State v. T. A.

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.
December 28, 2021
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. 2020AP1350 Cir. Ct. No. 2017JV304

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE INTEREST OF T. A., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

T. A.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Outagamie County:
JOHN A. DES JARDINS, Judge. Reversed and cause remanded for further
proceedings.
No. 2020AP1350

¶1 HRUZ, J.1 Tanner2 appeals an order lifting the stay on a previously
imposed requirement that he register as a sex offender, and an order denying his
motion for postdisposition relief. Tanner seeks a new hearing to address whether
the stay on his sex offender registration should be lifted (“lift-of-stay hearing”),
arguing that the circuit court relied on an inaccurate interpretation of his Juvenile
Sex Offender Assessment Protocol-II (“J-SOAP-II”) score when it concluded that
the stay should be lifted. We agree, and we therefore reverse and remand for a
new lift-of-stay hearing.3

BACKGROUND

¶2 In December 2017, the State filed a petition seeking a delinquency
adjudication of Tanner, who was sixteen years old at the time, alleging that he had
sexual intercourse with a then sixteen-year-old girl after she told him to “stop.” In
March 2018, Tanner was evaluated based on the J-SOAP-II, and he received a
total J-SOAP-II score of 68%. Tanner’s overall risk to reoffend sexually was
considered high. Tanner later pled no contest to one count of third-degree sexual
assault under WIS. STAT. § 940.225(3). In May 2018, the circuit court issued a
dispositional order adjudicating Tanner delinquent and placing him on supervision

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
For ease of reading, we refer to the appellant in this confidential appeal using a
pseudonym, rather than his initials.
3
Tanner also argues that his counsel at the lift-of-stay hearing provided ineffective
assistance. Because Tanner’s inaccurate information claim is dispositive of his appeal, we need
not address his ineffective assistance claim. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268
Wis. 2d 628, 673 N.W.2d 716.

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No. 2020AP1350

for one year. The court also imposed and stayed a requirement that Tanner
register as a sex offender pending the successful completion of his supervision.

¶3 In February 2019, the Outagamie County Department of Health and
Human Services (“DHHS”)—the agency responsible for supervising Tanner—
requested that the circuit court lift the stay on Tanner’s sex offender registration.
The court subsequently held a hearing on DHHS’s request in April 2019. Several
people testified, including Lauren Cowell—the supervisor of Tanner’s DHHS
social worker—and Joshua Andreini—Tanner’s DHHS therapist. As relevant to
this appeal, Cowell testified that Tanner’s most recent J-SOAP-II score of 52%
indicated that there was “nearly a half and half chance for [Tanner] to re-offend.”
In addition, Andreini testified that Tanner’s total J-SOAP-II score indicated that
Tanner “is more likely to re-offend than not,” because “it’s 52 percent and not 49
percent.” When asked what level of risk Tanner’s total J-SOAP-II score indicated,
Andreini testified that it “indicates a moderate-to-high risk to re-offend, again
when you’re looking solely at that score alone.”

¶4 The circuit court granted DHHS’s request and lifted the stay on
Tanner’s sex offender registration, requiring him to register for a period of fifteen
years. In doing so, the court discussed Tanner’s J-SOAP-II score while observing
that Tanner’s moderate-to-high risk to reoffend was definitely a “red flag”:

[Andreini’s] final analysis provides that [Tanner] presents
now as a moderate-to-high risk to re-offend. He said a lot
of positive things though about [Tanner] and his
progression, as did Social Worker Cowell. Um, so he’s
made vast improvements in getting his score reduced. But
the current level of moderate-to-high risk to re-offend is
definitely a red flag for the Court.

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No. 2020AP1350

The court also identified other “red flags,” including Tanner’s apparent failure to
accept responsibility for the sexual assault of the victim, his Facebook posts
containing sexual and abusive content toward women, and his concerning
behavior toward a female at a juvenile shelter.

¶5 In April 2020, Tanner filed a motion for postdisposition relief,
arguing, in part, that he was entitled to a new lift-of-stay hearing because the
circuit court relied on an inaccurate interpretation of his total J-SOAP-II score
when deciding to lift the stay on his sex offender registration requirement.4
Alternatively, Tanner argued that his counsel provided ineffective assistance at the
lift-of-stay hearing by failing to object, or correct, the inaccurate interpretation of
his J-SOAP-II score. In support of his motion, Tanner filed two reports written by
a psychologist, Dr. Nick Yackovich. The first discussed, in part, how Tanner’s
J-SOAP-II score was incorrectly interpreted during the lift-of-stay hearing, and the
second discussed Yackovich’s independent psychosexual evaluation of Tanner.
The court held several hearings on Tanner’s motion.

¶6 At the first hearing, Dr. Yackovich testified that a total J-SOAP-II
score of 52% does not mean “that a person has a 52 percent likelihood of
re-offending sexually or that he’s more likely than not to re-offend sexually.”5

4
Tanner also argued that he was entitled to a new hearing under WIS. STAT. § 938.46,
based on newly discovered evidence, but he does not pursue that argument on appeal.
5
Yachovich testified that the J-SOAP-II is “an actuarial risk assessment instrument used
to assess general risks and treatment needs for individuals up to the age of 18 ….” He described
an actuarial risk assessment as “a statistical formulation to determine likelihoods of potential
outcomes based on” “particular populations and … the variables associated with those
populations.” When explaining the meaning of the 52% J-SOAP-II score, Yachovich stated that
“52 percent of the answers were scored positively, simply meaning that … of the sample that did
commit another crime, 52 percent of them would have had a similar set of variables
that … [Tanner] did.”

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No. 2020AP1350

Yackovich testified that a J-SOAP-II score should only be used as one part of an
offender’s overall risk assessment. Yackovich further testified that he completed a
psychosexual evaluation of Tanner in January 2020, and he concluded that Tanner,
despite having some behavioral deficits, “was in the low to lower risk range” to
sexually reoffend.

¶7 At the second hearing, Andreini testified that he improperly assigned
a category of risk to Tanner based on Tanner’s J-SOAP-II score alone. He
testified that the J-SOAP-II score “is one factor … that we would look at but that
score alone should not be used to determine [an] individual’s level of risk.”
Andreini further testified, however, that after considering other relevant factors,
his original moderate-to-high risk assessment of Tanner remained accurate. In
addition, Cowell testified that she inaccurately represented that Tanner’s
J-SOAP-II score indicated nearly a half-and-half chance for him to reoffend.

¶8 The circuit court denied Tanner’s motion for postdisposition relief.
The court first noted that “it is not contested that the J-SOAP analysis was
inaccurately interpreted at the time that the court lifted the stay order ….” But the
court recognized that there were many factors that went into its decision and that
its decision “was not solely based upon the J-SOAP analysis ….” The court
concluded that Tanner’s behavior was “a greater factor” than the J-SOAP-II
analysis and that the error regarding the J-SOAP-II score “did not significantly
change the Court’s opinion as to whether or not [Tanner] should register as a sex
offender.” The court also concluded that Tanner’s counsel did not provide
ineffective assistance at the lift-of-stay hearing. Tanner now appeals.

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No. 2020AP1350

DISCUSSION

¶9 Tanner argues that he is entitled to a new lift-of-stay hearing because
the circuit court relied on an inaccurate interpretation of his total J-SOAP-II score
in deciding to lift the stay on his sex offender registration requirement. Citing
G.G.D. v. State, 97 Wis. 2d 1, 8, 292 N.W.2d 853 (1980), Tanner contends that he
has the same constitutional due process rights during the dispositional phases of a
delinquency proceeding as a criminal defendant does during sentencing. See State
v. Coffee, 2020 WI 1, ¶2, 389 Wis. 2d 627, 937 N.W.2d 579. Tanner then applies
the same analysis used for a criminal defendant’s claim of inaccurate information
at sentencing to conclude that he is entitled to a new lift-of-stay hearing. The State
does not contest Tanner’s argument regarding his due process rights in this context
or the proper analysis to apply to his current inaccurate information claim. For
purposes of this decision, we therefore assume, without deciding, that a stay on
sex offender registration must be lifted upon accurate information and that the
same analysis used for claims regarding inaccurate information at sentencing
applies in this context.

¶10 We apply a burden-shifting analysis to determine whether a
defendant is entitled to resentencing based on the circuit court’s reliance on
inaccurate information at sentencing. Id., ¶38. The defendant must first
demonstrate, by clear and convincing evidence, that: (1) some information at the
original sentencing was inaccurate; and (2) the court actually relied on the
inaccurate information at sentencing. Id. A court actually relies on inaccurate
information when it gives “explicit attention” or “specific consideration” to the
inaccurate information, so that the inaccurate information “formed part of the basis
for the sentence.” Id. (citation omitted).

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No. 2020AP1350

¶11 If the defendant satisfies his or her burden, the burden shifts to the
State to prove beyond a reasonable doubt that the error was harmless. Id. An
error is harmless if there is no reasonable probability that the error contributed to
the outcome. State v. Payette, 2008 WI App 106, ¶46, 313 Wis. 2d 39, 756
N.W.2d 423. The State can prove harmless error by demonstrating beyond a
reasonable doubt that the court would have made the same decision absent its
reliance on inaccurate information. Coffee, 389 Wis. 2d 627, ¶38. Whether a
defendant has been sentenced in violation of his or her due process rights, and
whether that error is harmless, are questions of law that we review de novo. Id.,
¶17. We are not bound by a circuit court’s assertions during a postconviction
hearing that its decision would have been the same absent its reliance on
inaccurate information. See State v. Travis, 2013 WI 38, ¶¶73, 77, 347 Wis. 2d
142, 832 N.W.2d 491.

¶12 Tanner has shown by clear and convincing evidence that some
information at the lift-of-stay hearing was inaccurate. Indeed, it is undisputed that
Cowell and Andreini inaccurately testified, respectively, that Tanner’s J-SOAP-II
score demonstrated that Tanner had “nearly a half and half chance … to re-offend”
and that the score established that Tanner was “more likely to re-offend than not.”
As Dr. Yackovich testified, however, a 52% J-SOAP-II score does not mean “that
a person has a 52 percent likelihood of re-offending sexually or that he’s more
likely than not to re-offend sexually.” Both Cowell and Andreini agreed with that
statement at the postdisposition hearing. It is also undisputed that Andreini
inaccurately testified that Tanner’s J-SOAP-II score alone indicated that he was a
moderate-to-high risk to reoffend. As Andreini later recognized, a total J-SOAP-II
score alone “should not be used to determine [an] individual’s level of risk.”

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No. 2020AP1350

¶13 Although the State agrees that there was inaccurate testimony
presented regarding how Tanner’s J-SOAP-II score alone demonstrated a
moderate-to-high risk to reoffend, the State nonetheless argues that Andreini’s
moderate-to-high risk assessment remained accurate. The State further argues that
while the circuit court explicitly relied on Andreini’s moderate-to-high risk
assessment, the court did not rely on Andreini’s stated basis for the
moderate-to-high risk assessment—i.e., that Tanner’s J-SOAP-II score alone
indicated a moderate-to-high risk to reoffend. The State therefore argues that the
court did not actually rely on the inaccurate testimony.

¶14 The State’s attempt to divorce the moderate-to-high risk assessment
from the stated basis of that assessment—i.e., Tanner’s J-SOAP-II score—fails.
Andreini testified that Tanner’s total J-SOAP-II score alone indicated a
moderate-to-high risk to reoffend, and he did not testify that such risk assessment
was based on any other factors. Importantly, consistent with Andreini’s
testimony, the circuit court discussed Tanner’s J-SOAP-II score in the context of
Andreini’s moderate-to-high risk assessment, linking the two concepts together:

[Andreini’s] final analysis provides that [Tanner] presents
now as a moderate-to-high risk to re-offend. He said a lot
of positive things though about [Tanner] and his
progression, as did Social Worker Cowell. Um, so he’s
made vast improvements in getting his score reduced. But
the current level of moderate-to-high risk to re-offend is
definitely a red flag for the Court.

Because the court transitioned from Andreini’s moderate-to-high risk assessment
to Tanner’s J-SOAP-II score and then back to the risk assessment, the court must
have believed that Tanner’s J-SOAP-II score indicated a moderate-to-high risk to
reoffend. These statements also demonstrate that the court viewed Tanner’s
improved J-SOAP-II score in the context of Andreini’s inaccurate interpretation of

8
No. 2020AP1350

it—discounting the improved J-SOAP-II score because the score still purportedly
demonstrated a moderate-to-high risk to reoffend. The court’s discussion
demonstrates “explicit attention” to Andreini’s inaccurate testimony, such that
Andreini’s inaccurate testimony “formed part of the basis” of the court’s decision
to lift the stay on Tanner’s sex offender registration requirement. See Coffee, 389
Wis. 2d 627, ¶38 (citation omitted). Tanner has therefore demonstrated by clear
and convincing evidence that the court actually relied on inaccurate information.

¶15 The State nevertheless contends that the circuit court’s reliance on
inaccurate information was harmless beyond a reasonable doubt. The State argues
that the court still would have lifted the stay even absent the inaccurate
information because a preponderance of the evidence existed to prove that Tanner
violated a condition of his dispositional order and because the court would have
identified the same red flags noted in its decision, which were unrelated to
Tanner’s J-SOAP-II score. We reject each of these arguments.

¶16 As Tanner correctly points out, WIS. STAT. § 938.34(16) does not
require that a circuit court impose the original dispositional order when a violation
of the dispositional order occurs. Instead, it gives a court discretion to impose the
original dispositional order upon finding, by a preponderance of the evidence, that
the juvenile violated a condition of the dispositional order. See id.; see also State
v. Andrew J. K., 2006 WI App 126, ¶13, 293 Wis. 2d 739, 718 N.W.2d 229.
Therefore, proof of Tanner violating the dispositional order does not resolve the
issue here—i.e., whether the court would have, in exercising its discretion, decided
to lift the stay on Tanner’s sex offender registration requirement absent the
inaccurate testimony that Tanner’s J-SOAP-II score indicated a moderate-to-high
risk to reoffend.

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No. 2020AP1350

¶17 In addition, although the moderate-to-high risk assessment was one
of several “red flags” that the circuit court discussed, the court’s comments do not
indicate that any red flag weighed more heavily than another in the court’s
decision or that the other red flags were dispositive. The risk assessment was also
not insignificant to the court’s decision. The moderate-to-high risk assessment
was the first red flag the court identified. While acknowledging that Tanner had
progressed and made improvements, the court immediately dismissed those
improvements because “the current level of moderate-to-high risk to re-offend is
definitely a red flag for the Court.” Moreover, under conditions sixteen and
seventeen of the dispositional order, the court was required to consider whether
Tanner demonstrated a sufficiently low risk to reoffend based on his compliance
with certain conditions, one of which expressly included his J-SOAP-II score. An
assessment of Tanner’s risk to reoffend was therefore highly relevant to what the
court had to consider, and did consider, when deciding to lift the stay on Tanner’s
sex offender registration requirement.

¶18 Andreini’s reaffirmation of his moderate-to-high risk assessment at
the postdisposition hearing also does not render the inaccurate information
harmless. The underlying basis for Andreini’s original moderate-to-high risk
assessment was Tanner’s J-SOAP-II score alone. Andreini later reaffirmed his
moderate-to-high risk assessment, but only after he learned that his original risk
assessment, based on Tanner’s J-SOAP-II score alone, was inaccurate, and after he
incorporated other factors into his risk assessment. In essence, Andreini’s risk
assessment shifted from a projection based solely on Tanner’s J-SOAP-II score to
a projection based on Andreini’s personal analysis of multiple factors, including
Tanner’s J-SOAP-II score. The circuit court, in its original decision, never had an
opportunity to consider Andreini’s subsequent risk assessment in light of a proper

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No. 2020AP1350

interpretation of Tanner’s J-SOAP-II score. We simply have no basis to conclude
that the court would have given the same weight to Andreini’s moderate-to-high
risk assessment had the court known that the risk assessment was based on
Andreini’s own personal analysis rather than being derived from Tanner’s
J-SOAP-II score alone.

¶19 Finally, the State argues that the circuit court’s reliance on
Andreini’s inaccurate testimony was harmless because a DHHS memorandum
accurately described how DHHS “came to the ‘moderate to high risk’
determination ….” Contrary to the State’s arguments, however, that memorandum
never concluded that Tanner was currently a “moderate-to-high” risk to reoffend.
Rather, the memorandum concluded that “[Tanner] remains a risk to reoffend”
based on his most recent J-SOAP-II score and DHHS’s overall assessment of him.
(Emphasis added). The memorandum never stated whether Tanner’s current
“risk” was high, moderate or low. The memorandum did acknowledge that
“[Tanner’s] overall risk to reoffend sexually was found to be in the moderate to
high range” after an October 2, 2018 assessment, but it did not mention any risk
range for the most recent April 2, 2019 assessment, in which Tanner’s J-SOAP-II
score improved. Accordingly, the memorandum did not provide an independent
basis for the court to conclude that Tanner was a moderate-to-high risk to
reoffend.

¶20 Under the present circumstances, we cannot conclude, beyond a
reasonable doubt at least, that the circuit court would have lifted the stay on
Tanner’s sex offender registration requirement absent its reliance on inaccurate

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No. 2020AP1350

information. We therefore reverse and remand for a new lift-of-stay hearing
consistent with this opinion.6

By the Court.—Orders reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

6
On appeal, Tanner has specifically requested a new lift-of-stay hearing, which is the
relief we grant. Neither party disputed, and thus we do not address, the circuit court’s ability to
amend the dispositional order on remand.

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