Hoppenrath v. State

293 N.W.2d 910, 97 Wis. 2d 449, 1980 Wisc. LEXIS 2629

• Court: Wisconsin Supreme Court
• Decided: June 27, 1980
• Docket: 78-433-CR
• Status: Published

Opinions

COFFEY, J.

The defendant, Harold A. Hoppenrath, seeks review of a writ of error filed challenging the appellate court’s refusal to consider his appeal of a motion to suppress, after a finding of not guilty by reason of mental disease or defect, of the crime of second degree murder. Following the trial, the defendant was committed to the Department of Health & Social Services with the Central State Hospital designated as the reception center. The defendant did not attack the validity of the commitment order to the Department of Health & Social Services in the court of appeals, but sought only review of the orders denying his right to appeal his pretrial motions, pursuant to sec. 971.31(10), Stats.¹

On March 3, 1977, the defendant was arrested and charged with the crime of first degree murder in the shooting death of his father, Harold R. Hoppenrath. After the defendant was arrested and advised of his constitutional rights, he admitted that he had entered his father’s house, went into his father’s bedroom and shot him five (5) times with a .25 caliber semi-automatic pistol. The defendant informed the police of the location of the murder weapon and the spent casing shells and told the officers how he had test fired the gun prior to the shooting.

At the defendant’s initial appearance, the appointed counsel informed the court that he believed the defendant was “unable to understand the proceedings against him or to assist in his own defense.” The court, being so advised, held a hearing to determine the defendant’s competency to proceed to trial, under sec. 971.14(1), Stats.² After hearing the testimony, the court found probable cause to believe that the defendant had committed the crime charged and that he “is probably suffering from mental disease or defect and is unable to aid in his own defense.” The court, pursuant to sec. 971.14 (2), Stats.,³ committed the defendant to the Central State Hospital for a “mental, social, psychiatric, psychological and neurological examination. . . .”

Following the medical, social and psychiatric examinations, the Central State Hospital authorities filed a report with the court stating that the defendant was not competent to proceed to trial because he was unable to understand the proceedings against him, nor the nature of the crime charged and, further, could not assist in his own defense. The defendant challenged the hospital report, thus requiring the court to conduct a hearing. At the hearing, the state psychiatrist and the court appointed psychiatrist testified, to a reasonable degree of medical certainty, that the defendant was suffering from a mental illness described as “schizophrenia paranoid type” and at this time he was unable to understand the proceedings against him or assist in his own defense. The defendant disputed the psychiatrists’ findings and stated “I am presently capable of defending myself in this trial.” The court, after the hearing, found the defendant to be “a person who as a result of mental disease or defect is unable to understand the proceedings against him or to assist in his own defense” and ordered him committed to the Central State Hospital “until such time as he shall have recovered.”

Less than eight months after his commitment, on November 2, 1977, the hospital filed a report with the court, under sec. 971.14(2), Stats., stating “this man has improved sufficiently to understand the proceedings against him and to assist in his own defense” and neither the defendant nor the state challenging this finding. Approximately two weeks later the preliminary hearing was held and the court, after finding the defendant probably committed the crime charged, bound him over for trial.

An information was filed charging the defendant with first degree murder and he entered pleas of not guilty and not guilty by reason of mental disease or defect at the time of the offense.

Prior to trial the defendant filed a number of motions to dismiss the action, including a motion to suppress his oral and written confessions and the physical evidence (gun and spent casing shells) recovered as a result of the confessions. In his motion to suppress he alleged that:

1. the court lacked jurisdiction over the defendant as the police stopped Hoppenrath without probable cause and in violation of art. 1, sec. 11 of the Wisconsin Constitution and the 4th, 5th and 14th Amendments to the United States Constitution;

2. the oral and written confessions given by the defendant and also providing the basis for his arrest and the criminal complaint filed against him were illegally obtained and in violation of his constitutional rights;

3. the pistol and two spent casing shells were recovered as a result of the information gained in the oral and written confessions given to the police in violation of the defendant’s constitutional rights. Thus, this evidence should be suppressed as “fruit of the poisonous tree.”

Following an evidentiary hearing and the trial court’s denial of all the defendant’s motions to dismiss, including the motions to suppress his confessions and the other physical evidence, Hoppenrath, with his attorney, negotiated a plea bargain with the state allowing him to enter a plea of guilty to the crime of second degree murder. The state then filed an amended information and the defendant entered a combined plea of guilty to the amended information and a special plea of not guilty by reason of mental disease or defect at the time of the offense and waived his right to a jury trial. The court accepted the defendant’s guilty plea to second degree murder after determining that the plea was entered freely, knowingly and voluntarily.

During the insanity phase of the trial, both defense psychiatrists and the court appointed psychiatrist testified that in their opinion, to a reasonable degree of medical certainty, the defendant was “mentally ill,” and was “suffering from a paranoid schizophrenia” type of mental illness at the time of the commission of the crime. They also stated that as a result of this mental illness the defendant “lacked substantial capacity to conform his conduct to the requirements of the law or to appreciate the wrongfulness of his conduct.” Moreover, they testified that the defendant was “mentally ill” at the time of the commission of the offense and that he presently is suffering from the same “mental illness”. They further stated that he is a danger to himself or others and was in need of institutional custody, care and treatment. The trial court, agreeing with the psychiatrists, found:

“That at the time that this offense occurred at the hands of this defendant, the defendant was suffering from schizophrenia, paranoid type, a mental disease or illness and as a result of that mental illness, lacked substantial capacity to conform his conduct to the requirements of the law, and therefore the court will find him not guilty by reason of mental illness.”

Secondly, the court found, based on the testimony of the psychiatrists, that:

“. . . the defendant is now mentally ill and is a danger to himself and to others and is a proper subject for care and custody in an institution.”

and ordered the defendant, in compliance with sec. 971.-17(1), Stats., committed to the Department of Health and Social Services, with the Central State Hospital designated as the reception center, until discharged in accordance with the law.

The defendant, Harold A. Hoppenrath, Jr., filed a writ of error with the court of appeals to review the court’s suppression order denying his motion to suppress the introduction of his confessions and certain physical evidence through an appeal of the commitment order. The court of appeals affirmed the commitment order without reaching or considering the merits of the suppression order as the court held that it had no jurisdiction to review the order denying the motion to suppress as no judgment of conviction had been entered in this case for an appeal, pursuant to sec. 971.31(10), Stats.⁴ The defendant has now petitioned this court for a review of the court of appeals’ decision.

Issue

Was the court of appeals in error in ruling that it lacked jurisdiction to consider the defendant’s writ of error requesting a review of the trial court’s order denying his motion to suppress his confession and other physical evidence because the principal appeal was not taken from a judgment of conviction?

The defendant-petitioner contends that the court of appeals erred in holding that it lacked jurisdiction to consider the order denying the suppression motion. Specifically, the defendant contends that a finding of not guilty by reason of mental disease or defect, and the subsequent commitment to a mental institution, is the equivalent of a judgment of conviction on the crime charged and thus, he contends that sec. 971.31(10), Stats.,⁵ allows a review from an order denying a motion to suppress evidence. Further, he contends that even if the circumstances of the defendant’s case do “not come within the express terms of sec. 971.31(10), Stats., this court can, and should, alter the judicially created rule of waiver of right to review constitutional claims upon entry of a guilty plea, so as to give the effect to the policy behind secs. 971.31(10) and 971.06(1) (d) [to allow an appeal] — deterring unnecessary trials.”

Sec. 971.31(10), Stats., entitled Motions before trial, allows a defendant to obtain review of an order denying a motion to suppress evidence “upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.” Therefore, relying on the express language of the statute, the court of appeals held that it lacked appellate jurisdiction to review the order denying the motion to suppress because the principal appeal was not taken from a judgment of conviction. The first question presented in this case is whether a finding of not guilty by reason of mental disease or defect constitutes a judgment of conviction as defined in the statute.

Sec. 967.02(8), Stats., defines a “judgment” for purposes of the Criminal Procedure statutes as:

“. . . an adjudication by the court that the defendant is guilty or not guilty.” (Emphasis supplied.)

In addition, sec. 972.13(1), Stats., provides that a “judgment of conviction shall he entered upon a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest." (Emphasis supplied.) In this case the defendant, Hoppenrath, was adjudicated to be not guilty by reason of mental disease or defect and was, in effect, acquitted, and thus stands unconvicted of any crime.

Furthermore, in see. 972.13(2), Stats.,⁶ the legislature has seen fit to direct the courts that upon entering a judgment of conviction, the court shall either “impose or withhold sentence and, if the defendant is not fined or imprisoned, the defendant shall be placed on probation. . . .” In this case the defendant was not sentenced to confinement, fined or placed on probation because these sentencing alternatives are only available to a court after a finding of guilty and are not available after a finding of not guilty by reason of mental disease or defect. Rather than sentencing the defendant, the trial court in compliance with the statute reviewed the evidence in order to make a finding as to whether the defendant was presently suffering from a mental disease or defect and in need of institutionalized treatment, because he was a danger to himself or to others. Only after an affirmative finding was the defendant committed.

It should be noted that sec. 971.17 (2), Stats.,⁷ provides a defendant, committed to a mental institution under sec. 971.17 (1), with the right to apply for periodic reexaminations of his mental condition. Application for reexaminations may be made every 120 days. See: sec. 51.20(16) (a) and (c), Stats.⁸ If the court finds that the defendant’s mental condition has improved to such a degree that he “may be safely discharged or released without danger to himself or herself or to others, it shall order the discharge of the defendant or order his or her release on such conditions as the court determines to be necessary.” Therefore, the defendant could be committed to an institution for as short a period as 38 to 120 days⁹ or for as long a period as the defendant “. . . could have been imprisoned if convicted of the offense charged. . . .” (Emphasis supplied.) Sec. 971.17(4), Stats.

The defendant argues that he is confined as a result of the finding of not guilty by reason of mental disease or defect, and this adjudication should be considered as the practical equivalent of a judgment of conviction. He states that the commitment to a mental institution has an adverse impact on him as it results in a loss of liberty similar to a prison sentence following a finding of guilty as to the crime charged. However, it should be pointed out that the defendant, Hoppenrath, was committed to an institution not because he had been found guilty and convicted of a crime, but rather it was because the court found him to be “mentally ill” and “presently dangerous to others and that he is a fit subject for institutionalization.” If he had been found not guilty because of mental disease or defect but had been found not presently suffering from a mental illness or defect and not a danger to himself or others and not in need of hospitalization, the court would have been without authority to order commitment.

Secondly, in sec. 972.13(1), Stats., the legislature expressly mandates the four limited situations where a judgment of conviction shall be entered:

1. when there is a verdict of guilty by the jury;

2. when there is a finding of guilty by the court where a jury is waived;

B. when there is a plea of guilty (if accepted by the court) ; and

4. when there is a plea of no contest (if accepted by the court).

We find the language of sec. 971.13(1), Stats., to be clear and unambiguous on its face. In State v. Engler, 80 Wis.2d 402, 259 N.W.2d 97 (1977), this court held that we should not search for legislative intent where the legislation is clear and unambiguous: “ ‘It is impermissible to apply rules of statutory construction [judicial interpretation] to ascertain legislative intent when the legislation is clear on its face.’ ” (Emphasis supplied.) Id. at 406. Moreover, in State ex rel. Neelen v. Lucas, 24 Wis.2d 262, 128 N.W. 425 (1964) this court held:

“A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses. There is no ambiguity in the literal terms of the provision under consideration and it is often said that when the words are plain there is no room for judicial construction.

“A court may also enlarge or restrict in meaning some of the words of a statute in order to harmonize them with the manifest legislative intent of the entire statute.

“An obscurity of meaning may also exist, and call for judicial construction where the literal sense of the statutory language would work an absurd result.

“Primarily, however, the meaning must be read from the language chosen by the legislature, and the courts are not free to determine whether different provisions would have been enacted if the legislators had given some or greater attention to the application of the statute upon a particular set of facts.” (Emphasis supplied.) Id. at 267-68.

Therefore, we hold that the language of sec. 972.13(1), Stats., clearly and unambiguously establishes that a finding of not guilty by reason of mental disease or defect does not constitute a judgment of conviction. Therefore, we agree with the trial court and the court of appeals that since no judgment of conviction was entered in this case, we hold that sec. 971.31(10) was inapplicable.

Having determined that sec. 971.31(10), Stats., did not grant a right of review in this case, we must consider a second question. Is an order denying a motion for suppression, entered in the underlying criminal proceeding, reviewable on appeal from an order of commitment to a mental institution, following a finding that the defendant is not guilty by reason of mental disease or defect, and a further finding that he is presently mentally ill, and in need of institutionalization because he represents a danger to himself or to others?

In State ex rel. Kovach v. Schubert, 64 Wis.2d 612, 219 N.W.2d 341 (1974), this court held that it was a denial of equal protection of the laws to provide for an automatic commitment of persons found not guilty of crime by reason of insanity. These persons were held to be entitled to the same safeguards afforded those committed under the Mental Health Act, ch. 51, Stats. The court relied on State ex rel. Farrell v. Stovall, 59 Wis.2d 148, 207 N.W.2d 809 (1973), holding that commitments under the Sex Crimes Act were not merely sentencing alternatives, but were separate and independent proceedings from that of the criminal conviction. It follows from the court’s discussion of Farrell that a commitment after a finding of not guilty by reason of insanity is independent of the criminal action from which the commitment arose. The only practical effect of acquittal arising from a finding of not guilty by reason of insanity is that a mental commitment proceeding is triggered without the necessity of filing a petition. The issue on review of an order for commitment is whether the evidence is sufficient to show that the person committed is presently suffering from a mental illness or defect and in need of institutionalized treatment because he is a danger to himself or to others. Evidence of his prior acts is relevant only insofar as it can be relied on to predict his future conduct. The question of competency to waive the constitutional right against self-incrimination and the constitutional right to the assistance of counsel is not involved at this stage of the proceedings, because the defendant’s statements can never again be the basis of a criminal prosecution against him. In this case, the statements are irrelevant because the trial court based its conclusion that the defendant was in need of institutionalized treatment entirely on the testimony of the examining psychiatrists. The psychiatrists did not base their testimony on the statements which the defendant gave to the police following his arrest.

This court has defined an intermediate order as one which may be reviewed upon an appeal from a judgment. State ex rel. Van Dyke Ford, Inc. v. Cane, 70 Wis. 2d 777, 285 N.W.2d 672 (1975). In no sense is the suppression order in this case intermediate to the order of commitment. The latter order stands on its own, independent of the criminal proceedings, which were concluded by the acquittal of the defendant on the ground he was not guilty by reason of mental illness or defect.

In this case the defendant is requesting the court to grant a right of appeal from a not guilty finding. Initially, we note that the defendant is not aggrieved by a finding in his favor. What the defendant would have this court do is engage in judicial legislation and create a new right of appeal from findings of not guilty by reason of mental disease or defect. In State v. Jakubowski, 61 Wis.2d 220, 212 N.W.2d 155 (1973), this court held that:

“The right to appellate review is a statutory right and, absent a statutory provision to that effect, no appeal may be had.

“ *. . . [T]his court has appellate jurisdiction only as allowed by statute, and only to the extent the statute allows. If a case appealed to this court does not come within the terms of a statute allowing such appeal, this court has no jurisdiction to do anything other than dismiss the appeal, . . .’ State v. Omernik (1972), 54 Wis.2d 220, 222, 194 N.W.2d 617.” Id. at 223.

This court is without authority to fashion a new appellate remedy and thus we decline to judicially create such a right to appeal and note that it is the legislature’s responsibility when it sees fit in the proper cases to amend the statute and create another right of appeal.

Therefore, in view of the fact that the order denying the defendant’s suppression motion was not reviewable pursuant to sec. 971.31(10), Stats., we agree with the court of appeals’ ruling that it lacked jurisdiction to consider the defendant-petitioner’s, Hoppenrath, writ of error requesting review of that order.

By the Court. — Decision of the court of appeals is affirmed.

1 “971.31 Motions before trial. . . .

“(10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.”

2 “971.14 Examination of defendant with respect to competency to proceed. (1) Whenever there is reason to doubt a defendant’s competency to proceed, the court shall:

“(a) Hold a hearing to establish whether it is probable that the defendant committed the crime charged, except that if he has previously been bound over for trial after a preliminary examination or has been adjudged guilty but has not been sentenced, such hearing shall not be necessary.

“(b) If the defendant is without counsel, provide him with the right to cross-examine state’s witnesses and to call witnesses on his own behalf.

“(c) At the conclusion of the hearing required by par. (a), make a finding on the issue of probable guilt.

“(d) If the finding is in the affirmative, then proceed to determine the defendant’s competency to proceed.

“(e) If the finding is that the state has failed to prove the probability that the defendant has committed the crime charged, discharge the defendant, but the court may temporarily detain him so as to permit civil proceedings to be instituted under ch. 51 to determine his mental competency.”

3 “971.14 . . .

“(2) When probable cause has been established pursuant to sub. (1), the court shall appoint at least one physician to examine and report upon the condition of the defendant. In lieu of such appointment, or in addition thereto, the court may order the defendant committed to a state or county mental health facility or other suitable facility for the purpose of examination for a specified period not to exceed 60 days. At the conclusion of the examination, the physician who examined the defendant, or the facility to which the defendant was committed, or the department if committed to a state institution, shall forward a written report of such examination in triplicate to the clerk. The report of the examination shall include:

“(a) A description of the nature of the examination;

“(b) A diagnosis of the mental condition of the defendant;

“(c) If the defendant suffers from a mental disease or defect, an opinion as to his capacity to understand the proceedings against him and to assist in his own defense.”

⁴

“(10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.”

5 See: fn. 4.

6 Sec. 972.13(2), Stats., reads as follows:

“(2) Except in cases where ch. 975 is applicable, upon a judgment of conviction the court shall either impose or withhold sentence and, if the defendant is not fined or imprisoned, the defendant shall be placed on probation as provided in s. 973.09. The court may adjourn the case from time to time for the purpose of pronouncing sentence.”

7 “971.17 Legal effect of finding of not guilty because of mental disease or defect. (1) . . .

“(2) A reexamination of a defendant’s mental condition may be had as provided in s. 51.20(16), except that the reexamination shall be before the committing court and notice shall be given to the district attorney. The application may be made by the defendant or the department. If the court is satisfied that the defendant may be safely discharged or released without danger to himself or herself or to others, it shall order the discharge of the defendant or order his or her release on such conditions as the court determines to be necessary. If it is not so satisfied, it shall recommit him or her to the custody of the department.”

8 Sec. 51.20(16) (a) and (c) provide as follows:

“(a) Except in the case of alcoholic commitments under s. 51.-45(13), any patient who is involuntarily committed for treatment under this chapter, may on the patient’s own verified petition, except in the case of a minor who is under 14 years of age, or on the verified petition of the patient’s guardian, relative, friend, or any person providing treatment under the order of commitment, request a reexamination or request the court to modify or cancel an order of commitment.

“(c) If a hearing has been held with respect to the subject individual’s commitment within 30 days of the filing of a petition under this subsection, no hearing shall be held. If such a hearing has not been held within 30 days of the filing of a petition, but has been held within 120 days of the filing, the court shall within 24 hours of the filing order an examination to be completed within 7 days by the appropriate board under s. 51.42 or 51.437. A hearing may then be held in the court’s discretion. If such a hearing has not been held within 120 days of the filing, a hearing shall be held on the petition within 30 days of receipt.”

9 Sec. 51.20(16), Stats., provides that where a reexamination hearing has not been held within 30 days of the filing of the petition with the court, but has been held within 120 days of the filing — the court must, within 1 day thereafter, order an examination that must be completed within 7 days. The court may then hold a hearing on the defendant’s mental condition and he may be released if cured. Thus, the reexamination process could be completed within as short a period as 38 days. Otherwise, a defendant may compel a reexamination “after 120 days of the preceding examination.”