State v. Castillo

556 N.W.2d 425, 205 Wis. 2d 599, 1996 Wisc. App. LEXIS 1363

• Court: Court of Appeals of Wisconsin
• Decided: October 23, 1996
• Docket: 95-1628
• Status: Published

Opinions

SNYDER, J.

Heriberto Castillo, Jr., appeals from his ch. 980, STATS., commitment to the Wisconsin Resource Center as a sexually violent person. Castillo contends, inter alia, that his due process rights were violated when the modified commitment order allowed the State to "retain the benefit of its bargain [Castillo's admission to the petition's allegations and waiver of his right to a jury trial] while relieving [it] of its obligation to fulfill its promise of a community placement." We agree and reverse the commitment orders. Consistent with Castillo's requested relief, we remand to the trial court to allow him to withdraw his admission.¹

In May 1990, at the age of fourteen, Castillo was adjudicated delinquent on two counts of first-degree sexual assault for having had sexual intercourse with his sister.² He was placed under supervision at Norris Adolescent Center and was eventually placed at Ethan Allen School.

Prior to his scheduled release date, the State filed a petition to have Castillo committed as a sexually violent person, see § 980.015(2), STATS., and thereby postpone his release and order his commitment for continuing treatment. A probable cause hearing was held. At that hearing, a psychologist testified for the State that Castillo had a mental disorder, paraphilia, which involves choosing and fantasizing about sexual partners who are inappropriate, either by virtue of their age or relationship to the individual. The psychologist detailed Castillo's family history, the results of treatment and his belief that Castillo continued to pose a threat to his sister. The psychologist also expressed concern that Castillo might choose to have sexual contact with other inappropriate partners since he had done so in the past.³

The court found probable cause to believe that Castillo was a sexually violent person under ch. 980, Stats. However, two mental health experts and the State agreed that supervised release was appropriate. This was in recognition of the ch. 980 requirement that "[t]he department shall arrange for control, care and treatment of the person in the least restrictive manner . . . ." Section 980.06(2)(b), STATS. The State attempted to reach a settlement in order to enter the commitment order specifying supervised release.

While these negotiations were ongoing, the Department of Health and Social Services (DHSS) prepared and filed a predispositional report which recommended institutional placement. Section 980.06(1), Stats., places responsibility for the "control, care and treatment" of any person found to be sexually violent with DHSS. According to the State, DHSS was not supporting community based supervision "because they don't have a place to put him." Discussions between the State, Castillo's counsel and DHSS followed in an attempt to secure community-based supervision and release. In January 1995, Castillo informed the court that he would admit to the allegations in the petition and waive his trial rights in exchange for a court order requiring DHSS to locate a community placement. The court accepted Castillo's admission and then ordered DHSS to identify a community-based facility.

DHSS attempted to place Castillo in a community-based setting.⁴ Ultimately, DHSS recommended placement at Cephas House, a Department of Corrections halfway house run under contract by Lutheran Social Services (LSS). Consideration was also given to placement in a private apartment with intensive supervision by a private social worker. The court accepted the recommendation that Castillo be placed at Cephas House. A final written dispositional order was entered by the court.

Within two weeks, Cephas House, although initially receptive to the placement, declined to accept Castillo. This was based on public reaction to the placement, which had caused LSS to fear that the town would take zoning action against it. Its landlord also threatened not to renew the Cephas House lease if Castillo were placed there. The alternative, placing Castillo in a private apartment under the supervision of a private social worker, was then ordered. This option failed after media attention was focused on Castillo living at the apartment building and the landlord bowed to community pressure by refusing to rent to DHSS.⁵

The State then brought a motion to reopen Castillo's dispositional order and modify it to an institutional placement, since "the attempts to effectuate and execute the court's order for placement have not been successful, [and] a different placement alternative must be established." The trial court concurred, reasoning that "[a]t this time the least restrictive level of treatment is the Resource Center." The court then ordered Castillo committed to the Wisconsin Resource Center, and this appeal followed.

We begin with an analysis of the State's filing of the motion for reconsideration after it became apparent that the State would be unable to fulfill the community placement agreement. A trial court has inherent power to vacate or modify an order. See § 807.03, STATS. The trial court's power to amend its earlier order when it became apparent that DHSS would be unable to place Castillo in a community-based setting is not at issue. See Servatius v. Pickel, 30 Wis. 507, 508-09 (1872).

Our analysis of the legal effect of the State's motion to revise the dispositional order and the trial court's subsequent modification of that order requires that we apply the principles of fundamental fairness and due process to the facts of the case. We review de novo the application of constitutional principles to undisputed facts. See State v. Comstock, 163 Wis. 2d 218, 221, 471 N.W.2d 596, 597 (Ct. App. 1991), rev'don other grounds, 168 Wis. 2d 915, 485 N.W.2d 354 (1992).

The supreme court has determined that the provisions of ch. 980, Stats., are constitutional. See State v. Carpenter, 197 Wis. 2d 252, 276, 541 N.W.2d 105, 114 (1995); see also State v. Post, 197 Wis. 2d 279, 293-94, 541 N.W.2d 115, 118 (1995). Furthermore, ch. 980 includes several sections which outline certain rights afforded to persons who face commitment proceedings. Section 980.03(2), Stats., provides that without limitation by enumeration, persons are to be afforded the right to counsel, to remain silent, to present and cross-examine witnesses, and to have any hearing recorded by a court reporter. Additionally, § 980.05(lm), Stats., directly addresses an individual's trial rights when it states: "All constitutional rights available to a defendant in a criminal proceeding are available to the person."

At its most fundamental level, due process concerns the right to be treated fairly. The law is clear that when an individual has given up the right to a jury trial by pleading guilty, fundamental fairness requires that the individual's expectations be fulfilled. See State v. Wills, 187 Wis. 2d 529, 537, 523 N.W.2d 569, 572 (Ct. App. 1994).

The United States Supreme Court has stated, "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971). This is reiterated in State v. Bond, 139 Wis. 2d 179, 187, 407 N.W.2d 277, 280 (Ct. App. 1987), when it states that a prosecutorial promise is considered binding and must be fulfilled. This court went on to note that the due process analysis which underpins the law that a prosecutorial agreement with a defendant is binding also has applicability in bargaining contexts outside of plea bargains. Id. at 188, 407 N.W.2d at 281. As we there concluded, "Essentially, any violation of a prosecutorial promise triggers considerations of fundamental fairness and is a deprivation of due process." Id.

It is undisputed that Castillo waived his right to a jury trial when he admitted the allegations which supported the petition that he is a sexually violent person. It is also clear from the record that the reason he admitted to the allegations was to move the dispositional process forward and allow the court to order DHSS to arrange for community-based supervision and treatment. For the reasons outlined in the statement of facts, DHSS was unable to place Castillo in a community-based setting. When this became apparent, the State requested a modification of the dispositional order which had ordered community-based supervision and treatment and instead requested that Castillo be placed in an institutional setting. We conclude that the State's request for a modification of the dispositional order was a breach of its plea agreement with Castillo.

The State disputes this analysis and contends that because Castillo's commitment was a civil proceeding, no "plea agreement" was ever reached. We are not persuaded. Under the language of Santobello and Bond, the designation of the proceeding as civil or criminal is immaterial; rather, the fact that due process rights were waived in exchange for an inducement is critical.

The State further argues that even if the negotiations between Castillo and the State amounted to a plea agreement, it has not breached that agreement because it recommended supervised release. While at the outset the State was a proponent of Castillo's supervision in a community-based setting, this argument ignores the role the State played in seeking a modification of the dispositional order.

The State submits that § 980.06(2)(d), Stats., permits the court to take the action it took in the instant case. The State quotes, as pertinent, the following portion of the statute:

If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked ... it may revoke the order for supervised release.... [Emphasis added.]

We disagree. This section pertains only to released persons who are already under the custody and control of DHSS. Castillo was never released. Furthermore, the language the State omitted after the word "revoked" states, "[H]e or she may be taken into custody under the rules of the department." See id.6 At the time the court issued the modification of its final dispositional order, Castillo was still in custody.⁷

The cited section of ch. 980, STATS., does not apply to relieve the State of its burden according to the plea agreement.

In sum, Castillo waived his right to a jury trial and admitted to the allegations in the ch. 980, STATS., petition after the State agreed that he would be placed in a community-based setting. See § 980.05, STATS. Castillo's counsel stated that this was done to enable the trial court to order DHSS to locate a community-based facility where Castillo would be under supervised release rather than institutionalized. The agreement also foreclosed Castillo's unmonitored return to the community.

DHSS was unable to locate a ch. 980, Stats., community placement that would accept Castillo, and the State moved to modify the dispositional order to direct institutional placement. The trial court granted the State's motion and revised the order, committing Castillo to an institution, the Wisconsin Resource Center. We conclude that Castillo's admission to the allegations in the underlying petition was akin to a plea agreement and hold that when the State failed to adhere to its bargained promise, regardless of the reason, the trial court was required to allow Castillo an opportunity to withdraw his plea admitting to the petition.

Having concluded that the State breached its plea agreement with Castillo, the only remaining issue is that of a remedy. The law is clear that the concept of fundamental fairness prohibits the government from breaching an agreement which induced a person to take action otherwise detrimental to himself or herself in reliance on the agreement. State v. Beckes, 100 Wis.2d 1, 6, 300 N.W.2d 871, 874 (Ct. App. 1980). Beckes then goes on to state that without detrimental reliance on the agreement, the individual has an adequate remedy by being restored to the position that he or she occupied before entering into the agreement. Id. at 7, 300 N.W.2d at 874. Furthermore, if specific performance of the terms of a plea agreement is not possible, a withdrawal of an induced plea is the only available remedy. See State v. Bangert, 131 Wis.2d 246, 292, 389 N.W.2d 12, 34 (1986).

Under the facts of this case, the court determined that specific performance of the State's agreement was not possible. Castillo remains in custody because of his detrimental reliance on the State's proffered plan for noninstitutionalized release. We conclude that the appropriate remedy is to return Castillo "to the position he occupied before he entered into the agreement." See Beckes, 100 Wis.2d at 7, 300 N.W.2d at 874. Since the State was unable to keep its part of the plea agreement that Castillo be placed under community-based supervision, he must be permitted to withdraw his no contest plea.

By the Court. — Orders reversed and cause remanded.

1 Castillo also contends that the trial court wrongly ordered an institutional placement after it had initially determined that a community placement was appropriate and that ch. 980, STATS., is unconstitutional as applied here because the State refused to make available the least restrictive placement option. Because we conclude that the benefit of the placement bargain is dispositive, we decline to address the other issues presented for review. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983). This is in keeping with the general rule that cases should be decided on the narrowest possible grounds. State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989).

2 The dispositional order also included two other counts of having had sexual intercourse with his sister, which were read in. At the time of the two charged incidents, Castillo's sister was nine years old.

3 The psychologist noted that in addition to having had sexual intercourse with his sister, Castillo had also sexually abused another child over the age of sixteen hut under the age of eighteen. He testified, "I felt that his sexual disorder manifests itself in a number of different ways, including but not limited, by any means, to children."

4 Placement in his father's home was ruled out because his father had a prior conviction himself for a sex offense.

5 While additional attempts were made to secure an apartment, these were also unsuccessful.

6 The pertinent portion of § 980.06(2)(d), Stats., reads:

If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender .... 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 others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release

7 The original final dispositional order dated March 21, 1995, stated that "[o]n or before March 29, 1995, the Department shall physically place [Castillo] at the Cephas House ...." The order further allowed that "fi]f [DHSS] cannot make the necessary arrangements for physical placement... at the Cephas House on or before March 29, 1995, [Castillo] shall then be placed in an apartment, rooming house or other like living arrangement in Waukesha County to be chosen and supervised by Danny F. Patrick . . . ." The order then returned Castillo to the Wisconsin Resource Center "pending placement under this Order."