State Ex Rel. Seibert v. MacHt

2002 WI 12, 639 N.W.2d 707, 249 Wis. 2d 702, 2002 Wisc. LEXIS 9

Opinions

PER CURIAM.

¶ 1. Respondents Phillip Macht and the Circuit Court for Outagamie County move this court for reconsideration of its opinion in State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, for the limited purpose of revising or correcting sentences in two paragraphs of the court's opinion.

¶ 2. The motion for reconsideration is denied without costs. However, having carefully considered the respondents' arguments, the court makes the following revisions:

(1) Paragraph 12, beginning with the fourth sentence, is revised to read:

An alleged sexually violent person, subject to commitment under Chapter 980, is not a criminal defendant. However, such a person has the same constitutional rights as a criminal defendant at trial. This is recognized in Wis. Stat. § 980.05(lm), which provides: "All constitutional rights available to a defendant in a criminal proceeding are available to the person." We think it follows that an individual committed under Chapter 980 has a constitutional right of counsel in bringing his or her first appeal as of right, emanating from both the Fourteenth Amendment's Equal Protection Clause and the Due Process Clause as well as the Sixth Amendment's right of counsel.

Footnote 3 is retained, and the remainder of paragraph 12 is not changed.

(2) The seventh sentence of paragraph 19 is revised by removing the clause, "While the State urges us to subject Seibert to this procedural hurdle under Strickland," so that it reads: "We note that Strickland is applicable only where an individual is represented by counsel." Footnote 6 is retained but revised to read:

The Supreme Court observed in Smith v. Robbins, 528 U.S. 259, 286 (2000), that "[t]he applicability of Strickland's actual-prejudice prong to Robbins's claim of ineffective assistance follows from Penson, where we distinguished denial of counsel altogether on appeal, which warrants a presumption of prejudice, from mere ineffective assistance of counsel on appeal, which does not."

¶ 3. Accordingly, the motion for reconsideration is denied without costs.