusion. The statement appears
in a hypothetical discussed after the court has reached its conclusion based on the
above analyses. Gilbert, 342 Wis. 2d 82, ¶¶29-45. We are bound by all
statements of the supreme court. Zarder v. Humana Ins. Co., 2010 WI 35, ¶58,
324 Wis. 2d 325, 782 N.W.2d 682 (“[T]he court of appeals may not dismiss a
statement from an opinion by this court by concluding that it is dictum.”); Cook v.

No. 2012AP2170
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Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (“The supreme court is the
only state court with the power to overrule, modify or withdraw language from a
previous supreme court case.”).
Spaeth points to the preceding statutory section, WIS. STAT.
§ 980.015, to further argue that custody must be tied to the predicate sexually
violent offense. Section 980.015(2) directs an agency that has control over the
person to inform “each appropriate district attorney” and the department of justice
prior to the person’s “anticipated discharge or release … from a sentence of
imprisonment or term of confinement in prison that was imposed for a conviction
for a sexually violent offense.” Arguably, this notice language, at most, ties the
custody to a sexually violent offense and not necessarily the predicate offense.
The State Argues, Pursuant to the Language of the Statute, the
Request to Amend Should Have Been Granted
A request to amend the WIS. STAT. ch. 980 petition should be
liberally granted. The petition is the very beginning of the ch. 980 commitment
process, which includes multiple safeguards for the person’s liberty interests at
critical stages throughout. See, e.g., WIS. STAT. § 980.03 (rights of persons
subject to petition, including right to remain silent and to cross-examine
witnesses); WIS. STAT. § 980.036 (discovery and inspection rights); WIS. STAT.
§ 980.04 (probable cause hearing); WIS. STAT. § 980.05 (trial by jury). And
although these ch. 980 proceedings are civil in nature, see Carpenter, 197 Wis. 2d
at 265-68, we note that even in the criminal context, the complaint and
information can be amended without leave of court at any time prior to
arraignment. WIS. STAT. § 971.29. Furthermore, the State did not seek to change
the essential elements of the petition, including the key allegation that Spaeth was
a sexually violent person. See WIS. STAT. § 980.02(2) (barebones requirements

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for petition). Rather, the State sought to change the predicate offense—the
statement with particularity of the underlying facts. See § 980.02(3) (additional
requirement that petition state facts of predicate offense with particularity). In this
instance, however, under Gilbert, even though Spaeth’s case had not even reached
the probable cause stage, there was simply no way for the State to amend the
petition so that it would comply with § 980.02.
CONCLUSION
WISCONSIN STAT. § 980.02(1m) requires that a commitment petition
be filed “before the person is released or discharged.” However, Gilbert adds the
requirement to § 980.02(1m) that the sexually violent offense alleged in the
petition must be the same sexually violent offense for which the person is in
custody. Because there is a conflict between the statute’s language and Gilbert’s
statement, we respectfully certify the issue.

No. 2012AP2170