State v. Ronald G. Sorenson
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2002 WI 78 SUPREME COURT CASE NO.: OF WISCONSIN 98-3107 COMPLETE TITLE: In re the Commitment of Ronald G. Sorenson: State of Wisconsin, Petitioner-Respondent-Cross Petitioner, v. Ronald G. Sorenson, Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2001 WI App 251 Reported at: 248 Wis. 2d 237, 635 N.W.2d 787 (Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 1, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Juneau John W. Brady June 28, 2002 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant-petitioner there were briefs by T. Christopher Kelly and Kelly & Habermehl, S.C., Madison, and oral argument by T. Christopher Kelly. For the petitioner-respondent-cross-petitioner the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general. 2002 WI 78 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-3107 (L.C. No. 95 CI 1) STATE OF WISCONSIN : IN SUPREME COURT In re the Commitment of Ronald G. Sorenson: State of Wisconsin, FILED Petitioner-RespondentCross Petitioner, JUN 28, 2002 v. Cornelia G. Clark Clerk of Supreme Court Ronald G. Sorenson, Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 WILLIAM A. BABLITCH, J. Affirmed. Ronald Sorenson (Sorenson) was convicted of first-degree sexual assault of his daughter L.S., largely on the basis of her allegations. Subsequently, Sorenson was found to be a sexually violent person by a jury under Wis. Stat. ch. 980 (1995-96).1 At that ch. 980 trial, Sorenson was not evidence recanted her original 1 allowed to put allegations. in The State that of L.S. had Wisconsin All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated. No. (State) successfully argued that Sorenson was 98-3107 precluded from putting in that evidence on the grounds of issue preclusion. The court of appeals remanded the case to the circuit court for a determination on the question of whether application of the doctrine would be fundamentally unfair under the circumstances. Sorenson seeks review, arguing that this case should be remanded for a new trial and the evidence of recantation admitted. The State argues that issue preclusion bars the circuit court from admitting this evidence of recantation. ¶2 We affirm the decision of the court of appeals with some modification. We remand this matter to the circuit court for hearings on whether L.S.'s recantation evidence meets the test for newly discovered evidence sufficient to warrant a new trial under the standards set forth in State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997). If the recantation evidence meets this test, we conclude that the circuit court's exclusion of this evidence was fundamentally unfair to Sorenson, and issue preclusion, even if it could apply, must not apply as a matter of law under these circumstances, particularly in consideration of the fact that this issue was never fully resolved in postconviction Further, if proceedings the in evidence the meets underlying criminal this we test, matter. conclude that Sorenson is entitled to a new trial at which the court must admit this evidence. affirm the decision Accordingly, with these modifications, we of the court of appeals, remanding the matter for additional hearings. I. BACKGROUND 2 reversing and No. ¶3 98-3107 In March 1985, Sorenson was charged with one count of first-degree sexual assault of his seven-year-old daughter, L.S. State v. (1988). Sorenson, 143 Wis. 2d 226, 233-34, 421 N.W.2d 77 L.S. accused both Sorenson and his brother, Donald, of sexually assaulting her. Id. at 233. Donald was also charged with first-degree sexual assault. See State v. Sorenson, 152 Wis. 2d 471, 449 N.W.2d 280 (Ct. App. 1989). Sorenson on this count in September 1985. 17 years in prison. A jury convicted He was sentenced to We affirmed Sorenson's conviction in 1988. Sorenson, 143 Wis. 2d at 232-33. ¶4 In 1991, Sorenson filed a motion for post-conviction relief, seeking a new trial based on newly discovered evidence. He alleged that L.S. had recently recanted her trial testimony implicating him as her assaulter. based on Sorenson her confusion or his brother at the Her recantation was allegedly time committed of the trial as whether The assault. to circuit court did not determine the merits of this motion, although it did hear testimony from L.S. on her recantation. Her testimony is not part of the record in Sorenson's ch. 980 case. before the agreement. court ruled, the State and Sorenson Instead, reached an Under the terms of the agreement, Sorenson would withdraw his motion for a new trial in exchange for a reduction of his sentence on the conviction. This reduction resulted in Sorenson's release on parole less than two months later. ¶5 Sorenson's conditions of parole included that he complete a sex offender program and that he not have contact with children. Sorenson failed to complete any sex offender 3 No. program; he maintained that, because he was 98-3107 innocent of committing the assault, he did not need to participate in the program. In 1993, his parole was revoked because he had unauthorized contact with several minor children, because he was abusing alcohol, and because of allegations that he touched the vaginal area of a five-year-old girl, A.L. were never brought against Sorenson for Criminal charges this alleged sexual contact with A.L. ¶6 release In July date, 1995, the shortly State filed before a Sorenson's petition seeking scheduled an order committing Sorenson as a sexually violent person pursuant to Wis. Stat. ch. 980. Proceedings on this petition were delayed for various reasons, but resumed in January 1998. ¶7 intended Before his ch. 980 trial, Sorenson indicated that he to introduce testimony from recanted her 1985 trial testimony. a motion in limine to prohibit L.S. to show that she In response, the State filed Sorenson (1) from eliciting evidence that would impeach his 1985 conviction and (2) from eliciting evidence that would show that L.S. recanted. In support of its motion, the State relied on the doctrine of issue preclusion. ¶8 Following a hearing on the motion, the court in part granted and in part denied the motion. The court held that Sorenson's criminal case had been fully tried and appealed, and therefore evidence criminal conviction. preclusion did not could not be introduced to impeach the The court, however, concluded that issue bar Sorenson 4 from introducing evidence No. pertaining factual to issues L.S.'s recantation. surrounding the The court recantation determined by a final judgment. held were 98-3107 that never the fully The court concluded that issue preclusion did not apply. ¶9 Approximately a week before his ch. 980 trial, the State once again objected to Sorenson's introduction of evidence related to L.S.'s recantation. The State argued that the evidence should be excluded from trial because it would involve relitigation of the conviction, it was not relevant, and because it would mislead the jury. concluded that allowing The court excluded the evidence. L.S. to testify would It essentially involve a retrial of the underlying issue of whether or not Sorenson committed the sexual assault in 1985. This retrial, the court reasoned, would confuse the jury in a manner that would be prejudicial and detrimental to Sorenson's case. ¶10 petition. Sorenson was tried before a jury on the ch. 980 The jury found Sorenson a sexually violent person under Wis. Stat. ch. 980. The court entered judgment and issued an order for Sorenson's commitment. ¶11 The court of appeals Sorenson appealed. reversed remanded the case for further proceedings. the judgment and State v. Sorenson, 2001 WI App 251, ¶2, 248 Wis. 2d 237, 635 N.W.2d 787. Although the court concluded that the State could use issue preclusion in such cases to prevent a respondent from offering evidence on the underlying offense, it remanded to have the circuit court exercise its discretion and determine whether application of the doctrine in this case was fundamentally unfair to Sorenson. 5 Id. No. at ¶¶28, 32. a new It instructed the circuit court to grant Sorenson trial if it determined preclusion would be unfair. ¶12 98-3107 that the application of issue Id. at ¶36. Judge Dykman concurred in part and dissented in part. He agreed that circuit courts are not barred from applying issue preclusion in dissenting). been ch. it cases. Id. at ¶38 (Dykman, J., He disagreed, however, that the matter should have remanded whether 980 to was the circuit unfair to (Dykman, J., dissenting). court apply for determination doctrine. the a Id. at on ¶39 He concluded that, under the facts of this particular case, the court of appeals could find that issue preclusion did not apply as a matter of law and that Sorenson was entitled to a new trial. Id. at ¶¶39-43 (Dykman, J., dissenting). II. ¶13 the DISCUSSION Sorenson seeks a new ch. 980 trial. circuit court's exclusion of the He argues that recantation evidence constituted a denial of his constitutional right to present a defense and his constitutional right to have a jury determine every fact at issue. evidence to He intended to introduce the recantation challenge the bases State's psychological experts. of the evaluations of the These experts evaluated Sorenson before trial and testified at trial to his mental disorder and his future dangerousness two elements necessary for a ch. 980 commitment. that the commission See Wis. Stat. § 980.02(b) & (c). experts of the based their underlying evaluations crime 6 and Sorenson argues primarily on his on failure his to No. 98-3107 complete several sex offender treatment programs, which were not completed because he refused to admit to committing the assault. Thus, he argues that by excluding the recantation evidence the court effectively left him without any means to challenge the expert's evaluations. He asserts that he was denied a fair trial. ¶14 Sorenson also contests the court of appeals' conclusion that offensive issue preclusion2 is available for the state in a ch. 980 case. appeals, that preclusion some He contends, as he did at the court of courts is unavailable constitutional protections have in held that criminal afforded to offensive cases due criminal issue to the defendants. See, e.g., United States v. Pelullo, 14 F.3d 881, 889-96 (3d Cir. 1994) (rejecting application of issue preclusion against a defendant in successive criminal proceedings). Accordingly, he argues that the doctrine should not apply in this case because ch. 980 respondents are afforded protections as criminal defendants. ("All constitutional criminal rights proceeding are the constitutional See Wis. Stat. § 980.05(1m) available available same to to the a defendant person [who in is a the subject of the petition under s. 980.02]."). 2 The doctrine of issue preclusion is "designed to limit the relitigation of issues that have been contested in a previous action between the same or different parties." Michelle T. v. Crozier, 173 Wis. 2d 681, 687, 495 N.W.2d 327 (1993). It may be used offensively, as in this case, or defensively. Offensive issue preclusion "occurs when the plaintiff seeks to foreclose a defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with [the plaintiff or] another party." Id. at 684 n.1. 7 No. ¶15 The court of appeals refused to recognize a bar on offensive issue preclusion by the Sorenson, 2001 WI App 251, ¶28. the 98-3107 court interpreted state in ch. 980 cases. In reaching this conclusion, Wis. Stat. ch. 980 and concluded that prohibiting issue preclusion in such cases, and allowing the relitigation of the underlying conviction, is contrary to language in the statutes and to legislative intent and that an alternative interpretation of the statute would lead to absurd Id. at ¶¶24-26. results. The court also noted that there was no decision from the United States Supreme Court or a Wisconsin court holding that offensive issue preclusion is prohibited in a criminal context and that the "dearth of case law on the topic in the criminal context shows that we are dealing unusual application of a constitutional right." with an Id. at ¶27. Thus, the court held that issue preclusion could be used in ch. 980 cases generally. ¶16 civil Id. at ¶28. In its brief, the actions and argued State that available in ch. 980 cases. State recognized, respondents criminal are unlike the afforded defendants the regarded 980 preclusion issue ch. cases is as therefore At oral argument, however, the court same under of appeals, that constitutional ch. 980 rights Wis. Stat. § 980.05(1m) as and acknowledged a significant number of cases that hold that issue preclusion is unavailable in criminal cases because constitutional rights afforded to criminal defendants. of the As a result, the State conceded that a threshold issue in this case is whether issue preclusion is even available in ch. 980 cases. 8 No. 98-3107 A ¶17 As a preliminary matter, we first review whether ch. 980 respondents are afforded the same constitutional protections as criminal defendants, resulting offensive issue preclusion. 980 respondent's in a potential bar on The court of appeals regarded a ch. constitutional protections as limited, primarily because of language contained in the statutes. We disagree. ¶18 to A determination on the constitutional rights afforded ch. 980 respondents 980. Wis. Stat. ch. questions de Wis. 2d 823, statute requires review We novo. 828, clearly State 612 and v. an statutory Thiel, N.W.2d 94. "If unambiguously interpretation sets 2000 interpretation WI the 67, ¶10, language forth of the of 235 the legislative intent, we need not look beyond the language to determine the meaning of the statute." ¶19 ch. 980 Id. Wisconsin Stat. respondents with § 980.05(1m) the same afforded to criminal defendants. unambiguously constitutional provides protections It states: At the trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person. § 980.05(1m). scope of apparent The court of appeals, however, questioned the these conflict constitutional or ambiguity 9 protections caused by in a light more of an specific No. statute, ¶23. Wis. Stat. § 980.05(4). Sorenson, 2001 WI 98-3107 App 251, This statutory section provides: Evidence that the person who is the subject of a petition under s. 980.02 was convicted for or committed sexually violent offenses before committing the offense or act on which the petition is based is not sufficient to establish beyond a reasonable doubt that the person has a mental disorder. § 980.05(4). with The court noted that subsection (1m) conflicted subsection (4) because this latter subsection suggested that the state could use a conviction as evidentiary support for a finding of mental disorder Sorenson, 2001 WI App 251, ¶23. questioned whether a ch. necessary for commitment. Therefore, the court apparently 980 respondent would have a constitutional right to have a jury reexamine the facts of his or her underlying conviction at his or her ch. 980 trial. ¶20 in Our review of the statutes, however, does not result any finding of conflict or ambiguity between these subsections. A plain reading of subsection (4) reveals that this simply section dismisses the state's ability to prove mental disorder with a judgment of conviction or evidence of the respondent committing a sexual offense. contemplates that the state must put showing the respondent's mental disorder.3 This statute instead forth expert evidence Thus, because we find 3 Indeed, in State v. Post, 197 Wis. 2d 279, 306, 541 N.W.2d 115 (1995), we specifically contemplated that mental disorder must be proven through expert examination, stating: [P]ersons will not fall within chapter 980's reach unless they are diagnosed with a disorder that has the specific effect of predisposing them to engage in acts of sexual violence. Not all persons who commit 10 No. 98-3107 that subsection (4) does not create any conflict or ambiguity with subsection (1m), we conclude that ch. 980 respondents are afforded the same constitutional protections as criminal defendants. B ¶21 The next issue is whether issue preclusion is unavailable considering the constitutional protections afforded to ch. 980 respondents. ¶22 We recognize the application of issue preclusion in this context is an important issue. However, we conclude that we should not reach a determination on this question at this time because the issue has not been fully briefed by the State. Instead, we conclude that, even if the doctrine would generally apply, application of the doctrine may be fundamentally unfair for Sorenson under the factors for restricting the application of the doctrine under Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993). ¶23 We have adopted a modern approach to issue preclusion, that is, one that does not depend on formalistic requirements, but instead depends on a "looser, equities-based interpretation of the doctrine." Id. at 688. This approach looks primarily at whether application of the doctrine would be fair to the party against whom it is applied. Id. at 693. The decision sexually violent crimes can be diagnosed as suffering from mental disorders, nor are all persons with a mental disorder predisposed to commit sexually violent offenses. (Emphasis added.) 11 on No. 98-3107 whether this doctrine should apply in any given case is decided on a case-by-case basis. Id. at 693, 698. This approach seeks to balance competing goals, including "judicial efficiency and finality, protection litigation, and the right jury . . . ." against to Id. at 688. repetitious litigate or one's claims harassing before a To this end, the Michelle T. court provided a list of factors for courts to consider to ensure that the rights of all parties were protected in seeking a full and fair adjudication of all issues. Courts may consider some or all of the following factors to protect the rights of all parties to a full and fair adjudication of all issues involved in the action: (1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action. Id. at 688-89 (citing Restatement (Second) of Judgments: Exceptions to the General Rule of Issue Preclusion § 28 (1980)). We focus on the fifth factor listed above in reaching our conclusion. ¶24 was Here, we are presented with recantation evidence that newly discovered after trial. 12 Sorenson sought a new No. based on this evidence in a 98-3107 criminal trial motion. In Wisconsin, recantation evidence is reviewed on such motions under the test set forth in McCallum. never reached a final determination on post-conviction The circuit court the post-conviction motion. Instead, after the court heard testimony from L.S., the parties reached a settlement, resulting in a reduction in Sorenson's 17-year sentence to a 10-year sentence and in his almost immediate release on parole. The record contains almost no evidence identifying the content or the background of L.S.'s recantation testimony. ¶25 We satisfies the preclusion to conclude test that, exclude the McCallum, in if any this evidence recantation evidence application from of Sorenson's issue ch. 980 trial would be fundamentally unfair to Sorenson under the fifth standard results set forth because in Michelle Sorenson, T. assuming the Fundamental recantation unfairness meets the McCallum test, has a due process interest in gaining admission at trial of this newly discovered evidence to ensure accurate expert opinions on his mental disorder and future dangerousness in his ch. 980 trial. In this case, the experts' opinions reveal that they were based heavily on the fact that Sorenson committed the underlying crime. As a result, due process and fundamental fairness require the introduction of this evidence. See D.M.D. v. State, 54 Wis. 2d 313, 318, 195 N.W.2d 594 (1972) ("[D]ue process is an exact synonym for fundamental fairness . . . ."); State v. Johnson, 118 Wis. 2d 472, 479, 348 N.W.2d 196 (Ct. App. 1984) (the defendant has a right to present 13 No. crucial evidence to the jury if it substantial competing state interests). is not 98-3107 overcome by In addition, there was never a full and fair determination on the issue of recantation at the circuit court. preclusion in this We determine the application of issue case application directly protections afforded as a matter implicates to Wis. Stat. § 980.05(1m). a of law constitutional ch. Due 980 due its process respondent. See determinations process questions of law that we decide de novo. because are See State v. Littrup, 164 Wis. 2d 120, 126, 473 N.W.2d 164 (Ct. App. 1991). ¶26 court We conclude that remand is required for the circuit to make a determination on the credibility recantation evidence pursuant to McCallum. of the In that case, we recognized the inherent unreliability of recantation evidence. However, we held that newly discovered recantation evidence may be sufficient to warrant a withdrawal of a guilty plea if the following criteria are proven by clear and convincing evidence: (1) the defendant evidence was not was discovered negligent in after seeking conviction; (2) the evidence; (3) the evidence is material to an issue in the case; (4) the evidence is not merely cumulative; and (5) the recantation evidence is corroborated by other newly discovered evidence. Wis. 2d at 473-74. McCallum, 208 A defendant may show corroboration under this fifth factor if "(1) there is a feasible motive for the initial false statement; and, (2) there are circumstantial guarantees of the trustworthiness of the recantation." 478. Id. at Credibility of the witness is crucial to the application 14 No. of the legal standard. circuit court must 98-3107 If these requirements are met, "the determine whether there is a reasonable probability that a jury, looking at both the accusation and the recantation, would have a reasonable doubt as to the defendant's guilt. If so, the circuit court must grant a new trial." at 475 (citations omitted). Id. None of these determinations have been made. ¶27 At a hearing before Sorenson's ch. 980 trial to determine the admissibility of the recantation testimony, the prosecutor questioned whether this evidence would meet the test under McCallum. The prosecutor never argued that this evidence did not meet the first four requirements above. Instead, he questioned whether other newly discovered evidence corroborated this testimony. The record in this case, however, contains almost no evidence to show the content or the background of L.S's recantation testimony. We cannot determine from this record whether there is a feasible motive for the initial false statements nor whether there are circumstantial guarantees of trustworthiness of the recantation. ¶28 If the recantation evidence meets the test set forth in McCallum, a new trial is required because exclusion of this evidence affects fundamental fairness at trial. The State was required to to prove the following four elements show that Sorenson was a sexually violent person under Wis. Stat. ch. 980: 1. That [the person] has been convicted of a sexually violent offense. 15 No. 98-3107 2. That at the time the petition was filed, [the person] was within 90 days of [release] from a sentence that was imposed for a conviction for a sexually violent offense. 3. That [the person] currently has a mental disorder. 4. That [the person] is dangerous to others because [he] has a mental disorder which creates a substantial probability that [he] will engage in future acts of sexual violence. Wis JI-Criminal 2502 Wis. Stat. § 980.02(2). evidence would have (footnotes Sorenson been omitted); argues introduced to that see his undercut burden in proving the third and fourth elements. also recantation the State's The testimony of the State's experts at Sorenson's ch. 980 trial shows that the experts relied heavily on Sorenson having committed the sexual offense in reaching their evaluation of Sorenson. ¶29 a The State presented two experts. psychologist testified. various with the Wisconsin First, Ingo Stange, Department of Corrections, Based on an interview with Sorenson and a review of clinical pedophilia. files, Stange diagnosed Sorenson with He stated that, during his evaluation, he applied several risk factors that are used in determining whether there is a high risk of the person committing sexual assault again. Stange found several risk factors present in Sorenson's case, including multiple victims, repeated sexual intercourse, denials of the underlying crime, and failure to successfully participate in treatment. Based on these risk factors, Stange concluded that Sorenson posed a significant danger. 16 No. ¶30 State. Second, psychologist Craig Monroe 98-3107 testified for the Like Stange, Monroe concluded that Sorenson suffered from pedophilia and that he posed a high risk for future sexual violence. He based his conclusions on several factors, including multiple sexual assaults, sexual intercourse, sexual contact with L.S. showing deviant sexual arousal, and denial or minimization Sorenson's multiple of his disorder sexual criminal was assaults activity. Monroe particularly chronic against and children while on parole. L.S. his noted in that light contact of with Monroe similarly found Sorenson to pose a significant danger. ¶31 Thus, both experts relied heavily on Sorenson having committed the underlying sexual assault in their evaluation. Sorenson's ability to counter this evidence was substantially, if not totally, hindered by the exclusion of L.S.'s recantation testimony. Indeed, before trial, Sorenson revealed that L.S.'s recantation had factored into his own expert's testimony. The court's exclusion of this evidence, if it met the McCallum test, affected a fair trial. ¶32 The sufficiently evidence. State's interests substantial to in permit this instance are not the exclusion of such The two primary interests identified by the State are that such evidence will cause jury confusion and delay. court can ensuring, assist through to lessen any instruction potential and other jury The confusion means, that by any recantation evidence introduced is appropriately applied toward the issues of mental disorder and future dangerousness. 17 Delay No. 98-3107 in the proceedings may result, but this factor is insufficient to justify the exclusion of such compelling evidence. factor, however, outweighs the interest introducing such compelling evidence. of Neither Sorenson in This evidence constitutes a significant, if not the only, means for Sorenson to undercut the expert's evaluation of his mental disorder and future dangerousness. ¶33 Based on the above, we conclude that remand to the circuit court is required for it to conduct a hearing on L.S.'s recantation testimony and determine whether it meets the test under McCallum. If so, the exclusion of this evidence from Sorenson's ch. 980 trial was fundamentally unfair, and Sorenson is entitled to a new trial. Further, if McCallum is met, issue preclusion cannot apply as a matter of law based on fundamental fairness. This case involves matters of public policy and individual circumstances "that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action." Wis. 2d at 689 (footnote omitted). effect of the recantation T., 173 A full determination on the issue conviction was never rendered. Michelle on the underlying criminal Fundamental fairness dictates that Sorenson is now provided with an opportunity to present this evidence at his ch. 980 trial. C ¶34 We specifically reject the State's characterization of Sorenson's argument as a collateral 18 attack on his prior No. conviction. 98-3107 The State relies primarily on State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, for this contention. In Hahn, the defendant was charged with two counts of sexual assault, and because he had two prior felony convictions, he was subject to a life sentence without parole under persistent repeater ("three strikes") law. Wisconsin's Id. at ¶6. The defendant sought to reopen a prior conviction, arguing that his plea for that voluntary and conviction that the was not court knowing, failed to inform conviction could serve as a "strike." Id. United we States, 511 U.S. 485 (1994), intelligent him and that the Following Custis v. concluded that, with limited exception, the defendant could not use the sentencing proceeding as conviction. ¶35 validity of sentencing conviction. forum in which to challenge the prior Hahn, 2000 WI 118, ¶¶4, 17-18, 29. The defendants the State contends cannot, their with prior proceeding that Hahn shows that limited exception, criminal convictions in predicated on that is criminal challenge an the enhanced the prior In turn, the State asserts that Sorenson cannot challenge the validity of his prior criminal conviction in a ch. 980 proceeding that is predicated on this prior conviction. The State argues that Sorenson's challenge amounts to a collateral attack on his prior criminal conviction. Auto. Ins. Co., 8 Wis. 2d 1, 3, 98 See Zrimsek v. Am. N.W.2d 383 (1959) (a collateral attack is "an attempt to avoid, evade, or deny the force and effect of a judgment in an indirect manner and not in 19 No. 98-3107 a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it."). ¶36 As the State points out, our Hahn decision was also grounded in policy administration and considerations finality. surrounding We cited judicial administrative difficulties in courts not having records of prior convictions or post-conviction proceedings in order to review these prior convictions. Hahn, 2000 WI 118, ¶25. We also cited an interest in requiring offenders to follow certain established procedures in reviewing convictions. Id. at ¶¶25, 28. Finally, we noted that concerns of delay and an interest in promoting finality of judgments weighed against reviewing the validity of convictions at an enhanced sentencing proceeding. Id. at ¶26. The State contends that these policy considerations also weigh in favor of prohibiting Sorenson from challenging the validity of his conviction at his ch. 980 trial. ¶37 In this case, however, unlike the defendant in Hahn, Sorenson is not seeking to overturn, void, challenge the validity of his prior conviction. or otherwise He admits that he was convicted and that the State can use this conviction to satisfy the first element for ch. 980 commitment. seeking to State's experts' evidence making introduce is a evidence evaluation introduced fair to to of ensure determination as disorder and future dangerousness. undercut his mental that to the the the Sorenson is bases of condition. trier of defendant's the The fact is mental Sorenson's underlying sexual offense was an essential component of the expert's evaluations 20 No. and must be based on correct factual information, 98-3107 including compelling newly discovered recantation evidence. ¶38 We agree with the State that Sorenson was required to follow appropriate statutory procedures if he seeks to challenge his conviction. He did so in determination was never attained. be finality in judgments. this case, but a full We also agree that there must However, we do not regard his introduction of recantation evidence in this case as an effort to challenge challenge an his conviction. evaluation of Instead, his mental it is introduced disorder. We do to not regard administrative difficulties for the court in reviewing prior proceedings as a compelling policy reason against allowing review of such recantation evidence. Thus, we conclude that neither Hahn nor its underlying policy considerations affects our holding in this case. III. ¶39 CONCLUSION In sum, we remand to the circuit court for additional hearings on the recantation evidence in light of McCallum. If the recantation evidence meets the test in McCallum, Sorenson is entitled to a new trial at which this evidence must be admitted. Further, issue preclusion cannot apply under such circumstances. Accordingly, the decision of the court of appeals is affirmed with modifications. The cause is therefore remanded for additional hearings consistent with this opinion. By the Court. The decision affirmed. 21 of the court of appeals is No. 1 98-3107
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