State v. Walter J. Lange

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.
June 14, 2022
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. 2020AP267-CR Cir. Ct. No. 2010CF363

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WALTER J. LANGE,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Chippewa County:
JAMES M. ISAACSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Walter Lange appeals circuit court orders revoking
his conditional release from the custody of the Department of Health Services
No. 2020AP267-CR

(“the department”) and returning him to institutional care. Lange argues that the
State failed to establish that he was dangerous and that a finding of dangerousness
is a constitutional prerequisite for revoking his conditional release. We conclude
that the evidence presented at Lange’s revocation hearing was sufficient to
establish Lange’s dangerousness. Accordingly, we affirm the court’s orders.

BACKGROUND

¶2 We briefly summarize the relevant procedural history in order to
give necessary context to our discussion. In 2010, Lange was charged with sexual
assault of a child under sixteen years of age as a persistent repeater. In an
amended Information, Lange was charged with two counts of sexual assault of a
child under sixteen years of age. Lange ultimately pleaded no contest, but not
guilty by reason of mental disease or defect (“NGI”), to one of the counts, with the
other count being dismissed and read in. The circuit court committed Lange to
institutional care for twenty years.

¶3 In August 2013, the circuit court ordered Lange to be conditionally
released to community supervision. In April 2014, the department petitioned for
revocation of Lange’s conditional release, alleging that Lange was “aggressive
toward group home staff … causing them to become fearful for their safety.” In
June 2014, the court revoked Lange’s conditional release based on his violation of
a rule or condition.

¶4 Lange was conditionally released a second time in September 2015.
In September 2017, the department filed a petition for revocation, alleging that
Lange was found to be in possession of a memory card containing images of nude
women as well as a picture of a clothed teenage girl, who “reminded him of one of
his victims.” The department also alleged that Lange prevented further review of

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the memory card by forcibly taking it out of a staff computer, putting it in his
mouth, chewing it, and swallowing it. The circuit court again determined that
Lange had violated a rule or condition of his conditional release, and it ordered
revocation of Lange’s release a second time.

¶5 This background leads to Lange’s third conditional release, the
revocation of which is the subject of this appeal. Lange filed a petition for
conditional release in April 2018. In June 2018, the circuit court ordered the
department and the county to submit a plan for community supervision. After
requesting two extensions due to difficulties in finding placement for Lange,
forensic case manager Holly Pavloski submitted a conditional release plan to the
court in December 2018. The aspects of the plan that are relevant to this appeal
included that Lange would be placed in a group home; would meet regularly with
his case manager, Pavloski; and would receive treatment services from a variety of
community providers, including AODA services from Lake Superior Community
Clinic and behavioral health therapy from Lake Superior Behavioral Health Clinic.
The plan noted that Lange was “a prolific letter writer” and required Lange to
receive preapproval for any contacts with pen pals. The plan also barred Lange
from accessing the internet. Finally, the plan required Lange to receive
preapproval for any telephone contacts, based on recent reports that Lange had
made several attempts to contact a minor female by telephone. On January 10,
2019, the court ordered Lange to be conditionally released pursuant to the plan
proposed by the department.

¶6 On March 21, 2019, the State filed a petition to revoke Lange’s
conditional release, signed by Wisconsin Department of Corrections Agent
Nicole Gingery. The immediate rule violation that prompted revocation was that
Lange had allegedly climbed out of his bedroom window at his group home in the

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middle of the night, stood at the edge of the property by the street, and returned to
his room ten minutes later. While investigating this incident, Gingery observed
that Lange had piles of mail from unapproved contacts in his room, as well as
several pictures of women from the website “WriteAPrisoner.com,” prompting
concerns that Lange was further violating the conditions of his release by
accessing the internet.

¶7 The revocation petition also alleged that Lange had committed
several additional violations of the rules and conditions of his release over the
previous month. Specifically, Lange had made telephone calls to unapproved
numbers; Lange had visited a shopping mall (a teenage hangout that was an
exclusion zone for Lange) despite explicit instructions not to do so; during an
AODA appointment, Lange had made a nurse uncomfortable by commenting that
she “looked young”; and Lange had made lewd comments about women while
visiting a Walmart with group home staff. During this last incident, group home
staff were concerned that Lange would have acted on impulse if staff had not been
present. Furthermore, and notably, the group home had decided to withdraw
Lange’s placement due to concerns for female staff that had to be present in the
home with Lange, as well as future concerns for a female resident who was
residing in a home that would soon be merged with the group home where Lange
resided.

¶8 On March 29, 2019, Pavloski submitted a letter to the circuit court
regarding Lange’s conduct during his third conditional release. Pavloski set forth
a detailed time line of Lange’s rule violations. Regarding Lange’s comment that
the nurse at his AODA appointment “looked young,” Pavloski added that this
incident was the second time staff at the clinics where Lange was receiving
AODA services and behavioral health treatment had expressed concern about

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Lange’s conduct toward women. As a result of these incidents, the director of
behavioral health and substance use services at Lake Superior Community Health
Clinic questioned whether she could “guarantee the safety of their female staff and
underage female clients when Mr. Lange is at the facility.” Pavloski concluded
that Lange’s behavior was a violation of the terms of his conditional release and
that “this behavior is a risk to both Mr. Lange’s and the community’s safety.”

¶9 The circuit court conducted a revocation hearing on April 15, 2019,
and heard testimony from Gingery and Lange, as well as rebuttal testimony from
Pavloski. Lange largely denied the allegations, further testifying that the group
home was “filthy” and that he had encountered tensions with staff within sixteen
hours of his arrival. Among other information, Gingery and Pavloski testified
generally consistently with the statements in the revocation petition and Pavloski’s
letter, respectively.

¶10 At the hearing, the circuit court found that Lange “wasn’t very
believable” and determined that Lange had committed several violations,
including exiting the group home in the middle of the night, making lewd
comments at a Walmart, and exchanging letters with unapproved contacts. The
court noted that any one violation would probably not be enough for revocation,
and then held the matter over in order to determine whether “[t]he totality of all of
them” justified revocation. The court explained, “I don’t want us to be in a
position where we’re making him get out and re-offend by sexually assaulting
someone before I find there is enough cause to revoke him.”

¶11 In a written decision issued on April 18, 2019, the circuit court
agreed with the State that Lange had violated a rule or condition of his release and
that the safety of others required revocation of Lange’s conditional release. The

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court specifically found that the State had satisfied its burden of proving, by clear
and convincing evidence, that Lange had left the group home. The court further
stated that revocation was required “[g]iven Mr. Lange’s history and rules to
provide for safety of females and difficulty in placing Mr. Lange.” Based on this
decision, the court issued an order revoking Lange’s conditional release, as well as
an order placing Lange in institutional care. The placement order stated,
“On … 4/18/2019, the court determined that conditional release would … pose a
significant risk of bodily harm to the defendant or others, or of serious property
damage.”

DISCUSSION

¶12 A defendant who has been adjudicated NGI is committed to the
department. WIS. STAT. § 971.17(1) (2019-20).1 As part of this commitment, the
circuit court must determine whether institutional care is warranted.
Sec. 971.17(3)(a). The court may place the defendant in institutional care only “if
it finds by clear and convincing evidence that conditional release … would pose a
significant risk of bodily harm to [the defendant] or to others or of serious property
damage.” Id.

¶13 A defendant placed in institutional care may petition for conditional
release after six months. WIS. STAT. § 971.17(4)(a). Similar to a defendant’s
initial placement in institutional care, the circuit court may deny conditional
release only if “it finds by clear and convincing evidence that [conditional release]

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

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would pose a significant risk of bodily harm to [the defendant] or to others or of
serious property damage.” Sec. 971.17(4)(d).

In making this determination, the court may consider,
without limitation because of enumeration, the nature and
circumstances of the crime, the person’s mental history and
present mental condition, where the person will live, how
the person will support himself or herself, what
arrangements are available to ensure that the person has
access to and will take necessary medication, and what
arrangements are possible for treatment beyond medication.

Id.

¶14 When a circuit court orders conditional release, the department
submits a plan for the defendant’s treatment and services. WIS. STAT.
§ 971.13(3)(d). After release, the defendant is subject to the conditions set by the
court as well as the department’s rules. Sec. 971.17(3)(e). The department may
take a defendant back into custody if the department believes that the defendant
has violated a condition or rule, “or that the safety of the person or others requires
that conditional release be revoked.” Id. Upon detention, the department has
seventy-two hours to file a petition to revoke the order for conditional release. Id.
The circuit court must then hold a hearing on the petition within thirty days. Id.

¶15 At this revocation hearing, the State “has the burden of proving by
clear and convincing evidence that any rule or condition of release has been
violated, or that the safety of the person or others requires that conditional release
be revoked.” Id. “If the court determines after hearing that any rule or condition
of release has been violated, or that the safety of the person or others requires that
conditional release be revoked, it may revoke the order for conditional release”
and order placement in institutional care. Id.

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¶16 On appeal, Lange first makes a due process argument regarding the
valid grounds for revoking conditional release. Lange points us to the
United States Supreme Court’s decision in Foucha v. Louisiana, 504 U.S. 71
(1992), together with our supreme court’s decision in State v. Randall, 192
Wis. 2d 800, 532 N.W.2d 94 (1995),2 which both addressed the substantive due
process requirements for committing an NGI defendant. Lange argues that “[b]oth
cases make clear that the committees’ release would be constitutionally required
unless they were still dangerous.” Lange then argues that “the same due process
minimums” should apply when the circuit court is revoking an NGI committee’s
conditional release, and that WIS. STAT. § 971.17(3)(e) “falls short” of those due
process minimums. Specifically, § 971.17(3)(e) “seems to let a court reconfine an
NGI committee based solely on a violation of the rules of his conditional release.”
As such, Lange argues that the statute is inconsistent with Foucha and Randall I.

¶17 Based on these authorities, Lange urges us to construe WIS. STAT.
§ 971.17(3)(e) to require a finding of dangerousness in order to revoke an NGI
defendant’s conditional release. If we accept this argument, Lange contends that
we must reverse the circuit court’s revocation decision because the evidence
presented at the revocation hearing was only sufficient “to establish a few minor
violations” but “fell short of proving him dangerous.”

2
The defendant in Randall subsequently filed additional appeals relating to his
continued NGI commitment. See State v. Randall, 222 Wis. 2d 53, 58-59, 586 N.W.2d 318 (Ct.
App. 1998); State v. Randall, 2011 WI App 102, 336 Wis. 2d 399, 802 N.W.2d 194. In this
appeal, Lange relies on both the initial decision in 1995 and the later decision in 2011. To avoid
confusion, we refer to the 1995 decision as “Randall I” and the 2011 decision as “Randall III.”

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No. 2020AP267-CR

¶18 The State asks us to reject Lange’s due process argument as
undeveloped or forfeited.3 Alternatively, the State asks us to find that the
evidence was sufficient to establish that Lange presented a danger to others.

¶19 We agree with the State’s second argument. The circuit court did, in
fact, determine that Lange was dangerous. Specifically, in its written decision
granting the State’s petition for revocation, the court determined that “the safety of
others require[d] the conditional release to be revoked.” Likewise, the court’s
order for placement referred to its determination “that conditional release would
pose a significant risk of bodily harm to the defendant or others.” Thus, the court
did find that Lange was dangerous, regardless of whether such a finding was
necessary to revoke his conditional release. Accordingly, if we affirm the finding
of dangerousness, we need not determine whether such a finding is necessary to
revoke Lange’s conditional release.

¶20 What remains, then, is Lange’s second argument, which is that the
evidence was not sufficient to support the circuit court’s determination regarding

3
The State points out that Lange appears to be “waging a facial constitutional challenge
to WIS. STAT. § 971.17(3)(e).” If so, Lange bears “a heavy burden because he must prove that
[the statute] is unconstitutional beyond reasonable doubt.” Winnebago Cnty. v. Christopher S.,
2016 WI 1, ¶33, 366 Wis. 2d 1, 878 N.W.2d 109. The State further contends that Lange has not
sufficiently developed a facial constitutional challenge.
In his reply brief, Lange states that the State has “misconstrue[d]” his argument as a
facial constitutional challenge to the revocation statute. Instead, Lange clarifies that he is only
making a “sufficiency-of-the-evidence challenge to the circuit court’s determination that the State
proved dangerousness.” Lange further clarifies that “[t]he only reason the constitutional
proof-of-dangerousness mandate is relevant is that it shows the circuit court’s error was not
harmless.” We need not resolve any disputes between the parties regarding these issues because,
as stated herein, we conclude the circuit court found Lange to be dangerous and we affirm that
determination.

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No. 2020AP267-CR

Lange’s dangerousness. The parties do not fully agree about the appropriate
standard of review that we should apply to the court’s decision in this regard.
Lange directs us to State v. Randall, 2011 WI App 102, ¶¶13-14, 336 Wis. 2d 399,
802 N.W.2d 194 (“Randall III”), in which we evaluated the denial of conditional
release using a sufficiency of the evidence test.

¶21 In contrast, the State directs us to State v. Jefferson, 163 Wis. 2d
332, 337-38, 471 N.W.2d 274 (Ct. App. 1991), in which we reviewed a circuit
court’s order revoking a conditional release using the following standard: “[T]he
[circuit] court’s findings of fact will not be overturned unless clearly erroneous.
The [circuit] court’s application of those facts to the law, such as recommitment
for dangerousness here, is a question of law which appellate courts review
independently from the [circuit] courts.” (Footnote omitted.) Although the State
contends that our decision in Jefferson is more on point, the State agrees with
Lange’s suggestion that the same standard of review should apply to a denial of
conditional release and revocation of conditional release.

¶22 We need not determine whether Jefferson or Randall III sets forth
the appropriate standard of review because we conclude that either standard would
lead to the same result in this particular case. We therefore apply the standard
urged by Lange, as described in Randall III. Specifically, in determining whether
the sufficiency of the evidence supports the circuit court’s order, “we give
deference to the [circuit] court’s determination of credibility and evaluation of the
evidence and draw on its reasoning and adopt the [circuit] court’s reasonable
inferences.” Randall III, 336 Wis. 2d 399, ¶14. We will uphold the revocation
order “if credible evidence exists to support the [circuit] court’s finding of
dangerousness.” Id., ¶17.

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No. 2020AP267-CR

¶23 We now turn to the question of whether credible evidence exists to
support a finding of Lange’s dangerousness. Lange observes that WIS. STAT.
§ 971.17(3)(e), which governs revocation of conditional release, “does not specify
the factors relevant to the court’s dangerousness determination.” Instead, Lange
directs us to § 971.17(3)(a) and (4)(d), which address dangerousness in the context
of orders for initial placement and conditional release. These statutory provisions
both state that the circuit court may consider “the nature and circumstances of the
crime, the person’s mental history and present mental condition, [and] where the
person will live,” among other factors. Sec. 971.17(3)(a), (4)(d).

¶24 Lange argues that the circuit court’s written decision “referenced just
a few of the aforementioned factors”—namely, the loss of Lange’s placement in
the group home, the difficulty in placing Lange thereafter, and Lange’s
“history”—but that these factors do not prove dangerousness. Regarding his
placement issues, Lange agrees that the group home closure and the difficulty of
finding a new placement “were relevant considerations for the court,” and he
further agrees that “a protracted housing search was likely.” Lange argues,
however, that a more appropriate response would have been for “Lange … to
spend time in jail while [the department] tracked down a male-only facility willing
to accept him as a resident.”

¶25 We are unpersuaded by Lange’s effort to undermine the significance
of the loss of his group home placement. In particular, Lange’s argument ignores
the fact that Lange lost this placement—and is being preemptively denied
alternative placement—because of the group home’s concerns for the safety of
female staff and a female resident. Those concerns are tied to Lange’s repeated
actions, including numerous examples of his objectifying women. As such, the

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difficulty surrounding Lange’s placement is directly intertwined with the circuit
court’s determination regarding Lange’s dangerousness.

¶26 Lange also asks us to disregard the circuit court’s “vague reference
to Lange’s history” because more detail is required to “assess whether the court’s
reliance on Lange’s history was reasonable.” We are again unpersuaded. Lange’s
argument ignores the fact that Lange’s “history” includes his NGI plea to child
sexual assault.4 The court underscored the connection between this history and
Lange’s rules violations during the revocation hearing, when the court explained
that it did not “want us to be in a position where we’re making him get out and
re-offend by sexually assaulting somebody.” We conclude that the court
reasonably considered Lange’s history of sexual violence and lewd behavior
toward women in evaluating whether his rule violations were evidence of
dangerousness. See State v. Burris, 2004 WI 91, ¶72, 273 Wis. 2d 294, 682
N.W.2d 812 (“A court is not forced to wait until overtly dangerous acts have been
committed; it is not required to ignore indications that a sexually violent person
has disregarded the rules repeatedly in the past and will do so in the future.”).

¶27 Lange’s argument also overlooks the circuit court’s reference, in its
written decision regarding revocation, to Lange’s violating “rules to provide for
safety of females.” The court elaborated on this particular factor during the
revocation hearing when it determined that Lange “knows the rules” but “is not

4
In his reply brief, Lange argues that his history of child sexual assault is not evidence
of dangerousness because his rule violations all relate to adult women, rendering his history of
child sexual assault a “mismatch.” Lange’s argument overlooks record evidence relating to
underage females, such as the fact that Lange ignored explicit instructions not to go to the mall,
which is a teenage hangout location that was off-limits to him. At any rate, Lange’s history of
sexual assault is a basis for determining that he is dangerous, regardless of any victim’s age.

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No. 2020AP267-CR

obeying” them. The court further explained that Lange is “a very smart
individual” who “hemmed and hawed about what he did or didn’t do” and “wasn’t
very believable.” Intentional rule breaking in the manner Lange did and his
refusal to accept responsibility both support a finding of dangerousness,
particularly in light of Lange’s conviction for sexual assault of a child. See
Randall III, 336 Wis. 2d 399, ¶¶26-29 (explaining that Randall had refused to
take responsibility for repeated rule violations and concluding that “Randall’s
devious, secretive and intentional rule-breaking behavior, similar to his behavior at
the time of his crimes, demonstrates that he continues to be dangerous.”).

¶28 Finally, Lange argues that the State’s focus on his rule violations
does not support a finding of dangerousness because “[n]one of those
violations … involved threats, risk-taking, endangerment of others, acts of
intimidation, noncompliance with medication, or anything else showing
dangerousness.”5 We fail to see how Lange’s decision to exit the group home in
the middle of the night is not evidence of “risk-taking.” Lange’s view also

5
As part of this last argument, Lange suggests that the State did not even allege that he
was dangerous because it “believed it only had to prove a rule violation to secure Lange’s
revocation.” To support this argument, Lange points to the prosecutor’s statement at the hearing
that, “[i]n order to have his conditional release revoked, [Lange] just has to violate a condition of
conditional release.”
The State contends that Lange is taking an isolated statement out of context, and it points
to other record references to Lange’s dangerousness, including Pavloski’s letter to the circuit
court. In that letter, Pavloski stated that “Mr. Lange’s unwillingness to comply with his court-
ordered Treatment Plan and Conditional Release Rules is in violation of the terms of his
Conditional Release and this behavior is a risk to both Mr. Lange’s and the community’s safety.”
The State also points to the prosecutor’s closing argument, in which he stated that Lange’s
immediate rule violation was “just the tip of the iceberg,” and that his rule violations were
“worrisome because of why he is on conditional release.” We agree with the court that the State
did allege dangerousness.

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No. 2020AP267-CR

discounts his comments about women while on a supervised trip to Walmart
which led staff to believe that he “would have acted on impulse ... were they not
present.” Likewise, the record establishes that Lange’s conduct prompted safety
concerns at both his group home and at his behavioral healthcare providers. These
safety concerns provide additional support for the circuit court’s finding of
dangerousness.

¶29 At any rate, Lange’s last argument is not tethered to any of the
statutory factors that he asserts that a circuit court is permitted to use when
establishing dangerousness. See WIS. STAT. § 971.17(3)(a), (4)(d). Both of these
statutory subsections provide that the court may consider “the nature and
circumstances of [Lange’s] crime, [Lange’s] mental history and present mental
condition, where [Lange] will live, how [Lange] will support himself … what
arrangements are available to ensure that [Lange] has access to and will take
necessary medication, and what arrangements are possible for treatment beyond
medication.” See id. The court’s focus on Lange’s history, knowing violations of
rules intended to protect females, and resulting loss of placement all connect
directly to the statutory factors for establishing dangerousness.

¶30 Using the standard of review urged by Lange, we may affirm an
order on conditional release “if credible evidence exists to support the [circuit]
court’s finding of dangerousness.” See Randall III, 336 Wis. 2d 399, ¶17. Lange
does not argue that the evidence of his rule violations and placement difficulties
was not credible. To the contrary, Lange has conceded that the State established
rule violations and Lange further agrees that his loss of placement is a relevant
consideration. Accordingly, we conclude that credible evidence exists to support
the circuit court’s determination regarding Lange’s dangerousness if he remained
on conditional release. We therefore affirm the court’s orders.

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No. 2020AP267-CR

By the Court.—Orders affirmed.

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

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