State v. Henry Pocan

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.
January 28, 2020
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. 2018AP1235 Cir. Ct. No. 1997CI1

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE COMMITMENT OF HENRY POCAN:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

HENRY POCAN,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Outagamie County:
GREGORY B. GILL, JR., Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. 2018AP1235

¶1 PER CURIAM. Henry Pocan appeals from an order denying his
petition for discharge from a commitment under WIS. STAT. ch. 980 (2017-18).1
Pocan challenges both the adequacy of the circuit court’s articulation of its findings
of ultimate fact and the sufficiency of the evidence to support the court’s
determination. We conclude the court’s factual findings were adequately stated and
there was sufficient evidence to support the court’s determination. Accordingly, we
affirm the order denying discharge.

BACKGROUND

¶2 Pocan was deemed to be a sexually violent person and involuntarily
committed under WIS. STAT. ch. 980 in 1998. This appeal concerns a petition for
discharge that Pocan filed in 2017.2 The petition alleged that Pocan was entitled to
discharge because there was new information—based upon an annual evaluation
performed by Dr. Courtney Endres—showing that Pocan no longer met the criteria
for continued commitment.

¶3 After the State conceded that a discharge trial on the petition was
warranted, a bench trial occurred on May 22, 2017. Relevant to this appeal,
psychologist Dr. Donn Kolbeck testified for the State. Kolbeck diagnosed Pocan
with antisocial personality disorder and concluded that the disorder predisposes
Pocan to commit crimes of sexual violence because it affected his ability to control
his behavior. Kolbeck based his diagnosis on Pocan’s long history of antisocial
behaviors, from lying, stealing, aggression and truancy in childhood to repeated acts

1
All references to the Wisconsin Statutes are to the 2017-18 verison unless otherwise
noted.
2
It appears from circuit court docket entries that Pocan has subsequently been granted
supervised release, but he is still subject to the care and custody of the Department of Health
Services.

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of physical and sexual violence, burglary, vehicle theft, obscene phone calls,
supervision failures, and lack of remorse as an adult. Kolbeck acknowledged that
Pocan had “partially” aged out of the disorder and had made “considerable
improvements in some areas” of his behavior over the years of his confinement.
Kolbeck asserted, however, that Pocan continued to exhibit signs of “deceitfulness,
irresponsibility, and impulsivity” indicative of the disorder, as evidenced by two
incidents within the preceding year.

¶4 Doctor Endres, the author of the report following Pocan’s annual
evaluation, testified that she did not believe Pocan presently manifested the
symptoms of antisocial personality disorder. She formed her opinion by focusing
on Pocan’s behavior over the past few years, because her review of relevant
literature led her to believe that antisocial personality disorder can remit over time.

¶5 In its oral decision, the circuit court noted the differing opinions
provided by Kolbeck and Endres regarding whether Pocan currently qualifies for a
diagnosis of antisocial personality disorder. After discussing the experts’ reports at
length, the court concluded that Kolbeck’s report (in conjunction with the report of
another doctor not at issue on this appeal relating to Pocan’s progress in treatment)
provided sufficient evidence that Pocan continued to meet the criteria for
commitment as a sexually violent person.

¶6 Pocan appeals, asserting the circuit court never resolved the factual
dispute amongst the experts over Pocan’s mental condition with an explicit finding
that Pocan currently suffered from antisocial personality disorder. He further argues
the evidence was insufficient to support any such implicit finding, because
Kolbeck’s opinion was not based on Pocan’s more recent behavior and, therefore,
was not credible as a matter of law.

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DISCUSSION

¶7 A person committed under WIS. STAT. ch. 980 is entitled to periodic
re-examination under WIS. STAT. § 980.07, and he or she may petition the circuit
court for discharge at any time. The petitioner must allege facts from which a court
or jury would likely conclude that the petitioner no longer meets the criteria for
commitment as a sexually violent person—namely, that the subject: (1) committed
a sexually violent offense; (2) currently has a mental disorder affecting emotional
or volitional capacity and predisposing the subject to engage in acts of sexual
violence; and (3) is dangerous because the mental disorder makes it more likely than
not that the subject will engage in future acts of sexual violence. WIS. STAT.
§ 980.09(2). If the petitioner meets this initial burden, the State must prove by clear
and convincing evidence at a discharge trial that the petitioner still meets the criteria.
Sec. 980.09(3).

¶8 Whenever a case is tried without a jury, the circuit court “shall find
the ultimate facts and state separately its conclusions of law thereon.” WIS. STAT.
§ 805.17(2). “Ultimate facts” are not evidentiary facts, but rather the elements of
the claim. See State v. Martwick, 2000 WI 5, ¶16, 231 Wis. 2d 801, 604 N.W.2d
552 (explaining that evidentiary facts are the premises on which conclusions of
ultimate fact are based); Hannemann v. Craig Boyson, D.C., 2004 WI App 96, ¶22,
273 Wis. 2d 457, 681 N.W.2d 561 (discussing ultimate facts in terms of elements
of a claim in analogous context of special verdict forms). A circuit court’s findings
of ultimate fact need not be supplemented by commentaries on the evidence or
reasons for which the findings were made. Chernetski v. American Family Mut.
Ins. Co., 183 Wis. 2d 68, 80, 515 N.W.2d 283 (Ct. App. 1994).

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No. 2018AP1235

¶9 The first issue Pocan raises on appeal is that the circuit court “made
no finding of ultimate fact as to whether Pocan has a mental condition that
predisposes him to commit acts of sexual violence.” Pocan alternately and
repeatedly rephrases this issue throughout his brief in terms of whether the court
made a finding that he currently suffers from antisocial personality disorder. The
State responds that the identity of the particular disorder from which Pocan suffers
is a question of evidentiary fact. It contends the court satisfied its obligation to make
a finding of ultimate fact when it stated that Pocan continued to meet the criteria for
commitment.

¶10 We conclude the circuit court’s statement that Pocan continued to
meet the criteria for commitment was an adequately articulated finding of ultimate
fact when considered in conjunction with the court’s earlier explanation of the
criteria for commitment. Specifically, near the beginning of the hearing at which
the court announced its decision, the court observed that the State bore the burden
of proving that Pocan met the criteria for commitment as a sexually violent person,
“meaning a person who has been convicted of a sexually violent offense and who is
dangerous because he suffers from a mental disorder that makes it likely that he will
engage in one or more acts of sexual violence.” Taken together, the court’s two
statements can be only understood to mean that the court did, in fact, determine the
ultimate fact that Pocan currently had a mental condition that predisposes him to
commit acts of sexual violence.

¶11 Furthermore, even assuming that the circuit court should have made a
separate finding with respect to each element or criteria for continued commitment,
the court’s failure to do so would not warrant vacating the order denying discharge
in this case. When a court fails to make necessary findings, this court on appeal
may adopt one of three courses: (1) affirm the order if it is clearly supported by the

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preponderance of the evidence; (2) reverse the order if it is not so supported; or
(3) remand for the making of findings and conclusions. Jacobson v. American Tool
Cos., Inc., 222 Wis. 2d 384, 394, 588 N.W.2d 67 (Ct. App. 1998). Here, and
contrary to Pocan’s second argument, we are satisfied that the opinion evidence
Kolbeck provided was sufficient to support the court’s determination that Pocan
currently had a mental condition that predisposed him to commit acts of sexual
violence.

¶12 Pocan argues that Kolbeck’s opinion as to Pocan’s mental condition
was not credible because there is no “recent” evidence in the record to support it.
However, Pocan does not point to any evidence in the record that current diagnostic
tools require observed behaviors to have occurred within any specific time frame
for there to be a proper diagnosis of antisocial personality order. Kolbeck discussed
a continuing course of conduct over Pocan’s entire life. Furthermore, Pocan
minimizes the two incidents that had occurred in the year preceding the hearing, on
which Kolbeck relied. The fact that those incidents were not violent does not mean
that they were not characteristic of an antisocial disorder. When those incidents are
placed in the context of Pocan’s long history of antisocial behavior, we cannot
conclude that Kolbeck’s opinion regarding Pocan’s current mental condition was
without record support and incredible as a matter of law. In short, the circuit court
was entitled to rely upon Kolbeck’s opinion.

By the Court.—Order affirmed.

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

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