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COURT OF APPEALS
NOTICE
DECISION
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.
July 20, 2004
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                          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.
                                                                                                                                                           Cir. Ct. No.   87CF007845
Appeal No.                                                                                03-2147-CR
STATE OF WISCONSIN                                                                                                                                         IN COURT OF APPEALS
                                                                                                                                                           DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
CANNON CORNELL MACK,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
VICTOR MANIAN, Judge.  Affirmed.
Before Wedemeyer, P.J., Fine and Curley, JJ.
¶1                                                                                        PER CURIAM.      Cannon Cornell Mack appeals the order denying
his  petition   seeking   conditional  release   from  his  WIS.   STAT.                  § 971.17
commitment.   See § 971.17(1) (1987-88).1   Mack was committed to institutional
1  All references to the Wisconsin Statutes are to the 1987-88 version unless otherwise
noted.




No. 03-2147-CR
care after he was found not guilty of first-degree murder by reason of mental
disease or defect.   Mack submits that the trial court erred in denying his petition
because  both  expert  witnesses—the  only  witnesses  to  testify—recommended
conditional release and, as a consequence, the State failed to prove that he presents
a danger to himself or others.   Because the trial court was free to disregard the
expert witnesses’ opinions, and evidence in the record supports the trial court’s
finding, we affirm.
I.   BACKGROUND.
¶2                                                                                               Mack was found not guilty of arson by reason of mental disease or
defect in 1982.   He was conditionally released from institutional care about two
years later.   Within months, Mack had stopped taking his medication, was abusing
drugs and alcohol, and was back in the criminal justice system charged with first-
degree murder after he stabbed a woman in the head when she walked into a
laundromat.   Mack was again found not guilty by reason of mental disease or
defect and was committed to the Winnebago Mental Health Institute in October
1987.
¶3                                                                                               Mack  has  filed  numerous  petitions  over  the  years  seeking
conditional release.   With respect to this appeal, on June 12, 2002, Mack filed a
petition seeking conditional release.    The trial court appointed two doctors to
examine Mack:    Dr. John Pankiewicz, on Mack’s behalf, and Dr. Kenneth H.
Smail, on the State’s behalf.   After Mack waived his right to a jury trial, the trial
court held a hearing on his petition.2   Both doctors submitted reports and testified.
2  The 1987-88 version of WIS. STAT. § 971.17 allowed for a jury to decide the issue of
whether the defendant should be re-committed or granted release.   See generally State ex rel.
Gebarski v. Circuit Court for Milwaukee County, 80 Wis. 2d 489, 259 N.W.2d 531 (1977).
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No. 03-2147-CR
Independently,  they  both  concluded  that  Mack  could  be  released  from  the
institution, but only under strict conditions that would reduce the risk he posed to
the community.   These conditions essentially included:                                (1) Mack residing in a
well-staffed group home; (2) staff visually observing him taking his medication;
(3) monitoring for alcohol and illicit drug use; (4) monthly appointments with a
psychiatrist; (5) supervision by a probation agent trained to work with the mental
health population; and (6) Mack attending school or work.   The trial court denied
Mack’s petition and he appeals.
II.   ANALYSIS.
¶4                                                                                     Because  Mack  was  adjudicated  not  guilty  by  reason  of  mental
disease or defect before the change in the law effective January 1, 1991, Mack is
subject to the 1987 version of WIS. STAT. § 971.17, as affected by 1989 Wis. Act
31.   The standard for release in § 971.17(2) provides, in relevant part:
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.
Thus, the sole purpose of the hearing on the petition for conditional release is to
determine whether an insanity acquittee  “may be safely discharged or released
without danger to himself … or others.”   Id.  At a recommitment hearing, the State
bears the burden of proving that “the defendant is presently of danger to himself or
others.”   State v. Gebarski, 90 Wis. 2d 754, 757, 280 N.W.2d 672 (1979).   At such
a  hearing,                                                                            “dangerousness,  for  recommitment,  must  be  proven  by  clear  and
convincing evidence[.]”   State v. Randall, 192 Wis. 2d 800, 822, 532 N.W.2d 94
(1995) (citation omitted).   In State v. Randall, 222 Wis. 2d 53, 586 N.W.2d 318
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No. 03-2147-CR
(Ct. App. 1998), we stated:                                                              “We review the evidence supporting a jury verdict
finding dangerousness in the light most favorable to the verdict, and we will affirm
if there is any credible evidence, or reasonable inference therefrom, upon which
the jury could have based its decision.”   Id. at 60.   Although there was a bench
trial in this case, we conclude that the same standard of review applies.   See, e.g.,
State  v.  Kienitz,                                                                      221  Wis.  2d  275,  302,  585  N.W.2d  609  (Ct.  App.  1998)
(concerning a WIS. STAT. ch. 980 (1995-96) commitment of a sexually violent
person, and stating:                                                                     “We do not see any reason to apply a different standard of
review to a sufficiency of the evidence challenge simply because the court, rather
than a jury, finds the facts and applies the law (as interpreted by the court in both
situations) to those facts.”).
¶5                                                                                       Mack  submits  that  the  trial  court  erred  in  its  finding  that  he
continued to pose a danger to himself and others.   He notes that while the trial
court was free to reject the two doctors’ opinions, by doing so, the trial court
“could not legally adopt the opposite conclusion unless there was evidence to
support it.”   Mack contends no evidence was produced to support a finding that
Mack is presently dangerous.   He argues that the trial court improperly “rel[ied]
solely upon [his] prior conduct,” and that the other reasons given by the trial court
for finding Mack dangerous were only “passing references by the court.”    We
disagree with both contentions.
¶6                                                                                       With regard to Mack’s contention that the trial court improperly
relied on Mack’s past conduct in reaching its decision, he has correctly noted that
a trial court cannot rely solely on past behavior in determining dangerousness.
“Although past conduct may be a significant indicator of future behavior, evidence
of dangerousness should not rely solely on the acquittee’s past conduct.”   Randall,
192 Wis. 2d at 838.   However, the trial court did not find Mack dangerous simply
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No. 03-2147-CR
because of his past conduct.   Further, what Mack terms “passing references” are
actually valid reasons for the trial court’s finding of dangerousness.
¶7                                                                                             The evidence presented to the court supports the trial court’s finding.
The doctors opined that Mack continued to suffer from paranoid schizophrenia,
although  his  symptoms  are  now  being  controlled  by  medication.    As  noted,
however, the murder occurred when Mack stopped taking his medication.   Given
Mack’s  history,  he  poses  a  significant  risk  to  others  if  he  discontinues  his
medication.   In addition, the submitted medical reports note that Mack has both an
underlying  substance  abuse  problem  as  well  as  a  personality  disorder.    This
particular personality disorder was described by one of the expert witnesses as “an
enduring set of character traits that cause an individual difficulty in social and
occupational  functioning.”    Clearly,  this  disorder  will  likely  impede  Mack’s
integration  into  society  if  he  is  released.    Further,  as  to  his  substance  abuse
problem,  it  is  unknown  at  this  time  whether  Mack  will  consume  alcoholic
beverages when he is released and is free to purchase alcohol, as he has been in a
restricted and controlled setting for almost seventeen years.
¶8                                                                                             Additionally,   evidence   was   presented   that   while   Mack   has
dramatically improved during the years of his commitment, he has not been a
model inmate.   The staff reports indicate that he has difficulty following multiple-
step tasks, is defensive on occasion, and his initial response to staff requests “is a
little  oppositional.”                                                                         These  characteristics  may  prevent  Mack  from  taking
directions from others who are supervising him.   As a result, this behavior, too,
heightens the risk that Mack will pose to others when released.
¶9                                                                                             Mack’s primary argument in furtherance of his petition was that he
has had unescorted trips off the grounds of the institution to attend an anger
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No. 03-2147-CR
management program.   He submits that this is clear proof that he is no longer
dangerous.   However, as noted by the trial court, Mack’s off-grounds trips were
for  brief  periods  of  time  and  he  had  only  been  allowed  this  privilege  for
approximately six to nine months as of the time of the hearing.   The trial court
found this fact pivotal in its decision.   The trial court felt this was too short a time
period to safely conclude Mack was not dangerous when unsupervised.
Where  the  difficulty  comes  in,  in  the  Court’s
opinion,  is  whether  he  may  be  safely  released  to  the
community.   That’s not a medical decision.   That’s a legal
decision.    That’s a decision that the Court has to make.
And based on his past experience, the fact that he’s had this
unlimited access for only the last nine months, … I’m of
the opinion that although he is also medically doing what is
expected of him, and what should be done, nevertheless
there still is a substantial danger in my opinion, considering
the seriousness of these crimes, and the method and manner
in  which  the  crime  was  committed  this  last  time,  this
homicide, and his experience since then.
We  agree.    Given  the  serious  nature  of  Mack’s  crime  that  resulted  in  his
commitment,  coupled  with  his  other  psychological  and  social  problems,  we
believe the trial court properly concluded that Mack’s unsupervised travels have
occurred for too short a period to safely conclude that he poses no risk to the
community.    Thus,  we  are  satisfied  the  State  presented  clear  and  convincing
evidence that Mack is presently dangerous.   Accordingly, we affirm.
By the Court.—Order affirmed.
                                                                                            This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                   (b)5.
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