In re Commitment of Alger: State of Wisconsin -v- Michael Alger

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July 2015 Illinois:

In re Commitment of Alger: State of Wisconsin -v- Michael Alger

Michael Alger appeals an order denying his 2014 petition for discharge from his WIS. STAT. ch. 980 commitment.[1] The circuit court concluded Alger's petition was insufficient to set the matter for trial because Alger had refused to participate in treatment following his previous discharge trial in 2012, wherein a jury found Alger remained dangerous within the meaning of WIS. STAT. § 980.01(7).

¶2 However, the basis for Alger's petition was not that his condition had improved as a result of treatment. Rather, Alger's petition was supported with an expert report applying new research regarding the proper use of one of the actuarial instruments utilized by the experts at Alger's prior discharge trial.

Applying this new research, the report concluded Alger no longer met the criteria for commitment under WIS. STAT. ch. 980. This expert's report was not prepared at Alger's behest, but rather was submitted pursuant to WIS. STAT. § 980.07(2), as a component of the Department of Health Service's (DHS) statutorily mandated, annual reexamination of Alger.

¶3 Based upon this shift in the relevant professional understanding regarding the evaluation of a person's dangerousness, a fact finder "would likely conclude [Alger's] condition has changed since the most recent order denying a petition for discharge" such that Alger "no longer meets the criteria for commitment as a sexually violent person." See WIS. STAT. § 980.09(1).

Accordingly, we reverse and remand with directions for the circuit court to conduct a discharge trial.

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Dr. Subramanian opined that recent research indicated that static and dynamic factors, considered in combination, "offer unique variance in assessing sexual recidivism risk." Specifically, Subramanian cited a 2011 research presentation that "assessed sexual recidivism using the Static-99R as a static instrument and Violence Risk Scale — Sex Offender Version (VRS-SO), Structured Risk Assessment — Forensic Version (SRA-FV), and Stable — 2007 as instruments to assess dynamic risk factors and presented results graphically." Subramanian also cited 2012 research presented at the Association of Treatment of Sexual Abusers that showed "[s]exual recidivism probabilities differed for nineteen samples based on dynamic factors external to Static-99R assessed by any one of the three instruments described above. Like the study in 2011, this research also concluded that dynamic factors accounted for the sample base rates."

Based on Alger's dynamic risk factors, which included substance abuse and intimacy deficits as the two main relevant factors, Dr. Subramanian concluded the recidivism probability estimates of the "Nonroutine" group best applied to Alger.[8] Subramanian scored Alger a "5" on the Static-99R. Individuals in the "Nonroutine" sample with a score of "5" had sexual recidivism rates of 20% in five years and 28% in ten years. Subramanian therefore concluded Alger's "lifetime probability [of] sexual offending does not exceed the legal threshold of fifty-one percent."

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People v Dodds

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2-27-2014 Illinois:

People v Dodds

This is an appeal from the circuit court's order dismissing a petition to vacate judgment filed by the defendant, Paul Dodds, pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2000)). The defendant, who was charged with four counts of possession of child pornography (720 ILCS 5/11-20.1(a)(1) (West 2000)), pleaded guilty to one count in exchange for a sentence of 18 months' probation and the requirement that he register as a sex offender for a period of 10 years.

Apparently, at the time of sentencing, defense counsel, the State and the trial judge all mistakenly believed that the defendant was required to register only for 10 years, rather than natural life, as required by the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/7 (West 2000)).[1] After the 10 years expired, the defendant was informed that he would have to register as a sex offender for natural life.

The defendant then filed a section 2-1401 petition (735 ILCS 5/2-1401 (West 2000)) seeking to vacate his conviction and sentence. The defendant argued that: (1) his sentence was void because the trial court lacked the authority to impose a sentence not permitted by law; and (2) his guilty plea was involuntary because: (a) his counsel was ineffective and (b) the State breached its promise that the defendant be required to register only for 10 years, rather than natural life, thereby depriving the defendant of due process of law.

The State filed and the circuit court granted a motion to dismiss the defendant's petition pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2000)). The defendant now appeals that dismissal and asks this court to vacate his conviction and sentence. For the reasons that follow, we agree with the defendant, vacate his conviction and sentence and remand to the trial court with instructions.

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32 Subsequent to Presley, our supreme court decided Hughes, 2012 IL 112817, affirmatively adopting the rationale in Padilla and applying it to a counsel's duty to advise a defendant of the possibility of involuntary commitment pursuant to the Illinois Sexually Violent Persons Commitment Act (SVPCA) (725 ILCS 207/9 (West 2008)). In Hughes, a defendant who pleaded guilty to aggravated criminal sexual abuse filed a motion to vacate his plea after he was released from prison and the State filed a petition to have him declared a sexually violent person under the SVPCA. Hughes, 2012 IL 112817, ¶¶ 9-10. When the motion to vacate his plea was denied, the defendant appealed, arguing, inter alia, that under the United States Supreme Court decision in Padilla, his plea was not knowingly and voluntarily entered since his counsel never advised him that the plea could be used as a basis for filing a petition to have him declared a sexually violent person, subject to involuntary commitment. Hughes, 2012 IL 112817, ¶¶ 15-16. The appellate court affirmed, finding that traditionally the filing of a sexually violent person petition was a collateral consequence of the plea and that, therefore, the defendant had failed to establish that under Padilla counsel had a duty to advise him regrading the possibility of involuntary commitment. Hughes, 2012 IL 112817, ¶ 16.

¶ 33 Our supreme court disagreed and held that under Padilla, a counsel's failure to advise the defendant of the collateral consequence, i.e., the possibility that his plea would be used as a basis for the filing of a sexually violent person petition, rose to the level of ineffective performance of counsel. Hughes, 2012 IL 112817, ¶¶ 43-62.[6]

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CONCLUSION

¶ 50 For all of the reasons stated above, we vacate the defendant's plea, conviction and sentence and remand to the circuit court for further proceedings before a different trial judge. In doing so, however, we remind the parties that they were unable to obtain the record from the underlying proceedings for purposes of this appeal, and that for this same reason, retrial may prove difficult.

¶ 51 Judgment vacated; reversed and remanded with instructions.

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State v LeMasters

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5-25-2010 Minnesota:

State v LeMasters
No. A09-982.

Appellant challenges his convictions and subsequent concurrent sentences for five counts of failure to register as a predatory offender, alleging that he is being punished multiple times for the same offense, which would violate constitutional and statutory protections against double jeopardy. Because appellant's failure to register was a continuous offense, and each of the five verification forms sent to him by the state over the course of 15 months was a distinct event triggering a separate duty to register, his failure to respond to each verification form was a separate offense for the purposes of double jeopardy. We affirm.

FACTS
Appellant James Clifford LeMasters was indeterminately committed in May 1999 as a sexually dangerous person and sexual psychopathic personality pursuant to Minn. Stat. § 253B.185 (1998). While at the Minnesota Sex Offender Program (MSOP) facility in St. Peter (Civil Commitment), appellant did not respond to five verification forms that he received from the bureau of criminal apprehension (BCA) on April 18, 2005; July 18, 2005; January 16, 2006; April 17, 2006; and July 17, 2006.

The BCA is required to provide committed sex offenders with at least four verification forms per year. Minn. Stat. § 243.166, subd. 4(e) (2008).1 The verification forms require a person registered as a predatory offender to provide, among other things, his current and last address. Id., subd. 4(e)(2). Verification forms must be returned within ten days of receipt. Id. Failure to register as a predatory offender is a felony. Id., subd. 5(a) (2008).

Appellant deliberately did not complete and return the verification forms. He tore the form sent to him in April 2005 into small pieces and placed it in an envelope, on the back of which he wrote, "I refuse to fill these out, tell the police to come get me for refusing to register, by law," and "I am turning you people in for sexual abuse." In response to the July 2005 verification form, appellant did not complete the form, but wrote "I WILL NOT REGISTER — ARREST ME!!" on the outside of the return envelope. He did not complete or return the remaining forms. Appellant ultimately sought to introduce evidence at his trial that sexual abuse was widespread and that he was personally threatened, abused, and mistreated at the MSOP facility, but the district court ruled that this evidence was inadmissible because appellant lacked a viable necessity defense as a matter of law.2

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Appellant's violations were separated by substantial periods of time, one of the key considerations under section 609.035. Appellant contends that he had a single criminal objective, which was to be prosecuted so that he could make allegations of sexual abuse at the MSOP during his trial.

The supreme court has explained that, for example, a defendant may not be sentenced for both murder and arson when the arson is the means by which he commits the murder, "because the time and place of the offenses coincide and because the defendant is motivated by an effort to obtain a single criminal objective." Bookwalter, 541 N.W.2d at 294. That example deals with a single act that results in violations of multiple laws.

Appellant apparently wished to be arrested and prosecuted, but this case deals with distinct acts that were several months apart, each of which was in response to a specific stimulus — a separate verification form that he was required to complete. Consequently, appellant's offenses do not constitute a single behavioral incident. Although appellant may have had the ultimate objective of being prosecuted, this alone does not transform multiple behavioral incidents into a single behavioral incident.

Affirmed.

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