State v. Benjamin J. Klapps ( 2020 )


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  •                                                                               2021 WI APP 5
    COURT OF APPEALS
    COURT OF APPEALS OF WISCONSIN
    PUBLISHED OPINION
    2019AP1753-CR
    Case No.:
    2019AP1754-CR
    Complete Title of Case:
    STATE OF WISCONSIN,
    PLAINTIFF-RESPONDENT,
    V.
    BENJAMIN J. KLAPPS,
    DEFENDANT-APPELLANT.
    Opinion Filed:          December 23, 2020
    Submitted on Briefs:    July 16, 2020
    JUDGES:                 Neubauer, C.J., Gundrum and Davis, JJ.
    Concurred:
    Dissented:
    Appellant
    ATTORNEYS:              On behalf of the defendant-appellant, the cause was submitted on the
    briefs of Jefren E. Olsen, assistant state public defender of Madison.
    Respondent
    ATTORNEYS:              On behalf of the plaintiff-respondent, the cause was submitted on the
    brief of Daniel J. O’Brien, assistant attorney general, and Joshua L.
    Kaul, attorney general.
    
    2021 WI App 5
    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 23, 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 Nos.         2019AP1753-CR                                          Cir. Ct. Nos. 2000CF255
    2000CF284
    2019AP1754-CR
    STATE OF WISCONSIN                                         IN COURT OF APPEALS
    STATE OF WISCONSIN,
    PLAINTIFF-RESPONDENT,
    V.
    BENJAMIN J. KLAPPS,
    DEFENDANT-APPELLANT.
    APPEALS from an order of the circuit court for Winnebago County:
    SCOTT C. WOLDT, Judge. Affirmed.
    Before Neubauer, C.J., Gundrum and Davis, JJ.
    ¶1       NEUBAUER, C.J. Benjamin J. Klapps appeals from an order
    revoking his conditional release. Klapps contends the court was objectively biased
    against him, as evidenced by the court’s reference to a psychologist’s opinion
    Nos. 2019AP1753-CR
    2019AP1754-CR
    rendered in reports filed in prior proceedings in which Klapps’ conditional release
    was revoked. He further contends we should invoke our discretionary reversal
    power in the interest of justice. Because Klapps failed to seek postrevocation
    review, as required by WIS. STAT. § 971.17(7m) (2017-18),1 and his claim of
    objective bias does not rise to the level of showing actual bias amounting to a due
    process violation, we reject Klapps’ arguments. We affirm.
    BACKGROUND
    ¶2       In 2000, Klapps pled guilty to sexual assault of a child and felony bail
    jumping but was found not guilty by reason of mental disease or defect.2 He was
    committed to the Department of Health and Family Services (Department) at
    Winnebago Mental Health Institute for twenty-six years and eight months.
    ¶3       Since his original commitment, Klapps has been conditionally
    released and revoked and recommitted many times. Most recently, in late February
    2019, the Department filed a petition to revoke Klapps’ conditional release to a
    group home based on several incidents in late 2018 and early 2019. The Department
    alleged Klapps sexually harassed, made inappropriate comments to, and ultimately
    threatened to harm, staff at the group home.
    ¶4       On March 6, 2019, the court held a revocation hearing. The only
    witness to testify was Klapps’ case manager, Patrick Woodbridge, who testified to
    1
    All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
    noted.
    2
    Klapps resolved two cases with his guilty pleas, and filed two appeals, which have been
    consolidated on appeal.
    2
    Nos. 2019AP1753-CR
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    the incidents in late 2018 and early 2019 while Klapps was out on conditional
    release at the group home.
    ¶5     Woodbridge detailed a series of incidents that demonstrated a
    “troublesome pattern” over the course of about five weeks, involving inappropriate
    comments that were often sexual in nature and culminating in “very threatening
    comments.” These included telling his sex offender treatment therapist that he was
    having sexual fantasies about his case manager. His therapist told Klapps that
    having sexual fantasies with someone he worked with directly is considered a risk.
    Woodbridge was assigned to be his new case manager based on Klapps’ self-
    reported inappropriate fantasies about his other case manager.
    ¶6     The next day, Klapps told a staff member, D.K., that he had a “hard
    on for 3 hours but it went away,” then continually asked her why she was not doing
    his room checks anymore, and followed her around. He then asked D.K. if she was
    afraid of him and when she said, “No,” he said, “Good, because if I was going to
    attack you, I have had plenty of chances” and “I have feelings for you as a staff
    resident relationship.”
    ¶7     Although Klapps repeatedly was cautioned about his comments and
    behavior after these incidents, he continued. Three days later, he again approached
    D.K. and told her he had feelings for her and could not help the way he felt, repeating
    that if he were going to attack her, he would have already done so, but would not
    act on his feelings because he did not want to get in trouble.
    ¶8     Klapps subsequently told D.K. he was having suicidal thoughts, but
    not an “urge” to kill himself, and that it was his urges that were dangerous. He told
    D.K. that he was having sexual urges about her since that morning, causing her to
    3
    Nos. 2019AP1753-CR
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    go into her office and shut her door, where she then heard Klapps pacing back and
    forth.
    ¶9    The staff determined to take Klapps into custody based on his risky
    behavior. When told of the allegations, he said, “I did not touch [D.K.] or do
    anything,” complained that the staff lied, and said that if he was placed back at the
    same group home, he would “beat the hell out of them.”
    ¶10   At the hearing on the petition for the termination of his conditional
    release, the State argued that these incidents, as well as others demonstrating that he
    was pushing boundaries, established a pattern of escalating risky behavior and
    threatening sexual comments, which posed a risk to himself and the community,
    especially staff members.
    ¶11   Klapps argued that there was no physical contact or specific threats of
    harm, and he specifically told staff he was not going to act on his thoughts. He
    argued that because he only saw his therapist every other week, and not for a stretch
    of three weeks at that time, he had to disclose these thoughts to the staff. He
    contended that these statements had to be assessed in the context of his therapist’s
    unavailability and the treatment expectation that he disclose his fantasies to reduce
    the risk he would simply internalize and act on the thoughts.
    ¶12   The trial court found revocation of Klapps’ conditional release was
    supported by clear and convincing evidence. The court explained that its ruling was
    based on “the only evidence before [the] court”—namely, Woodbridge’s testimony.
    The court found that revocation was appropriate because the evidence was that
    Klapps kept making threats despite being “told numerous times not only to stop
    talking about his sexual conquests but [also] his urges with staff people and he
    4
    Nos. 2019AP1753-CR
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    continues to do it.” In his oral ruling, the trial judge also noted that he recalled the
    conclusions of a psychologist, Dr. Allen Hauer, who had assessed whether Klapps
    could be safely released to the community and, if so, under what conditions, in
    reports submitted in prior proceedings from 2015 to 2018. Hauer did not examine
    or issue a report in the 2019 proceeding. The judge recalled Hauer’s conclusion that
    Klapps’ personality disorder as a sexual predator could not be treated with drugs,
    and he was unlikely to change. No objection was made to the court’s discussion of
    this recollection.
    ¶13    The court found Klapps’ statement that he would “beat the hell out of
    people” if he went back to the group home, along with his repeated, persistent,
    inappropriate statements and behavior despite being advised to stop, demonstrated
    that Klapps posed “a substantial risk of bodily harm to others.”
    ¶14    Klapps filed a notice of intent to seek postdisposition relief in the trial
    court. He did not file a motion for postdisposition relief before filing this direct
    appeal. Additional facts will be discussed where relevant.
    DISCUSSION
    Standard of Review
    ¶15    The State contends that Klapps’ failure to move for postdisposition
    relief in the trial court forfeits his appellate challenge. To determine whether a
    motion for postdisposition relief is required we must interpret WIS. STAT.
    § 971.17(7m). Statutory interpretation presents an issue of law we review de novo.
    State v. Grady, 
    2007 WI 81
    , ¶14, 
    302 Wis. 2d 80
    , 
    734 N.W.2d 364
    . We review
    whether a defendant adequately preserved or forfeited his right to appellate review
    5
    Nos. 2019AP1753-CR
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    of a particular claim de novo. State v. Coffee, 
    2020 WI 1
    , ¶17, 
    389 Wis. 2d 627
    ,
    
    937 N.W.2d 579
    .
    A Motion for Postdisposition Relief is Required by WIS. STAT. § 971.17(7m) for New
    Issues
    ¶16   Klapps contends that the trial court evidenced objective bias (the
    appearance of bias) against him by referencing the earlier conclusions of Hauer
    discussing his mental health and performance on conditional release, denying him
    due process. He contends that the trial judge’s comments indicate that the judge
    had already decided his case before taking evidence. Klapps acknowledges that he
    did not object at the time of the hearing such that he forfeited any challenge based
    on his inability to confront Hauer or the court’s reliance on a prior report. He has
    not challenged his counsel’s failure to object with an ineffective assistance of
    counsel claim; rather, he claims that the error is one that need not be preserved due
    to its nature as “structural error.”
    ¶17   The State responds to the bias claim by noting that Klapps’ failure to
    file a postdisposition motion in the trial court to raise his judicial bias claim forfeits
    his appellate challenge under the controlling statutes governing a party’s appellate
    rights.
    ¶18   WISCONSIN STAT. § 971.17(7m) provides:
    (7m) MOTION FOR POSTDISPOSITION RELIEF AND APPEAL.
    (a) A motion for postdisposition relief from a final order or
    judgment by a person subject to this section shall be made in
    the time and manner provided in [WIS. STAT. §§] 809.30 to
    809.32. An appeal by a person subject to this section from a
    final order or judgment under this section or from an order
    denying a motion for postdisposition relief shall be taken in
    the time and manner provided in [WIS. STAT. §§] 808.04(3)
    and 809.30 to 809.32. The person shall file a motion for
    6
    Nos. 2019AP1753-CR
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    postdisposition relief in the circuit court before a notice of
    appeal is filed unless the grounds for seeking relief are
    sufficiency of the evidence or issues previously raised.
    (Emphasis added.)
    ¶19    When interpreting WIS. STAT. § 971.17(7m), the goal is to give effect
    to the intent of the legislature, which we assume is expressed in the text of the
    statute. State ex rel. Kalal v. Circuit Court for Dane Cnty., 
    2004 WI 58
    , ¶44, 
    271 Wis. 2d 633
    , 
    681 N.W.2d 110
    . To this end, we begin with the language of the statute
    and give it its common, ordinary, and accepted meaning, except that technical or
    specially-defined words are given their technical or special definitions. Id., ¶45.
    We also consider the scope, context, and purpose of the statute insofar as they are
    ascertainable from the text and structure of the statute itself. Id., ¶48. Thus, we
    interpret statutory language “in the context in which it is used; not in isolation but
    as part of a whole; in relation to the language of surrounding or closely-related
    statutes;” and we interpret it reasonably to avoid absurd or unreasonable results. Id.,
    ¶46. If the meaning of the statute is plain, then we apply that language to the facts
    at hand. See id., ¶¶45-50.
    ¶20    Employing these principles, we conclude that the plain meaning of
    WIS. STAT. § 971.17(7m) requires a postdisposition motion when an issue has not
    been previously raised. The use of “shall” requiring the petitioner “to file a motion
    for postdisposition relief in the circuit court” if the issue was not previously raised
    is unambiguous. Klapps does not argue otherwise.
    ¶21    The same provision also directs that postdisposition motions “shall”
    be made in the time and manner provided in WIS. STAT. RULE 809.30. In turn,
    RULE 809.30(2)(h) reiterates the same requirement, providing: “The person shall
    file a motion for postconviction or postdisposition relief before a notice of appeal is
    7
    Nos. 2019AP1753-CR
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    filed unless the grounds for seeking relief are sufficiency of the evidence or issues
    previously raised.”
    ¶22     Notably, WIS. STAT. § 971.17(7m), the statute dealing with
    postdisposition motions, was created by 2009 Wis. Act 26. It not only incorporates
    and reiterates the above-discussed requirement of WIS. STAT. RULE 809.30(2)(h), it
    mirrors WIS. STAT. § 974.02, which deals with the closely related issue of
    postconviction motions challenging judgments of conviction prior to appeal. Like
    § 971.17(7m) does for postdisposition motions, § 974.02(1) also requires motions
    for postconviction relief to be made in the time and manner provided in
    RULE 809.30, with § 974.02(2) providing: “An appellant is not required to file a
    postconviction motion in the trial court prior to an appeal if the grounds are
    sufficiency of the evidence or issues previously raised.”
    ¶23     Our supreme court has made clear that WIS. STAT. § 974.02 requires
    that, for new issues on appeal to be considered as a matter of right, they must be
    raised in a postconviction motion. State v. Monje, 
    109 Wis. 2d 138
    , 
    325 N.W.2d 695
    , 
    327 N.W.2d 641
     (1982) (on reconsideration);3 see also State ex rel. Rothering
    v. McCaughtry, 
    205 Wis. 2d 675
    , 678 n.3, 
    556 N.W.2d 136
     (Ct. App. 1996); Coffee,
    
    389 Wis. 2d 627
    , ¶¶31, 41 (“[W]hile an objection may be the best practice, a
    postconviction motion is also a timely manner in which to assert that claim ….”).
    ¶24     We see no basis to interpret the circumstances under which a
    postdisposition motion is required to be any different than that of a postconviction
    3
    While State v. Monje, 
    109 Wis. 2d 138
    , 
    325 N.W.2d 695
    , 
    327 N.W.2d 641
     (1982) (on
    reconsideration), only acknowledged an exception for sufficiency of the evidence, the legislature
    has since amended WIS. STAT. § 974.02(2) to also allow the direct appeal of “issues previously
    raised” in the trial court. Id.
    8
    Nos. 2019AP1753-CR
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    motion. The procedural statutes governing this issue employ identical language and
    equally mandate the raising of new issues prior to appeal, whether it be in a
    postdisposition or postconviction context. Klapps provides no argument, much less
    legal authority, to the contrary.
    ¶25     Likewise, the rationale for the rule in postconviction proceedings is
    equally applicable to postdisposition proceedings after the revocation of supervised
    release. This is not a mere rule of convenience: it is essential to the orderly
    administration of justice, as it promotes efficiency and justice by giving the parties
    and the trial judge notice, allowing the trial court to correct or avoid the alleged
    error, encouraging the attorneys to prepare diligently, and avoids sandbagging by
    failing to object and later claiming error, all to the end of eliminating the need for
    appeal. State v. Huebner, 
    2000 WI 59
    , ¶10, 
    235 Wis. 2d 486
    , 
    611 N.W.2d 727
    .
    ¶26     In sum, WIS. STAT. § 971.17(7m) makes clear that in pursuing
    postdisposition relief after the revocation of supervised release, a petitioner may file
    a direct appeal to address sufficiency of the evidence or issues that have already
    been raised and a postdisposition relief motion to address those issues that have not
    been raised, including claims of judicial bias.4
    ¶27     It is undisputed that Klapps’ judicial bias challenge was not
    “previously raised.” Had Klapps filed a postdisposition motion, the trial court could
    4
    While Klapps suggests a postdisposition motion would be fruitless before a biased judge,
    he fails to identify any authority to support this contention, and our review indicates this procedure
    is routinely employed. See State v. Herrmann, 
    2015 WI 84
    , ¶21, 
    364 Wis. 2d 336
    , 
    867 N.W.2d 772
     (defendant filed postconviction motion alleging prejudging and seeking resentencing); State v.
    Marcotte, 
    2020 WI App 28
    , ¶¶1, 17, 
    392 Wis. 2d 183
    , 
    943 N.W.2d 911
     (postconviction motion
    filed challenging court’s alleged objective bias in prejudging sentence); State v. Goodson, 
    2009 WI App 107
    , ¶6, 
    320 Wis. 2d 166
    , 
    771 N.W.2d 385
     (“Goodson filed a motion for postconviction relief,
    arguing that he had been deprived of the right to an impartial judge because the court prejudged the
    reconfinement sentence.”).
    9
    Nos. 2019AP1753-CR
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    have directly addressed the claim.             Klapps deprived the trial court of that
    opportunity before appealing directly to this court, raising the issue for the first time.
    Our Review of Forfeited Objections Is Under Our Discretionary Reversal Authority
    ¶28     Klapps contends that, despite his failure to file a postdisposition
    motion in the trial court, his claim of objective judicial bias is a structural
    constitutional violation that cannot be forfeited, and which requires a new hearing.
    We disagree as, absent a challenge based on ineffective assistance of counsel,
    our   review      is   limited    to   our    discretionary      reversal    authority     under
    WIS. STAT. § 752.35. Accordingly, we first review case law addressing forfeiture,
    and then explain our denial of Klapps’ claim seeking discretionary reversal.
    ¶29     First, the State aptly points out that our supreme court has made clear
    that failure to object, even to a claimed structural constitutional violation, forfeits
    the challenge. State v. Pinno, 
    2014 WI 74
    , ¶¶55-63, 
    356 Wis. 2d 106
    , 
    850 N.W.2d 207
     (claimed denial of the structural public trial right at voir dire was forfeited by
    failure to timely object). Review is available under an ineffective assistance of
    counsel framework, in which the defendant has the burden of proof to show both
    deficient performance and prejudice. See Kimmelman v. Morrison, 
    477 U.S. 365
    ,
    375 (1986); Coffee, 
    389 Wis. 2d 627
    , ¶22; Pinno, 
    356 Wis. 2d 106
    , ¶¶81-86.5
    ¶30     Likewise, the United States Supreme Court has affirmed that, even as
    it applies to alleged structural errors, absent an objection at trial and on appeal, the
    issue is to be reviewed under an ineffective assistance of counsel framework.
    5
    We note that newly discovered evidence supports a claim for further review. For
    example, State v. Gudgeon, 
    2006 WI App 143
    , 
    295 Wis. 2d 189
    , 
    720 N.W.2d 114
    , involved a
    collateral attack on the court’s impartiality with a claim that new evidence showed that the court
    had prejudged the defendant’s sentence. Klapps does not argue that there is newly discovered
    evidence here.
    10
    Nos. 2019AP1753-CR
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    Weaver v. Massachusetts, 
    137 S. Ct. 1899
    , 1910-13 (2017) (“[T]he burden is on the
    defendant to show either a reasonable probability of a different outcome in his or
    her case or ... to show that the particular public-trial violation was so serious as to
    render his or her trial fundamentally unfair.”); see also United States v. Williams,
    
    974 F.3d 320
    , 344 (3d Cir. 2020) (applying Weaver and explaining that “[t]he
    unique considerations raised by appeal on an unpreserved error should not be
    disregarded simply because of the nature of the error”); Ahmed v. Madden,
    No. 3:18-CV-2309-H-JLB, 
    2019 WL 4254500
    , at *7 (S.D. Cal. Sept. 9, 2019)
    (applying Weaver to ineffective assistance of counsel claims for, among other
    things, trial counsel’s failure to seek recusal of “biased” judge and explaining that
    the judge’s challenged rulings “do not suggest judicial bias” and “[b]ecause
    Petitioner does not demonstrate prejudice, these claims to ineffective assistance of
    counsel are without merit”).
    ¶31    We may also invoke our power of discretionary reversal under WIS.
    STAT. § 752.35. See State v. Beasley, 
    2004 WI App 42
    , ¶17 n.4, 
    271 Wis. 2d 469
    ,
    
    678 N.W.2d 600
     (we may address forfeited errors under our discretionary reversal
    authority set out at § 752.35). Section 752.35 permits us to reverse despite a party’s
    forfeiture where “the real controversy has not been fully tried” or where “it is
    probable that justice has for any reason miscarried.” We exercise our discretionary
    11
    Nos. 2019AP1753-CR
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    reversal power under § 752.35 “sparingly and only in the most exceptional cases.”
    State v. Schutte, 
    2006 WI App 135
    , ¶62, 
    295 Wis. 2d 256
    , 
    720 N.W.2d 469
    .6
    ¶32      While Klapps contends that a claim of objective judicial bias should
    be treated differently than the failure to object to the public trial violations at issue
    in Pinno and Weaver, he does not identify any cases in which such a claim was
    exempt from the requirement that a forfeited claim must be brought before this court
    within the context of an ineffective assistance of counsel or interest of justice
    framework. Most importantly, he points to no authority expressly providing the
    court of appeals, as compared with the Wisconsin Supreme Court, with the authority
    to overlook an unobjected to error outside of these established frameworks. As
    6
    The federal avenue to challenge an unobjected error is plain error, even in the context of
    a judicial bias claim. Plain error review requires a four-part showing: (1) that an error occurred;
    (2) which was clear or obvious; (3) which not only affected defendant’s substantial rights; (4) but
    also seriously impaired the fairness, integrity, or public reputation of judicial proceedings. United
    States v. Barnhart, 
    599 F.3d 737
    , 743 (7th Cir. 2010); see Fed. R.
    Crim. P. 52(b); see also United States v. Boling, 
    648 F.3d 474
    , 482 (7th Cir. 2011) (Court will only
    reverse for judicial bias when it was not raised in the trial court if defendant “can show (1) that the
    district court judge demonstrated actual bias regarding [defendant’s] honesty or guilt and (2) that
    [defendant] suffered serious prejudice as a result. Because [defendant] did not timely object to the
    judge’s actions, we again review only for plain error.”).
    12
    Nos. 2019AP1753-CR
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    such, we conclude, our review is limited to one under our power of discretionary
    reversal.7
    We Decline to Exercise Our Power of Discretionary Reversal
    ¶33      Regardless of forfeiture, Klapps asks that we exercise our power of
    discretionary reversal, arguing that he is entitled to a new revocation proceeding
    before an unbiased judge in the interest of justice. Klapps’ specific challenge is to
    the consideration of the psychologist’s conclusions which, he argues, is evidence
    that the trial court had already decided the case. Klapps asserts that the real focus
    of the controversy should have been on whether he was dangerous at the time of the
    revocation hearing as evidenced by his behavior while at the group home, but the
    7
    Klapps points to State v. Carprue, 
    2004 WI 111
    , ¶¶57-59, 
    274 Wis. 2d 656
    , 
    683 N.W.2d 31
    , in support of his argument that his claim of judicial bias cannot be forfeited. Carprue addressed
    both a claim of a statutory violation and a claim of due process violation based on judicial bias
    arising from the trial judge’s calling and questioning of witnesses. Id., ¶¶29, 31, 58. Our supreme
    court found that the issues presented by the trial court’s actions “could be addressed under any of
    three legal theories”—a statutory violation, ineffective assistance of counsel, or a violation of
    “Carprue’s due process rights to a fair trial before an impartial judge.” Id., ¶29. The supreme court
    held that Carprue’s statutory violation claim had been forfeited, id., ¶35, and rejected his ineffective
    assistance of counsel claim on the merits, but then went on to also address the due process claim
    on the merits even though Carprue had not preserved it with a contemporaneous objection, id., ¶58.
    The court concluded that the due process claim failed, not because it was forfeited, but because
    Carprue “present[ed] no basis” for finding bias and did “no more than allege that [the judge]
    harbored general bias in favor of the State in criminal prosecutions.” Id., ¶60.
    While we question the basis for the court’s unexplained conclusion that the alleged
    structural error “could not be waived,” id., ¶57, we see no indication, and Klapps has provided
    none, that the decision permits this court to analyze Klapps’ claim outside of our statutory
    discretionary reversal authority, see Vollmer v. Luety, 
    156 Wis. 2d 1
    , 16-17, 
    456 N.W.2d 797
    (1990) (the common law “integrity of the fact-finding” exception grants the supreme court the
    power to review waived error that is unavailable to the court of appeals; there are only two grounds
    for the court of appeals to reverse a judgment under WIS. STAT. § 752.35: (1) when the real
    controversy has not been fully tried; or (2) when it is probable that justice has for any reason
    miscarried and the appellate court can conclude that a new trial would probably produce a different
    result); State v. Schumacher, 
    144 Wis. 2d 388
    , 410, 
    424 N.W.2d 672
     (1988) (the supreme court
    has a general power of review not available to the court of appeals).
    13
    Nos. 2019AP1753-CR
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    judge’s focus on Hauer’s earlier statements obscured and prevented the real
    controversy from being fully tried.
    ¶34     Discretionary reversal may be warranted if the court “had before it
    testimony or evidence which had been improperly admitted, and this material
    obscured a crucial issue and prevented the real controversy from being fully tried.”
    See State v. Schumacher, 
    144 Wis. 2d 388
    , 400, 
    424 N.W.2d 672
     (1988).8 Klapps
    correctly notes that, when the real controversy has not been fully tried, we may
    exercise our power of discretionary reversal without finding the probability of a
    different result on retrial. See Vollmer v. Luety, 
    156 Wis. 2d 1
    , 19, 
    456 N.W.2d 797
    (1990). Nevertheless, Klapps’ claim lacks merit because, as we discuss below, the
    real controversy of his present dangerousness was fully and fairly tried. Klapps’
    contention that the court’s comments rise to the level of evidencing a great risk of
    actual bias amounting to denial of due process fails.
    ¶35     As we are reviewing a claim of judicial bias, we consider the relevant
    standard of review and applicable law. “Whether a judge was objectively not
    impartial is a question of law that we review independently.” State v. Pirtle, 
    2011 WI App 89
    , ¶34, 
    334 Wis. 2d 211
    , 
    799 N.W.2d 492
    ; see also State v. Goodson,
    
    2009 WI App 107
    , ¶7, 
    320 Wis. 2d 166
    , 
    771 N.W.2d 385
     (“Whether a circuit
    court’s partiality can be questioned is a matter of law that we review
    independently.”).
    ¶36     There is a presumption that a judge acted fairly, impartially, and
    without prejudice. Goodson, 
    320 Wis. 2d 166
    , ¶8. “A defendant may rebut the
    8
    Klapps only argues that the real controversy was not tried and does not make any
    miscarriage of justice argument nor does he argue that his judicial bias challenge is entitled to a
    plain error review. See WIS. STAT. § 901.03(4); Schumacher, 
    144 Wis. 2d at 402
     (concluding that
    the plain error doctrine has been limited to evidentiary issues).
    14
    Nos. 2019AP1753-CR
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    presumption by showing that the appearance of bias reveals a great risk of actual
    bias.” State v. Herrmann, 
    2015 WI 84
    , ¶3, 
    364 Wis. 2d 336
    , 
    867 N.W.2d 772
    .
    “Such a showing constitutes a due process violation.” 
    Id.
     Where such an error
    occurs, it is “so intrinsically harmful as to require automatic reversal.” Neder v.
    United States, 
    527 U.S. 1
    , 7 (1999); see Williams v. Pennsylvania, 
    136 S. Ct. 1899
    ,
    1909 (2016) (“[A]n unconstitutional failure to recuse constitutes structural error.”).
    ¶37     We pause here briefly to set forth the standard governing the trial
    court’s decision at the revocation hearing. WIS. STAT. § 971.17(3)(e) provides, in
    pertinent part, as follows:
    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. 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 that the released person be
    placed in an appropriate institution under [WIS. STAT.
    §] 51.37(3) until the expiration of the commitment or until
    again conditionally released under this section.
    Thus, at the revocation hearing, the court was charged with reviewing the evidence
    to determine whether Klapps had violated any of the rules of his conditional release
    or presented a danger to himself or others. See § 971.17(3)(e). Whether Klapps’
    behavior established that Klapps presented a danger to himself or others was the
    real controversy to be tried at the hearing.9
    ¶38     We conclude this is not the sort of “exceptional case[]” warranting
    discretionary reversal under WIS. STAT. § 752.35. See Schutte, 
    295 Wis. 2d 256
    ,
    ¶62. While this doctrine does not, by definition, arise unless there is a failure to
    9
    The court did not identify any rules Klapps violated and the State does not argue that this
    basis supported revocation.
    15
    Nos. 2019AP1753-CR
    2019AP1754-CR
    object, we nonetheless think it significant that if the real controversy had not been
    tried, there was not one, but three prior opportunities to make such a case, including
    a potential ineffective assistance of counsel claim. Although not before us, even if
    Klapps had availed himself of the latter claim, his argument would fail, as there is
    no reasonable probability of a different outcome.
    ¶39     As to the substance of the trial court’s comments, while Klapps
    forfeited a challenge to the lack of notice and opportunity to address Hauer’s earlier
    conclusions, Klapps has provided no rebuttal to the substance of the psychologist’s
    testimony had the State called him to set forth the conclusions recounted. 10 Most
    importantly, Klapps does not argue that the trial judge’s recollection of the
    psychologist’s conclusions was inaccurate.
    ¶40     We also fail to understand how Klapps’ complaint that a fact-finding
    judge recalls information from a prior revocation proceeding evidences
    prejudgment, unless, of course, the stated recollection is objected to as inaccurate.
    In short, we do not see how Klapps’ apparent belief that the bell should be unrung
    10
    We agree with the State that an individual’s prior revocations and the basis for the same
    continue to inform and are relevant to a determination of dangerousness. We cannot conceive of
    any grounds to distinguish what may be considered in a recommitment proceeding as opposed to
    that considered in the initial or release determinations. See State v. Wood, 
    2010 WI 17
    , ¶37, 
    323 Wis. 2d 321
    , 
    780 N.W.2d 63
     (in making a release determination, “the court considers the same
    factors as it did with the initial commitment, such as the nature of the crime and that person’s
    history of mental illness to inform its determination”). While the initial considerations “taken
    together, create at least an implicit finding of dangerousness, if not an express finding,” and they
    “continue to be present until they are changed or upset,” the question for revocation is whether the
    individual’s behavior demonstrated that change continued after release. Id., ¶38. A “non-
    exhaustive list of factors” may be considered by the court, but it is not required to consider them in
    determining dangerousness. State v. Randall, 
    2011 WI App 102
    , ¶16, 
    336 Wis. 2d 399
    , 
    802 N.W.2d 194
    . The factors include the nature and circumstances of the crimes, the person’s mental
    history and present mental condition, and his or her past performance while institutionalized and
    conditionally released.
    16
    Nos. 2019AP1753-CR
    2019AP1754-CR
    works as a practical matter, unless, again, the information is erroneous. Klapps does
    not contend it is.
    ¶41    Moreover, as Klapps had been committed and this proceeding was to
    revoke his release for the fifth time, he was undoubtedly aware of Hauer’s
    conclusions and did not choose to have an independent psychological evaluation in
    the proceeding, as was his right. See WIS. STAT. § 971.17(7)(c).
    ¶42    To summarize, there is nothing to support Klapps’ argument that the
    real controversy—whether he was dangerous at the time of the revocation hearing
    as evidenced by his behavior at the group home in the days before the hearing—was
    not tried. The entire focus of the revocation hearing was on Klapps’ conduct at the
    group home. Klapps does not develop any argument that there was insufficient
    evidence to support the trial court’s conclusion that he presented a substantial risk
    of serious bodily harm to others. Instead, he points only to the court’s rejection of
    his argument that his comments demonstrated a “measure of improved control”
    given his therapist’s unavailability. Klapps’ disagreement with the trial judge’s
    conclusion is nothing more than that. He fails to address the threat to “beat the hell”
    out of staff when learning they believed his behavior was dangerous, or how
    repeated sexual comments, discussion of hypothetical attacks based on sexual
    impulses, and following staff around, either shows improvement or is therapeutic.
    ¶43    Ultimately, Klapps fails to explain how the trial judge’s recollection
    of the psychologist’s conclusions from prior proceedings transforms into
    prejudgment as compared to simply finding that Klapps’ comments and behavior at
    the group home were sexually predatory—not only highly inappropriate, but
    persistent, intimidating, and threatening. That the judge found his behavior was not
    treatable with drugs and was unlikely to change is all part and parcel of the facts
    17
    Nos. 2019AP1753-CR
    2019AP1754-CR
    supporting a conclusion of continuing dangerousness in Klapps’ fifth revocation
    hearing.
    ¶44   In short, Klapps has failed to show that the trial court’s conclusion
    based on the facts presented evidenced prejudgment as compared to simply
    disagreeing with Klapps’ characterization of his behavior. He also has failed to
    show that the issue of his dangerousness at the time of the revocation hearing was
    not fully or fairly tried. We see no serious prejudice to Klapps or grounds to
    conclude that the proceeding was unfair, lacked integrity, or amounted to a denial
    of due process.
    ¶45   For these and the above reasons we reject Klapps’ judicial bias claim.
    We see no reason to exercise our discretionary reversal authority. We reject Klapps’
    request for reversal, as we cannot conclude that the real controversy was not fully
    tried.
    By the Court.—Order affirmed.
    18
    

Document Info

Docket Number: 2019AP001753-CR, 2019AP001754-CR

Filed Date: 12/23/2020

Precedential Status: Non-Precedential

Modified Date: 9/9/2024