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In re Commitment of Bush9/28/2004
Thomas Bush appeals an order denying two pretrial motions challenging the constitutionality of Wis. Stat. ch. 980.*fn1 We conclude Bush is procedurally barred from raising these challenges and therefore affirm the order.
. In June 1988, Bush was convicted of entering a nursing home and attempting to sexually assault an elderly patient. In 1992, he was released from prison and allowed to leave Wisconsin for a sex offender program in Georgia. While there, he was charged with operating a motor vehicle while intoxicated. He was acquitted on that charge but was returned to Wisconsin. His parole was revoked and he was sent back to prison.
. In March 1997, the State filed a ch. 980 commitment petition alleging Bush was still sexually violent. Following trial, a jury agreed and Bush was committed. He appealed and this court reversed because of a prejudicial jury instruction.
. Bush was retried in 2000 and the jury returned the same result. Bush appealed again and we affirmed in all respects except for an issue regarding a ninety-day filing requirement imposed upon the State. On remand, the circuit court heard evidence and determined that the State had complied with the filing deadline.
. Meanwhile, Bush filed a petition for release pursuant to Wis. Stat. § 980.09(2) in August 2002. In pretrial motions to the court, he claimed ch. 980: (1) denies him due process and equal protection because it "fails to require a finding that there are no less restrictive alternatives to confinement throughout the proceedings," and (2) denies him due process because it "fails to require proof of a recent overt act."
. The court denied the pretrial motions. A jury determined Bush was still sexually violent and his petition for discharge was therefore denied. Bush renewed his constitutional challenges in a post-verdict motion that the circuit court also denied. Bush appeals.*fn2
. Bush raises no claim of error regarding the actual trial on his discharge petition. Instead, he assails the constitutionality of the statutes underlying his initial commitment. The State contends that while Bush is entitled to a review for error relating to the petition, he should not be allowed to collaterally attack the underlying commitment when he could have and should have made a challenge in his two prior appeals. We agree with the State.
. We start our discussion with State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Escalona-Naranjo discusses criminal post-conviction proceedings. Nevertheless, its reasoning for why all constitutional challenges should be raised in a first appeal is persuasive and, ultimately, we deem it useful here.
. In Escalona-Naranjo, the supreme court examined Wis. Stat. § 974.06. A § 974.06 motion does not permit an attack on the initial factual predicate for the conviction; that is, on the event leading to the defendant's status as a convicted criminal. Instead, § 974.06(1) allows a prisoner in custody to claim the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack ....
. Specifically, the statute is narrowed by Wis. Stat. § 974.06(4), which states in part, "All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion." The supreme court therefore concluded that § 974.06 could not be used to review issues which were or could have been litigated on prior direct appeal or other a
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