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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.
September 2, 2010
A party may file with the Supreme Court a
A. John Voelker                                                                                                                                   petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                                                  Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                  and RULE 809.62.
                                                                                                                                                  Cir. Ct. No.   2007CI1
Appeal No.                                                                        2009AP2070
STATE OF WISCONSIN                                                                                                                                IN COURT OF APPEALS
                                                                                                                                                  DISTRICT IV
IN RE THE COMMITMENT OF CHRISTOPHER MELENDREZ:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
CHRISTOPHER MELENDREZ,
RESPONDENT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for Dane
County:   RICHARD G. NIESS, Judge.   Affirmed.
Before Vergeront, P.J., Lundsten and Higginbotham, JJ.
¶1                                                                                VERGERONT, P.J.    Christopher Melendrez appeals the judgment
entered upon a jury verdict finding that he was a sexually violent person under




No.   2009AP2070
WIS. STAT. ch. 980 (2007-08).1   He also appeals the circuit court’s order denying
his motion for postcommitment relief.
¶2                                                                                        Melendrez  makes  two  primary  arguments  on  appeal.    First,  he
contends that he is entitled to dismissal of the petition because an amendment to
WIS. STAT. ch. 980 had a retroactive effect on him that violated his right to due
process.    The amendment, enacted by  2005 Wis. Act  434, added third-degree
sexual assault to the list of “sexually violent offense[s]” under § 980.01(6)(a), and
this occurred after he had pleaded guilty to that offense.   Relying on the same due
process claim, he asserts he is entitled to relief from his stipulation that third-
degree sexual assault was a sexually violent offense under § 980.01(6)(a).   Based
on Melendrez’s arguments and the case law he provides, we conclude that 2005
Wis. Act 434 does not have a retroactive effect on Melendrez and therefore does
not violate due process.   This conclusion resolves against him his claim for relief
from the stipulation.
¶3                                                                                        Second, Melendrez contends that he is entitled to a new trial based
on  newly  discovered  evidence—an  article  published  after  the  trial—that  an
actuarial risk assessment tool used by the State’s experts overstated the risk of
recidivism for sex offenders.   In the alternative, Melendrez seeks an evidentiary
hearing on his motion on this ground.   We conclude the circuit court properly
denied the motion without an evidentiary hearing.
¶4                                                                                        Accordingly, we affirm the judgment that Melendrez is a sexually
violent person and the denial of Melendrez’s motion for postcommitment relief.
1  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
2




No.   2009AP2070
BACKGROUND
¶5                                                                                                Melendrez  was  convicted  in  2001  of  one  count  of  third-degree
sexual  assault  under  WIS.  STAT.  § 940.225(3)  and  one  count  of  resisting  or
obstructing an officer under § 946.41(1), based on his no contest pleas.   He was
originally charged with second-degree sexual assault for the incident, in which a
woman reported that he had forcibly raped her late at night in a parking lot.
However, as part of the plea agreement the charge was reduced to third-degree
sexual assault.2   His sentence was withheld and he was placed on six years of
probation, which was revoked six months later.   He was then sentenced to four
years of confinement and four years of extended supervision.   In 2006 Melendrez
was released from prison, but within five hours he was back in custody due to an
incident with the corrections officer transporting him from prison, which led to a
disorderly conduct charge, revocation of his extended supervision, and return to
prison to serve the rest of his confinement.
¶6                                                                                                While Melendrez was in prison, the legislature enacted 2005 Wis.
Act 434, which added third-degree sexual assault to the list of sexually violent
offenses under WIS. STAT. § 980.01(6)(a).3                                                        2005 Wis. Act 434, § 65.   Prior to the
passage of this amendment, first- and second-degree sexual assault, sexual assault
of  a  child,  incest,  and  child  enticement  were  sexually violent  offenses  under
§ 980.01(6)(a).   The amendment became effective on August 1, 2006, and was
2  As pertinent here, having sexual intercourse with a person without consent constitutes
third-degree sexual assault, WIS. STAT.  § 940.225(3), and second-degree sexual assault has the
added element of “by use or threat of force or violence,” § 940.225(2)(a).
3  WISCONSIN STAT. § 980.01(6)(a) now provides: “‘Sexually violent offense’ means any
of the following:                                                                                 (a) Any crime specified in s.  940.225(1),  (2), or  (3)  [third-degree sexual
assault], 948.02(1) or (2), 948.025, 948.06, 948.07, or 948.085.”
3




No.   2009AP2070
applicable to cases in which the ch. 980 petition was filed on or after that date.
2005 Wis. Act 434, §§131-32.4
¶7                                                                                     In January 2007, just before Melendrez’s scheduled release, the State
filed a petition alleging that Melendrez is a sexually violent person under WIS.
STAT. § 980.01(7)5 and should be committed to the custody of the Department of
Health and Family Services upon his release from prison.   The petition alleged that
Melendrez had been convicted of third-degree sexual assault—now                        a                                                                       sexually
4
WISCONSIN STAT. § 980.02(2) provides:
(2) A petition filed under this section shall allege that all of
the following apply to the person alleged to be a sexually violent
person:
(a) The person satisfied any of the following criteria:
1.  The  person  has  been  convicted  of  a  sexually  violent
offense.
2.  The person has been found delinquent for a sexually
violent offense.
3. The person has been found not guilty of a sexually violent
offense by reason of mental disease or defect.
(b) The person has a mental disorder.
(c) The person is dangerous to others because the person’s
mental disorder makes it likely that he or she will engage in acts
of sexual violence.
5
WISCONSIN STAT. § 980.01(7) provides:
(7) “Sexually violent person” means a person who has been
convicted of a sexually violent offense, has been adjudicated
delinquent for a sexually violent offense, or has been found not
guilty of or not responsible for a sexually violent offense by
reason of insanity or mental disease, defect, or illness, and who
is dangerous because he or she suffers from a mental disorder
that makes it likely that the person will engage in one or more
acts of sexual violence.
4




No.   2009AP2070
violent offense under § 980.01(6)(a)—and that he suffers from a mental disorder
that makes it likely that he will engage in acts of sexual violence.   See § 980.02(2).
¶8                                                                                           At  the  trial  on  the  petition,  Melendrez  and  the  State  agreed  to
stipulate that the charge for which Melendrez was convicted, third-degree sexual
assault, was “a sexually violent offense as defined by Wis. Stat. § 980.01(6)(a).”
The State presented two expert witnesses to testify to the petition’s allegations that
Melendrez has a mental disorder that makes it likely that he will engage in acts of
sexual  violence.    Dr.  Anthony  Jurek  opined  that  Melendrez  has  paraphilia—
meaning that he shows a deviant pattern of sexual behavior, urges, and impulses—
and that he has a psychotic disorder.   Both of these disorders, Dr. Jurek opined,
make it more likely than not that Melendrez will reoffend.   The second expert, Dr.
Robert Barahal, opined that Melendrez has antisocial personality disorder and
psychosis,  with  very  high  levels  of  psychopathy,  as  well  as  substance  abuse
problems.   As a result, in Dr. Barahal’s opinion, it is more likely than not that
Melendrez will reoffend.   In arriving at their opinions, both experts considered,
among  other  information,  the  results  of  actuarial  risk  assessment  tools.
Specifically, both used the Static-99 and the RRASOR, and Dr. Jurek also used the
MnSOST-R.
¶9                                                                                           The defense expert, Dr. Luis Rosell, presented his opinion that the
ability  of  the  actuarial  instruments,  including  the  Static-99,  to  predict  future
offending is in question, due in part to decreased rates of sexual offending since
the instruments were created, and this could have caused an overestimation of
Melendrez’s future risk.   Dr. Rosell did not perform an evaluation on Melendrez
and did not offer an opinion on whether or not Melendrez is a sexually violent
person.
5




No.   2009AP2070
¶10    The jury found that Melendrez is a sexually violent person under
WIS. STAT. § 980.01(7).   The circuit court entered a judgment and commitment
order based on the verdict.
¶11    Melendrez  filed  a  motion  for  postcommitment  relief  on  several
grounds and requested an evidentiary hearing.    As relevant to this appeal, he
contended that application of 2005 Wis. Act 434 to him has a retroactive effect on
him that violated his right to due process.    He also contended that an article
published after his trial discussing new research on the Static-99 constitutes newly
discovered evidence that is material to his risk of reoffending.
¶12    The  circuit  court  denied  the  motion.    The  court  concluded  that,
because Melendrez was committed based on his current mental condition and the
jury’s  ability  to  predict  what  his  future  risk  of  reoffending  would  be,  the
amendment to WIS. STAT. § 980.01(6)(a) is not retroactively applied to him.   The
court observed that Melendrez’s situation is similar to that of those who were
convicted of first- or second-degree sexual assault before ch. 980 was enacted but
were nevertheless committed under that new statute after serving their sentences.
Finally, the court decided that Melendrez is not entitled to a new trial based on
newly  published  research  on  the  Static-99.     The  court  concluded  that  the
information contained in the article is cumulative and that, even if it were to be
admitted, there is not a reasonable probability of a different result.
DISCUSSION
¶13    On appeal, Melendrez raises two primary issues:  (1) whether the
application of  2005 Wis. Act  434 to him has a retroactive effect on him that
violates his right to due process; and  (2) whether the article containing recent
6




No.   2009AP2070
research on the Static-99 constitutes newly discovered evidence warranting a new
trial or, in the alternative, an evidentiary hearing.6
I.                                                                                                      Application of 2005 Wis. Act 434 to Melendrez
                                                                                                        ¶14                                                                                             2005 Wis. Act 434 provides that it “first applies to … trials … that
                                                                                                        are based on a petition  … filed on  [August  1,  2006].”7                                                                                                             2005 Wis. Act  434,
§§ 131(1) and 132.   There is no dispute that the petition in this case was filed after
August 1, 2006.
¶15    Melendrez contends that the application of the amendment to him
has a retroactive application, and therefore violates his right to due process under
the federal and state constitutions.   U.S. CONST. amend. XIV, § 1; WIS. CONST.
6  The State contends on appeal that Melendrez’s postconviction motion for a new trial
was untimely because, since proceedings under WIS.  STAT.  ch. 980 are civil actions, such a
motion could be made only under  § 806.07.    Under  §§ 806.07(1)(b) and  (2) and  805.16(4),
motions based on newly discovered evidence must be brought within one year of the verdict.  The
jury’s verdict here was rendered on September 20, 2007, and Melendrez filed his motion on
March 23, 2009.
Melendrez makes a number of responses.    First, he asserts that  §§ 980.038(4) and
809.30(2)                                                                                               (h) define the postcommitment procedure for ch. 980, not §§ 806.07 and 805.16(4).
Second, he asserts that, based on his motion, this court entered an order extending his time to file
a postcommitment motion to March 23, 2009, and the State did not object at that time.   Third, he
asserts the State has forfeited its untimeliness objection because it did not raise it in the circuit
court.  Finally, he asserts that he could not have brought this motion within one year of the verdict
because the figures on which he relies were not published until October 2008.
We decline to address the State’s argument on untimeliness because it was not raised in
the circuit court.   State v. Champion, 2008 WI App 5, ¶17, 307 Wis. 2d 232, 744 N.W.2d 889
(“We generally do not review an issue raised for the first time on appeal.”).
7                                                                                                       2005 Wis. Act 434, § 132 provides:                                                              “Effective date.   This act takes effect on the first
                                                                                                        day of the 2nd month beginning after publication.”  The date of publication was June 5, 2006.
7




No.   2009AP2070
art. I, § 1.8   Application of the amendment to him, he asserts, retroactively negates
his vested right not to be committed under WIS. STAT. ch. 980 after completing his
sentence for third-degree sexual assault.   This is so, he asserts, because at the time
he pled to that offense, he had no reason to expect that it would later become a
sexually violent offense under  § 980.01(6)(a) and subject him to possible civil
commitment.
¶16    In a related argument, Melendrez contends that he should be relieved
from his stipulation that third-degree sexual assault is a sexually violent offense.
He asserts that the unconstitutionality of the application of the amendment to him
requires this result.   In the alternative, he asserts, given that unconstitutionality,
counsel’s  advice  regarding  the  stipulation  constituted  ineffective  assistance  of
counsel.
¶17    The  State  responds  that  the  application  of  the  amendment  to
Melendrez does not violate his right to due process because it does not have a
retroactive effect, and, even if it does, its application to him comports with due
process.
¶18    The constitutionality of a statute is a question of law, which this
court reviews de novo.   State v. Post, 197 Wis. 2d 279, 301, 541 N.W.2d 115
(1995).                                                                                                Because  Melendrez  is  making  an   “as applied”  challenge  to  the
8  The Fourteenth Amendment to the United States Constitution states in relevant part that
“[n]o State shall  … deprive any person of life, liberty, or property, without due process of
law….”
Article 1, section 1 of the Wisconsin Constitution provides:                                           “All people are born equally
free and independent, and have certain inherent rights; among these are life, liberty and the
pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers
from the consent of the governed.”
8




No.   2009AP2070
constitutionality of 2005 Wis. Act 434, not a facial challenge, he must prove that,
as applied to him, the act is unconstitutional beyond a reasonable doubt.   State v.
Smith, 2010 WI 16, ¶9, 323 Wis. 2d 377, 780 N.W.2d 90.9
¶19    We first discuss some background case law on retroactivity and due
process and then discuss Melendrez’s arguments.   As we explain, the first inquiry
is whether 2005 Wis. Act 434 has a retroactive effect; if it does, we then inquire
whether retroactivity comports with due process.    For the reasons we discuss
below,  we  conclude  this  legislation  does  not  have  a  retroactive  effect  on
Melendrez, and on that basis we conclude its application to Melendrez does not
violate his right to due process.
¶20    As  Melendrez  correctly  recognizes,  in  State  v.  Carpenter,                              197
Wis. 2d 252, 273-74, 541 N.W.2d 105 (1995), the supreme court held that WIS.
STAT.  ch.  980 does not violate the ex post facto clauses in the United States
Constitution and the Wisconsin Constitution.10   These clauses prohibit any law
that punishes as a crime an act previously committed that was innocent when
done, or makes more burdensome the punishment for a crime after its commission,
or deprives one charged with a crime of a defense available when the crime was
committed.   In Carpenter the court held that ch. 980 creates a civil commitment
9  Melendrez states in his brief that 2005 Wis. Act 434 is “valid overall” and that he does
not make a facial challenge to its constitutionality.   We therefore do not address the conclusory
assertions in his brief that the legislature lacked a compelling interest in expanding the list of
offenses in WIS. STAT. § 980.01(6)(a) to include third-degree sexual assault.
10  Article I, Section 9, Clause 3 of the United States Constitution provides: “No Bill of
Attainder or ex post facto Law shall be passed.”    Article I, section                               12  of the Wisconsin
Constitution provides:                                                                               “No bill of attainder, ex post facto law, nor any law impairing the
obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or
forfeiture of estate.”
9




No.   2009AP2070
procedure intended to protect the public and provide concentrated treatment, not to
punish the sexual offender.   Id. at 274.
¶21    Recognizing  that  an  ex  post  facto  challenge  is  not  available,
Melendrez relies on Landgraf v. USI Film Products, 511 U.S. 244 (1994), which
discusses retroactivity in a civil context.   In Landgraf, the Court noted that, in
addition to the Ex Post Facto Clause and other specifically focused constitutional
provisions  that  expressed                                                                 “an  antiretroactivity  principle,”   “[t]he  Due  Process
Clause  also  protects  the  interests  in  fair  notice  and  repose  that  may  be
compromised by retroactive legislation….”   Id. at 266.   A statute is retroactive, or
retrospective, the Court explained, when it “takes away or impairs vested rights
acquired under existing laws, or creates a new obligation, imposes a new duty, or
attaches  a  new  disability,  in  respect  to  transactions  or  considerations  already
past….”   Id. at 269.
¶22    Melendrez appears to be of the view that, if legislation is retroactive
under this definition, it necessarily violates due process.   However, in Landgraf
the   Court   makes   clear   that   retroactive   legislation   is   not   necessarily
unconstitutional.   Id. at  267-68.   The Court did not need to reach the issue of
whether  the  challenged  statutory  provisions  violated  the  Due  Process  Clause
because the Court construed them not to be retroactive.   Id. at 286.   The Court
arrived at this construction by first concluding that the amendment did not contain
express language making these provisions retroactive and then concluding that the
provisions were appropriately subject to the presumption against retroactivity in
the absence of an express statement.   Id. at 280-86.
¶23    Wisconsin case law also establishes that retroactive legislation does
not necessarily violate the due process clause.   In Barbara B. v. Dorian H., 2005
10




No.   2009AP2070
WI 6, ¶¶19-20, 277 Wis. 2d 378, 690 N.W.2d 849, the court explains that a court
is first to determine if a statute actually has a retroactive effect, which turns on
whether it affects a substantive right that vested or accrued before the enactment.
If  the  court  concludes  that  it  does  have  a  retroactive  effect,  the  court  then
determines whether the retroactive effect comports with due process.11
¶24    Accordingly, we begin by analyzing whether the application of 2005
Wis. Act 434 has a retroactive effect on Melendrez.   Melendrez contends that, as
applied to him,  2005 Wis. Act  434 is retroactive in all four ways identified in
Landgraf.   See paragraph 21 above.   He asserts:
Act  434, as applied to  [him], took away and impaired a
right under Chapter 980 as it existed on February 21, 2001,
that is, the right not to be committed after completion of a
sentence for Third Degree Sexual Assault.   Likewise, Act
434 created a new obligation, that is, the obligation to serve
a 980 commitment.   The Act also obviously imposed a new
duty, that is, the duty to answer to a Chapter 980 petition,
11  We recognize that Barbara B. v. Dorian H., 2005 WI 6, 277 Wis. 2d 378, 690 N.W.2d
849,  concerns  legislation                                                                              (child  support)  that  allegedly created  a  vested economic  interest.
Therefore, the balancing test the court used to determine whether the retroactivity of that statute
would comport with due process may not be applicable where the vested interest alleged involves
liberty.   The balancing test applied in Barbara B. weighs “the public interest served by the
retroactive statute against the private interests that are overturned by it.”    Barbara B.,  277
Wis. 2d 378, ¶19.   Melendrez asserts that, because the application of 2005 Wis. Act 434 restricts
his liberty, we must use strict scrutiny in deciding whether its application to him violates his right
to due process.   Strict scrutiny requires that the challenged statute furthers a compelling interest
and is narrowly tailored to serve that interest.   State v. Ransdell, 2001 WI App 202, ¶5, 247
Wis. 2d  613,  634 N.W.2d  871  (applying strict scrutiny to a substantive due process facial
challenge to a WIS. STAT. ch. 980 amendment making commitment to a secure facility automatic
rather than discretionary).
Because we conclude that  2005 Wis. Act  434 does not have a retroactive effect on
Melendrez, we need not decide what standard to apply in deciding whether retroactive legislation
affecting a liberty interest violates due process.  For the same reason, we need not decide whether
Melendrez’s due process claim is one of procedural due process or substantive due process.
Because Melendrez relies on Ransdell and argues for a strict scrutiny standard, he apparently
views his claim as one of substantive due process, although he simply uses the term  “due
process.”  We do the same, since there is no need for more specificity in this opinion.
11




No.   2009AP2070
and it attached a new disability, because 980 patients lack
most   of   the   rights   that   ordinary   citizens   possess,
particularly freedom of movement and association.
¶25    The underpinning of these four assertions of retroactive effect is the
same: because third-degree sexual assault was not one of the WIS. STAT. ch. 980
sexually violent offenses when Melendrez entered a plea to this charge, he was
“entitled to believe,” or had a “legitimate sense,” that he would not be subject to
ch. 980.
¶26    We reject this argument because it is inconsistent with the case law.
In Hendricks v. Kansas, 521 U.S. 346 (1997), in concluding that a Kansas statute
similar to WIS. STAT. ch. 980 was not an ex post facto law, the Supreme Court
stated:
As  we  have  previously  determined,  the  Act  does  not
impose punishment; thus, its application does not raise ex
post facto concerns.   Moreover, the Act clearly does not
have retroactive effect.   Rather, the Act permits involuntary
confinement based upon a determination that the person
currently  both  suffers  from  a                                                      “mental  abnormality”  or
“personality disorder” and is likely to pose a future danger
to the public.   To the extent that past behavior is taken into
account, it is used, as noted above, solely for evidentiary
purposes.   Because the Act does not criminalize conduct
legal before its enactment, nor deprive Hendricks of any
defense that was available to him at the time of his crimes,
the Act does not violate the Ex Post Facto Clause.
Id. at 370-71 (emphasis added).
¶27    Melendrez attempts to distinguish his situation by asserting that the
third-degree sexual assault conviction was not used solely for evidentiary purposes
but formed a  “jurisdictional basis of the commitment  …  [because]  [t]he state
needs a conviction and proof of a conviction, not just an out-of-court allegation of
behavior…”  (emphasis  in  Melendrez’s  brief).    However,  the  Kansas  statute,
12




No.   2009AP2070
similar to Wisconsin’s statute, uses a conviction of a sexually violent crime (or a
charge—unlike  Wisconsin)  as  part  of  the  definition  of  a                                       “sexually  violent
predator.”   Id. at  352.12   The Kansas statute does not authorize a commitment
based on an out-of-court allegation of behavior.   What the Court meant by “solely
for evidentiary purposes” is that under the Kansas statute the prior conviction (or
charge)  is  used  solely  as  evidence  that  the  person  fulfilled  the  definitional
elements  of  a  “sexually violent  predator.”    Id.  at  370.    The  same  is  true  of
Melendrez’s  conviction  for  third-degree  sexual  assault:  it  fulfills  one  of  the
definitional elements of a “sexually violent person.”   See WIS. STAT. §§ 980.01(7)
and 980.01(6)(a).
¶28    Melendrez also attempts to distinguish his situation from the persons
who became subject to the Kansas statute—or to WIS. STAT. ch. 980—when it was
first enacted.13   He recognizes that those persons would not have known about the
statute when they engaged in conduct and entered into pleas subsequently defined
as sexually violent offenses.    His situation is different, he asserts, because the
existence of ch. 980 when he committed the offense and entered into the plea to
third-degree sexual assault made it reasonable to rely on the terms of the statute at
that time.14   Rephrasing this argument reveals its flaw:   Melendrez is asserting that
12    The Kansas statute defines a “sexually violent predator” as “any person who has been
convicted  of  or  charged  with  a  sexually  violent  offense  and  who  suffers  from  a  mental
abnormality or personality disorder which makes the person likely to engage in the predatory acts
of sexual violence.”  Hendricks v. Kansas, 521 U.S. 346, 352 (1997).
13  WISCONSIN STAT.  § 980.13 provides that “[t]his chapter applies to sexually violent
persons regardless of whether the person engaged in acts of sexual violence before, on, or after
June 2, 1994,” which was the effective date of Chapter 980.
14  Implicit in Melendrez’s argument is the factual assertion that he entered the plea with
an awareness that third-degree sexual assault was not then included in WIS.  STAT.  ch.  980,
whereas the crime with which he was charged—second degree sexual assault—was.   We accept
this as true for purposes of this appeal.
13




No.   2009AP2070
he  had  a  reasonable  expectation  that the  statute  would not be  amended  even
though  persons  subject  to  ch.  980  when  it  was  first  enacted  did  not  have  a
reasonable expectation that no such statue would be enacted in the first instance.
Beyond asserting that there is a difference, Melendrez does not explain why his
situation creates a vested interest in the version of the statute in effect when he
pled—and, thus, makes the amendment retroactive as to him—when the original
enactment did not have a retroactive effect on the persons first subject to ch. 980.
Moreover, Melendrez’s attempt to distinguish on this ground is inconsistent with
State v. Tabor, 2005 WI App 107, 282 Wis. 2d 768, 699 N.W.2d 663.
¶29    In Tabor the respondents challenged a  2003 amendment to WIS.
STAT.  ch.  980  that  modified  the  definition  of                                       “sexually  violent  person”  and
“dangerous  to  others”  by substituting  “likely … will  engage  in acts of  sexual
violence” for  “substantial probability [of engaging] in acts of sexual violence.”
Compare  §§ 980.01(7)  and                                                                 980.02(2)                                                    (c)  with   §§ 980.01(7)  and   980.02(2)   (c)
(2001-02).   The amendment “first appl[ied] to hearings, trials, and proceedings
that are commenced on the effective date of [the amendment].”                              2003 Wis. Act
187, § 8.   Among other arguments, the respondents contended that applying the
amendment to their trials, which were to be held after the effective date of the
amendment, would “violate[] their rights to due process by retroactively negating
what they contend[ed] were their vested rights in the definitions extant when the
petitions against them were filed and served.”   Tabor, 282 Wis. 2d 768, ¶6.   We
rejected this argument, stating:
[U]nlike  the  situations  in  the  vested-rights  cases  upon
which they rely, where the causes of action accrued before
the legislative action, Martin v. Richards, 192 Wis. 2d 156,
531 N.W.2d 70 (1995) (reduction of damage caps in tort
cases), and Neiman v. American National Property and
Casualty Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d
160                                                                                        (increase   of   damage   caps   in   tort   cases),   the
14




No.   2009AP2070
dangerousness of persons for whom commitment is sought
is determined, as we have already seen, at the time of the
trial  and  not  at some  earlier  time.    See  Carpenter,  197
Wis. 2d at  274,  541 N.W.2d at  113;  [State v.] Williams,
2001 WI App 263, ¶¶21-23, 249 Wis. 2d 1, 637 N.W.2d
791.15    Thus, just as those sex offenders who committed
their crimes and were convicted and sentenced before the
enactment of WIS. STAT. ch. 980 were nevertheless subject
to its provisions, Carpenter, 197 Wis. 2d at 262-274, 541
N.W.2d  at                                                                                         109-114                                                                               (double-jeopardy  and  ex-post-facto
challenges), Tabor and Ryan are constitutionally subject to
the   legislature’s   modification   of   what   constitutes
dangerousness under ch. 980.   Further, their claim that the
legislature  unfairly                                                                              “unsettle[d]  expectations  that  they
reasonably relied upon in setting up their defenses to the
petitions,”   does   not   assert   the   deprivation   of   any
recognized right.   See State v. Burks,  2004 WI App  14,
¶16,  268 Wis.  2d  747,  760,  674 N.W.2d  640,  647  (trial
court  may require  defendant  to  be  tried  by a  jury even
though  defendant  prefers  a  bench  trial  for  strategic
reasons).
Tabor, 282 Wis. 2d 768, ¶6 (footnote added) (emphasis added).
¶30    Thus,  in  Tabor  we  reject  the  argument  Melendrez  makes                               in                                                                                    an
attempt to distinguish his situation from Hendricks: that, from the standpoint of a
retroactivity analysis, the application of the original WIS. STAT. ch. 980 is different
than an amendment.   While Melendrez also attempts to distinguish Tabor, these
arguments simply highlight the similarity between his situation and those persons
who were subject to the original ch. 980.
¶31    First, Melendrez contends that the amendments at issue in Tabor
apply to every person against whom the State filed a petition after the effective
15  In State v. Williams, 2001 WI App 263, ¶22, 249 Wis. 2d 1, 637 N.W.2d 791, we held
that,                                                                                              “as with Chapter  980 generally,” two amendments to WIS.  STAT.  ch. 980—one making
commitment to a secure facility automatic rather than discretionary and a second lengthening the
required time of initial commitment—were not retroactive.
15




No.   2009AP2070
date of the amendment, whereas “[his] claim … probably applies only to him.”
We  assume  that  “claim”  in  this  context  means  Melendrez’s  assertion  that  he
entered the plea believing that third-degree sexual assault was not included in the
definition of sexually violent crimes under WIS. STAT. ch. 980.   For purposes of
argument we accept as true that this fact situation may be unique to him, or, at
most, to a few people.   However, as we have already explained, among the persons
subject to ch. 980 when it was initially passed were many who entered pleas to
first- and second-degree sexual assault—and to other offenses—believing that,
when their sentence was completed, they would not be subject to subsequent
commitment.   Moreover, Melendrez does not explain why the number of persons
affected by legislation has any role in a retroactivity analysis.
¶32    Second, Melendrez asserts that the Tabor respondents were in a
different situation because the WIS. STAT. ch. 980 petitions had already been filed
against them when that amendment took effect.    According to Melendrez, that
amendment  simply  deprived  them  of  the  advantage  of  a  lower  standard  for
dangerousness at trial.   In contrast, he asserts, the amendment in 2005 Wis. Act
434  establishes  “subject  matter  jurisdiction”  over  him.    However,  for  all  the
persons subject to WIS. STAT. ch. 980 when it was initially passed, the inclusion in
“sexually violent offenses” of the crimes for which they had previously been
convicted established “subject matter jurisdiction” over them in exactly the same
way.
¶33    Fundamentally, Melendrez believes his situation is like neither those
persons subject to the original WIS.  STAT. ch.  980 nor the Tabor respondents
because  he  pled  to  a  third-degree  sexual  assault  knowing  about  ch.  980  and
believing  he  would  avoid  it  by  his  plea.    However,  while  this  is  a  factual
distinction,  he  has  not  persuaded  us  that  these  facts  make  the  reasoning  of
16




No.   2009AP2070
Hendricks and Tabor on retroactivity inapplicable to him.   Melendrez points out
that  the  State  has  not  provided  a  case  supporting  the  proposition  that  it  is
permissible  to  add  to  the                                                               “predicate”  offenses  of  ch.   980  and  have  persons
committed for convictions that occurred prior to having any knowledge of the
amendments.     However,  it  is  Melendrez’s  burden  to  persuade  us  that  the
amendment is unconstitutional as applied to him.   It is not the States’ burden to
persuade us that the amendment is constitutional.
¶34    Because we conclude that the application of 2005 Wis. Act 434 to
Melendrez does not have a retroactive effect and because a retroactive effect is the
basis for Melendrez’s due process claim, we conclude that Melendrez has not met
his burden of showing that the amendment’s application to him violates his right
to due process.   The relief he requests with respect to his stipulation that third-
degree sexual assault is a sexually violent offense is premised on a violation of due
process.    Accordingly, we conclude he is not entitled to be relieved from the
stipulation nor is he entitled to a Machner16 hearing on his claim that counsel was
ineffective because of the advice counsel gave him regarding the stipulation.
II.                                                                                         Newly Discovered Evidence
¶35    Melendrez contends that new research on the Static-99, contained in
an article published after the trial, is newly discovered evidence under WIS. STAT.
§ 805.15(3) and entitles him to a new trial, or, at a minimum, an evidentiary
hearing to determine if he is entitled to a new trial.   The article, published in a
professional newsletter in  2009, is titled  “Reporting Static-99 in Light of New
16  State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
17




No.   2009AP2070
Research  on  Recidivism Norms,”  and is authored by Leslie  Helmus, R. Karl
Hanson, and David Thornton.    The article explains that the original Static-99
recidivism estimates were based on a sample of 1086 offenders, most of whom
were released from prison in the 1960s, 70s, and 80s.   In contrast, the data the
article’s authors analyzed is based on a sample of 6406 offenders, 90% of whom
were released in the  1990s or later.    The authors conclude that  “[s]exual and
violent recidivism rates per Static-99 score are significantly lower in our data than
they were in the samples used to develop the original Static-99 norms.”    The
authors recommend that the new norms replace the original norms because “the
new norms are based on more offenders, more complete data, and more recent,
representative samples.”
¶36    In order to be entitled to a new trial based on newly discovered
evidence, Melendrez must prove by clear and convincing evidence that  (1) the
evidence is, in fact, new; (2) his failure to discover the new evidence earlier was
not due to his lack of diligence; (3) the evidence is material to an important issue
in the case; and  (4) the evidence is not cumulative.    State v. McCallum,  208
Wis. 2d  463, 473, 561 N.W.2d 707 (1997).   If the defendant proves these four
elements by clear and convincing evidence, the circuit court decides whether a
reasonable probability exists that a different result would be reached in a new trial.
Id.    A  circuit  court’s  decision  whether  to  grant  a  new  trial  based  on  newly
discovered evidence is committed to the circuit court’s discretion.   State v. Plude,
2008 WI 58, ¶31, 310 Wis. 2d 28, 750 N.W.2d 42.   We affirm a discretionary
decision if the court applied the correct law to the facts of record and reached a
18




No.   2009AP2070
reasonable result.   See State v. Williams, 2001 WI App 155, ¶9, 246 Wis. 2d 722,
631 N.W.2d 623 (citation omitted).17
¶37    The circuit court here first decided that an evidentiary hearing was
not needed in order to decide Melendrez’s motion.   At an evidentiary hearing,
Melendrez  states,  Dr.  Rosell  would  explain  the  significance  of  the  article  as
undercutting the value of the Static-99 as a predictive tool.    The circuit court
viewed the article as “largely self explanatory” and concluded that the article and
the  trial  record  were  sufficient  to  decide  Melendrez’s  motion.    Nothing  in
Melendrez’s brief persuades us that he is entitled to an evidentiary hearing on his
motion.
¶38    Turning to the merits of Melendrez’s claim of newly discovered
evidence, the circuit court concluded that the information contained in the article
was cumulative and that, even if it were admitted, there was not a reasonable
probability there would be a different result.
17  While the court in State v. Plude, 2008 WI 58, ¶31, 310 Wis. 2d 28, 750 N.W.2d 42,
stated the established rule that the decision whether to grant or deny a new trial based on newly
discovered evidence is committed to the circuit court’s discretion, it also stated that whether there
is a reasonable probability of a different result presents a question of law.   Id., ¶33.   Questions of
law are generally subject to de novo review.   See Ball v. District No. 4, Area Bd. of Vocational,
Technical and Adult Educ., 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984) (“This court must
decide questions of law independently without deference to the decisions of the trial court….”).
We are uncertain whether the Plude court is suggesting a de novo standard of review for the
question whether there is a reasonable probability that a new trial would have a different
outcome.    We resolve this uncertainty by applying the standard of review for discretionary
decisions to this question, because the Plude court expressly states that a circuit court’s decision
whether to grant a new trial based on newly discovered evidence is committed to the circuit
court’s discretion.  Plude, 310 Wis. 2d 28, ¶31.  However, we note that in this case the outcome is
the same whether we review the circuit court’s ruling on this question de novo or under the more
deferential standard of review for discretionary decisions.
19




No.   2009AP2070
¶39                                                                                                    With  respect  to  cumulativeness,  the  circuit  court     reasoned   as
follows:
[T]he defense expert [Dr.] Rosell testified at some length
regarding the shortcomings of the Static-99, including its
small  sample  size  particularly  with  respect  to  high  risk
individuals, the sample’s questionable applicability given
its origins (Canada and the United Kingdom, not the United
States)  and,  most  importantly,  that  more  recent  cross-
validated studies show a significant decrease in the risk
percentages for those with Melendrez’s score of six (13%
over five years instead of 39%).18   Dr. Rosell specifically
testified that probability estimates in the Static-99 had to be
re-examined  as  part  of  cross  validation,  and  this  would
result in lower estimates of recidivism risk because there
has been a decrease in sexual offending over the last  15
years as compared to when the norms were developed in
the  samples  applied  to  Melendrez.    Dr.  Rosell  referred
specifically to the then-unpublished research study  (now
the                                                                                                    “newly  discovered   evidence”)  demonstrating  the
“significant decrease” in recidivism probability estimates,
as well as two additional studies demonstrating decrease in
sexual offending.   Within this context, the Helmus article
can only be seen as cumulative.   This is all the more true
when one considers the concessions made by the State’s
experts regarding the Static-99’s limitations as a predictive
tool.                                                                                                  [Footnote added.]
¶40                                                                                                    Although Melendrez acknowledges Dr. Rosell’s testimony on   the
Static-99,  he  asserts  that  the  article  contains  a  more  detailed  analysis                     by the
creators of the Static-99 of the more recent and larger samples and a resulting
“recalculation” of the resulting risk figures.   According to Melendrez, his Static-99
score of six, based on the original sample of offenders, indicated to the jury that
“his risk to reoffend within 5 years was 36%,” and based on the article, he should
18  Our understanding of Dr. Rosell’s testimony is that                                                13%  is not the recalculated
recidivism rate for a score of six on the Static-99 but is the result of one of the studies that
attempted to cross-validate the original recidivism rate.   Using 39% as the recidivism rate over
five years for a score of six on the original Static-99, Dr. Rosell testified that one of the cross-
validation studies showed 13% and another showed 17% instead of 39%.
20




No.   2009AP2070
be able to argue in a new trial that “the new figures show that his risk was really
21.3%.”19
¶41    We first observe that Melendrez’s premise—that the Static-99 score
shows “his risk to reoffend”—is not an accurate way to describe the significance
of the score under either the original samples or the newer samples.   Both Dr.
Rosell and the State’s expert, Dr. Jurek, explained that the actuarial instruments do
not tell anything about a particular offender’s risk of reoffending.   Rather, as Dr.
Rosell explained, “[a]ll these instruments can do is say that this individual has the
same  score  as  this  group  of  individuals                                                         [in  the  sample]   …  and  then  those
individuals with that certain number reoffended at a certain time.”   Similarly, Dr.
Jurek clarified that the risk percentage associated with Melendrez’s Static-99 score
is not Melendrez’s likelihood of reoffending, but rather “it is the rate of reoffense
in the sample for people who had a score similar to the one Mr. Melendrez got on
that instrument.”   With this correction, Melendrez’s claim remains that the article
is not cumulative to Dr. Rosell’s testimony because the article contains the lower
recalibrated figures by the creators of the Static-99 and this would necessarily
affect the scoring of this instrument by the State’s experts.
¶42    We will assume without deciding that the recalibrated recidivism
risks and the other specific information in the article that Melendrez identifies are
not cumulative of Dr. Rosell’s testimony.   We nonetheless conclude the circuit
19  The source of this “new figure”—21.3%—is from a table presented by the authors of
the article at a conference in October 2008 and attached to Melendrez’s brief in the circuit court.
The relationship between this table and the article is not clear to us but is immaterial to our
analysis.   We note that Melendrez uses 36% as the recidivism rate for five years on the original
Static-99 for a score of six, while Dr. Rosell used 39%.   See paragraph 38.   The difference is
immaterial to our analysis.
21




No.   2009AP2070
court properly exercised its discretion in deciding that it is not reasonably probable
that the article would have changed the jury’s verdict.
¶43    First, as the circuit court explained, Dr. Rosell’s testimony criticized
the Static-99 on  the same  grounds set forth in the article, although in a less
detailed and comprehensive way.   The jury was informed that the original Static-
99 overstated the risk of recidivism, although they did not learn by how much.
¶44    Second, the State’s experts used actuarial instruments, besides the
Static-99, which the article does not address.   The jury heard Dr. Rosell’s criticism
of those instruments.
¶45    Third, the State’s experts acknowledged the limitations of all the
actuarial tools in determining the risk of a particular person reoffending and both
experts relied on much other information in forming their opinions.   Specifically,
one or both relied on Melendrez’s testimony of sexual offenses, his reoffending
after treatment, his poor adjustment to supervision, and his lack of insight into the
gravity of his offenses.
¶46    The circuit court summarized the other evidence in this way:
[T]he three actuarial scales were … just a small portion of
the  substantial  and  damning  evidence  presented  to  the
jury … regarding [Melendrez’s] chilling, ongoing sexually
assaultive history fueled by a mental disorder alternately
diagnosed  as  paraphilia,  antisocial  personality  disorder,
psychotic    disorder    not    otherwise    specified,    and
psychopathy….   The experts relied upon his poor impulse
control and hypersexuality caused by his mental disorders,
his other serious criminal activity, his resistance to any kind
of  treatment  for  his  sexual  deviancy  and  assaultive
behavior,   his   poor   adherence   to   the   rules   while
incarcerated, [and] his frequent sexual acting-out even in a
confined   setting … to   reach   the   conclusion … that
Melendrez was a sexually violent person who would likely
reoffend.   To suggest that a more vigorous, concrete attack
22




No.   2009AP2070
on the already impeached Static-99 would probably change
the jury verdict, given this mountain of other evidence, is
highly unrealistic.
¶47    The circuit court’s decision-making on this point demonstrates the
application  of  the  correct  legal  standard  to  the  facts  of  record  to  arrive  at  a
reasonable  result.    Accordingly,  the  court  properly exercised  its  discretion  in
deciding the article is not newly discovered evidence that entitles Melendrez to a
new commitment trial under WIS. STAT. § 805.15(3).
CONCLUSION
¶48    We affirm the circuit court’s judgment that Melendrez is a sexually
violent person and its order denying Melendrez’s motion for postcommitment
relief.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
23

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