State v. Isaac M. Gabler ( 2023 )

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.
April 19, 2023
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. 2022AP995-CR Cir. Ct. No. 2020CF105
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ISAAC M. GABLER,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Calumet County: JEFFREY S. FROEHLICH, Judge. Affirmed.
¶1 NEUBAUER, J.1 Isaac M. Gabler appeals from a judgment of
conviction entered after he pled no contest to three misdemeanors and from an
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP995-CR
order denying his postconviction motion. Gabler does not challenge his
underlying convictions for disorderly conduct and violation of a temporary
restraining order. Gabler does contend, however, that the circuit court erroneously
exercised its discretion in denying his request that his convictions be expunged.
More specifically, he argues that the court’s decision rests on inaccurate
information. For the reasons explained below, this court rejects Gabler’s
arguments and affirms the judgment and order.
BACKGROUND
¶2 The facts relevant to this appeal arise out of several actions
commenced against Gabler in 2020. Judge Jeffrey S. Froehlich presided over all
of the legal proceedings and issued all of the orders discussed in this opinion.
The Temporary Restraining Orders and Harassment Injunction
¶3 On April 8, 2020, Richard G., the father of eighteen-year-old
Evelyn G.,2 filed a petition on Evelyn’s behalf seeking a temporary restraining
order (TRO) and injunction against Gabler pursuant to WIS. STAT. § 813.125.
Richard filed the petition three days after Gabler, a former high school classmate
of Evelyn, came to Evelyn’s home and told Richard “he wanted to take [Evelyn]
so she could take his virginity.” According to police, Richard “told [Gabler] it
would be best for him to leave,” at which point Gabler said, “[a]re you sure you
want to do that,” “slowly walk[ed] back into his vehicle,” and “continued to stare
at [Richard] with a smile on his face.” Richard told police that Gabler left but
2
This court refers to the victim and her father by pseudonyms consistent with the policy
set forth in WIS. STAT. RULE 809.86(1).
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No. 2022AP995-CR
“drove past the residence a short while later … again staring at [Richard].”
Richard incorrectly listed Evelyn’s date of birth on the petition, misidentifying her
as a minor.
¶4 The circuit court held a hearing on the petition on April 22, 2020.
Evelyn and her parents were the only persons to appear at the hearing, which was
held telephonically due to the COVID-19 pandemic. After briefly questioning
Richard and noting the discrepancy concerning Evelyn’s date of birth, the court
granted the TRO but directed that Evelyn sign and file an amended petition
correctly listing her birth date. Evelyn filed an amended petition later that day.
¶5 On April 29, 2020, the circuit court held a telephone hearing on the
amended petition. In addition to Evelyn and her parents, Gabler and his attorney
appeared via telephone.3 Gabler’s attorney informed the court that Gabler had
been in outpatient treatment for his mental health issues, that he was taking
medication, and that he had “stabilized.” The attorney described him as
“competent and able to communicate” but acknowledged that “some other people
involved in his life, they disagree with that at this time.” She asked the court to
extend the TRO for six months. Gabler and Evelyn agreed to this arrangement.
The court warned Gabler that “violations of [the TRO] would [be grounds for] a
mandatory arrest,” to which Gabler responded, “[o]kay.” Later that day, the
circuit court entered an amended TRO requiring Gabler to “cease or avoid the
harassment of [Evelyn],” stay away from her residence, and “avoid contact that
harasses or intimidates” her.
3
The same attorney represented Gabler in the injunction action and in this action
through Gabler’s plea and sentencing.
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No. 2022AP995-CR
¶6 On the following evening, April 30, 2020, Gabler went to Evelyn’s
house and knocked on the front door. Evelyn’s father contacted the sheriff’s
office. Gabler told the deputy who responded to the house that “he was aware that
he had a restraining order prohibiting him from being at [Evelyn’s] residence or
making contact with [her]” and that he was “[there] to take [Evelyn]’s virginity.”
¶7 Gabler was arrested and taken to the Winnebago Mental Health
Institute where he was detained emergently under WIS. STAT. ch. 51. In a letter
dated May 4, 2020, Gabler’s attorney informed the circuit court that Gabler “[was]
currently in a secure placement outside of Calumet County” and that because of
“circumstances that [had] occurred since the [April 29] hearing,” she could not
obtain Gabler’s signature on a form acknowledging that he had been served a copy
of the amended TRO. The attorney advised that Evelyn “[would] need to proceed
with having the necessary paperwork served on [Gabler].” Two days later, a
deputy sheriff effected substituted service of the amended TRO and associated
papers on Gabler by delivering them to a staff member at the Winnebago Mental
Health Institute.
¶8 Gabler was subsequently examined by two psychiatrists, each of
whom concluded that Gabler met the criteria for continued involuntary
commitment and medication under WIS. STAT. ch. 51—he was mentally ill, a
proper candidate for treatment, and a danger to himself or others.
¶9 On May 14, 2020, the circuit court held a hearing on Evelyn’s
request for an injunction. Minutes from the hearing indicate that Gabler did not
appear but that his attorney asked to proceed because Gabler “[was] not competent
to proceed and could not understand what happens today.” After hearing
testimony from Evelyn and her father, the court found “[r]easonable grounds to
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No. 2022AP995-CR
believe” that Gabler had engaged in harassing and intimidating behavior towards
Evelyn and granted an injunction prohibiting him from engaging in any harassing
or intimidating conduct towards her for four years.
The Criminal Proceeding and Gabler’s Expungement Request
¶10 Following Gabler’s arrest on April 30, 2020, the State charged him
with felony stalking and three misdemeanors—a violation of the TRO and two
counts of disorderly conduct. On May 12, the circuit court ordered a competency
examination.
¶11 Eight days later, on May 20, 2020, the State filed a report prepared
by Deborah L. Fischer, Ph.D., a licensed psychologist at the Winnebago Mental
Health Institute, in which she diagnosed Gabler with “unspecified schizophrenia
spectrum and other psychotic disorder.” In the report, Fischer wrote that Gabler
had “exhibited several different fixed delusional beliefs” since the end of
March 2020, “lack[ed] insight into his illegal and inappropriate behaviors and also
exhibit[ed] poor judgment,” and “display[ed] a tangential and illogical thought
process.” Based on her evaluation of Gabler, Fischer opined that he was not
competent to proceed in the criminal case because he “lack[ed] substantial mental
capacity to understand the proceedings and assist in his own defense.” See WIS.
STAT. § 971.13(1). The circuit court suspended proceedings in the criminal case
and ordered Gabler to continue inpatient treatment at the Winnebago Mental
Health Institute.
¶12 In a subsequent report dated June 29, 2020, Fischer wrote that
“[w]ith medication, Mr. Gabler has exhibited improvement in his depressive
symptoms and is no longer experiencing delusions or hallucinations. His thought
process is logical and linear, his judgment is improved, his insight is improving,
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No. 2022AP995-CR
and he is grounded in reality.” She diagnosed Gabler with “Major Depressive
Disorder, early onset, with psychotic features,” “Generalized Anxiety Disorder,”
and “Cannabis Use Disorder,” but opined that he was competent to proceed in his
criminal case.
¶13 The circuit court found Gabler to be competent and he ultimately
agreed to plead no contest to the misdemeanors in exchange for the State’s
agreement to have the felony count dismissed and read in at sentencing. On
September 21, 2020, the circuit court accepted Gabler’s plea, withheld sentence,
and imposed a two-year term of probation. The court also denied Gabler’s request
that his convictions be expunged after the end of his probation term because he
“ha[d] received the significant benefit of having the felony charge dismissed and
read in, and … there needs to be some information available to the public given
the events that took place here.” Gabler’s attorney acknowledged “the Court’s
desire that there be something on the record” but asked the court to reconsider,
noting that “the restraining order … will always show up on a background check,
… and that’s available for the public to see.” The court declined to do so because
it perceived “a significant difference between just knowing that an order was
entered at some point in the past and knowing that that order was violated.”
¶14 After the plea and sentencing hearing, Gabler’s attorney filed a letter
“to clarify” a reference the State had made to “schizophrenia … manifest[ing]
itself when a person is [Gabler]’s age.” The attorney wrote that Gabler’s “current
diagnosis is major depressive disorder with psychotic features. He is not
diagnosed with schizophrenia.” She asked that “[i]f this additional information
would change the [circuit c]ourt’s opinion about granting expungement, … the
[c]ourt direct it to be noted on the Judgment of Conviction.” The court responded
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No. 2022AP995-CR
in a letter to Gabler’s attorney dated October 7, 2020, indicating that no change
would be made:
The [c]ourt recognizes that Mr. Gabler’s mental health
issues were a significant part of his case. The [c]ourt did
not form its opinion denying expungement based upon any
particular mental health diagnosis nor [the State’s]
comments that your client may be suffering from
schizophrenia. The [c]ourt’s concern was that while the
public might have been able to ascertain that Mr. Gabler
had an injunction ordered against him that information was
not sufficient. The [c]ourt believes there is a vast
difference between having an injunction ordered against an
individual and knowing that the individual violated that
injunction. For public safety reasons the [c]ourt believed it
was important that that information be accessible.
The Harassment Injunction is Vacated
¶15 In March 2021, Gabler moved, pursuant to WIS. STAT. § 806.07, to
vacate the harassment injunction. After receiving no response from Evelyn, the
circuit court issued an order in October 2021 granting the motion. The court made
two findings in support of its decision. First, the court found that it “did not have
competency to grant either the temporary restraining order or injunction …
because the original restraining order was improperly granted as [Evelyn] was a
competent adult at the time her father pursued the petition on her behalf.” The
court stated that the petition “did not comply with the statutory requirements of
[WIS. STAT. §] 813.125” and should have been dismissed because Evelyn’s father
had incorrectly identified her as a minor. Second, the court found that the
injunction was invalid because “Gabler was not present at the injunction hearing,”
and neither he nor his attorney could waive his appearance because he was
committed civilly and “was indisputably incompetent” at that time.
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No. 2022AP995-CR
The Circuit Court Denies Gabler’s Postconviction Motion
¶16 In February 2022, Gabler filed a postconviction motion seeking to
reopen his sentencing hearing on the issue of expungement. Citing State v.
Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, Gabler argued that
because the circuit court had determined that the initial TRO should not have been
entered against him and had vacated the harassment injunction, the court had
“unknowingly considered inaccurate information about the nature of the supposed
violation of the temporary restraining order and the level of culpability [Gabler]
had in attempting contact with [Evelyn] on April 30, 2020” when it declined to
order expungement at Gabler’s sentencing hearing. Gabler also asserted that his
attorney in the injunction proceeding had rendered ineffective assistance in failing
to request that the initial TRO be dismissed, a failure that led the court to deny
expungement based on “its wrongly held belief that … Gabler knowingly violated
the temporary restraining order … and that by doing so, created such a set of
circumstances where the public would be harmed if they were denied access to
this information.”
¶17 The circuit court denied Gabler’s motion, explaining that its decision
to not order expungement was based on the fact “that there was a temporary
restraining order in place and that the order had been violated,” not whether
Gabler had knowingly or unknowingly violated it. The court emphasized its belief
that it “is important for the public to know, so that members of the public are ‘on
notice’ and can take measures to protect themselves and others, … that there was a
temporary restraining order in place and that the order had been violated.” Gabler
appeals.
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No. 2022AP995-CR
DISCUSSION
¶18 WISCONSIN STAT. § 973.015(1m)(a)1. empowers circuit courts to
expunge certain criminal convictions committed by persons under the age of
twenty-five “if the court determines the [offender] will benefit and society will not
be harmed by this disposition.” The statute enables a court to “provide a break to
young offenders who demonstrate the ability to comply with the law” and “shield
[them] from some of the harsh consequences of criminal convictions.” State v.
Leitner, 2002 WI 77, ¶38, 253 Wis. 2d 449, 646 N.W.2d 341 (citation omitted).
Whether to order expungement is reserved to the circuit court’s discretion, which
means this court’s review is deferential. State v. Helmbrecht, 2017 WI App 5, ¶8,
373 Wis. 2d 203, 891 N.W.2d 412 (2016). The circuit court must “set forth … the
facts it considered and the rationale underlying its decision.” Id., ¶12. This court
will uphold a circuit court’s decision on expungement so long as “it relies on
relevant facts in the record and applies a proper legal standard to reach a
reasonable decision.” Id., ¶8 (quoting State v. Thiel, 2012 WI App 48, ¶6, 340
Wis. 2d 654, 813 N.W.2d 709).
¶19 Gabler argues that the circuit court erroneously exercised its
discretion because it relied on inaccurate information in denying his request for
expungement. He relies on a line of cases recognizing that a defendant has a
constitutional right to be sentenced on the basis of accurate information. See, e.g.,
Townsend v. Burke, 334 U.S. 736, 741 (1948); Tiepelman, 291 Wis. 2d 179, ¶9.
The State acknowledges that a court erroneously exercises its discretion if it denies
expungement based on an error of fact. Gabler bears the burden of showing by
clear and convincing evidence both that inaccurate information was before the
court and that the court actually relied on it in the sentencing. See Tiepelman, 291
Wis. 2d 179, ¶26; State v. Coffee, 2020 WI 1, ¶38, 389 Wis. 2d 627, 937 N.W.2d
9No. 2022AP995-CR
579. Whether Gabler was denied expungement in violation of his constitutional
rights is a question this court reviews de novo. See Coffee, 389 Wis. 2d 627, ¶17.
¶20 Gabler argues first that the circuit court based its expungement
decision on the incorrect premise that he violated the harassment injunction when
in fact he pled no contest to violating the amended TRO. The record does not
show that the court relied on inaccurate information. The court referred to Gabler
having violated “an injunction” in its October 7, 2020 letter to Gabler’s counsel,
which was dated several weeks after Gabler’s sentencing hearing. When the court
sentenced Gabler, however, it did not refer to the injunction, but rather to an
“order.” At the sentencing hearing, the court explained that it was denying
Gabler’s request for expungement because it believed “there need[ed] to be some
information available to the public given the events that took place here.” When
Gabler’s counsel reminded the court that the restraining order would be “available
for the public to see,” the court clarified that it believed the public needed to be
aware Gabler had violated the order: “Well, I appreciate that that record is still
out there, but there is a significant difference between just knowing that an order
was entered at some point in the past and knowing that that order was violated.”
The court twice referred to an “order” in its comments, clearly referring to the
violation of the amended TRO for which Gabler was convicted and sentenced.
¶21 This court agrees with the State that the circuit court appears to have
simply misdescribed the amended TRO as an “injunction” in its October 7 letter.
That slip of the tongue is not enough to show that the circuit court was under the
mistaken impression that Gabler had violated the harassment injunction when it
denied expungement. To the contrary, the circuit court’s specific references to an
“order” in explaining its expungement decision confirm it did not deny Gabler’s
request on the basis of inaccurate information.
10
No. 2022AP995-CR
¶22 Gabler next argues that he did not know the amended TRO had been
issued when he went to Evelyn’s house on April 30, 2020, because he had not
been personally served with it and “was incompetent as a matter of law at the
time” it was issued. On the latter point, Gabler notes the “substantial steps” his
family took to get him mental health treatment in the weeks before he violated the
amended TRO and the findings of two psychiatrists days after his arrest that he
was mentally ill and should be involuntarily committed and medicated under WIS.
STAT. ch. 51. Gabler questions how expungement of his conviction for violating
an order whose existence he was not aware of could be harmful to society.
¶23 This argument is not sufficient to show that the circuit court actually
relied on inaccurate information denying expungement. First, the record
demonstrates Gabler knew about the amended TRO when he went to Evelyn’s
house on April 30, 2020, even though he had not been personally served with it
and was struggling with mental illness. The court entered the amended TRO
following a hearing held on April 29, 2020. Gabler appeared telephonically at the
hearing and, in response to questions from the court, acknowledged that he was
willing to extend the terms of the initial TRO for six months and that he knew he
would have to follow them. According to the criminal complaint, when the police
spoke to Gabler outside Evelyn’s house the following evening, he “stated he was
aware of the restraining order.”4
¶24 Gabler later pled no contest to, and was found guilty of, violating the
amended TRO. During the plea colloquy, Gabler acknowledged that the State
4
At the plea hearing, Gabler’s attorney did not object when asked if the circuit court
could use the facts alleged in the complaint as the basis for Gabler’s plea.
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No. 2022AP995-CR
would have to prove that he “knew that the temporary restraining order had been
issued” and that his “actions were going to violate its terms.” He acknowledged
that the court would find him guilty of violating the amended TRO if he pleaded
no contest. The court found that Gabler “[understood] the nature of these
proceedings and the effect of [his plea].” Gabler did not plead not guilty by reason
of mental disease or defect and has not moved to withdraw his plea. In sum,
Gabler has not established his claim of lack of knowledge by clear and convincing
evidence.
¶25 In considering expungement, a circuit court must assess whether the
defendant will benefit and whether society will be harmed. See WIS. STAT.
§ 973.015(1m)(a)1. In denying Gabler’s requests for expungement, the circuit
court consistently cited harm to the public as the reason for its decision. In the
circuit court’s view, society would be harmed if records reflecting Gabler’s
violation of the amended TRO were expunged. Gabler challenges this reasoning
by noting that records related to the amended TRO, Gabler’s violation of it, and
the harassment injunction can be accessed through the Circuit Court Access
Program (CCAP) website regardless of whether his conviction is expunged.
Assuming the website has displayed and will indefinitely continue to display this
information, the circuit court could nonetheless reasonably conclude that
expungement would deprive the community of one way to learn that Gabler had
violated the amended TRO. Its conclusion rests on the application of the correct
law to the relevant facts and is one a reasonable judge could make. Thus, Gabler
has not carried his burden of showing an erroneous exercise of discretion.
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No. 2022AP995-CR
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
13