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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 19, 2011
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.   2009CF238
Appeal No.                                                                                   2010AP2290-CR
STATE OF WISCONSIN                                                                                                                                            IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
HENRY R. SCHWAB,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Shawano County:
JAMES R. HABECK, Judge.   Affirmed.
Before Hoover, P.J., Peterson and Brunner, JJ.
¶1                                                                                           PER CURIAM.    Henry Schwab appeals an order committing him to
a mental health facility for eighteen months based on a finding that he was not
guilty by reason of mental disease or defect  (NGI) for a sex offender registry
violation.    He  argues  that  the  trial  court  erroneously  exercised  its  discretion




No.   2010AP2290-CR
because there was insufficient evidence to show that conditional release would
pose a significant risk of bodily harm to members of the community.   We reject
that argument and affirm the order.
BACKGROUND
¶2                                                                                      Schwab was required to register as a sex offender because, as a
juvenile, he committed a first-degree sexual assault of a child.   He was placed in a
juvenile facility where he received some treatment, but did not complete the sex
offender treatment program.   After his release, he rented a room from Nichole
Merckes,  a  social  worker,  who  provided  significant  assistance  to  Schwab
including filling out his paperwork and managing his affairs.
¶3                                                                                      The Department of Corrections requested that Schwab be prosecuted
for failing to notify the registry of an address change and also providing false
information.     When  asked  why  he  failed  to  comply  with  the  registration
requirements, Schwab responded, “just for the hell of it.”   The complaint charged
Schwab with two registry violations as a repeater.   Pursuant to a plea agreement,
the State dismissed one count and Schwab did not contest the remaining count, but
entered the NGI plea to failing to notify the registry.   Based on a psychological
review,  the  State  conceded  that  Schwab’s  low  IQ  rendered  him  incapable  of
complying with the registration law.
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                                                                                           No.   2010AP2290-CR
                                                                                           DISCUSSION
¶4                                                                                         WISCONSIN  STAT.  § 971.17(3)1  governs  the  circuit  court’s  duties
after an NGI adjudication:
The court shall order institutional care if it finds by clear
and  convincing  evidence  that  conditional  release  of  the
person  would  pose  a  significant  risk  of  bodily  harm  to
himself or herself or to others ….   In determining whether
commitment shall be for institutional care or conditional
release, the court may consider, without limitation because
of enumeration, the nature and circumstances of the crime,
the person’s mental history and present mental condition,
where the person will live, how the person will support
himself  or  herself,  what  arrangements  are  available  to
ensure that the person has access to and will take necessary
medication,  and  what  arrangements  are  possible  for
treatment beyond medication.
¶5                                                                                         Schwab contends these factors support conditional release and the
circuit court improperly placed the burden of proof for these factors on Schwab.
Schwab’s arguments are based in large part on evidence that was not presented as
opposed to any evaluation of the evidence before the court.   The trial court did not
misallocate the burden of proof.   Rather, the State presented sufficient evidence to
show that conditional release would not be appropriate, and Schwab failed to rebut
that evidence.
¶6                                                                                         We evaluate a commitment decision based on whether the evidence,
viewed  in  the  light  most  favorable  to  the  State,  was  sufficient  to  meet  the
applicable legal standard.   State v. Wilinski, 2008 WI App 170, ¶12, 314 Wis. 2d
643, 762 N.W.2d 399.   The State’s witnesses, a case worker and a corrections
1  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.
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No.   2010AP2290-CR
supervisor of NGI patients, testified that Schwab is dangerous because he lacks
empathy and the  mental capacity to distinguish right from wrong and cannot
recognize the harm that his actions cause his victims.   Because his sex offender
treatment is incomplete, he needs a specialized, structured setting to be able to
successfully complete a treatment program.   The witnesses further testified that the
community lacks the resources to provide the treatment Schwab needs.
¶7                                                                                      As the trial court noted, the nature and circumstances of Schwab’s
crime  show  the  inadequacy  of  conditional  release.     Although  the  current
conviction is based on his failure to register as a sex offender, this is more than
just a “paper crime.”   The registry program is designed to reduce the risk of re-
offense and Schwab’s inability to comply with that program presents a danger to
the community.   His  “mental history and mental condition” show the need for
specialized treatment that is not available in the community.   His living situation
was recently altered because Merckes had a baby and the department will not
allow  him  to  continue  to  live  at  her  residence.    Because  Merckes  provided
significant assistance to Schwab managing his affairs, moving from her residence
will further exacerbate Schwab’s difficulties.   Finally, Schwab has a history of not
taking his medication for Tourette’s Syndrome and ADHD, further complicating
any conditional release.   Applying the relevant factors to Schwab, the trial court
appropriately found sufficient evidence that conditional release would endanger
the public.
By the Court.—Order affirmed.
                                                                                        This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                               (b)5.
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