Updated 10/29/09

Usage note: The case summaries are organized topically, as listed in the outline immediately below this note. Links are provided for all major topics and for many sub-topics. Of course, you may also scroll through the case summaries, which are immediately below the outline.

  • Conditions
    • Restitution
    • Raising Challenge to Conditions
    • Child Support Obligation
    • No-contact / Association
    • Jail
    • Notification of "Dating Relationship"
    • "Contribution" Payment
  • Revocation
    • Jurisdiction to Revoke
    • Effective Assistance of Counsel
  • Conditions
    • Hospital Care -- Financial Liability
    • Procedure for Judicial Challenge to Validity of Rule -- Venue
    • Legal Mail -- Does Not By Itself Create Right to Counsel
    • Mail -- Due Process Right To Be Present When Opened by Authorities
  • Discipline
    • Hearing Examiner as Witness
    • Out-of-State Prison
  • Good Time
    • Misdemeanor Sentence
    • Out-of-State Transfer
  • Parole/Revocation
    • Parole Liberty Interest
    • Parole Rescission
    • Parole Revocation -- Conduct Occurring in Prior Supervisory Term
    • Parole Revocation -- Prisoner not Actually Released
    • Parole Revocation -- DOC Guidelines not Binding on DHA
  • PLRA


Probation -- Maximum Term

Probation  – Maximum Term - Extensions beyond Permissible Length of Original Term
State v. Kevin H. Luu, 2009 WI App 91, PFR filed 6/12/09
For Luu: Marshall LeMaster Belton
Issue/Holding: Probation may be extended beyond the permissible length of the original term:
¶1        … We conclude that § 973.09(2) does not prohibit a court from extending a defendant’s probation beyond the maximum term of imprisonment the defendant faced for the crime he or she committed. …

¶10      The meaning of Wis. Stat. § 973.09 is plain.  Subsection (2) limits the length of an original term of probation.  There is no way to reasonably interpret the term “original” to mean “original plus any extensions.”  The statute plainly distinguishes limitations on original terms of probation from possible subsequent extensions. 

¶11      In contrast, the statute limits extensions of probation by requiring extensions to be “for cause,” and requiring courts to specify the length of the extension.  We discern no conflict between these provisions, and we are therefore bound by their plain terms.  See Kalal, 271 Wis. 2d 633, ¶¶45-46.

Nor does this construction violate the due process right to notice (or amount to an impermissible delegation to the judiciary of legislative authority to fix punishment):
¶15      As we have explained, Wis. Stat. § 973.09 plainly provides the limits on an original sentence of probation, and establishes that the original term of probation may be extended “for cause.”  The statute does not purport to place any limits on the length of time that probation may be extended.  We conclude that the plain language of the statute provides a defendant sufficient notice that he or she will be subject to an original term of probation up to the length of imprisonment he or she faced for the crime committed, and that his or her probation may then be extended “for cause.”
Luu got an original term of 3-years’ probation, on a maximum of five. Probation was extended several times for failure to pay restitution, so that by the time revocation proceedings commenced, about 5 and one-half years had lapsed, ¶¶3-4. The court seems to suggest that probation may be extended for life, ¶16. At what point, do you think, the court will revisit the question of whether restitution is sufficiently consequential to be a required part of the plea colloquy, State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995)? (Yes, “Never” is an acceptable answer. But still.)
Probation  – Maximum Term - Multiple Convictions
State v. Romaine Anthony Langham, 2006 WI App 149, PFR filed 7/25/06
For Langham: Dianne M. Erickson
Issue/Holding: On multiple convictions, the maximum original term of probation may be increased by one year for each felony under § 973.09(2)(b), regardless of the imposition of confinement on one or more of these convictions.
Probation  – Maximum Length of Original Term, Established by Maximum Length of Confinement
State v. Ronald W. Stewart, 2006 WI App 67
For Stewart: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: The maximum original term of probation for Class B-H felonies is the maximum term of confinement, not the maximum term of imprisonment (which is confinement plus extended supervision), as indicated by the plain wording of § 973.09(2) (2003-04), ¶5.  
¶9           Having set forth the proper interpretation of Wis. Stat. § 973.09(2), we now turn to its application in this case. Stewart was convicted of felony bail jumping, which is a Class H felony. The maximum term of confinement for a Class H felony is three years. See Wis. Stat. § 973.01(2)(b)8. Because Stewart also was convicted of felony fleeing at the same time, the maximum term of probation is increased by two years (one year for each felony conviction) for a total of five years. See § 973.09(2)(b). Stewart’s eight-year term of probation is commuted to a five-year term. See § 973.09(2m).  

Probation -- Conditions

Probation -- Conditions -- Admission to Offense During Pendency of Direct Appeal
State ex rel. Gary Tate v. Schwarz, 2002 WI 127, reversing 2001 WI App 131
For Tate: Jerome F. Buting, Pamela S. Moorshead, Buting & Williams
Issue: "¶1. The issue in this case is whether the state may constitutionally revoke a defendant's probation because he refuses, during court-ordered sex offender treatment, and before the time for a direct appeal has expired or an appeal has been denied, to admit to the crime of which he was convicted."
¶4. All parties to this review now agree, as do we, that the revocation of Tate's probation was premised on a legitimate assertion of his Fifth Amendment privilege against self-incrimination, and was therefore unconstitutional. The parties also agree, as do we, that Tate's failure to appeal the denial of his motion to delay sex offender treatment did not constitute a waiver of his right to challenge his probation revocation on Fifth Amendment grounds. Finally, the parties agree that the immunity rule of State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977), as expanded by State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987), should be applied in these circumstances. We agree and hold that a defendant in this situation cannot be subjected to probation revocation for refusing to admit to the crime of conviction, unless he is first offered the protection of use and derivative use immunity for what are otherwise compulsory self-incriminatory statements.
Analysis: This is an extremely important fifth amendment case. "Treatment" now requires, in a variety of different contexts, full disclosure of the crime of conviction, sexual assault in this particular crime. Tate was placed on probation conditioned on sex offender treatment. He filed a timely appeal, and began treatment. However, the treatment provider terminated him, because he wouldn't admit to the offense of conviction, during pendency of the direct appeal, on self-incrimination grounds. Termination was deemed a violation of Tate's probation, resulting in revocation. However, the court now clarifies that Tate did have a right not to discuss the offense of conviction during the pendency of his appeal; and because the revocation was premised on what was therefore, in effect, a legitimate assertion of a constitutional right, it could not be upheld. Tension between obeisance to a condition of probation and constitutional right may be resolved through the approach idenitifed by Evans, namely a grant of immunity for any admissions (which, as later clarified by Thompson may not be used for impeachment, either). For a like result, see State v. Kaquatosh, 600 N.W.2d 153 (Minn. App. 1999). Note, however, that the court specifically reserves whether this rule "should extend to admissions made during treatment regarding uncharged conduct, and ... where the probationer pleaded guilty or no contest." ¶22 n. 10."
See also, State v. Butts, 157 N.C. App. 609, 582 S.E.2d 279 (2003) (collecting authorities on both sides and concluding that State may validly insist on incriminatory answers so long as immunity is granted). See also State v. Gaither, Or App No. A118534, 11/10/04 (where probation may be violated for failure to disclose sexual history, probationer's admission to p.o. of prior sexual abuse involuntary; note, however, that subsequent disclosure of same information to investigating detective after Miranda warnings deemed untainted by prior, involuntary statement).
Federal immunity, though, may be something else: see U.S. v. Cranley, 350 F.3d 617 (7th Cir. 2003), to the effect that "fear of revocation" is not alone enough to amount to coercion; probationer must actually assert the privilege. But consider the extreme facts in that case, namely that Cranley would have faced a mere 47 days in jail for his misdemeanor revocation.
Probation Conditions -- Costs for Standby Counsel
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
¶72      Wisconsin Stat. § 973.06 permits the court to impose a lengthy list of costs upon an unsuccessful defendant. At sentencing, the court may require a probationer to reimburse the county or the state, as applicable, "for any costs for legal representation . . . for the defense of the case."  Wis.  Stat. §§ 973.09(1g) and 977.07(2m). We think the term "defense attorney" in § 973.06 is broad enough to cover standby counsel in certain situations.

¶76      Campbell welcomed the court-appointed standby counsel and agreed to pay his attorney fees.  By welcoming court-appointed standby counsel and heavily utilizing him throughout the proceedings, Campbell effectively converted Attorney Martin into his co-counsel. … 

¶78      In this case, Campbell agreed to pay the attorney fees of standby counsel, satisfying the first test. In addition, the court informed Campbell of his obligation to reimburse the county for the fees and he made extensive use of Attorney Martin, satisfying the second test. Under either test, therefore, Campbell is responsible for Attorney Martin's fees, subject only to his ability to pay.

Because the circuit court ordered counsel fees without regard to ability to pay, Campbell is entitled on remand to an indigency hearing, ¶¶79-80.
Probation -- Conditions -- Home Monitoring -- Sheriff's Authority to Implement
State v. Thomas R. Galecke, 2005 WI App 172
For Galecke: John P. Runde
Issue: The trial court ordered jail with release privileges as a condition of probation, and allowed service of the jail time transferred to another county; when that county permitted release on home monitoring, the judge ordered that the defendant refuse home detention: “Thus the appellate issue raised here is whether the circuit court can avoid the holding in Schell by modifying the conditions of probation ordering Galecke to refuse home monitoring,” ¶9.
Holding: The issue is controlled by State v. Schell, 2003 WI App 78, 261 Wis. 2d 841, 661 N.W.2d 503 (circuit may not interfere with sheriff’s authority to manage jail by disallowing placement on home monitoring), ¶11: “(T)he circuit court may not accomplish indirectly that which it may not achieve directly. Here, the circuit court’s mandate that Galecke refuse home monitoring had the same effect as the circuit court’s erroneous decision in Schell: nullification of the sheriff’s decision. If the legislature intended to empower sheriffs with the decision-making authority regarding home monitoring, it cannot be that the legislature simultaneously intended to empower judges to override that authority by other means. …”
The court rejects the State’s attempt to distinguish Schell by positing judicial authority to require that Galecke refuse home monitoring as a condition of probation, § 973.09(3)(a): “the exercise of the circuit court’s authority in this case directly interfered with a sheriff’s authority under Wis. Stat. § 302.425 to determine which inmate is placed in the home detention program,” ¶12. This conclusion follows almost ineluctably from Schell. But there is, perhaps, a larger (if unstated) principle that might be extracted: although the court has authority to impose any reasonable condition of probation, it has no authority to impose a condition that would be impermissible under some specific statutory scheme. This point is exemplified by such cases as State v. Amato, 126 Wis.2d 212, 375 N.W.2d 75 (Ct. App. 1985) (no authority to impose cost of prosecution as condition of probation, where such item was expressly prohibited by cost statute); and more recently, by such cases as State v. Peter R. Martel, 2003 WI 70, ¶¶28-35 (no authority re: sex-offender registration where more specific registration statutes didn’t apply), State v. Oakley, 2000 WI 37, ¶27 (no authority re: payment of old fine given conflict with penalty scheme in § 973.07), State v. James A. Torpen, 2001 WI App 273, ¶16 (no authority re: restitution not allowed under § 973.20), State ex rel. Carl Kaminski v. Schwarz, 2001 WI 94, ¶27 (“a rule of probation imposed by a probation agent, intended to supplement court-imposed conditions of probation, may not validly contravene the directive of a statute”), analogizing to the idea embodied by Seider v. O'Connell, 2000 WI 76, ¶28, that “(a)n administrative rule that contravenes the words of an unambiguous statute is invalid.” And so on.

See also U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003) (to effect that federal legislative scheme requires courts to set maximum number of drug tests, with probation officers limited to exercising discretion as to number of tests within range set by sentencing court; delegation of authority to p.o. in violation of this mandate must be vacated).

Discussion on related problem of "division of labor between the district court and the probation office, regarding ... conditions of supervised release," see U.S. v. Stephens, 9th Cir No. 04-70170, 9/2/05, esp. fn. 2 (Art. III "cases and controversies" requirement gives judicary exclusive authority to impose punishment, such that whether to abide by condition is for court, with delegation of details of where and when condition will be satisfied may be delegated to probation office). Although Art. III isn't directly applicable to state cases, its enunciation of the doctrine of "standing" is viewed by our courts as "a matter of sound judicial policy," Chenequa Land Conservancy v. Village of Hartland, 2004 WI App 144, ¶14 n. 7, 275 Wis.2d 533, 685 N.W.2d 573.

Probation -- Conditions -- Home Monitoring -- Sheriff's Authority to Implement
State v. La Rae J. Schell, 2003 WI App 78
For Schell: Gregory A. Parker
¶2. The sole issue on appeal is whether a circuit court possesses the power to prohibit the sheriff from ordering home monitoring for a probationer ordered to serve jail time as a probation condition. Because the court was without the authority to preclude Schell's placement on home monitoring, we reverse that part of the amended judgment.
Schell was placed on probation with jail as a condition. The sheriff subsequently placed her on home monitoring which the circuit court rescinded when it found out. Schell argues that this rescission violated separation of powers, because after sentencing the defendant is committed to the jurisdiction of the executive branch; and also argues that the rescission was unsupported by a new factor. ¶6. The court of appeals rejects the parties’ framing of the issues, because they are premised on the incorrect notion that probation is tantamount to sentence:
¶9. Instead, we choose to frame the issue differently; namely, whether a trial court possesses the power to prohibit the possibility of home monitoring for a probationer ordered to serve jail time as a probation condition. In other words, we must determine whether the trial court violated the separation of powers doctrine when it prohibited the sheriff from placing Schell on home monitoring. We reframe the issue for two reasons. First, the trial court explained it intended to prevent Schell's placement on home monitoring as an original probation condition and that it was clarifying that condition at the second hearing. Second, addressing this issue will allow us to give guidance to courts, sheriff's departments, criminal defendants and prosecutors as home monitoring increasingly becomes an option. ...

¶12. We determine the plain language of Wis. Stat. § 302.425 allows the sheriff to place persons on home monitoring when they are given jail time as a probation condition. Section 302.425(2) allows the sheriff to place on home monitoring "any person confined in jail who has been ... convicted of ... a crime." Schell, and any other person ordered to serve jail time as a probation condition, falls within the statute's language. ...

¶16. Whether a circuit court sentences a defendant to prison or imposes probation, "the adversary system has terminated and the administrative process, vested in the executive branch of the government, directed to the correctional and rehabilitative processes of the parole and probation system has been substituted in its place." Id. at 650. Part of this administrative process is the sheriff's authority to manage the county jail. See, e.g., Wis. Stat. § 59.27(1) (sheriff has duty to take charge of persons sent to county jail). Wis. Stat. § 302.425 is part of this authority. By precluding the sheriff from releasing Schell on home monitoring, the trial court substantially interfered with the sheriff's power.

Authorizing a sheriff to release an inmate to home monitoring is consistent with a previous holding that a program of prisoner release to relieve overcrowding was within the executive branch’s prerogative and didn’t trench on the judiciary’s sentencing authority. ¶¶17-18, citing Skow v. Goodrich, 162 Wis. 2d 448, 451, 469 N.W.2d 888 (Ct. App. 1991).
Probation -- Conditions -- Jail: Authority to Impose Consecutive Periods Arising from Separate Terms of Probation
State v. Timothy J. Johnson, 2005 WI App 202
For Johnson: Jo C. Vandermause
Issue/Holding: A trial court has authority to order that separate periods of probation-condition jail time run consecutively:
¶6        Johnson argues first that the trial court had no authority to order, as a condition of probation, two consecutive periods of jail time. The State counters that a trial court has the power “to impose any conditions [of probation] which appear to be reasonable and appropriate.” Wis. Stat. § 973.09(1)(a). That broad discretion is constrained, the State further asserts, only to the extent that a probation condition is expressly or specifically limited by another statute. See State v. Oakley, 2000 WI 37, ¶¶26-27, 234 Wis.  2d 528, 609 N.W.2d 786.  

¶7        On that limited point, we agree with the State. Under Wis. Stat. § 973.09(4)(a), trial courts have the explicit authority to require a probationer to be confined in the county jail “during such period of the term of probation as the court prescribes.” We have concluded elsewhere that the authority to impose conditional jail time includes the authority to stay time as well as the authority to fix the specific time a probationer must spend in jail. State v. Edwards, 2003 WI App 221, ¶¶11-12, 22, 267 Wis.  2d 491, 671 N.W.2d 371. The principles of Edwards thus dictate that a trial court also has the power to delay imposing conditional jail time until after some other event, such as a program or another period of conditional jail time, has occurred.

Constrained only to the extent that a probation condition is expressly or specifically limited by another statute: A principle worth recalling, at least where a limiting statute does exist. But the qualifier “only” is somewhat misleading if taken as an abstraction, in that a probation condition may be unconstitutional, see e.g., State ex rel. Gary Tate v. Schwarz, 2002 WI 127, as well as simply unreasonable under the particular facts. Neither constitutionality nor reasonableness of the condition is raised by Johnson, so the court’s statement is fair enough in context.
Probation -- Conditions -- Jail: Authority to Impose Consecutive Periods Whose Aggregate Length Exceeds One Year, § 973.09(4)(a)
State v. Timothy J. Johnson, 2005 WI App 202
For Johnson: Jo C. Vandermause
Issue Whether the trial court had authority to impose separate, consecutive terms of jail as conditions of probation totaling more than one year.
Holding: A defendant “convicted at the same time” in separate cases is subject to a “single term of probation,” the maximum conditional jail time for which would be one year under § 973.09(4)(a), ¶¶8-9; otherwise, the aggregate amount is not so limited:
¶10      Thus, the critical question is whether Johnson was convicted at the same time in the drug and child support cases. To answer that question, we must decide whether conviction occurs, for the purposes of Wis. Stat. § 973.09, at the time a guilty plea is entered or at the time of sentencing and the entry of judgment.

¶20      … Wisconsin Stat. § 973.09(4)(a) allows trial courts the option of using jail time as one of the conditions of probation to pursue the goals of probation, including rehabilitation. State v. Avila, 192 Wis.  2d 870, 881-82, 532 N.W.2d 423 (1995). That option is limited by statute to a maximum of one year for each term of probation. A term of probation is determined, as the probation statute mandates, by working from a base “original term” and lengthening the original term for multiple simultaneous convictions. We see no reason, however, to expand the number of convictions potentially encompassed by a single “term of probation” by construing “convicted at the same time” to mean sentenced at the same time. Such a reading could, among other things, encourage parties to manipulate court schedules for the purpose of stacking sentencing hearings. We also agree with the State that consistency supports reading § 973.09 as we have read other sentencing statutes, and interpreting conviction as referring to the adjudication of guilt. Because we conclude that Johnson was not convicted at the same time in the child support and drug cases, and therefore not serving a single probationary term, the trial court had the statutory authority to order consecutive periods of conditional jail time.

Johnson entered pleas on different dates in two separate cases, ¶2; therefore, his convictions didn’t occur “at the same time.” Seemingly, then, multi-count or consolidated cases in which all counts are adjudicated at the same time support a maximum total of one year in jail as a condition of probation. A contrary “reading could, among other things, encourage parties to manipulate court schedules for the purpose of stacking sentencing hearings”? The parties have it within their power to manipulate the court calendar? Is the court taking judicial notice that judges cede such power to counsel? Any empirical proof? No matter: the power to “stack[] sentencing hearings,” if it exists, surely extends to parties manipulating court schedules for the purpose of stacking guilty plea hearings.
Probation -- Conditions -- Jail – Transfer From One County Jail to Another
State v. Thomas R. Galecke, 2005 WI App 172
For Galecke: John P. Runde
Issue: Whether the sentencing court, after ordering jail as a condition of probation and authorizing its service in a different county, has authority to order transfer of the inmate back to the county of origin.
Holding: The statute governing intrastate transfer of jail inmates, § 302.45(1), “makes no reference to circuit courts transferring inmates from one county jail to another and thus, provides no authority for the circuit court’s order in this case,” ¶16. The trial court therefore lacked authority to issue such an order. Nor does § 973.09(3)(a) (authority to modify probation) provide such authority, ¶17: “What the circuit court did by ordering Galecke to return to the Outagamie County jail was to essentially issue an order to the sheriffs of Outagamie and Portage counties. Section 973.09(3)(a) provides no authority for issuing orders to county sheriffs to transfer prisoners from one county jail to another.  We therefore conclude the circuit court erred by ordering Galecke transferred to the Outagamie [ sic, Portage] County jail from the Outagamie County jail.”
Probation -- Conditions -- Jail -- Delegation to DOC to Determine Amount
State v. Bernard G. Fearing, 2000 WI App 229, 239 Wis.2d 105, 619 N.W.2d 115
For Fearing: Patrick J. Stangl
Issue: Whether the trial court had authority to delegate to the Department of Corrections the length of confinement imposed as a condition of probation.
Holding: DOC has neither authority to modify a condition of probation, "nor, more specifically, ... the authority to decide to impose jail confinement as a condition of probation or the length of that confinement." ¶17.
Analysis: The trial court ordered six months jail as a condition of probation, but stayed 3 months with the proviso that this stayed period could be imposed at the agent's discretion. ¶1. The state argues that this delegation of authority was appropriate given the trial court's broad power to order "reasonable and appropriate" conditions. The court of appeals recognizes the implications to this argument, namely that this would include whether to impose jail confinement at all as a condition of probation. This is inconsistent with the detailed delineation of the powers of the court and the powers of DOC regarding probation. ¶19 Contrary to the State's assertion, DOC's authority to administer probation is not the same as the authority to impose conditions of probation. Indeed, WIs. STAT. § 973.10(1) specifically states that once probation is imposed by the court, the defendant is subject to the control of DOC "under conditions set by the court and rules and regulations established by the department...." (Emphasis added.) ....
Probation -- Conditions -- Jail, Good-Time
State v. Bernard G. Fearing, 2000 WI App 229, 239 Wis.2d 105, 619 N.W.2d 115
For Fearing: Patrick J. Stangl
Issue: Whether a probationer must be awarded good time under § 302.43 for time spent in jail as a condition of probation.
Holding: The trial court's explicit denial of good time to incarceration as condition of probation is sustained under Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974) (predecessor statute to § 302.43 doesn't apply to inmates in jail under condition of probation). ¶10. (Note, though, that Prue explicitly reserves authority to the trial court to "grant good time as a condition of a probation if it desired," 63 Wis. 2d at 114, as the court of appeals recognizes. ¶10 n. 6. Thus, the practice in certain counties of granting probation-time good-time shouldn't change.)
Probation may be imposed for crimes with mandatory or presumptive minimums, if the defendant is given jail time as a condition for the mandatory or presumptive period; and such a defendant is by statute entitled to good time. § 973.09(1)(d). However, TIS has done away with mandatory and presumptive minimums, so this provision should only be relevant to non-TIS offenses. Whether an equal protection argument might be made for good-time on a TIS-probation case is something else.
Probation -- Conditions -- Jail: Confinement Credit -- Linkage to Escape Statute
State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: The determination of whether a probationer under a confinement order as a condition of probation is entitled to confinement credit turns on whether the probationer would be subject to escape prosecution, § 946.42 for leaving that status. ¶¶20-21, citing State v. Magnuson, 2000 WI 19, ¶25, 233 Wis. 2d 40, 606 N.W.2d 536. (See ¶21 n. 8, terming Magnuson “informative on the issue of custody” in the context of a probationer’s entitlement to confinement credit.)
Probation -- Conditions -- Jail: Stay, During Hospitalization
State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Courts have discretion to stay a probationary condition of jail during the time the probationer is hospitalized, and when such a stay is issued, the probationer is not entitled to confinement credit while hospitalized. ¶¶15-19.
(Court intimates that this holding may be limited to precise facts, namely “extended and repeated hospitalization”; in other words, probationer’s “shorter term medical conditions” might present meaningfully distinct set of facts. And, it is explicitly noted that trial courts have the authority to decline a stay. ¶15 n. 5. But in this instance the stay was a proper exercise of discretion, in that Edwards’ “extended and repeated periods of hospitalization” defeated the trial court’s “self-evident” expectation that the conditional jail time indeed would be served in a jail setting. ¶15.)
Probation -- Conditions -- Modification -- "Cause," Generally
State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: “¶14 … While the trial court may only modify the conditions of probation for ‘cause,’ see State v. O'Connor, 77 Wis. 2d 261, 295, 252 N.W.2d 671 (1977), the law places no limitation on what the trial court may consider as cause when making that determination, see State v. Gerard, 57 Wis. 2d 611, 625, 205 N.W.2d 374 (1973) (the ‘cause’ contemplated by the statute includes impossibility, undue hardship and probably other causes).”
Probation -- Conditions -- Overbreadth -- Restriction on Right to Procreate
State v. David W. Oakley, 2001 WI 103, 629 N.W.2d 200, affirming unpublished decision of court of appeals, cert. denied, 10/7/02
For Oakley: Timothy T. Kay
Issue1: Whether a probation condition restricting a fundamental constitutional right -- here, the right to procreate -- is tested under strict scrutiny analysis.
Holding1: The test for a probation condition impinging a constitutional right is the "well-established reasonability standard" which requires that the condition be reasonably related to the probationer's rehabilitation without being overly broad. ¶19 and id. n.26. See also concurrence, ¶36.
Issue2: Whether a condition that the probationer not have more children unless he can demonstrate both ability to support them, and also that he is supporting the children he already has, is overbroad.
Holding2: Though this condition restricts the fundamental liberty interest inherent to procreation, it is not, under the particular facts, invalid:
¶20. Applying the relevant standard here, we find that the condition is not overly broad because it does not eliminate Oakley's ability to exercise his constitutional right to procreate.... Rather, because Oakley can satisfy this condition by not intentionally refusing to support his current nine children and any future children as required by the law, we find that the condition is narrowly tailored to serve the State's compelling interest of having parents support their children. It is also narrowly tailored to serve the State's compelling interest in rehabilitating Oakley through probation rather than prison. The alternative to probation with conditions--incarceration for eight years--would have further victimized his children. ...

¶21. Moreover, the condition is reasonably related to the goal of rehabilitation. A condition is reasonably related to the goal of rehabilitation if it assists the convicted individual in conforming his or her conduct to the law. ... Here, Oakley was convicted of intentionally refusing to support his children. The condition at bar will prevent him from adding victims if he continues to intentionally refuse to support his children. As the State argues, the condition essentially bans Oakley from violating the law again. Future violations of the law would be detrimental to Oakley's rehabilitation, which necessitates preventing him from continuing to disregard its dictates. Accordingly, this condition is reasonably related to his rehabilitation because it will assist Oakley in conforming his conduct to the law.

(Note: The court takes great pains to indicate the fact-specific nature of the case and presumably, therefore the result; see ¶24, stressing "the atypical facts" and "the exceptional factors presented by this case.")

For an interesting update on the spread of judicially imposed limits on procreation, see this account.

Also see State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888 (condition to make "all reasonable efforts to avoid conceiving another child" overbroad in non-constitutional sense of failing to advance statutory ends of probation):

{¶19} Significantly, however, the antiprocreation condition in Oakley included the stipulation that the court would terminate the condition if the defendant could prove to the court that he had supported his children....

{¶20} Unlike the facts in Oakley, the trial court in the instant case did not allow for suspending the procreation ban if Talty fulfilled his child-support obligations. Indeed, the trial court cited Talty’s rehabilitation and the avoidance of future violations as the reasons for imposing the condition. In view of these objects, however, the antiprocreation condition is, by any objective measure, overbroad; it restricts Talty’s right to procreate without providing a mechanism by which the prohibition can be lifted if the relevant conduct should change.

Probation – Conditions: “No Contact with the Drug Community”
State v. Eduardo Jose Trigueros, 2005 WI App 112
For Trigueros: Eileen Miller Carter
Issue/Holding1: A probation / extended-supervision condition of no contact “with the drug community” was both reasonably related to the crime of conviction (possession with intent to deliver) and to the defendant’s rehabilitation, ¶12.
Issue/Holding2: Nor is the condition unconstitutionally vague:
¶14      Here, the trial court’s oral pronouncement defines a “drug community” for Trigueros. The trial court specifically told Trigueros that he may not be around any person when, or be in any place where, “drugs are being possessed, used, or sold.” This condition is clear and gives Trigueros fair notice of what a “drug community” is. See City of Milwaukee v. Burnette, 2001 WI App 258, ¶16, 248 Wis. 2d 820, 839–840, 637 N.W.2d 447, 456–457 (injunction prohibiting loitering in doorways, at bus stops, and by pay phones clear and gave fair notice). Moreover, Trigueros has pointed out no authority that gives him a right, as a convicted drug offender on probation, to associate with drug traffickers during the period of his probation. See Barakat v. Department of Health & Soc. Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995). Indeed, as we have pointed out and as the trial court recognized, staying away from drug traffickers is part of his rehabilitation and is consistent with the trial court’s sentencing rationale of protecting the public.
Probation -- Conditions - Overbreadth - no contact with "gang members."
State v. Tommy Lo, 228 Wis. 2d 531, 599 N.W.2d 659 (Ct. App. 1999).
For Lo: Margarita Van Nuland.
Holding: Probation condition that Lo "have no contact with gang members or be involved in any gang activities" upheld against vagueness/overbreadth challenge.
Authority for idea that person under supervision must know, as matter of due process, just who is subject of the ban on contact: People v. Sheena K., Cal SCt No. S123980, 3/15/07 (court stressing caselaw requirement that ban must be on contact with known gang members); U.S. v. Vega, 9th Cir No. 07-50245, 9/24/08 (ban on "associate" with "any criminal street gang" not impermissibly vague, but must be knowing not inadvertent).
Probation -- Conditions - Overbreadth - Travel Restriction (“Banishment”)
State v. Ronald W. Stewart, 2006 WI App 67
For Stewart: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding1: Sentencing courts have wide discretion to impose reasonable conditions of probation and supervision, reviewed deferentially, ¶11. A condition may impinge on constitutional rights so long as it is not overly broad and is reasonably related to rehabilitation; whether the condition violates the constitution is reviewed non-deferentially, ¶12.
¶13      Geographical limitations, while restricting a defendant’s rights to travel and associate, are not per se unconstitutional. See Predick v. O’Connor, 2003 WI App 46, ¶18, 260 Wis. 2d 323, 660 N.W.2d 1; Nienhardt, 196 Wis. 2d at 168-69 (declining to address the defendant’s specific constitutional claims, but indicating that the geographical limitation in that case did not impermissibly infringe on her constitutional rights). Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn. Predick, 260 Wis. 2d 323, ¶18.
Issue/Holding3: A condition of probation (and extended supervision) that Stewart not enter Richmond township overly restricted his right to travel, where his “inappropriate, criminal and threatening behavior … was directed toward his wife, children and neighbors and not the Richmond township at large.” The court could have fashioned a more narrowly drawn condition banishing Stewart from his residence and the immediate neighborhood surrounding it,” ¶16. (As well, the sentencing court imposed a no-contact condition which provided adequate safeguards without banishment from “the entire Richmond township,” ¶17.)
Other banishment cases distinguished, ¶20. Hard to discern a pattern of any kind, though for whatever it’s worth all of these cases, including the present one arise out of District II, with 3 of the 4 coming from Walworth. “Each case must be analyzed on its own facts,” as the court cautions; hazardous, then, to posit any broad lessons. It could be that the court of appeals simply wanted to lay to rest any creeping notion that a sentencing court’s banishment authority is on a par with the Commissioner of Baseball:
 ¶19     First, we remind the State that whether a geographical limitation is narrowly drawn is determined by looking at the specific facts and circumstances of each case. See Predick, 260 Wis. 2d 323, ¶18. As the trial court itself stated, “I am well aware that the appellate court’s decision in upholding [the trial court’s] barring of O’Connor in the Predick case from Walworth County was not a carte blanche invitation to do it again. The appellate court made it clear that the Predick facts were extraordinary ….”
For a good, old-school attempt to fashion a real banishment condition, see Alhusainy v. Superior Court, Cal App No. G037152, 9/25/06 (in lieu of sentencing, defendant ordered to leave state; held impermissible). But compare: U.S. v. Alexander, 6th Cir No. 07-1432, 12/7/07 (condition of release requiring defendant to live in a particular city, having the effect of te,porarily removing him from his home area, upheld).
Probation -- Conditions - Overbreadth - Restrictions on Movement -- "Banishment" from Victim's County
Predick v. O'Connor, 2003 WI App 46
Issue/Holding: Banishment from victims' county upheld:
¶18 Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn.

¶19 We therefore turn to the facts of this case. Here, we have an individual who has twice used a vehicle as a dangerous weapon in Walworth county and who has repeatedly demonstrated that a standard, more narrowly tailored, order will not deter her from harassing and endangering the lives of three innocent victims and their families, all of whom live in the county. The evidence in the record demonstrates that while she does not live or work in the county, Margaret frequently rents cars to drive around Walworth county. Further, her statements on the record indicate an absolute fixation on Tina and Pamela and an unwillingness to accept any possibility other than that she has been wronged and has a right to follow, threaten, harass and endanger these two women and their families. In fact, the trial court found that if Margaret were even in Walworth county, she would be tempted to prey upon her victims. Hence, Margaret poses a constant and dangerous threat any time she is present in the county.

¶20 Here, we also have three people who, as the record evidences, are victims for no apparent reason and have been driven to desperation by Margaret’s continuous harassment. These innocent victims deserve to be able to live their lives free from the constant fear of being tormented and attacked. The geographic restriction the trial court imposed will provide them with a margin of territorial safety in which they can live in peace.

(This case arises on a harassment injunction, § 813.125, but there's no reason to think it not pertinent to probationary condition analysis. Indeed, the court cites with approval and relies on a probationary-banishment case, Nienhardt, discussed below.)
Probation -- Conditions - Overbreadth - Restrictions on Movement
State v. Carl Simonetto, 2000 WI App 17, 232 Wis.2d 315, 606 N.W.2d 275
For Simonetto: Christopher L. Hartley
Issue: Whether a condition that the probationer "not ... go where children may congregate" was a constitutional restriction.
Holding: The restriction on movement was proper, in view of probationer's conviction for child pornography.
Analysis: Simonetto was placed on probation for child pornography, one of the conditions being that he "not ...  go where children may congregate." This means "any area frequented by persons under age 18, including, but not limited to, schools, day care centers, playgrounds, parks, beaches, pools, shopping malls, theaters, or festivals without prior approval from you[r] agent." ¶3. The court of appeals deems this condition "eminently reasonable and necessary," given Simonetto's "extensive and extremely graphic" collection of child pornography, and his diagnosis as "a pedophile and a nascent child molester." ¶7 "Simonetto is not someone who should be hanging around parks, malls and beaches." This is for his own good, by the way, because it will "remov[e] what to him is obviously a stimulus." Id. Nor does this condition violate his right to travel. A condition may impinge on rights so long as it's not overly broad, and this one isn't. He isn't prevented from ever going somewhere a child may be but, "(r)ather, he may not go at will to those areas where common sense tells us that children are likely to gather," at least without prior approval. Id.
Just so Simonetto doesn't get the wrong idea, "(h)e should consider himself fortunate" he's not in prison. ¶9. But just how clear really is this condition? Recall that he can't go some place that children "frequent." And that to "frequent" some place means to go there often or habitually. Panko v. McCauley, 473 F. Supp. 325, 326-27 (E.D. Wis. 1979) (parole condition not to frequent taverns held unconstitutionally vague when applied to two trips to a tavern). See also Brundridge v. Board of Parole, Or. App. No. A116831, 4/7/04 ("frequent" is unambiguous term, such that condition barring parolee from "frequent(ing) any place where minors are likely to congregate" not violated by "going to such a place one time"; court implies that "frequent" means to visit "often"). But notice that in Simonetto's instance, "frequent" applies to others, not to him. He has to figure out whether and where others will often go; and more problematically, if he finds himself in such a place once, he's violated. As Brundridge suggests, it would be absurd to revoke "for taking a single trip to the food court at the local mall or getting off a bus at a downtown terminal"; yet, that is Simonetto's potential situation. But there is a notice problem: How likely are children to frequent malls or theaters during the day while school's in session? And what does the court mean by "at will"? - an embellishment, incidentally, not contained in the probation order; if he unexpectedly finds himself around children then it's OK? But that just gets back to what it means to "frequent" an area, and the notion that Simonetto's supposed to figure out just where it is that children "frequent." The "at will" embellishment is an implicit concession that this isn't so simple after all. In this regard, see People v. William R., Cal App No. B177152, 10/27/05 (due process requires that probation condition barring respondent from going where drug users congregate include an element of knowledge); U.S. v. Johnson, 2nd Cir No. 04-4992-cr, 5/1/06 (condition must provide "fair warning"; bar on "indirect contact" with minor OK, given that "no violation occurs where is followed by immediate removal"); U.S. v. Vega, 9th Cir No. 07-50245, 9/24/08 (ban on "associate" with "any criminal street gang" upheld, with element of knowing read in).

See also Arciniega v. Freeman, 404 U.S. 4 (1971) (parole condition requiring that parolee not "associate" with ex-convicts construed to not apply "to incidental contacts between ex-convicts in the course of work on a legitimate job for a common employer. ... To so assume would be to render a parolee vulnerable to imprisonment whenever his employer, willing to hire ex-convicts, hires more than one.").

For good boilerplate, see U.S. v. Ashland, Inc., 8th Cir. No. 03-1689, 1/28/04:

Ashland is entitled to due process before being punished for any alleged violations of the terms and conditions of its probation, see United States v. Reed, 573 F.2d 1020, 1023 (8th Cir. 1978), which includes a right to have terms and conditions of probation that are sufficiently clear to inform it of what conduct will result in an infraction of probation, see United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002), cert. denied, 537 U.S. 1004 (2002). Furthermore, it would be fundamentally unfair to hold Ashland accountable on probation for actions beyond its control. See, e.g., Bearden v. Georgia, 461 U.S. 660, 672-73 (1983)....
The cite to Guardliardo is especially pertinent:
Second, Guagliardo challenges a condition that he not reside in "close proximity" to places frequented by children. In Bee, 162 F.3d at 1235, we upheld a condition that the defendant not "loiter within 100 feet" of areas frequented by children. Guagliardo's condition, however, is vague because it leaves "close proximity" undefined. We remand for the court to specify a precise distance limitation for Guagliardo's residency restriction.
It's not clear that the condition in that case actually used the term "frequented," (seemingly not, given the exclusive use of quotes for "close proximity"), but it is clear that the only challenge was to "close proximity" language. And Bee upheld a condition that banned "loiter(ing) within 100 feet of ... places primarily used by children under the age of 18." (Guagliardo separately invalidated, as too vague, a condition barring possession of "pornography.") And see ES-vagueness discussion, below.

But ... the commentary immediately above is largely aimed at the question of notice: how is Simonetto to tell when he's in violation of this seemingly vague condition? One way out of this dilemma is to make the condition really broad; what if a court were to ban the offender altogether from certain public places, such as parks? That's pretty clear -- the offender doesn't have to wonder whether children are going to congregate at the forbidden site. It's not clear that such a broad ban would be constitutionally overbroad, indeed there is distinct authority it isn't, John Doe v. City of Lafayette, 7th Cir. No. 01-3624, en banc 7/30/04 (convicted sex offender may be banned from all public parks under city's jurisdiction, court rejecting 1st and 14th amendment challenges -- this isn't a condition-of-probation case but simply a city-initiated ban; that's a mere detail because if you can ban an offender you can impose the ban as a reasonable condition of probation / supervision); Brown v. City of Michigan City, 7th Cir No. 05-3912, 9/5/06 (like effect). Take note that the result in Doe was over a very spirited dissent and shouldn't be taken as the last word. But see Doe v. Miller, 8th Cir No. 04-1568, 4/29/05 (citing 7th Cir Doe with approval, in course of upholding Iowa statutory ban on persons convicted of certain sex offenses residing within 2000 feet of school or child care facility); State v. Seering, Iowa SCT No. 34 / 03-0776, 7/29/05 (same). On the other hand, this practice just doesn't seem to have worked out real well, as the Iowa County Attorneys Association pointed out in 1/06:

  1. Research shows that there is no correlation between residency restricitons and reducing sex offenses against children or improving the safety of children.
  2. Reserach does not support the belief that children are more likely to be victimized by strangers at the covered locations than at other places.
  3. Residency restrictions were intended to reduce sex crimes against strangers who seek access to children at the covered locations. These crimes are tragic, but very rare. ...

Also see U.S. v. Ristine, 335 F.3d 692 (8th Cir 2003) (barring defendant "from places where minor children under the age of 18 congregate, such as residences, parks," etc., not overbroad because construed to apply only to places "where children under the age of eighteen actually congregate"); and U.S. v. Paul, 274 F.3d 155 (5th Cir. 2001) ("places .. frequented by minors" neither impermissibly vague nor broad; similar cases, including Simonetto collected, fn. 13). It remains to be seen, however, whether Simonetto's "may congregate" language is distinguishable.

Probation -- Conditions - Overbreadth - Restrictions on Movement -- "Banishment" from Victim's City
State v. Frances Nienhardt, 196 Wis. 2d 161, 537 N.W.2d 123 (Ct. App. 1995)
For Nienhardt: Marjorie A. Wendt
Issue/Holding: On conviction for unlwaful use of telephone, where Nienhardt's behavior included persistent pattern of harassment (including evidence of stalking the victim near her home in Cedarburg), probation condition "that requires her to stay out of the city of Cedarburg during the duration of her probation" was reasonable as satisfying Nienhardt's need for rehabilitation and public's need for protection. Nor does the condition unduly restrict her right to travel:
We conclude that while the condition may make it inconvenient in some circumstances for Nienhardt given that she may have to shop elsewhere or slightly alter her travel around Cedarburg, we think the condition is no more than an inconvenience. See Miller, 175 Wis.2d at 212, 499 N.W.2d at 218. The trial court specifically asked Nienhardt if there was any reason why she needed to be in Cedarburg, and the only response was that Nienhardt bought cigarettes there. We agree with the trial court that the desire to purchase cigarettes in Cedarburg is hardly compelling. Further, the record indicates that Nienhardt resides in Brown Deer, approximately six to ten miles from Cedarburg, and there is no evidence that the condition would deny her access to any goods or services.
Probation -- Conditions -- Sex Offender Notification
State ex rel. Carl Kaminski v. Schwarz, 2001 WI 94, 630 N.W.2d 164, reversing State ex rel. Carl Kaminski v. Schwarz, 2000 WI App 159, 238 Wis. 2d 16, 616 N.W.2d 148.
For Kaminski: Donald T. Lang, SPD, Madison Appellate
Issue: Whether a probation rule requiring Kaminski to notify his immediate neighbors of his status as a sex offender was valid.
Holding: Because legislative regulation of disseminating sex offender information, embodied by §§ 301.45 and 301.46, doesn't tie the hands of the probation authorities, this notification requirement was valid, and violation of that probation rule therefore supported revocation:
¶79. In summary, we find nothing in the language, the legislative history, the object, or the context of Wis. Stat. §§ 301.45 and 301.46 to indicate that the legislature intended in enacting 1995 Wis. Act 440 to prohibit probation agents from imposing rules requiring registered sex offenders to inform specified persons of their status. We conclude that Wis. Stat. §§ 301.45 and 301.46 were not intended to occupy the field of sex offender registration information notification, and do not preclude a probation agent from imposing a rule requiring a probationer to inform others of the probationer's status as a sex offender.
(Note: The court explicitly ratifies the larger principle, lying at the heart of case, that "a rule of probation imposed by a probation agent, intended to supplement court-imposed conditions of probation, may not validly contravene the directive of a statute." ¶27.) In addition, this notification rule was reasonable: it furthers rehabilitation by requiring Kaminski to take responsibility; it helps the community protect itself; and is narrowly tailored to probation goals, because it limits the information disseminated "only [to] his status as a sex offender." ¶¶84-85.
Go To (COA) Brief
Note that sex offender registration schemes (passed by Congress along with all 50 states) have been upheld against a variety of challenges, largely on the theory that they are merely regulatory requirements see, generally, Smith v. Doe, 538 U.S. 84 (2003) (registration not punitive, therefore doesn't violate ex post facto clause); Conn. Dept. Public Safety v. Doe, 538 U.S. 1 (2003) (registration doesn't implicate "liberty interest," therefore no due process right to pre-registration hearing); Milks v. State, FL SCt No. SC032103, 2/3/05 (same, even when designation is as "sexual predator"); In re Alva, Cal SCt No. S098928, 6/28/04 (not punitive, therefore doesn't violate cruel and unusual clause). Registration, though, isn't likely to be the end of it -- see, e.g., Doe v. Miller, 405 F.3d 700 (8th Cir 2005), upholding Iowa statutory ban on persons convicted of certain sex offenses residing within 2000 feet of school or child care facility; Weems v. Johnson, 8th Cir No. 05-1152, 7/13/06 (same re: Arkansas statute). But: an otherwise-valid residency restriction of a sex offender nonetheless "constitutes an unconstitutional regulatory taking of his property" for fifth amendment purposes, at least under some circumstances (e.g., where there is no "move-to-the-offender" exception such as the offender purchasing a home and a "restricted" entity subsequently locating nearby): Mann v. Georgia DOC, GA SCt No. S07A1043, 11/21/07. Doe v. Miller, 3d Cir No. 05-4200, 123/08 ("subjecting out-of state sex offenders to community notification without providing equivalent procedural safeguards as given to in-state sex offenders is not rationally related to that goal," and therefore violates equal protection).
Probation -- Conditions -- Sex Offender Registration, § 973.048, Limited to Actual Conviction and Sentence for Enumerated Crime
State v. Peter R. Martel, 2003 WI 70, on certification
For Martel: Steven Zaleski
¶1. This case is before the court on certification from the court of appeals on the question of whether a circuit court may order sex-offender registration as a condition of probation for a defendant who has not been convicted and sentenced for one of the crimes enumerated in the sex-offender registration statute or its counterpart in the sentencing code, Wis. Stat. §§ 301.45 and 973.048(2001-2002), respectively.

¶2. We conclude that Wis. Stat. § 973.048 limits the circuit court's discretion to order sex-offender registration to those persons who are sentenced or placed on probation for an offense enumerated in the statute. Because the defendant in this case was not sentenced or placed on probation for an offense enumerated in Wis. Stat. §§ 973.048 or 301.45, the circuit court's order of sex-offender registration as a condition of probation was error.

As the court notes, ¶9, sex-offender registration as a condition of probation is governed by three statutes: § 301.45 (sex-offender registration statute; § 973.048 (specifies when a court may or must order sex-offender registration); and 973.09 (general probation statute). Martel pleaded guilty to bail jumping; sexual-assault related charges were dismissed and read-in. The parties agree that, because bail jumping is not enumerated in § 301.45, that that statute doesn’t apply. ¶15. The state argues, instead, that the read-ins support registration under § 973.048. The court rejects the argument: that statute only comes into play if a defendant is sentenced or placed on probation for an enumerated offense; a defendant can’t be sentenced or placed on probation for a read-in; therefore, the statute isn’t applicable.¶¶16-22. Other statutes triggered by read-ins (restitution; sentence credit) contain broader language and are thus distinguishable. ¶¶23-27. Finally, the court rejects the idea that § 973.09(1)(a) (trial court may impose any reasonable and appropriate condition of probation) allows registration in this case:
¶30. However, the broad statutory grant of discretion over conditions of probation cannot be interpreted as vesting the circuit court with the authority to invoke and apply statutes that are otherwise plainly inapplicable. The circuit court cannot, under the auspices of the general probation statute, dispense with the statutory standards that govern the applicability of the sex-offender registration statute. This argument, if accepted, would render the specific terms and limitations of Wis. Stat. §§ 973.048 and 301.45 meaningless.
The state also asks the court to overrule State v. Torpen, 2001 WI App 273, 248 Wis. 2d 951, 637 N.W.2d 481 (no authority to order restitution, as condition of probation, from prior, unrelated criminal cases), but the court declines to do so in the context of this particular case; that issue, in other words, remains open. ¶34 n. 3. The remedy for the unauthorized registration condition, the court says without discussion, is its removal. ¶37.

It should be noted that classification as a sex offender may implicate a liberty interest, such that even where authority exists to force someone not convicted of a sex offense to register as a sex offender, potential registrant is entitled to due process protection before such classification. See generally Coleman v. Dretke, 5th Cir No 03-50743, 12/21/04; Gwinn v. Awmiller, 10th Cir. 00-1485, 1/12/04, and cases cited. And see also State v. Robinson, FL SCt No. SC01-2620, 3/18/04 (sex predator registration / employment-restrictions unconstitutional if applied to defendant whose crime did not contain sexual element). But see People v. Golba, MI App No. 262261, 1/16/07 (sex offender registration not punishment, therefore judicial factfinding regarding its applicability doesn't violate rights to jury or due process).

Probation -- Extension

Probation -- Extension -- – Collateral Attack on Prior Extension – Judicial Bias, Newly Discovered Evidence
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether a defendant may challenge a prior probation extension (as a means of vacating a subsequent sentence after revocation) on the ground of judicial bias (in that the judge had predetermined the issue of extending probation).
Holding: Because the challenge is in the nature of a collateral attack, it is limited under State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, to denial of counsel, ¶¶6-15. However, another exception exists to the collateral attack rule: newly discovered evidence, State ex rel. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745, 678 N.W.2d 361; the matter is therefore remanded for a hearing to determine if Gudgeon meets that test, ¶¶17, 29-31.
Gudgeon was on probation and when he came up for extension due to a restitution balance, his agent’s written notification to the judge asked not to extend but instead to convert his obligation to a civil judgment. The judge bluntly responded in writing to the agent: “No—I want his probation extended.” Funny thing: a hearing ensued and probation was extended. One thing led to another, Gudgeon eventually was revoked and began serving his sentence. Eagle-eyed counsel spotted the judge’s note and attacked the sentence under § 974.06, as based on judicial bias. (The judge had predetermined the extension issue; the extension was therefore tainted; and without that tainted extension the sentence couldn’t be valid.) The court of appeals says that this is a collateral attack, and of course it is—it is a challenge outside the direct appeal period. But it is not at all clear why this is tantamount to a Hahn-type challenge. Nor does the court bother to explain why it is. Hahn, of course, limits the basis for challenging a sentence enhancement based on a challenge to the enhancement arising in an entirely separate case. Here is the concisely stated policy for such a limitation, enunciated by Custis v. United States, 511 U.S. 485 (1994):
… But determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state court transcripts or records that may date from another era, and may come from any one of the 50 States.
Gudgeon’s challenge arises within his own case: does the policy concern about rummaging through difficult-to-obtain records in other jurisdictions apply? You wouldn’t think so. That quirk aside, the really interesting thing, unmentioned by the court, is that “there is no right to counsel in probation extension proceedings,” State v. Hardwick, 144 Wis.2d 54, 56, 422 N.W.2d 922 (Ct. App. 1988) (2/3 of Hardwick’s panel also comprise Gudgeon’s). Which means that you simply can’t challenge a probation extension under a Hahn theory anyway.

That said, the court offers the view that judicial bias ought to be no less an exception than denial of counsel to the collateral-attack bar; but because the supreme court has spoken in this area the court of appeals lacks authority to articulate such an exception, ¶¶8-15. If that were all there was, then Gudgeon presumably would lose at that point. The court does, however, authorize a collateral challenge to extension on the basis of newly discovered evidence, in this instance, evidence of judicial bias. (There is no reason to think that a newly discovered evidence challenge to extension is limited to judicial bias; certainly, the court raises no such suggestion.)

Extension -- Remedy for Hearing Tainted by Judicial Bias
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The remedy for a probation hearing tainted by judicial bias is a new hearing to determine retrospectively whether cause for extension existed, ¶¶27-29.
Probation -- Extension -- Unpaid Restitution -- Untimely Notice to Trial Court
State v. Gregory N. Olson, 222 Wis. 2d 283, 588 N.W. 2d 256 (Ct. App. 1998)
For Olson: William A. Schembera
Issue/Holding: The department's failure, contrary to express mandate of § 973.09(3)(b), to provide notice within 90 days of probation expiration of unpaid restitution does not deprive the trial court of authority to extend probation.
Probation -- Extension -- Unpaid Restitution -- Erroneous Exrecise of Discretion
State v. Gregory N. Olson, 222 Wis. 2d 283, 588 N.W. 2d 256 (Ct. App. 1998)
For Olson: William A. Schembera
Issue/Holding: Where the record showed "no other legitimate purpose for continuing probation besides colleciton of a debt"; the probationer had fully "complied with his probation terms and faithfully made his restitution payments" on a good-faith basis; and he had already served 10 years' probation and at the current rate would have to serve another 12, the trial court erroneously exercised discretion in extending probation:
Pursuant to § 973.09(3)(a), Stats., a sentencing court may extend probation; (1) before expiration of probation; (2) by "order"; and (3) "for cause." Section 973.09(3)(b), however, provides that a probationer must not be discharged from supervision until all restitution is paid or the court determines that there is "substantial reason not to continue to require payment." ... See State v. Jackson, 128 Wis.2d 356, 364-65 n.5, 382 N.W.2d 429, 433 n.5 (1986). In other words, no cause exists to extend probation under subsection (a) if the probationer shows substantial reason not to extend probation. See id. Therefore, the issue here is whether Olson has met his burden to show substantial reason why the sentencing court should not extend his probation. We conclude that Olson has met his burden.


Because the sole basis for extending probation was collection of a debt, and the record contains substantial reasons not to extend, the circuit court misused its discretion. See id. at 499, 381 N.W.2d at 339.

Probation -- Revocation

Probation -- Revocation -- Certiorari Review -- Right to Counsel
State ex rel. Peter D. Griffin v. Smith / State ex rel. Micah E. Glenn v. Litscher, 2004 WI 36, on certification
For Griffin and Glenn: Nathaniel Cade, Jr., State Bar Pro Bono Project 
Issue: Whether a parolee (or probationer) has a right to effective assistance of counsel from a revocation decision where counsel has promised to file certiorari review.
Holding: A revocation litigant has no constitutional right to counsel on certiorari review. ¶22. Nor is there such a right under the administrative code (§§ HA 2.05(3), 2.05(8)), ¶¶24-27, or statutes (§ 977.05(6)(h)), ¶¶28-30:
¶31. In sum, although the petitioners' argument to extend the right to counsel may appeal to common sense, we can find no administrative or statutory authority granting a right to assistance of counsel in their petition for a writ of certiorari. It may be good policy, but we cannot substitute judicial policy views for the policy views of the legislature or rule making authority. As a result, we conclude that there is no per se right to counsel to timely file for certiorari review.

The opinion reaffirms “that this court has generally held that where a right to counsel exists, counsel must be effective. See State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 253, 548 N.W.2d 45 (1996).” ¶21. But the crux is that although the statutes in that case created a duty on counsel to pursue a petition for review, in this instance the statutes restrict representation (the parolee/probationer must contest the revocation; and, DOC must be seeking imprisonment) rather than spell out an affirmative duty.

Probation -- Revocation -- Certiorari Review -- Right to Counsel
State ex rel. Peter D. Griffin v. Smith / State ex rel. Micah E. Glenn v. Litscher, 2004 WI 36, on certification
For Griffin and Glenn: Nathaniel Cade, Jr., State Bar Pro Bono Project 
Issue: Whether, notwithstanding that a revocation litigant has no constitutional or statutory right to counsel on certiorari review, a petition’s untimeliness is subject to equitable tolling where counsel promised but failed to file a timely petition.
¶38. … Nevertheless, we are unable to discern any reason why prisoners who retain counsel should be placed at a disadvantage simply because they relied on counsel's promise. Accordingly, we conclude that petitioners are entitled to equitable relief when they timely ask counsel to file for certiorari, counsel promises to do so, and as a result of counsel's failure to timely file they were denied certiorari review. Provided that the petitioners timely pursue relief, the 45-day time limit for the filing of a writ of certiorari is equitably tolled as of the date that counsel promises to file for certiorari review.

¶39. The final question we consider is whether the tolling rule we adopt today should receive prospective or retroactive application. In its brief, the State argues that to the extent this court grants relief, such a holding should not apply retroactively. Rather, it urges that our holding should be limited to cases for which certiorari review is still available, but also encompassing Glenn and Griffin. We agree.

Points to keep in mind:
  • The Chief Justice, concurring, would reach an admittedly nondispositive issue and rule that a revocation litigant has the right to assistance of counsel on administrative appeal to DHA. ¶¶46-63. The issue is recurrent. Although the court of appeals has held that there is no such right, State ex rel. Mentek v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 748, that mandate was subsequently overturned albeit on other grounds, State ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150. The State now believes that such a right exists. ¶¶57-58. In all likelihood, the no-IAC holding of the lower court Mentek remains viable, despite the subsequent reversal. See State v. Gary M.B., 2003 WI App 72, ¶13, 261 Wis. 2d 811, 661 N.W.2d 435, affirmed (naturally!) on other grounds, 2004 WI 3 (to effect that reversal of COA mandate on other grounds doesn’t vitiate holding of lower court).
  • These challenges were filed as habeas petitions. ¶5. Given that the court allowed each case to be litigated to conclusion, you can only assume that habeas is the proper way to collaterally attack a revocation, certainly in the instance of equitable tolling. However, the court of appeals has held that a motion to the ALJ is the (a?) proper way to re-open a revocation on account of newly discovered evidence. State ex rel. Raymond Booker v. Schwarz, 2004 WI App 50.
  • Promises, promises. Nothing in this opinion says that you have to file a certiorari opinion, only that if you do, then you have to follow through. But stringing a client along and then bailing out on the 44th day probably isn’t a good idea either.
(For "a model client letter ... intended to minimize the type of misunderstanding" in this case, see Spring 2004 Wisconsin Defender Practice Pointer.)
Probation -- Revocation -- Certiorari review -- court of conviction.
Daniel Drow v. Schwarz, 225 Wis.2d 362, 592 N.W.2d 623, reconsideration denied, 226 Wis.2d 826, 599 N.W.2d 410 (1999), reversing Drow v. Schwarz 220 Wis.2d 415, 583 N.W.2d 655 (Ct. App. 1998)
For Drow: Amy K. McDavid & Frank J. Remington, UW Law School.
¶3 The only issue presented for our review is whether a certiorari proceeding to review a probation revocation must be heard by the same branch of the circuit court in the county in which the probationer was convicted of the offense for which he was on probation. We hold that a certiorari proceeding to review a probation revocation need not be heard by the same branch of the circuit court in the county in which the probationer was convicted of the offense for which he was on probation; a certiorari proceeding to review a probation revocation may be heard in any branch of the circuit court in the county in which the probationer was last convicted of an offense for which he or she was on probation. See Wis. Stat. § 801.50(5) (1997-98).
Note: Drow argued that a local rule required assignment of the certiorari petition to the branch of conviction. The court disagrees but, more importantly, holds that "violation of a local administrative rule of the Circuit Court for Marathon County regarding assignment of cases to the branches would not ordinarily render the proceedings null and void." Nonetheless, "holding does not restrict circuit courts from developing and implementing local rules relating to the assignment of certiorari petitions for review of probation revocations as long as the rules are consistent with law and this court's rules of judicial administration. See SCR 70.34."
Probation -- Revocation -- Certiorari Review -- Exhaustion requirement
State ex rel. James A. Mentek, Jr. v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150, reversing 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746
For Mentek: Stephen M. Compton
¶2 The issue on review is whether Mentek was required to exhaust his administrative remedies under § 801.02(7) or any other rule of law in order to petition the circuit court for writ of certiorari. We conclude that Wis. Stat. § 801.02(7) (1995-96) does not apply to a petition for a writ of certiorari seeking judicial review of a probation revocation by the Department of Administration. We further hold that this case falls within recognized exceptions to the doctrine of exhaustion of administrative remedies. Accordingly, we reverse and remand Mentek's petition to the circuit court for consideration.
This case raises two distinct issues: 1) right to (effective) assistance of counsel on appeal of a revocation; 2) administrative exhaustion of remedies requirement on appeal of a revocation.
As to counsel: Mentek's revocation attorney failed to file an administrative appeal. Mentek's pro se certiorari challenge to revocation was then thrown out, on the procedural ground of failure to exhaust. The court of appeals upheld the dismissal, holding for good measure that Mentek was not entitled to representation after his revocation hearing, and he therefore couldn’t argue ineffective assistance in counsel's failure to exhaust administrative remedies. Because the supreme court says that the exhaustion requirement should be overlooked in this case, the court explicitly sees no need to "address the issue of right to assistance of counsel." ¶1 n. 2. This result should have the effect of reducing the lower court assistance-of-counsel holding to dicta, because the court of appeals never should have reached that holding in the first place. (It might, though, be argued that the supreme court's reversal of the court of appeals on other grounds has the effect of retaining its vitality, State v. Gary M.B., 2003 WI App 72, ¶13 and id. n.2, affirmed on other grounds, 2004 WI 33.) And see also State ex rel. Peter D. Griffin v. Smith / State ex rel. Micah E. Glenn v. Litscher, 2004 WI 36, ¶¶46-63) (conc. op. would find such a right, though its resolution wasn't necessary to the case at hand), and see also discussion in certification in that case.
As to exhaustion: It isn't clear that any hard-and-fast exhaustion rules may be derived. The statute in Mentek, Wis. Stat. § 801.02(7)(b) (1995-96), regulated actions against DOC; but, as the supreme court held, the cert challenge to revocation is against DHA, and the exhaustion requirement, limited by statute to DOC challenges, therefore does not apply:
¶6 The State now concedes that Wis. Stat. § 801.02(7)(b) does not apply to Mentek's petition for a writ of certiorari. We agree with the State. Section 801.02(7) governs a court action commenced after an administrative decision by the Department of Corrections. Probation revocation hearings are held before the Division of Hearings and Appeals in the Department of Administration. Administrative appeals may be made to the administrator of that division. Judicial review of an administrative revocation of probation is by writ of certiorari and the division administrator of the Division of Hearings and Appeals in the Department of Administration is the respondent. The certiorari action in the present case is not a civil action against an officer, employee, or agent of the Department of Corrections and therefore Wis. Stat. § 801.02(7) does not apply.
The exhaustion statute has since been modified (by the PLRA, which does apply to revocations, State ex rel Cramer v. Wis. COA, 2000 WI 86), but not in any way meaningful to the present issue. The statute, that is, continues to mention only DOC, and not DHA. Mentek may therefore continue to be cited as plausible support for the idea that administrative exhaustion isn't required for judicial review of revocations. Still, there is abundant reason for proceeding cautiously in this area. Mentek extols the policies underlying exhaustion, even in the absence of statutory requirement, and declines to impose such a bar to review against Mentek for fact-specific, equitable reasons. ¶8, et seq. (See, esp. ¶¶8-9, to effect that exhaustion of administrative remedies is generally "well established," albeit not rigidly applied. ¶¶8-9; but note as well the equities favoring Mentek included the fact that DHA never informed him that exhaustion would be necessary for judicial review, ¶14 -- and such an omission might well favor the same result in any given case.) Thus, the cautious practitioner will want to pursue administrative appeals of revocation under Admin. Code HA § 2.05(8). See, e.g., Thomas v. McCaughtry, 201 F.3d 995, 1001 (7th Cir. 2000) ("As a general practice, Wisconsin's courts have long required prisoners and non-prisoners alike to exhaust available administrative remedies before obtaining judicial review of their claims."); and State ex rel. Hensley v. Endicott, 2001 WI 105, 245 Wis. 2d 607, 629 NW2d 686 (PLRA admits of no futility exception to exhaustion requirement).
Probation -- Revocation -- Certiorari Review -- Prison Litigation Reform Act Applies
State ex rel Jason J. Cramer v. Wis. Court of Appeals, 2000 WI 86, 236 Wis. 2d 473, 613 N.W.2d 591, on original action.
For Cramer: Brian Findley, SPD, Madison Appellate
Issue/Holding: The Prison Litigation Reform Act applies to challenges to probation/parole revocation raised via certiorari.
Probation -- Revocation -- Collateral Attack: Newly Discovered Evidence
State ex rel. Raymond Booker v. Schwarz, 2004 WI App 50
For Booker: John Pray, Legal Assistance Program, UW Law School
¶11 The issue of whether a probationer has a right to re-open a revocation hearing based on newly discovered evidence is one of first impression. It is undisputed that there are no administrative code provisions providing for such a right. Booker, however, argues by analogy to criminal proceedings, based on State v. Bembenek, 140 Wis. 2d 248, 409 N.W.2d 432 (Ct. App. 1987), that due process requires that such a process be permitted.


¶13 … Due process is the quintessential foundation upon which fairness and justice rest, not only at the time of trial, but at all stages of proceedings. Bembenek, together with WIS. STAT. § 974.06, provide that avenue in the criminal area, as long as certain requirements are satisfied. We have not been presented with any legitimate reason as to why a similar procedure to ensure due process of law should not also apply to an individual in Booker’s situation, considering the personal liberty interest at stake….

¶14 Therefore, we hold that the determination of whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases. In so holding, we set forth the following standards and requirements to govern these types of cases.

¶15 If a movant wishes to have an evidentiary hearing on a newly discovered evidence claim, he or she may not rely on conclusory allegations. If the claim is conclusory in nature, or if the record conclusively shows that the movant is not entitled to relief, the Division may deny the motion without an evidentiary hearing. See State v. Bentley, 201 Wis. 2d 303, 309-11, 313-18, 548 N.W.2d 50 (1996). To obtain an evidentiary hearing on the newly discovered evidence claim, the movant must allege with specificity the Bembenek factors in the post-revocation motion. See Bentley, 201 Wis. 2d at 313-18. Whether the motion sufficiently alleges facts which, if true, would entitle the movant to relief is a question of law to be reviewed independently by this court. See id. at 310. If the Division refuses to hold a hearing based on its findings that the record as a whole conclusively demonstrates that the movant is not entitled to relief, this court’s review is limited to whether the Division erroneously exercised its discretion in making this determination. Id. at 318.

Booker satisfied this test: whether he was negligent in seeking new information “is the type of information that will be fleshed out and resolved during the evidentiary hearing,” ¶17. Negligence addresses the amount of time it took the movant to discover the evidence; but laches addresses something else, ¶20 n. 2:
This time period is relevant to the issue of laches—an equitable doctrine that may bar an action if three requirements are met: (1) Booker unreasonably delayed in filing the motion; (2) Schwarz lacked knowledge that Booker would assert the right; and (3) Schwarz is prejudiced by the delay. Sawyer v. Midelfort, 227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999). The party asserting that laches applies must prove all three elements. If any of the elements is not proven, the doctrine of laches will not bar the action.
Booker’s motion offered a reasonable explanation for delay—largely having to do with difficulty in securing representation—which will also have to be considered at the hearing. Materiality of new information—which goes to whether or not Booker indeed injured the alleged battery victim and whether or not Booker was acting in self-defense when he was confronted by alleged victim—must also be resolved at evidentiary hearing. [Court reaffirms right to raise self-defense as against revocation, citing State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 586, 326 N.W.2d 768 (1982).] And, the post-revocation motion was sufficiently detailed, see ¶20.

An interesting procedural note: prior caselaw intimated that collateral attack on a revocation was by habeas. E.g., State ex rel. Vanderbeke v. Endicott, 210 Wis.2d 502, 563 N.W.2d 883 (1997) (relief granted on litigation begun as habeas petition, ¶13). Habeas makes sense only if there isn’t an adequate remedy at law to raise the collateral attack. Give Booker’s counsel credit in this instance for coming up with an alternative route: the simple expedient of an administrative-level motion to reopen. The net effect is probably to disqualify habeas as a collateral-attack method, because now a motion to reopen is an adequate alternative remedy. And at least one singular advantage is that you don’t have to bother with the PLRA, at least at the administrative-motion stage, while you would with a habeas.)

Probation -- Revocation -- Delegation of revocation authority to executive branch.
State v. Robert V. Horn, 226 Wis.2d 637, 594 N.W.2d 772 (1999), on certification.
For Horn: Martha A. Askins, SPD, Madison Appellate.
The issue presented by this case is whether it is within the exclusive power of the judiciary to determine whether a defendant has violated the court-imposed conditions of probation and whether probation should be revoked and the defendant sent to prison. We conclude that disposition of a criminal case, including imposing and revoking probation, is within powers shared among the branches of government. Because the legislative delegation of probation revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties, we determine that § 973.10(2) is constitutional. Accordingly, we reverse the order of the circuit court.
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Probation -- Revocation -- Court's Authority to Revoke.
State v. Donald W. Burchfield, 230 Wis.2d 348, 602 N.W.2d 154 (Ct. App. 1999).
For Burchfield: Martha K. Askins, SPD, Madison Appellate.
Issue: Whether the judiciary possesses authority to revoke probation.
Holding: Authority doesn't exist, following State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999).
Probation -- Revocation -- Right to Cross-Examine / Present Evidence
Philip T. Sliwinski v. Board, 2006 WI App 27
Issue/Holding: Hearing examiner’s refusal to require witness to answer questions with respect to identity of witnesses who would have been able to affirm or negate Department’s theory of event violated Sliwinski’s right to a fair hearing, “and that means access to witnesses and evidence that could support his defense.”
This is on appeal of cert review of an FPC discharge of a police detective. Make of it what you will, but cert review is cert review, and administrative hearings are administrative hearings – whether probation revocation or employment discharge. This is, to be sure, a very fact-specific case and it is quite clear that the court is highly suspicious of just what occurred. That said, the language is quite strong and there’s no reason you couldn’t apply the larger principles to revocations. Particularly startling: the court’s recognition of what it terms the “due process right to confrontation,” ¶13; startling, because while there is no doubt of such a right with respect to cross-examination, confrontation is something else. And, perhaps even more so, the court’s seeming importation of rules of evidence with respect to privilege, ¶¶13-15. But a 6th amendment right to confrontation in a revocation hearing would be quite a stretch, see e.g., U.S. v. Kelley, 7th Cir No. 05-1884, 5/2/06.
Probation -- Revocation -- Cross-examination -- Harmless Error
State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02
Issue: Whether the administrative law judge erred in failing to make a specific finding of good cause for not allowing the revocation subject to cross-examine the complainant.
¶15. With regard to the first question, neither the U.S. nor the Wisconsin Supreme Court have provided any direct guidance regarding the consequences of an ALJ's failure to make a specific finding of good cause. The State relies on Egerstaffer v. Israel, 726 F.2d 1231 (7th Cir. 1984), for the proposition that the need to make a finding of good cause 'vanishes' 'if the proffered evidence itself bears substantial guarantees of trustworthiness.' Id. at 1234. We cannot agree, however, that the requirement of finding good cause ever simply 'vanishes.' Morrissey, Gagnon, and Black hold unequivocally that hearing examiners must specifically find that good cause exists for not allowing confrontation of adverse witnesses. The Court made no exception for making this finding when evidence is reliable. Therefore, regardless whether the reliability of evidence can be a basis for a finding of good cause (which we will discuss further below), an ALJ may not avoid making such a finding whenever he or she determines that the evidence is reliable. We therefore agree with Simpson that the ALJ erred by failing to comply with Morrissey.
The error, however, is harmless: "we conclude that the failure to make a specific finding of good cause is harmless where good cause exists, its basis is found in the record, and its finding is implicit in the ALJ's ruling." ¶16. "(T)he test is always met when the evidence offered in lieu of an adverse witness's live testimony would be admissible under the Wisconsin Rules of Evidence." ¶22. The child-sexual-assault-victim's hearsay statement in this case satisfies the test for admissibility under the residual exception, State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988), and the failure to find good cause was therefore harmless. ¶¶23-30.
Probation -- Revocation -- Ineffective Assistance of  Counsel
State ex rel. James A. Mentek, Jr. v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746, reversed on other grounds, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150
For Mentek: Stephen M. Compton
Issue: Whether appointed counsel's post-revocation alleged deficiency (failure to exhaust administrative appeals) can be challenged as ineffective assistance of counsel.
Holding: "Wisconsin and federal constitutional law do not recognize a right to appointed counsel, nor by extension a right to effective assistance of counsel, on an administrative appeal of a probation revocation decision." 2000 WI App 96 ¶11.
(The supreme court's grant of relief, expressly declining to reach the assistance of counsel issue, 2001 WI 32, ¶1 n.2, has the effect of leaving the lower court holding on this point untouched, see, State v. Gary M.B., 2003 WI App 72, ¶13 and id. n.2, pet. for rev. granted 5/5/03. Regardless, the supreme court has accepted review of the issue and will resolve it definitively: State ex rel. Micah E. Glenn v. J. Litscher, 02-1320, on certification; State ex rel. Peter D. Griffin v. J. Smith, 01-2345, on certification, rev granted 3/21/03.)
Probation -- Revocation -- Non-compliance with Condition Inconsistent with Statute
State ex rel. Carl Kaminski v. Schwarz, 2000 WI App 159, 238 Wis. 2d 16, 616 N.W.2d 148, reversed on other grounds, State ex rel. Carl Kaminski v. Schwarz, 2001 WI 94, 630 N.W.2d 164.
For Kaminski: Donald T. Lang, SPD, Madison Appellate
Issue: Whether probation revocation may be based on violation of a condition that the department had no authority to impose.
Holding: Because the condition that Kaminski violated was impermissible, he should not have been revoked. ¶11. (Note: On review, the supreme court held that the condition was in fact statutorily permissible.)
Go To (COA) Brief
Probation -- Revocation - Refusal to admit guilt during treatment, following Alford plea.
State ex rel. Phillip I. Warren v. Schwarz, 219 Wis.2d 615, 579 N.W.2d 698 (1998), affirming State ex rel. Warren v. Schwarz, 211 Wis. 2d 708, 566 N.W.2d 173 (Ct. App. 1997). State v. Phillip I. Warren, 219 Wis.2d 615, 579 N.W.2d 698 (1998), on certification.
See also Warren v. Richland Co. Circ. Ct., 223 F.3d 454 (7th Cir. 2000), denying habeas relief
For Warren: Ralph A. Kalal (state court); David D. Cook (federal court)
Issue/Holding: Probation revocation may be based on refusal to admit guilt following Alford plea: An Alford plea is a guilty plea and places the defendant in the same position as a defendant found guilty by verdict. Protestations of innocence "extend only to the (Alford) plea itself."
(Note: There is, however, authority for the idea that the defendant must be given "fair notice," at the time of the Alford plea, that failure to admit the charged offense will result in revocation, because such a failure would be inconsistent with the plea, which is premised on denial of guilt. State v. Faraday, 69 Conn. 421, 434-37, 794 A.2d 1098 (2002), distinguishing Warren on the basis that this issue wasn't raised in that case. But see Wirsching v. State of Colorado, 10th Cir. No. 00-1437, 2/19/04 ("In our view, the Alford plea does not affect the Fifth Amendemnt compulsion analysis.")
(See also discussion below on connection between sex offender treatment and fifth amendment.)
Probation -- Revocation -- Sufficiency of Evidence
Larry L. George v. Schwarz, 2001 WI App 72, 242 Wis. 2d 450, 626 N.W.2d 57
For George: Leonard D. Kachinsky
Issue: Whether the evidence was sufficient to support imposition of maximum reincarceration time.
¶29 We have independently reviewed the entire record in this case and paid particular attention to the Return to the Writ of Certiorari. We agree with the ALJ that George is guilty of parole rules violations that would constitute crimes against persons. We conclude that the evidence available to the ALJ at the hearing and to the administrator of the DHA on the appeal overwhelmingly supports the conclusion that any period of reincarceration short of the maximum would unduly depreciate the seriousness of George’s original criminal conduct and multiple rules violations.
Probation -- Revocation -- Sufficiency of Evidence -- Confession Corroboration Rule
State ex rel. Stanley Washington, 2000 WI App 235, 239 Wis.2d 443, 620 N.W.2d 414
For Washington: James L. Fullin, Jr., SPD, Madison Appellate
Issue: Whether an uncorroborated extrajudicial admission of a criminal act committed while on probation suffices, in and of itself, to support revocation.
¶3 We hold that the confession corroboration rule does not apply in a probation revocation proceeding. And because the circumstances surrounding Washington's extrajudicial admission otherwise demonstrate that the admission was trustworthy and reliable, we hold that substantial evidence supported the revocation order. For the same reason, we reject Washington's claim that the evidence of his mental health history renders the evidence insufficient.
Analysis: Washington was 5 1/2 years into his probation when he announced to a sexual offender treatment group that he was having marital problems because of his "womanizing" at church, and that he had "raped" a fellow church member at some unspecified time during his probation. The claims were reported to the p.o.; Washington later refused to say anything, believing that what he had told the treatment group was confidential. (Group participants, though, had been warned that admissions of probation violations would be reported.) Within a month of making "the crucial admission" to the group, Washington was actively psychotic and receiving meds, but it couldn't be said with certainty that he was psychotic when he made the statement. No victim was ever identified; in particular, no church member ever claimed, even after an investigation was undertaken, that Washington had committed an assault. ¶¶5-11, 14. Washington argues for application of the criminal case corroboration rule (confession must be corroborated by at least some "significant fact"); the court declines to extend the rule to revocations -- it's a civil proceeding; the public's safety interest is paramount, etc. Nonetheless, the court cautions that an extrajudicial admission isn't necessarily enough, per se, for revocation: "the admission must carry sufficient indicia of reliability or credence such that the fact finder can confidently rely upon it to support the conclusion that revocation is appropriate and necessary." ¶24. The succeeding discussion is fact-specific, but it's worth mentioning that Washington's belief that statements made during group therapy were confidential "lend[] credence to the admission." ¶27. Add this to your counseling checklist for newly minted probationers. This case should insure full and frank discussion during therapy.
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Probation -- Revocation -- Waiver of Issue -- Failure to Seek Judicial Modification of Unconstitutional Condition
State ex rel. Gary Tate v. Schwarz, 2002 WI 127, reversing 2001 WI App 131
For Tate: Jerome F. Buting, Pamela S. Moorshead, Buting & Williams
Issue/Holding: A probationer revoked for violating a condition later deemed unconstitutional isn't required to separately attack that condition through attempts at modification, but may raise the attack through certiorari challenge to the revocation. ¶¶23-26.

Probation -- Rejecting

Probation -- Rejecting Probation -- Procedure and Review
State v. Harold C. Pote, III, 2003 WI App 30
For Pote: John A. Pray, Remington Law Center
Issue1: Whether Pote as a matter of historical fact rejected probation at a status hearing several months after probation was imposed.
Holding1: The trial court determination that a defendant has rejected probation is a determination of fact, reviewed deferentially. ¶25.
¶27 Pote plainly communicated to his probation officer and the court that he did not intend to comply with the condition of his probation that he pay past and current child support absent proof that he had fathered the child, notwithstanding the paternity judgment so finding and the fact that he had apparently been current in support payments as of May 1, 1999. His counsel, whom the court found credible, testified at the postconviction hearing that “Mr. Pote’s position was that he was never going to pay child support, and he didn’t care what the consequences were.” In short, the record taken as a whole, satisfies us that the trial court’s determination that Pote’s response indicated his intent to reject probation was not clearly erroneous. Our conclusion is fortified by the deference we must accord the trial court’s opportunity to observe and evaluate Pote’s demeanor, tone and body language at the probation review hearing.
(The court clearly and unequivocally rejects the idea that a defendant's rejection of probation must be clear and unequivocal. ¶28.)
Issue2: Whether the trial court must employ any procedural safeguards to insure that a defendant's rejection of already-imposed probation is free and voluntary.
Holding2: Rejection of probation is not tantamount to revocation: "Quite simply, the conditional liberty Pote might have enjoyed on probation was not taken from him by either the State or the court‹he opted not to accept the probation offered to him." ¶30. And, "a defendant cannot claim constitutional error stemming solely from a court's failure to place him or her on probation." ¶31. Nor is "a rigid set of procedures" appropriate as a matter of common law: "It is sufficient that the record show that the defendant knew the possible consequences of refusing probation, a showing typically supplied (as in this case) by the plea colloquy." ¶32. Pote was advised at the plea colloquy of the maximum sentence and of the potential for incarceration upon revocation; "no additional colloquy was required at the time Pote rejected probation." Id.
This entire analysis seems flatly wrong: it's one thing to reject probation at the time of sentencing, it is -- or should be -- quite another to reject it after you've already put in a significant amount of time under probationary constraint. Labeling it rejection rather than revocation simply doesn't matter, for the obvious reason that the process you're due doesn't hinge on the label. The fact is, Pote’s “rejection” of probation – months after its imposition – is indistinguishable in effect from revocation. The court’s analysis thus seems wrong, but is it? Well, if the court wants to modify probation to include jail as a condition, then it has to comply with certain rudiments of due process including, "fair notice of when and where the hearing will be conducted and fair warning of the recommended modifications to the conditions of probation and the reasons supporting the recommendations." State v. Hays, 173 Wis.2d 439, 447 n. 2, 496 N.W.2d 645 (Ct. App. 1992). It's hardly a stretch to say that Pote was therefore entitled as a matter of due process to notice and warning before the court took away probation altogether in favor of pure incarceration. And then there's the matter of double jeopardy, whose protections attach when the defendant has a reasonable expectation of finality in the sentence. State v. Guy R. Willett, 2000 WI App 212, ¶3, 238 Wis.2d 621, 618 N.W.2d 881. Absent some sort of misconduct, Pote surely had such an expectation several months into his probation. Perhaps the rebuttal would be, how could he have had an expectation of finality when he was rejecting probation? But that simply gets back to the problem that nothing in this record shows that he knew the consequences that would flow from his complaints. This is not to say that the result is necessarily wrong, only that its analysis is very seriously askew. It might be that Pote's refusal to comply with the basic condition of probation (paying support) meant that probation was a "nullity" and resentencing could therefore occur, State v. Sepulveda, 120 Wis.2d 231, 353 N.W.2d 790 (1984), but that is certainly not what this court held. And the question remains whether the defendant was entitled to some sort of notice of the consequences of his refusal to cooperate. All in all, a very sloppy opinion which raises more questions than it resolves.
Probation -- Rejecting Probation -- Timing
State v. James McCready, 2000 WI App 68, 234 Wis. 2d 110, 608 N.W.2d 762
For McCready: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether any time limits apply to a defendant's right to reject probation.
Holding: "(A) probationer has the right to refuse probation not only when it is first imposed but at any time while serving it." ¶1.
Analysis: The defendant's right to refuse probation is long settled. Garski v. State, 75 Wis. 2d 62, 77, 248 N.W.2d 425 (1977). The finer question is whether this option comes with a limited shelf-life. The court now squarely says no, it can be exercised at any time during the term of probation. 6 ("We conclude that the right to reject probation lasts throughout the probationary period."). Equally interesting, the court seems to accept the idea that the defendant has the controlling say; that once the refusal option is made, it must be honored. ("Rather than prohibit the circuit court's termination of probation, case law establishes that it would have been error for the circuit court to refuse McCready's request." ¶6.) Moreover, "termination of probation" is not, the court holds, the same as revocation,  ¶¶4-5. No, but it comes to the same thing, loss of (conditional) liberty -- a "grievous" loss, that is, that ought to be accompanied by at least minimal due process protections. Must the "termination" of the liberty interest be accompanied by any sort of knowing waiver? The court doesn't say. And what about the idea that the trial court's authority is limited to the powers expressly mentioned in § 973.09(3)(a) (namely, that before probation expires, the court may "extend probation for a stated period or modify the terms and conditions thereof")? No discussion of that possibility, either.
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Extended Supervision -- Conditions

Extended Supervision - Conditions – Generally (Akin to Probation)
State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue/Holding: Extended supervision being akin to probation, “unless a statute requires otherwise a sentencing court may impose reasonable and appropriate conditions of extended supervision just as the court may impose reasonable and appropriate conditions of probation,” ¶11.
You know what’s coming next: conditions are bounded only by “the reasoned discretion of the sentencing court” so long as the “dual objectives” of rehabilitation and public protection are advanced; and in particular, conditions may go beyond permissible limits for “restitution.”
Extended Supervision - Conditions – Reimbursement to Bail Obligor for Forfeited Bail
State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
¶12      Whether to impose conditions of probation and what they are is within the reasoned discretion of the sentencing court. Id., 155 Wis. 2d at 629, 456 N.W.2d at 160. All that is required is thatthe conditions “effectuate the objectives of probation” by fostering the rehabilitation of the defendant and by protecting the “state and community interest.” Id., 155 Wis. 2d at 629, 456 N.W.2d at 161. The same considerations apply when the conditions are appended to extended supervision. Thus, “a condition of extended supervision need not directly relate to the offense for which the defendant is convicted as long as the condition is reasonably related to the dual purposes of extended supervision.” Miller, 2005 WI App 114, ¶¶11, 13, 283 Wis. 2d at 474, 475, 701 N.W.2d at 52 (“Whether a condition of extended supervision is reasonable and appropriate is determined by how well it serves the dual goals of supervision: rehabilitation of the defendant and the protection of a state or community interest.”).
Extended Supervision – Conditions, Generally
State v. Richard G. Galvan, 2007 WI App 173, PFR filed 7/20/07
For Galvan: Paul LaZotte, SPD, Madison Appellate

¶8    Wisconsin Stat. § 973.01(5) provides in its entirety that “[w]henever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision.” The statute grants a court “broad, undefined discretion” in imposing conditions of extended supervision, State v. Larson, 2003 WI App 235, ¶6, 268 Wis. 2d 162, 672 N.W.2d 322, as long as the conditions are reasonable and appropriate, State v. Koenig, 2003 WI App 12, ¶7, 259 Wis. 2d 833, 656 N.W.2d 499.

Another general point worth keeping in mind is "the government bears the burden to demonstrate that the discretionary supervised release condition is appropriate for the particular case," U.S. v. Betts, 9th Cir No. 06-50205, 12/14/07.
Extended Supervision – Conditions: Raising Challenge to Validity, Timing of Challenge
State v. Edward W. Fisher, 2005 WI App 175
For Fisher: Eileen Miller Carter
Issue/Holding: The temporal limitation of § 302.113(7m)(e)1., that a petition to modify conditions of extended supervision may not be brought before the inmate is within one year of scheduled release on ES, “unambiguously applies only where an inmate seeks to make changes to conditions of supervision,” and not where the person as in this instance seeks “to abolish them entirely,” ¶10. Moreover, “(t)he rationale of waiting until the court can prudently and timely weigh additional options newly available to the offender does not apply to constitutionally invalid conditions. … To impose a waiting requirement merely delays the inevitable,” ¶14.
Also see U.S. v. Weber, 9th Cir No. 05-50191, 6/20/06 ("A defendant need not refuse to abide by a condition of supervised release to challenge its legality on direct appeal from the imposition of sentence.").

Somewhat tangential point: for authority for the idea that defendant is entitled to pre-hearing notice of "special condition" of release, at least where a liberty interest is implicated and the condition lacks an "obvious nexus" to the crime of conviciton, see U.S. v. Bruce, 10th Cir No. 05-2150, 8/15/06.

Extended Supervision – Conditions – Fulfill Otherwise Unrelated Child Support Obligations
State v. Brad S. Miller, 2005 WI App 114
For Miller: William E. Schmaal, SPD, Madison Appellate
Issue Whether a condition of extended supervision could include paying child support arising from an otherwise unrelated case.
Holding: Trial courts are granted broad discretion in fashioning conditions of supervision, “subject only to a standard of reasonableness and appropriateness … determined by how well it serves the dual goals of supervision:  rehabilitation of the defendant and the protection of a state or community interest,” ¶11. In Miller’s instance, the condition to fulfill a prior child support obligation “could enhance his self-esteem and his sense of responsibility to himself, his child and the community, matters clearly relevant to rehabilitation,” ¶14; and also protects community interests, ¶15. State v. Oakley, 2000 WI 37, 234 2d 528, 609 N.W.2d 786 (payment of old fine couldn’t be made condition of probation), and State v. Martel, 2003 WI 70, 262 2d 483, 664 N.W.2d 69 (sex offender registration couldn’t be made condition of probation in view of conflict with registration statute), distinguished, ¶16, n. 5.
Although supervised release conditions relating to child support have been upheld recently by federal courts, the analysis does seem to require closer scrutiny than is apparent in this instance – e.g., U.S. v. Barajas, 331 F.3d 1141 (10th Cir. 2003); U.S. v. Camp, 8th Cir. No. 04-1310, 6/16/05.
Extended Supervision – Conditions: Ban on Patronizing Taverns and Liquor Stores, Validity
State v. Edward W. Fisher, 2005 WI App 175
For Fisher: Eileen Miller Carter
Issue/Holding: Condition of extended supervision barring defendant from consuming alcohol, or having alcohol within his residence, or going into any business licensed for selling intoxicants “except restaurants or grocery stores,” is not vague, ¶¶16-18. Nor is it overbroad, as having no nexus to his rehabilitative needs, given his history of substance abuse (“Offenders with drug problems often also have problems with alcohol consumption”), which specifically includes alcohol abuse, ¶¶17-19.
Extended Supervision – Conditions: “No Contact with the Drug Community”
State v. Eduardo Jose Trigueros, 2005 WI App 112
For Trigueros: Eileen Miller Carter
Issue/Holding1: A probation / extended-supervision condition of no contact “with the drug community” was both reasonably related to the crime of conviction (possession with intent to deliver) and to the defendant’s rehabilitation, ¶12.
Issue/Holding2: Nor is the condition unconstitutionally vague:
¶14      Here, the trial court’s oral pronouncement defines a “drug community” for Trigueros. The trial court specifically told Trigueros that he may not be around any person when, or be in any place where, “drugs are being possessed, used, or sold.” This condition is clear and gives Trigueros fair notice of what a “drug community” is. See City of Milwaukee v. Burnette, 2001 WI App 258, ¶16, 248 Wis. 2d 820, 839–840, 637 N.W.2d 447, 456–457 (injunction prohibiting loitering in doorways, at bus stops, and by pay phones clear and gave fair notice). Moreover, Trigueros has pointed out no authority that gives him a right, as a convicted drug offender on probation, to associate with drug traffickers during the period of his probation. See Barakat v. Department of Health & Soc. Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995). Indeed, as we have pointed out and as the trial court recognized, staying away from drug traffickers is part of his rehabilitation and is consistent with the trial court’s sentencing rationale of protecting the public.
Extended Supervision -- Conditions -- Jail
State v. Jeremy John Larson, 2003 WI App 235
For Larson: David Cook
¶4. Larson contends that the plain language of Wis. Stat. § 973.01(2) means that a bifurcated sentence has two phases: a term of incarceration and a term of supervision. We agree. The statute requires incarceration to occur in prison and extended supervision to occur upon release from confinement. Although a prison supervises an inmate in its custody, the term "extended supervision" in a bifurcated sentence means supervision of an individual not incarcerated. The Criminal Penalties Study Committee's Final Report supports the plain meaning we give to § 973.01(2). It clarifies that "[s]upervision cannot be the same as confinement, as currently defined in the statutes." Criminal Penalties Study Comm. Final Report on 1997 Wisconsin Act 283, Truth In Sentencing, at 123 (Aug. 31, 1999). We conclude § 973.01(2) does not authorize confinement in any facility as a condition of extended supervision.
(This is a homicide by intoxicated use; the sentencing judge ordered confinement in jail, on each anniversary of the victim’s death, as a condition of ES. The judge “reasoned that Wis. Stat. § 973.01 allowed jail confinement as a condition of supervision because the overall sentence did not exceed the statutory limit on the length of confinement.” The court of appeals, as the quote from ¶4 indicates, rejects this rationale. The court of appeals acknowledges that § 973.01(5) (“the court may impose conditions upon the term of extended supervision”) seems to permit such a result; however, § 973.01(2) is more specific and therefore controls: “To avoid rendering § 973.01(2) meaningless, we conclude that it limits the discretion given courts in § 973.01(5) such that all conditions must conform to the structure of the bifurcated sentence § 973.01(2) provides.” ¶6. The court employs a rule of judicial physics: you can’t be in “confinement” and under “release” at the same time (¶7: “A person convicted of a crime cannot be jailed and released at the same time”). The perhaps knottier question of implementing misdemeanor ES is left for another day. ¶7, n. 3.
(Of particular note: the court imports into ES analysis prior case law requiring the explicit statutory assertion of sentencing authority:
¶9. Finally, the State argues that the sentencing statutes permit Larson's confinement in jail because the legislature has not expressly excluded that condition from the broad grant of authority provided in Wis. Stat. § 973.01(5). We disagree. "[I]f the authority to fashion a particular criminal disposition exists, it must derive from the statutes." State v. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772 (1999) (quoting State v. Amato, 126 Wis. 2d 212, 216, 375 N.W.2d 75 (Ct. App. 1985) (citations omitted)). Section 973.01(2) controls the use of confinement in a bifurcated sentence; we must construe § 973.01(5) in light of these guidelines. Absent express authority, a trial court cannot order confinement as a condition of extended supervision. To hold otherwise would lead to absurd results. Following the State's reasoning, an inmate could be incarcerated as a condition of all of his or her extended supervision as long as the overall sentence did not exceed the limitations in § 973.01(2). Such confinement would defeat the purpose of the bifurcated sentence, which mandates supervised release as a precursor to total freedom.)
Extended Supervision -- Conditions -- Vagueness Challenge -- Notifying Agent of "Dating Relationship"
State v. Cheryl A. Koenig, 2003 WI App 12
For Koenig: Patrick Flanagan
¶1. Cheryl A. Koenig appeals from an order denying her motion to rescind a condition of her extended supervision that requires her to introduce any person she is "dating" to her supervising agent. Koenig argues that the ambiguity of the term "dating" renders the condition unconstitutionally vague. We disagree. We conclude that the statutory definition of "dating relationship" as set out in Wis. Stat. § 813.12(1)(ag) provides an objective standard for enforcement and further provides Koenig with adequate notice of when she must introduce someone to her agent. We therefore affirm the trial court's order.
Other points of interest:
  1. The statutory grant of authority to set ES conditions, § 973.01(5), presumably underlies this conclusion: "For purposes of review, we conclude that authority relating to the propriety of conditions of probation is applicable to conditions of extended supervision," ¶7 n. 3. Contrast, State v. Gibbons, 71 Wis.2d 94, 237 N.W.2d 33 (1976) (historically, setting post-sentence conditions within executive branch's exclusive purview).
  2. It seems to follow, then, that the limitation imposed by State v. Bernard G. Fearing, 2000 WI App 229 (court can't delegate to DOC amount of jail time defendant serves as condition of probation) is relevant in the ES context. Federal cases, though not controlling, may be persuasive as well on the issue of delegation of authority to set conditions. One such leading case, U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003), after detailed discussion concludes that the sentencing court can't delegate to the p.o. discretion whether to make the defendant participate in drug treatment. To same effect in different context, see U.S. v. Pruden, 3rd Cir No. 04-1863, 2/23/05 ("The condition on supervised release is also invalid because it delegates to Pruden’s probation officer the decision whether to require mental health treatment"). Indeed, as both Melendez-Santana and Pruden make clear, this delegated-authority limitation is constitutionally based. (Art. III, "cases and controversies" must be decided by judiciary). True, probation officers must be given some discretion, but that field is occupied by the details, and not the mere fact, of a special condition, id. That said, these cases aren't especially clear about the limits of delegated authority. The boundaries will undoubtedly be sharpened by litigation, but for now it seems safe to say that any condition in the nature of punishment (jail) or especially intrusive monitoring (mental health or drug treatment) arguably falls within the judge's exclusive authority. Same for "dating relationship," given the intrusion into matters of intimate concern.
  3. The condition challenged in Koenig (notification to agent of "dating relationship") was imposed by the trial court, and thus didn't raise -- indeed, fell within -- the decision-detail distinction. Koenig made no challenge to the reasonableness of the condition, but had one been raised, it would have been rejected. ¶8 n.4, citing, Krebs v. Schwarz, 212 Wis. 2d 127, 568 N.W.2d 26 (Ct. App. 1997). (Koenig had a track record of forging checks of men she lived with.) But it is worth noting that a release-condition must be reasonably related to, and involve no greater deprivation of liberty than reasonably necessary to effectuate, the purposes of supervision, U.S. v. Pruden, 3rd Cir No. 04-1863, 2/23/05.
  4. The test for vagueness of an ES condition is whether it's sufficiently precise to give notice of the forbidden conduct. ¶9. The court turns to § 813.12(1)(ag), which defines "dating relationship" in terms of "romantic or intimate social relationship," and which the court says has a "common sense" meaning: something "more than a platonic relationship." ¶14.) For detailed discussion on vagueness see Farrell v. Burke, 2nd Cir No. 05-0169-cr, 5/31/06 (upholding parole condition banning possession of "pornographic materials" against as-applied challenge, despite fact "that the term 'pornography' is inherently vague").

    Also see probation-condition vagueness discussion, above.
Extended Supervision – Conditions: "Contribution" Payment
State v. Richard G. Galvan, 2007 WI App 173, PFR filed 7/20/07
For Galvan: Paul LaZotte, SPD, Madison Appellate
Issue: Whether a sentencing court in imposing as a condition of extended supervision a contribution payment under § 973.06 must take into account the defendant’s future ability to pay.

¶1    As part of Richard G. Galvan’s bifurcated sentence for homicide by intoxicated use of a vehicle, the trial court ordered Galvan to pay $4000 to Mothers Against Drunk Driving (MADD) at the rate of $1000 during each of the four years of his extended supervision. Galvan challenged the order by postconviction motion asserting that the court failed to determine his ability to pay pursuant to Wis. Stat. § 973.06(1)(f)1. (2005-06), [1] which governs the taxing of costs, fees and surcharges. The court denied the motion, ruling that the surcharge was imposed as a condition of Galvan’s extended supervision pursuant to Wis. Stat. § 973.01(5) and (8), which do not expressly require an ability-to-pay determination. Galvan appeals. We uphold the trial court’s ruling.

¶15   Our reading of these statutes harmonizes and gives effect to each one, and safeguards a cardinal rule of statutory construction: that we avoid unworkable or unreasonable results. To superimpose the ability-to-pay requirements of Wis. Stat. § 973.06 relating to the taxing of costs, fees and surcharges on the extended supervision provisions of Wis. Stat. § 973.01(5) would obligate a sentencing court to speculate about the defendant’s earning potential and property status years hence. The trial court here found it “very significant” that the condition to make the contribution to MADD becomes effective only after Galvan serves his eleven-year prison term because it gave Galvan over a decade to obtain job skills, enhance his education, increase his earning capacity, and address any drug or alcohol problems. The court also noted the possibility that a person could inherit a sum of money in the interim. We endorse these comments.

¶18   Finally, we agree with the trial court that Galvan is not without a remedy if he finds himself actually, rather than hypothetically, unable to fulfill this condition of extended supervision. The court stated that if unforeseen problems preventing compliance arise after Galvan completes his confinement and is placed on extended supervision, he then could petition for relief. Requesting it now, the court said, suggests that Galvan “expects to be a failure during extended supervision.” The trial court was correct. Wisconsin Stat. § 302.113(7m)(a) and (e)1. expressly permit an inmate to petition the sentencing court to modify any conditions it set within a year of the scheduled date of release to extended supervision.

Much potential for mischief, to be sure, but the practical implications remain to be seen. The penalty for violating ES is, of course, revocation: Can an indigent on ES be violated for failing to make a mandated contribution payment? Pretty clearly, no: Bearden v. Georgia, 461 U.S. 660 (1983). And so, when the court coyly suggests that an ES releasee can “petition for relief,” the court apparently means a hearing under State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 201 N.W.2d 778 (1972). Although to be sure the court didn’t explain the basis for the “petition for relief,” what else could it be?

Couple of unresolved points (unresolved by the court’s rationale, that is, not the result). First, the court pointedly says that “it makes sense that the extended supervision statute does not ask a court to predict a future (financial) status, often years off, that may be altered by any number of intervening factors,” ¶14. But that isn’t quite so: the court has unequivocally held that ability to pay a fine must be determined at sentencing, State v. Bruce J. Kuechler, 2003 WI App 245, ¶¶14-18. Generally, there isn’t any reasonable expectation of payment during the confinement portion, and payment of the fine becomes a condition of ES. How much different is that, then, from this?

Second, § 976.06 specifically authorizes a “contribution surcharge,” if—and only if—“the court determines that the person has the financial ability,” § 973.06(1)(f)1. So, you’ve got a very specific statute (contribution surcharge only if able to pay) posed against a general statute (may impose reasonable conditions of ES): why doesn’t the specific control the general? The court’s treatment of this sticking point (in a word, that a bifurcated sentence is simply a different breed of cat, ¶¶13-14), is a bit underwhelming.

Extended Supervision -- Reconfinement -- Review

Reconfinement Hearing: Prosecutor not Bound by DOC Recommendation
State v. Michael Lee Washington, 2009 WI App 148
For Washington: Christopher Lee Wiesmueller
Issue/Holding: Prosecutor isn’t bound by DOC recommendation at ES reconfinement hearing:
¶8    The State responds that no plea negotiations took place here and no plea agreement was in place. We agree. We note that while the record confirms the DOC recommended thirteen months and twenty-four days of reincarceration and that Washington waived his final revocation hearing, there is nothing to suggest that one served as consideration for the other. The State explains that when a person waives his or her revocation hearing, the DOC is required to “make a recommendation to the court concerning the period of time for which the person should be returned to prison.” See Wis. Stat. § 302.113(9)(at). The DOC consults a “penalty schedule” and other criteria to arrive at an appropriate recommendation. See, e.g., George v. Schwarz, 2001 WI App 72, ¶¶17-18, 242 Wis. 2d 450, 626 N.W.2d 57. We reject Washington’s assertion that there was a plea agreement in place.

¶9    The DOC recommendation for reincarceration following revocation is more appropriately analogized to a presentence investigation report (PSI) at the original sentencing. See State v. Brown, 2006 WI 131, ¶24, 298 Wis. 2d 37, 725 N.W.2d 262. The securing of a PSI is an integral part of the sentencing function and is solely within the judicial function. Young v. State, 49 Wis. 2d 361, 368, 182 N.W.2d 262 (1971). The purpose of a PSI is to assist the judge in selecting the appropriate sentence for the individual defendant. State v. Knapp, 111 Wis. 2d 380, 384, 330 N.W.2d 242 (Ct. App. 1983). The DOC does not function as an agent of either the State or the defense in fulfilling its PSI role but as an agent of the court in gathering information relating to a specific defendant. State v. Suchocki, 208 Wis. 2d 509, 518, 561 N.W.2d 332 (Ct. App. 1997), abrogated on other grounds by State v. Tiepelman, 2006 WI 66, ¶31, 291 Wis. 2d 179, 717 N.W.2d 1. In Wisconsin, the entire sentencing process is to be a search for truth and an evaluation of alternatives and any advance understanding between the prosecutor and defendant must not involve any persons conducting a PSI for the court. Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971).

¶10   To accept Washington’s argument that the prosecutor is bound by a reconfinement recommendation from the DOC, we would have to accept that the district attorney’s office is bound by the internal operating procedures of the DOC. That premise is incorrect. Cf. George, 242 Wis. 2d 450, ¶20 (an administrative agency cannot regulate the activities of another agency). A DOC recommendation is not binding on the prosecutor at a reconfinement hearing. Consequently, Washington’s argument that he had an agreement with the prosecutor for a specific recommendation fails, and his argument that the prosecutor breached any such agreement must likewise fail.

Washington initially seemed to argue that his waiver of the ES revocation hearing was defective, because he didn’t know that the State would be free to recommend reconfinement independent of DOC, ¶5, but subsequently clarified that he wasn’t challenging waiver; he argued instead that DOC’s reconfinement recommendation bound the State, ¶6. The State argued on appeal that Washington would have had to pursue certiorari in order to challenge ES revocation, ¶6 n. 4. But that hardly seems correct: certiorari is by its very nature limited to the record of the administrative proceeding and this sort of attack is collateral to that proceeding, hence ought to be accomplished by habeas. In any event, the problem need not be discussed, because the court concludes that Washington seeks only modification of reconfinement, something properly left to judicial review, id.
Reconfinement Review – Weight Given to DOC Recommendation Left to Court
State v. Michael Lee Washington, 2009 WI App 148
For Washington: Christopher Lee Wiesmueller
Issue/Holding: The reconfinement court didn’t erroneously exercise discretion in ordering 2 years’ confinement (out of a potential 3 years)—the court considered nature of offense and conduct while on supervision, ¶¶12-16; nor did the court erroneously exercise discretion by exceeding the DOC recommendation:
¶17   Finally, Washington contends that the circuit court did not properly weigh the importance of the DOC recommendation. He argues that the recommended term of reincarceration should have carried more weight and that his waiver of the final hearing should have been a credit to his willingness to accept responsibility for his actions. First, we observe that the weight given to sentencing factors is fully within the discretion of the circuit court. See Brown, 298 Wis. 2d 37, ¶39. Next, we emphasize that Wis. Stat. § 302.113(9)(at) requires the DOC to make a recommendation concerning the period of reconfinement, but it does not require the court to follow it. “Although the DOC’s recommendation may be helpful, and should be considered by the circuit court in a reconfinement decision, that recommendation is not entitled to any deference.” Brown, 298 Wis. 2d 37, ¶24.
Reconfinement - Standard of Review
State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
¶7        … (T)he court’s duty at a reconfinement hearing is the same as it is at the original sentencing. State v. Wegner, 2000 WI App 231, ¶7 n.1, 239 Wis. 2d 96, 619 N.W.2d 289; see State v. Brown, 2006 WI 131, ¶20, 298 Wis. 2d 37, 725 N.W.2d 262 (reconfinement hearing akin to a sentencing hearing). Therefore, we apply the same standards to our review of a reconfinement hearing as we would a sentencing hearing.
Reconfinement - Recusal: Threat to Impose Maximum upon Revocation
State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The reconfinement judge should have recused himself, given that at original disposition he threatened to impose the maximum if the defendant was returned to court on revocation; State v. Gudgeon, 2006 WI App 143, deemed controlling:
¶12      The same analysis applies here. At the initial sentencing, the court assured Goodson it was “not kidding” about its commitment to impose the maximum sentence if Goodson violated his supervision rules. Later in the hearing, the court repeated the warning: “[A]s I have told you, you do one deviation from these rules, and you are going to come back here, and you are going to get the maximum.” The court then reminded Goodson yet again at the first reconfinement hearing what would happen if he violated the rules.

¶13      Here, the court unequivocally promised to sentence Goodson to the maximum period of time if he violated his supervision rules. A reasonable person would conclude that a judge would intend to keep such a promise—that the judge had made up his mind about Goodson’s sentence before the reconfinement hearing. This appearance constitutes objective bias.

¶17      A court may certainly tell a defendant what could happen if his or her extended supervision is revoked. But telling a defendant what will happen imperils the defendant’s due process right to an impartial judge at a reconfinement hearing. Our jurisprudence eschews the notion that a court may determine a sentence without scrutinizing individual circumstances. See McCleary v. State, 49 Wis. 2d 263, 271, 182 N.W.2d 512 (1971). This prohibition is not implicated when a judge “merely express[es] a general opinion regarding a law at issue in a case before him or her.” McCaughtry, 398 F.3d at 962. But “when a judge has prejudged … the outcome,” the decision maker cannot render a decision that comports with due process. Id.

The court goes on to attempt to reconcile a seeming split in caselaw, ¶¶14-16, namely “that while some cases hold apparent bias is sufficient to show objective bias, other authority holds actual bias is required.” The court derives a synthesis by holding that either actual bias or “great risk” thereof is required. In this case, the court concludes with respect to the trial court’s statement re “the agreement you and I had back at the time you were sentenced”: “There could not be a more explicit statement confirming that the sentence was predecided. This is definitive evidence of actual bias.” Remains to seen how far the “great risk” envelope can be pushed.

Point of interest: No contemporaneous request for recusal was made; in other words, the issue was first raised by appellate counsel on postconviction motion. Apparently, then, the court of appeals must have seen the need for recusal either as so compelling to require sua sponte action or as so fundamental as to not be waivable. Nonetheless, keep in mind that the court did not discuss the issue in these terms, indeed did not discuss the impact of failure to object at all. You will have to make of that what you will.

Reconfinement – Authority to Impose New Conditions
State v. Rodney O. Harris, 2008 WI App 189
For Harris: Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether a reconfinement court, following revocation of extended supervision, has authority to impose a new condition (in this instance, no-contact order with a post-sentencing victim).
¶7        The crux of Harris’s complaint about the condition of extended supervision that he not have contact with the woman he battered and cut in West Virginia is that the statutes do not expressly provide for it. Although it is true that there is nothing that says in haec verba that the reconfinement court may impose a condition of extended supervision that was not imposed by the original sentencing court (unless the Department or the defendant seeks a modification of the extended-supervision conditions, see Wis. Stat. § 302.113(7m)(a) (The defendant “or the department may petition the sentencing court to modify any conditions of extended supervision set by the court.”)), the statutes read as a whole clearly give the reconfinement court that authority because they do not prohibit it and that authority is essential to the fulfillment of the dual legislative (and judicial) goal that: (1) the public be protected from a criminal’s further predations; and (2) the criminal be helped with his or her rehabilitation.

¶10      As we have seen, Wis. Stat. § 302.113(9)(b) provides that if there is any time left on the defendant’s original bifurcated sentence following the incarceration ordered by the reconfinement court, that time is spent on extended supervision. Thus, § 302.113(9)(b) keeps intact the bifurcated-sentence scheme established by Wis. Stat. § 973.01. Aware that it is appropriate to ensure that a person released on extended supervision should have supervision and should be subject to conditions conducive to both the public safety and the defendant’s rehabilitation, the legislature gave the sentencing court authority to impose conditions of extended supervision: “Whenever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision.” Sec. 973.01(5). Although § 973.01(5) refers to § 973.01(1), which grants circuit courts the power to impose bifurcated sentences, we conclude that it indubitably follows that the reconfinement court has the same authority to impose conditions of extended supervision that follows the period of reconfinement as an original sentencing court has to impose conditions on the extended supervision that follows the period of initial confinement.

Although the new condition (no contact with subsequent victim) doesn’t appear to be challenged as an exercise of discretion, as opposed to delegation of authority, the court in an aside ratifies it as such, ¶15 (“it makes perfect sense … for the reconfinement court to seek to protect the new domestic-violence victim by making it a condition of the new period of extended supervision that the defendant have no contact with that new victim”). No doubt; but that merely underscores primacy of statutory authority. While it might seem apparent that a reconfinement court ought to have such authority, the fact is that the statutes don’t explicitly provide it. More: the court of appeals recently held that a reconfinement court does not have authority to determine ERP or CIP eligibility, State v. Antonio M. Hall, 2007 WI App 168, and so the court isn’t now exactly writing on a blank slate. How, then, can the court explain just why a reconfinement judge can undertake one sentencing function (impose new ES condition) but not another (determine release-program eligibility)? Short answer: unconvincingly. Having grounded the newly imposed ES condition in the court’s sentencing power (¶11), the court does an abrupt volte-face as it approaches Hall:  
¶21      This case, unlike Hall, does not deal with the circuit court’s authority to determine whether a prisoner is eligible for programs authorized by the legislature in connection with the imposition of a bifurcated sentence under Wis. Stat. § 973.01(1) but, rather, what conditions are necessary components for the period of extended supervision that the defendant will be serving as a result of a reconfinement decision under Wis. Stat. § 302.113(9)(am) & (b). … Thus, it would be contrary to the original sentencing scheme for a reconfinement court to overrule a sentencing court’s determination that a defendant was not eligible for the Earned Release or Challenge Incarceration programs, especially because the defendant in that situation had extended supervision revoked because he or she did something bad while serving the extended-supervision part of the bifurcated sentence. … That the defendant’s original extended supervision was revoked underscores the need for the possibility of new, more stringent conditions of the post-reconfinement extended supervision.  
Not quite. In the first instance, professed concern about “overrul(ing)” the original program-release decision is simply make-weight: as the court itself recognizes, then promptly ignores, in Hall there was no original decision made; Hall was put on probation and the matter not addressed at all (¶¶18-19). Besides, if the original decision was in favor of eligibility, then by stripping the reconfinement judge of authority to continue such eligibility the court very much imposes a result “contrary to the original sentencing scheme.” (Funny, that prospect doesn’t alarm, or even apparently occur to, the court.) What it comes down to, then, is the court’s bleak assessment that the fact of revocation alone justifies “new, more stringent conditions.” That’s fine, but what about the idea that, precisely because reconfinement is indeed a sentencing, it should be the minimum, “consistent with the protection of the public, the gravity of the offense, and the defendant's rehabilitative needs,” State v. John C. Brown, 2006 WI 131, ¶7? Relatedly, why couldn’t a failed supervision demonstrate, under some circumstances, need for the carrot-and-stick approach underlying these release programs? This is not to suggest that the court reached the incorrect result, only that it is incompatible with Hall. And that the court’s failed attempt to reconcile the two simply underscores the need to overrule Hall.

The larger point goes unstated, perhaps because it is now blindingly obvious. It used to be that a sentencing court lacked authority to place conditions on a prison sentence, State v. Gibbons, 71 Wis.2d 94, 99, 237 N.W.2d 33 (1976), very much including conditions of parole. Once sentenced, a convict was committed to the exclusive jurisdiction of the executive branch. No longer. Implications to this shared authority will become apparent only in time.

Reconfinement – Lack of Authority to Consider CIP or ERP Eligibility
State v. Antonio M. Hall, 2007 WI App 168
For Hall: Michael D. Kaiser

¶17   From our examination of these statutory provisions, we find no ambiguity in the relevant language and conclude that the provisions of Wis. Stat. §§ 973.01(3g), 973.01(3m) and 302.113(9)(am) express a clear intent to restrict the sentencing discretion of the reconfinement court at a reconfinement hearing; it has no authority to consider eligibility for the CIP or the ERP in a reconfinement hearing.

As you will likely guess, Hall sought eligibility for CIP and ERP at his reconfinement hearing following extended supervision revocation; the trial court ruled it had no such authority on reconfinement and the court of appeals now affirms. The court of appeals takes pains throughout the opinion to say that reconfinement isn’t sentencing, a view that may or may not take hold, but ultimately it comes down to the statutory text:

¶13   The language of Wis. Stat. § 973.01(3g) and (3m), in clear terms, states that “[w]hen imposing a bifurcated sentence under this section” the court shall decide “as part of the exercise of its sentencing discretion” whether “the person being sentenced is eligible” for CIP or ERP. (Emphasis added.) Neither sub. (3g) nor sub. (3m) even mention a reconfinement hearing or describe the process.

¶14   In contrast, Wis. Stat. § 302.113(9)(am) governs the reconfinement procedure and sets forth the limits of exercisable discretion of the court. The language of the statute does not include this same broad measure of discretion when it comes to the authority of the court in a reconfinement hearing. No mention is made of considering the application of either CIP or ERP. It is only reasonable then to assume that if the legislature wanted the court to revisit the application of CIP and ERP at a reconfinement hearing, it would have expressly provided for that exercise of discretion within § 302.113(9)(am). Thus, it is reasonable to conclude that such specific powers of discretion do not exist.

¶15   Doubtless, Wis. Stat. § 302.113(9)(am) provides authority for a reconfinement court to exercise sentencing discretion in determining the length of time for which a revoked supervisee will be returned to prison. To expand the scope of this grant of limited discretion to include the duty to address eligibility for CIP and ERP finds no support in the statute.

There are reasons, perhaps, to quibble. For one thing, a reconfined defendant continues to serve a “bifurcated sentence,” which is the triggering condition of §§ 973.01(3g) and (3m). For another, it isn’t as significant as the court suggests that § 302.113(9)(am) fails to mention ERP or CIP: that section also fails to assign a right of allocution, a right the court of appeals just got done applying to reconfinements, State v. Quantae T. Hines, 2007 WI App 39. [Yes, there is authority that allocution is a constitutional not merely statutory right, but the issue is hardly settled and there is substantial reason to think it purely statutory, under § 972.14, so there is an analogy to be made.] More to the point, perhaps, Hines is merely the last in a line of cases that brought reconfinements closely into line with sentencing procedure. It is quite possible that the court of appeals now seeks to hold back that tide, which would indeed make Hines last in that line of cases. (And, yes, at least in its realm the court does have power denied Canute the Great.) Hines had no difficulty assigning a right of allocution to reconfinement, given “that a reconfinement hearing is “closely akin” to a sentencing hearing,” ¶18, citing State v. John C. Brown, 2006 WI 131, ¶28. And that, in turn, makes the court of appeals’ underlying analysis suspect. Specifically: the court presently stresses (¶11) its decision in Brown, 2006 WI App 44, ¶17, without taking account of subsequent analysis by the supreme court. It is not exactly apparent that the supreme court categorically approved ¶17, which rested on the idea “that a reconfinement hearing is simply an extension of the original sentencing proceeding, and thus, the trial court need not address all relevant factors”; the supreme court held (¶21) that, at least where a different judge presides over reconfinement, “there is no continuum.” Like effect: State v. Twaun L. Gee, 2007 WI App 32. In sum, there might—or might not—be adequate support for the court’s statutory construction analysis, but the court’s analysis may well presage resistance to further absorption of sentencing concepts into confinement.

Reconfinement – Allocution -- New Hearing as Remedy for Denial
State v. Quantae T. Hines, 2007 WI App 39
For Hines: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: A defendant has a right to allocute during a reconfinement proceeding, the remedy for violation of which is resentencing, ¶¶18-20.
The decision to publish is somewhat puzzling. The outcome is largely controlled by State v. John C. Brown, 2006 WI 131, which held that reconfinement is essentially a sentencing proceeding. True, Brown didn’t discuss allocution, so this is a slight— very slight—extension of that holding. That said, the result is much more interesting when the facts are taken into account. After the reconfinement sentence was announced, Hines spoke up and made a pitch for leniency, ¶9. The trial judge was unmoved; as she later said, on postconviction motion, ¶10:
… Even assuming arguendo that the defendant had a due process right to allocution … he was clearly afforded that right…. The court considered the defendant’s statement but was not persuaded to alter its reconfinement decision. Any failure … to ask the defendant before ordering reconfinement whether he had anything to say was harmless….
And so, the question is really one of harmless error. The defendant was afforded an opportunity to speak, it’s just that this was immediately after rather than before pronouncement of sentence. The court of appeals might have said that such a violation was a mere trifle, but that’s decidedly not what it said. Instead, the result is comprehensible only as a bright-line rule, which the court barely hints at, in a passing remark, ¶18: “Part of the court’s consideration at a sentencing includes the defendant’s right to allocute before the court pronounces its decision. See Wis. Stat. § 972.14(2); Greve, 272 Wis. 2d 444, ¶35.” Thus, “before” means exactly that, and not a moment later.
Extended Supervision – Reconfinement: Review
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz
¶22     We conclude that a reconfinement decision, like an initial sentencing decision, involves the circuit court's discretion, and we review the circuit court's decision to determine whether that discretion was erroneously exercised. See State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). An erroneous exercise of such discretion occurs "whenever it appears that no discretion was exercised in its imposition [of the sentence] or discretion was exercised without the underpinnings of an explained judicial reasoning process." McCleary, 49 Wis. 2d at 278. As long as the reconfinement court considered the relevant factors, and not irrelevant or improper ones, and the decision was within the statutory limits, the sentence will not be reversed, unless it "'is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.'" Taylor, 289 Wis. 2d 34, ¶18 (citations omitted).
The court takes pains to say that “(a) reconfinement hearing is certainly akin to a sentencing hearing,” ¶20—strongly suggesting that the standards by which discretion is informed and reviewed ought to be pretty much the same. And that does seem to be the overall thrust of the opinion, although the court doesn’t quite say so explicitly. Note that the court of appeals very clearly held (¶17), “Moreover, we note that a reconfinement hearing is simply an extension of the original sentencing proceeding, and thus, the trial court need not address all relevant factors.” The supreme court now appears to have rejected that view, at least as an absolute proposition, albeit sub silentio:
¶21     In the present case, the court of appeals quoted Wegner, 239 Wis. 2d 96, ¶7, stating, "'[W]e will review the two sentencing proceedings on a global basis, treating the latter sentencing as a continuum of the first.'" State v. Brown, 2006 WI App 44, ¶17, 289 Wis. 2d 691, 712 N.W.2d 899. See also State v. Jones, 2005 WI App 259, ¶8, 288 Wis. 2d 475, 707 N.W.2d 876. In Wegner, the judge imposing the reconfinement sentence was the same judge who imposed the original sentence. Treating the reconfinement hearing as a continuum of the sentencing hearing is logical when the same judge is presiding over both the original sentencing hearing and the reconfinement hearing. However, in many cases, one judge will preside over the original sentencing and a different judge will do the reconfinement hearing, as was the situation in Brown's case. Under such circumstances, there is no continuum.
Reconfinement Sentence – Weight Accorded Reviewing Authority’s Recommendation
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz
Issue/Holding: When imposing a reconfinement sentence, the circuit court isn’t required to give deference to the DOC recommendation:
¶24      We agree with the State's position that the circuit court did not owe deference to the DOC. Although Wis.Stat.§302.113(9)(at) (2003-04) [2] requires the DOC to make a recommendation concerning the period of reconfinement, it does not indicate how the court is to treat that recommendation. Although the DOC's recommendation may be helpful, and should be considered by the circuit court in a reconfinement decision, that recommendation is not entitled to any deference. In the context of a formal sentencing hearing, a sentencing court is not required to give any particular level of deference to the DOC's sentencing recommendations, which are included in presentence investigation reports. See Wis. Admin. Code§DOC 328.27(2)(Sept., 2006). If the sentencing court deviates from the DOC's recommendations in a formal sentencing hearing, the court is not required to explain its reasons for doing so, as long as proper sentencing discretion is exercised. See State v. Johnson, 158 Wis. 2d 458, 469, 463 N.W.2d 352 (Ct. App. 1990).
Extended Supervision – Reconfinement Sentence – Exercise of Discretion – Generally: Need for “Reasoned Explanations”
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz
¶29      In light of the need for "meaningful assessment of decisions that deprive persons of their liberty," we agree with the court of appeals, and thus disagree with the State's argument, that requiring a circuit court to give reasoned explanations for reconfinement decisions will place an undue burden on the time of a circuit court. Id. The relatively small investment of time that a circuit court will expend in providing reasoned explanations for reconfinement decisions is far outweighed by the benefits of insuring meaningful review of reconfinement decisions and satisfying a defendant's procedural due process right "to be sentenced on the basis of accurate information." State v. Greve, 2004 WI 69, ¶14, 272 Wis. 2d 444, 681 N.W.2d 479; see also Bruneau v. State, 77 Wis. 2d 166, 175, 252 N.W.2d 347 (1977).
Extended Supervision – Reconfinement Sentence – Exercise of Discretion – Generally: Factors
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz
Issue/Holding1: “The reconfinement period imposed should be the minimum amount that is necessary to protect the public, to prevent depreciation of the seriousness of the offense, and to meet the defendant's rehabilitative needs,” ¶34, guided by factors found in Wis. Admin. Code § HA 2.05(7)(f) (Sept. 2001) and Wis. Admin. Code § 331.14(3)(b) (Oct. 2006), as well as McCleary-Gallion standards), including (¶¶34-39):
  • nature and severity of original offense
  • institutional conduct record
  • amount of incarceration necessary to protect public from risk of further criminal activity, taking into account defendant's conduct and nature of violation of terms and conditions during extended supervision
  • factors identified in State ex rel. Hauser v. Carballo, 82 Wis. 2d 51, 261 N.W.2d 133 (1978) (related in part to balancing need to protect society against “facilitat(ing) the violator's transition between prison and unconditional freedom”
  • defendant's record, attitude, and capacity for rehabilitation
  • rehabilitative goals to be accomplished by imprisonment for the time period in question in relation to the time left on the violator's original sentence
The court cautions that this isn’t a “mandatory checklist,” but instead is a guide, “depending on the facts and circumstances of each case,” ¶37. “Nevertheless, a circuit court, in demonstrating an exercise of discretion in a reconfinement decision, should consider many of the factors discussed herein, when making reconfinement decisions, and should explain on the record those factors which are relevant to the circumstances of a particular case,” ¶45. The original sentencing transcript also is an important source of information that, the court suggests but doesn’t outright hold, should be reviewed, ¶38.
Issue/Holding2: Reconfinement sentence of 3 years, as against DOC recommendation of 1 year 10 months 30 days (? why not 11 months?) because the circuit court wanted to “send a message”; and because the court perceived that Brown had a “cocaine problem” and posed a risk, was not an erroneous exercise of discretion, ¶42.
The court takes pains to say that “Brown's reconfinement hearing occurred prior to this court's decision in Gallion, and Gallion does not apply retroactively,” ¶26, which clearly suggests that Gallion does not apply to this appeal. The court then very carefully qualifies its holding, ¶41: “Since this court has not, until now, set forth any guidance as to the factors that circuit courts should consider in making reconfinement decisions, we hold that the circuit court, in this case, did not erroneously exercise its discretion[.]” Would full-blown Gallion-review have led to a different conclusion? That question is simply unanswerable. But the critical point is that the court’s refusal to apply Gallion ought to very much blunt the impact. Brown seems to have won (our) battle and lost (his) war.
Reconfinement After Revocation of Extended Supervision -- Review under § 809.30
State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate
¶4 The question presented by this appeal is whether persons sentenced to a bifurcated term of imprisonment whose extended supervision is revoked may seek relief under WIS. STAT. RULE 809.30 from the trial court’s reconfinement order. We hold that they may.
Review of reconfinement has been a sticking point for some time, in Milwaukee anyway. If all you need or want to know is how to process review of ES revocation, here’s a quick summary:

We live in a bifurcated world; revocation and reconfinement are separate events, separately challenged.

When DOC obtains ES revocation, the person is returned to the trial court to determine reconfinement time. If ES revocation has been contested, then a hearing will have been conducted by DHA (DOA) and review of the revocation is by certiorari. See ¶6 n. 6.

Where revocation has been waived, the revoking authority is DOC; the court of appeals observes, id., that waiver “will rarely, if ever” result in “judicial review of whether revocation was warranted.” (Not to make this unnecessary complex, but it’s hard to imagine certiorari ever being the vehicle for challenging revocation waiver, because you’re limited to the record of waiver; you’ll necessarily have to raise a collateral – extra-record – challenge to waiver and habeas would be the mechanism.)

Review of reconfinement (as distinct from revocation itself) is by notice of intent under Rule 809.30, ¶¶4, 23. It’s really not any different from revocation of probation on a withheld sentence – you’d review the revocation by certiorari, and the sentence after revocation by notice of intent.

Reconfinement After Revocation of Extended Supervision -- Determination, Generally
State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate
¶23. In light of the need for meaningful assessment of decisions that deprive persons of their liberty, Gallion, 2004 WI 42, ¶¶19, 76, 270 Wis. 2d at 549550, 572, 678 N.W.2d at 203, 214, we perceive no reason why a "sentencing" under Wis. Stat. Rule 809.30 should not encompass reconfinement under Wis. Stat. § 302.113(9)(am) (2001-02). Indeed, other than a concern expressed at oral argument that to require the trial courts to fully explain a reconfinement order might take too much time, the State does not point to any adverse consequences that could possibly flow from permitting defendants to seek review of reconfinement orders via Rule 809.30, and we see none. We reject the State's attempted expediency-based justification for any truncation of the sentencing explanation to which every person deprived of his or her liberty is entitled. …
The court catalogs the “conflicting meanings (that) Wisconsin law” has variously assigned the term “sentencing,” ¶16, and decides that the appropriate meaning is contextual: “A neutral-principled analysis requires that we apply the meaning that is most congruent with ‘the purpose of the particular statute under consideration.’ Price, 231 Wis. 2d at 234, 604 N.W.2d at 901.” The court stresses the following, as support for close review, in the present context: “that the person not have his or liberty circumscribed unfairly”; the statutory and common law mandate to consider sentencing factors; “the safeguard of meaningful appellate review” of sentencing discretion; and the legislative history of § 302.113(9) (providing authority for judicial determination of reconfinement after ES revocation), which shows that the drafters “routinely used the term ‘sentencing’ to describe the order of recommitment following revocation of a prisoner's extended supervision,” ¶20.

It seems clear, then, that the considerations described at length in Gallion (which won’t be repeated, except to say that they’re supposed to guarantee fair sentencing and review) apply to reconfinement proceedings.

Extended Supervision -- Revocation

Extended Supervision - Revocation – Jurisdiction, Consecutive Sentences
State v. Steven M. Collins, 2008 WI App 163
For Collins: Kendalynn Jackson
¶1        Steven Collins appeals from an order of reconfinement following revocation of his extended supervision. Collins argues that the trial court’s order of reconfinement is illegal because he had not completed his extended supervision for an earlier conviction, and thus had not begun his extended supervision in this case when his extended supervision was revoked. We conclude that Collins’s consecutive periods of extended supervision consisted of one continuous period, and thus revocation for the entire period was proper. Accordingly, we affirm.

¶6        …. We conclude that the plain language of Wis. Stat. §§ 302.113(4), 973.01, and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences.

¶13      According to the plain language of Wis. Stat. § 302.113(4), two consecutive periods of extended supervision are computed as one continuous period. Thus, “both may be revoked upon violation of the conditions imposed.” See Thomas, 300 Wis. 2d 381, ¶47. Therefore, we affirm.

Extended Supervision -- Revocation – Jurisdiction: Conduct Occurring During Terminated Period of Probation, Before Current Term of Supervision, as Basis
State ex rel Ronald McElvaney v. Schwarz, 2008 WI App 102, PFR filed 7/7/08
For McElvaney: John Tedesco, SPD, Madison Appellate
Issue: Whether DOC may revoke extended supervision for conduct that occurred during a prior, since-terminated probation period.
¶9        McElvaney contends that the DOC exceeded its jurisdiction and misinterpreted the language of Wis. Stat. § 304.072(3) when it held that his probation and his extended supervision were components of the same term of supervision. He asserts that probation and extended supervision are different in character and in treatment under the law. He observes that probation is authorized under Wis. Stat. ch. 973, titled “Sentencing.” Where a sentence is imposed but stayed and the corresponding probation is subsequently revoked, the law states that the DOC must “order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison.”  Wis. Stat. § 973.10(2)(b) (emphasis added). In contrast, extended supervision exists under Wis. Stat. § 302.113, in the chapter titled “Prisons.” When extended supervision is revoked, the law provides for a reconfinement hearing.  Sec. 302.113(9)(am).   

¶15      It is clear that the context in which the question is presented drives the analysis. See State v. Mentzel, 218 Wis. 2d 734, 740, 581 N.W.2d 581 (Ct. App. 1998) (the meaning of the term “sentence” depends on the particular statute involved and the setting to which it applies). We conclude that for purposes of determining whether the DOC retained jurisdiction under Wis. Stat. § 304.072(3), specifically with regard to identifying a “term of supervision,” probation, incarceration, and extended supervision are each a component of the sentence.

¶18      Once the court imposes probation, the defendant is in the custody of the DOC and is “subject ... to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended supervision.”  Wis. Stat. § 973.10(1). The statutes are intended to “enforce offender accountability” until “the expiration of the entire underlying sentence.” Schwarz, 279 Wis. 2d 223, ¶21. Furthermore, the court in Schwarz turned to legislative drafting records for Wis. Stat. § 304.072(3), which stated in relevant part, “[t]he bill also provides a procedure for the department to preserve its probation or parole jurisdiction by taking certain action prior to the expiration of a term of supervision.” Schwarz, 279 Wis. 2d 223, ¶23 (emphasis added). By its very terms, § 304.072(3) applies equally to persons supervised on probation, on parole, and on extended supervision.

Brother. That sound you heard was the other shoe dropping from DOC v. Schwarz and Dowell, 2005 WI 34. (Assuming, that is, whatever sound is made by hair ripped from its follicle bed doesn’t carry.) Dowell says DOC can revoke the current period of parole for conduct occurring during a prior, since-revoked period of parole (during the same sentence, of course). That result was quite a stretch, but the real-world implications would have been manageable if limited to parole. No such luck.
Extended Supervision -- Revocation – Jurisdiction – Consecutive Terms, Pre-TIS Parole & ES: May Revoke Simultaneously
State ex rel.. Kevin Thomas v. Schwarz, 2007 WI 57, affirming< unpublished decision
For Thomas: Michael D. Kaiser
Issue/Holding: Consecutive terms of “hybrid” imprisonment (i.e., pre-TIS and TIS sentences), are treated as one continuous sentence such that release from confinement subjects the person to simultaneous revocation of both parole and extended supervision for violation occurring during the parole term.

Precious little analysis, beyond a sort of reflexive adoption of Ashford v. Division of Hearings and Appeals, 177 Wis. 2d 34, 38, 501 N.W.2d 824 (Ct. App. 1993) (person serving consecutive sentences subject to parole revocation and reimprisonment on both sentences for parole violation committed prior to discharge on first sentence). Thomas was released on confinement on consecutive pre- and TIS sentences, in other words released on both parole and extended supervision. While still within the parole period he committed a violation and, the court now holds, was properly revoked on both terms of supervision. The idea is that because multiple sentences are treated as one continuous sentence for confinement purposes, they are treated that way for release, too. What happens, though, if you’ve completed, time-wise anyway, the parole offense before violating? Presumably, if multiple sentences amount to just one indistinct sentence, it wouldn’t matter when the violation occurred: you’re subject to revocation on every term of supervision. Yet, in that instance, wouldn’t you be subject to a penalty exceeding your actual sentence? And, as the dissent suggests, it’s certainly possible that under a one-sentence construct, you could be required to serve a sentence “far in excess of the statutory maximum,” ¶¶68-71.

Revocation – Jurisdiction – Mistaken Early Release from Confinement to ES
State ex rel. Steven M. Rupinski v. Smith, 2007 WI App 4
For Rupinski: Daniel R. Drigot
Issue: “Properly framed, the question before us is whether the DOC and the Division of Hearings and Appeals (Division) had jurisdiction to revoke extended supervision for a violation of the rules of supervision when an inmate (Rupinski) was erroneously released to supervision while serving a bifurcated sentence and the initial term of incarceration had not been completed,” ¶15.
¶17   Rupinski claims that the plain language of Wis. Stat. chs. 302 and 973 requires that he must have completed the confinement portion of his sentence before he is eligible for extended supervision. Because, at the time of the conduct alleged in the Division’s revocation action, he was still some months short of completion of the confinement portion of his sentence, the DOC had no authority to place him on extended supervision and thus, he could not have been subject as a supervisee to revocation action by the State.

¶23 … We reject his contention. A person sentenced under a bifurcated sentence is under the continual supervision of the DOC whether the person is in custody or released on extended supervision. Thus, the DOC has the authority to revoke a person’s extended supervision even under the circumstances presented in this case.

¶24      Rupinski chooses to ignore that he had the de facto status of an extended supervisee notwithstanding his de jure status as a confinee. … What is advocated now is that because of his erroneous early release, he should be absolved of any rule violations under the procedures that the legislature specifically enacted to fulfill the goals of the Truth-in-Sentencing legislation: rehabilitation and the protection of the community. We reject this illogical assertion.

¶25      … In addition, every administrative agency has those “necessarily implied” powers to effectuate its legislatively imposed mandate, unless the scope of those powers are clipped by statute. See State ex rel. Treat v. Puckett, 2002 WI App 58, ¶10, 252 Wis. 2d 404, 643 N.W.2d 515. Here, the “necessarily implied” powers included revoking a person’s extended supervision for violating the terms and conditions of that supervision when that person was erroneously released from custody 165 days early because of a technical error.

So, DOC can revoke someone prematurely released to ES: a defensible result if the claim is simply that because of this windfall the supervised person is beyond DOC’s coercive powers. But that does not appear to be Rupinski’s position:
¶26      Next, Rupinski argues that the process of revocation and reconfinement is not necessary as argued by the State because he is subject to the authority of the Wisconsin prison system and could have been returned to custody at any time. We do not disagree with Rupinski’s conclusion, that he may be subject to such authority, but to then conclude that the process of revocation and reconfinement is not necessary leaves the whole process without an enforcement mechanism which again points to absurdity.
Why is it an “absurdity” to say that DOC’s exclusive remedy is to restore Rupinski to his rightful status which is, after all, confinement? Pace the court of appeals, it might be considered an absurdity to say that his “ de facto status of an extended supervisee” trumped “his de jure status as a confinee.” Consider what would have happened had DOC discovered its error before Rupinski had committed any violations, and before he had served the 165 days on ES: There can be not the slightest doubt that DOC would have rushed to return him to confinement without pausing to “revoke” his spurious “extended supervision.” But more: in that instance, Rupinski would have a very decent argument of entitlement to confinement credit for the time mistakenly spent on ES. See, e.g., Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994) (“The government is not permitted to delay the expiration of the sentence either by postponing the commencement of the sentence or by releasing the prisoner for a time and then reimprisoning him. The government is not permitted to play cat and mouse with the prisoner, delaying indefinitely the expiation of his debt to society and his reintegration into the free community. Punishment on the installment plan is forbidden."). For that matter, Rupinski would seem, if nothing else, to have such a claim in the actual event, though he doesn’t appear to have raised it. There is no precisely controlling Wisconsin caselaw, although language in State v. Anthony J. Dentici, Jr., 2002 WI App 77 (“a person who is absent from jail through no fault of his own is entitled to sentence credit”) makes such an argument compelling. Point is, it is much too facile to simply assert, de facto status trumps de jure. And, turn the problem around: what if an inmate held in prison beyond his proper release date commits a rules violation? State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 591 N.W.2d 922 (Ct. App. 1999), a case unmentioned by the court of appeals, holds “that Woods was an inmate of a correctional facility rather than a parolee at the time of the underlying rule violation,” and therefore couldn’t be revoked. True, Woods was a pre-TIS inmate while Rupinski’s sentence was bifurcated, but why should that make any difference? The whole point of Truth in Sentencing is to make it crystal-clear exactly how much time the sentenced defendant is going to serve in prison. Besides which, the court of appeals explicitly likens parole to ES, saying, “(t)he objectives are the same,” ¶21. A TIS sentence is bifurcated; the court of appeals runs roughshod over its distinct phases. None of this makes the court’s holding any less binding, of course, but it does make the wider implications difficult to anticipate.
Revocation of Extended Supervision -- Adequacy of Representation -- Investigation of Alternatives to Revocation
State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
For Walker: Amelia L. Bizzaro
Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.

¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests. …

¶15 “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. The issue is, therefore, whether Dudley’s reliance on what he knew was the adamant opposition to alternatives to revocation by the agent following the agent’s Plotkin analysis, and Dudley’s assessment that the administrative law judge who would preside over the revocation hearing would almost never consider alternatives for absconders, especially in face of the agent’s opposition, and Dudley’s desire to get for Walker at least the perception that Walker was being cooperative so as to lessen the chance that the administrative law judge’s recommendation to the reconfinement court would be more severe than the agent’s two-year recommendation, made his decision not to explore alternatives to revocation deficient performance. We agree with the circuit court that it did not.

¶16 … We agree with the circuit court’s assessment that, based on its findings of fact, the likelihood that the alternatives to revocation identified by Walker at the evidentiary hearing on his petition for a writ of habeas corpus would have been accepted by the administrative law judge in lieu of revocation was virtually nil. …

¶17 A lawyer’s failure to investigate is not deficient performance if he or she reasonably concludes, based on facts of record, that any investigation would be mere wheel-spinning and fruitless. See Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005) (“[W]hen there is ‘reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’”) (quoting Strickland in a slightly different context, 466 U.S. at 691). Based on the circuit’s findings of fact, this is the situation here. …


Prison Issues -- Conditions

Prisons - Conditions - County Liability for Hospital Care, § 302.38, Severed Upon Dismissal of Charge
Meriter Hospital v. Dane County, 2004 WI 145, affirming 2003 WI App 248
Issue/Holding: County liability for costs of a prisoner's hospitalization "in the case of persons held under the state criminal law," § 302.38(2) is terminated when the pending charge is dismissed, rather than continuing throughout the period of hospitalization:
¶12 We first address whether Wis. Stat. § 302.38 requires the County to pay for the medical and hospital bills of an indigent prisoner, if he or she is no longer "held under the state criminal laws." Wis. Stat. § 302.38(2). …

¶14 Meriter … argues that "held" was inserted by the legislature in the past tense, because the legislature intended that there be a contemporaneous holding of a prisoner as a prerequisite for liability, but that once established, liability continues even if the status changes.

¶15. We agree with the court of appeals and conclude that Wis. Stat. § 302.38 is unambiguous. We … conclude that § 302.38(2) requires a contemporaneous holding of the prisoner, in order to hold the County liable for the medical and hospital costs incurred. A change of status has a direct bearing on whether such liability continues.

Gibson also had a parole hold lodged against him; the hold was independently cancelled upon Gibson’s hospitalization – but the very day it cancelled the hold, Corrections also issued an apprehension request which ensured that he’d be returned to custody after discharge from the hospital.: this request, the court holds, ¶¶16-20, did not “detain” Gibson so as to trigger § 302.38(2). [Separately the court also clearly suggests, ¶¶19-20, that if a sentence is stayed during hospitalization, the inmate no longer is “held” within the statute, thus county liability is terminated.] Gibson’s charges were not, it should be noted, reissued; and the sheriff did not act immediately upon the apprehension request, giving Gibson a few weeks after discharge before hauling him back to jail—otherwise, the court intriguingly suggests, the hospital’s argument “would be much stronger.” ¶24 n. 10. But why? The court simply does not say. Perhaps the court means to suggest that it won’t look kindly upon an attempt to game the system; if so, the court’s too coy by half. The court just got done dropping another footnoted aside which casually rejects the idea the hospital was in any position to challenge dismissal of the charges. ¶23 n. 9. Indeed, it’s hard to see how a hospital would have standing to challenge dismissal or, procedurally, how dismissal might be “collaterally” attacked, if that’s even the right way of expressing it. And if the footnoted aside was meant to somehow either deter dismissals as a way to avert financial obligation, or suggest that a hospital could indeed challenge manipulative dismissal, then perhaps something a bit less veiled might have been in order. This doesn’t appear to present a terribly compelling case for manipulation in any event. The charges were dismissed because of the gravity of Gibson’s illness. ¶6. They were never reissued, which in isolation suggests that the prosecutor wasn’t trying to game the system. Though dropping the parole hold might be a bit peculiar, given that that the department turned right around and issued an apprehension request, the state unlike the local county had no apparent financial stake in the outcome and so a cynical inference would be difficult to draw.
Prison -- Conditions – Judicial Review of Validity of Rule – Venue
Michael S. Johnson v. Berge, 2003 WI App 51
Issue/Holding: Under Wis. Stat. § 227.40(1), the exclusive means of judicial review of validity of a rule is by declaratory judgment brought in Dane County; therefore, Johnson’s challenge to validity of the prison’s behavior modification level system “rule” – on the ground it was never promulgated as a rule – should have been venued in Dane County. ¶¶3-4. (Court goes on to suggest that defect in venue affects neither jurisdiction nor competence.)
Prison -- Conditions – Legal Mail -- No Right to Counsel
State v. Joseph Steffes, 2003 WI App 55, PFR filed 3/13/03
For Steffes: Daniel P. Ryan
Issue: Whether an envelope addressed to a prison inmate created a sixth amendment right to counsel by being marked “legal papers,” so as to entitle the inmate to be present when prison authorities opened the envelope.
¶15. Steffes contends that, unlike the facts in Peckham, here the envelope opened outside the inmate's presence did contain "legal mail." Although it is not entirely clear whether the trial court here found there was "legal mail" in the envelope, we will assume for purposes of our discussion that it did. However, we reject Steffes's assumption that documents that may be described as "legal mail" or "legal papers" are necessarily entitled to confidentiality under the Sixth Amendment right to counsel. The Sixth Amendment protects the attorney-client relationship from intrusion in a criminal matter. Wolff, 418 U.S. at 576. The need for an inmate to be able to communicate privately with his or her counsel is vital to the effective assistance of counsel. See Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974). There are many documents that could be described as "legal mail" or "legal papers" that do not have any bearing on an inmate's relationship with his or her counsel in a criminal setting. One example that comes readily to mind is a document relating to a court proceeding when an inmate is proceeding pro se. In order for the Sixth Amendment right to counsel to have an arguable application in this case, there must, as a threshold matter, be some evidence that the documents in the envelope were communications with Steffes's attorney or somehow related to an attorney's representation of Steffes in a criminal matter. However, there is no evidence in the record that the envelope contained any such documents.
Prison -- Conditions – Mail -- No Right to be Present When Opened
State v. Joseph Steffes, 2003 WI App 55, PFR filed 3/13/03
For Steffes: Daniel P. Ryan
Issue: Whether Wis. Admin. Code § DOC 309.04(3)(a) creates a 14th amendment liberty interest in not having apparent legal mail opened outside the addressee-inmate’s presence.
¶23. In the context of our Fourteenth Amendment analysis, the question is whether, in providing protection that is not required by the Constitution against intrusion into Steffes's receipt of mail, the regulation provides freedom from a restraint that imposes atypical and significant hardship on him in relation to the ordinary incidents of prison life. We have no hesitancy in concluding the regulation does not do this. Even if we assume that having mail addressed to an inmate opened outside the inmate's presence is a "restraint on freedom," restrictions and intrusions on the receipt of mail, other than that which is constitutionally proscribed, are typical of prison life. See Wolff at 575-77; Turner v. Safley, 482 U.S. 78, 86-91 (1987). In addition, it is not a significant hardship in relation to the ordinary incidents of prison life to have mail opened outside an inmate's presence when the mail purports to be from an attorney but is not. See Pacheco v. Comisse, 897 F. Supp. 671, 681 (N.D. N.Y. 1995) (variation from prison directive that sets standard for proving a letter is privileged does not involve freedom from restraint or impose atypical hardship).
(Note: Court adopts atypical hardship test of Sandin v. Conner, 515 U.S. 472 (1995).)

Prison Issues -- Discipline
(See also
Habeas -- Prison Discipline)

Prison -- Disciplinary Hearing -- Examiner as Potential Witness
State ex rel. Al Curtis, et al., v. Litscher
, 2002 WI App 172
For Plaintiffs: Howard B. Eisenberg
Issue/Holding: The inmates' rights were violated by having their disciplinary hearings conducted by an examiner who was a witness to the event at issue. ¶¶15-20.
Prison -- Discipline -- Out-of-State Prison -- Certiorari Review in Foreign State as Claim Preclusion Barring Certiorari Review of Same Discipline in Wisconsin Court
State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130

Issue/Holding: A Wisconsin prisoner housed out of state, whose challenge to disciplinary action was rejected by a court in that state, is barred by claim preclusion from seeking certiorari review of that discipline in Wisconsin. ¶¶14-23.

Highlights: Courts in housing state have jurisdiction over disciplinary matters involving Wisconsin prisoners, under § 302.02(3t), see ¶19. Other than matters affecting length of sentence, all conditions of confinement are governed by law of the housing state, ¶17, citing §§ 301.21(2m)(b) and 302.18(5). It would seem to follow—and the court suggests as much, ¶20 n. 6—“ that Wisconsin inmates cannot lose good time or have their mandatory release dates extended as a result of discipline imposed at out-of-state facilities,” though this restriction is grounded in the idea that lost time requires violation of “prison” regs and out-of-state inmates aren’t considered “prisoners,” State ex rel Darrell W. Griffin v. Litscher, 2003 WI App 60. Finally, State ex rel. Al Curtis, et al., v. Litscher, 2002 WI App 172 is limited to its facts, ¶23—petitioners were transferred back to Wisconsin before they could file judicial challenge in housing state, and in that “unusual circumstance were allowed to file challenge in Wisconsin.

Certiorari -- Availability
State ex rel. David C. Myers v. Swenson, 2004 WI App 224, PFR filed 11/24/04
For Myers: Christopher T. Sundberg; Bruce D. Huibregtse
¶9. In general, a means of reviewing an out-of-state disciplinary proceeding is provided by Wis. Stat. § 302.02(3t) … Thus, the legislature has provided that when a Wisconsin inmate is disciplined while at an out-of-state prison, judicial review of that disciplinary action may proceed in the state where the prison is located.2 Curtis, 256 Wis. 2d 787, ¶12. It follows that Wisconsin courts generally lack competency to conduct certiorari review of out-of-state disciplinary proceedings....

¶11. We take this opportunity to elaborate on Curtis. First, the burden is on the certiorari petitioner to show facts sufficient to establish that the Wisconsin court is competent to proceed.

¶12. Second, the certiorari petitioner must present evidence showing that an out-of-state court dismissed a disciplinary review action on grounds that the court lacked jurisdiction or competency to review the matter; it is not sufficient to merely allege that out-of-state judicial review was unavailable.

¶13. Third, whether another state has determined that it lacks jurisdiction or competency to review a disciplinary action involving a Wisconsin inmate presents a factual issue …

¶19. Wisconsin Stat. § 302.02(3t) deprives Wisconsin courts of competency to entertain certiorari actions seeking review of out-of-state prison disciplinary decisions unless a petitioner can show that he was denied judicial review on jurisdictional or competency grounds in the state where the disciplinary action occurred. Because Myers did not attempt to obtain judicial review in Minnesota, and has failed to show that § 302.02(3t) is unconstitutional, we conclude that the trial court correctly determined that it lacked competency to review Myers' disciplinary action. In light of that determination, we do not address whether the trial court may also have lacked personal jurisdiction over the warden.

The concurrence would make competency a question of law rather than fact, ¶¶23-29. While this may seem a point of obscurantist distinction favored only by appellate lawyers, the concurrence notes that the distinction is critical to the outcome of Ponchik (summarized below). But a spill-over effect might be felt where the question of judicial competency is an element of the offense, something raised in the pending State v. Timothy Scott Bailey Smith, Sr., 2004 WI App 116 (in felony nonsupport prosecution, whether proof of element of support order issued by court of “competent jurisdiction” must be submitted to jury for proof beyond reasonable doubt), oral argument 1/5/05. On a tangential point, the court indicates in fn. 2 that out-of-state discipline may not be the basis for extending MR.
Prison -- Discipline -- Out-of-State, Private Prison -- Competency of Wisconsin Court to Review
State ex rel. Tommy Ponchik v. Bradley, 2004 WI App 226, PFR filed 12/3/04
For Myers: Christopher T. Sundberg; Bruce D. Huibregtse
¶7 Like the inmate in Myers, Ponchik failed to make a prima facie showing that a court in the state where the disciplinary action occurred concluded that it lacked jurisdiction or competency to review the discipline. Ponchik, however, makes two additional arguments that were not made by the inmate in Myers. First, Ponchik argues, in effect, that there is no need for an individualized showing because an Oklahoma statute precludes jurisdiction over all out-of-state prisoners housed there. See Okla. Stat. tit. 57, § 563.2(k) (2001). Second, Ponchik contends that he actually sought judicial review by writing to a clerk of court in Oklahoma. Although we did not address either of these specific arguments in Myers, we conclude our holding there nonetheless controls the result in this case and dictates that the Wisconsin trial court lacked competency to entertain Ponchik's certiorari action.

¶8 … Thus, we reiterate that, in order to establish that a Wisconsin court is competent to review an out-of-state disciplinary proceeding, an inmate must make an individualized showing that he has attempted to obtain judicial review in the state where the discipline was imposed and that a court in that state dismissed his case for lack of jurisdiction or competency. Id., ¶12. Ponchik's untested theory as to why judicial review would be unavailable under the laws of Oklahoma is insufficient to show that he would have been denied judicial review on jurisdictional or competency grounds.

¶9. Ponchik's correspondence with a clerk of court in Oklahoma is also insufficient to show that he was actually denied judicial review on jurisdictional or competency grounds. First, a letter from a clerk of court is not a judicial decision. Second, the clerk's letter did not address whether Oklahoma had jurisdiction. Finally, Ponchik did not even make his inquiry until after the certiorari action in Wisconsin had been filed.

An interesting dissent points out that Wisconsin statutes require the inmate to litigate in the receiving state, while Oklahoma statutes require that the litigation be in the sending state. The majority thus requires an exercise in futility; worse: requires the filing of frivolous suits. This practical result stems, the dissent suggests, from the notion that competency is a question of fact rather than of law: taxonomy matters; making Wisconsin a high-taxonomic state will result in wasteful and inefficient judicial commerce.
Prison -- Discipline -- Out-of-State, Private Prison -- Review by Certiorari
State ex rel. Al Curtis, et al., v. Litscher
, 2002 WI App 172
For Plaintiffs: Howard B. Eisenberg
Issue: Whether Wisconsin courts have authority to review a disciplinary hearing conducted by a private, out-of-state prison.
Holding: Common law certiorari is available to review an administrative decision where no legislative provision for review is made. Although legislation affords review of out-of-state contract prison discipline, 302.02(3t), in the "unique circumstances" here -- the prisoners were transferred back to Wisconsin and the foreign state refused to review the case -- review by certiorari is appropriate in that review was otherwise unavailable. ¶¶12-13. Nor does the fact that the administrative decision was made by a private, foreign entity strip Wisconsin courts of jurisdiction, because "the contract facility performs those [administrative] functions as agents of DOC and the State." ¶14.

Prison Issues -- Good Time

Prison Parole -- Good-Time, Misdemeanor Prison Sentence
State ex rel. Vonnie D. Darby, 2002 WI App 258
Issue: Whether the computation of good-time on misdemeanor sentences being served in a prison is regulated by 302.43 (release without parole after three-fourths of sentence) or by 302.11 (mandatory release on parole after two-thirds of sentence).
Holding: The place of confinement, rather than nature of underlying conviction, controls. Because 302.11(7)(a) doesn't distinguish between felony and misdemeanor portions, and because all sentences being served jointly are treated as a single aggregate sentence, that provision controls. Moreover, 302.43 on its face is clearly limited to inmates of county jails. ¶¶13-14.
Note: This pro se challenge to good time arises on habeas, and though the court does reach the merits, it nonetheless strongly suggests that the proper way to raise the issue would be through certiorari. ¶11 n. 5. Keep in mind, however, that Darby is really challenging a parole revocation -- he's saying that the department had no authority to revoke him because he never should have been released to parole on misdemeanor sentences. Obviously the court is trying to canalize as many cases as it can into the PLRA. But it's simply not clear whether, in the absence of a revocation, a challenge to good time would (or could) be raised by certiorari. There is published authority saying that good-time challenges must be raised by habeas. State v. Johnson, 101 Wis. 2d 698, 305 N.W.2d 188 (Ct. App. 1981).
Prison Parole -- Good-Time, Out-of-State Transfer
State ex rel Darrell W. Griffin v. Litscher, 2003 WI App 60
Issue/Holding: The sentence of a Wisconsin prisoner transferred to an out-of-state prison is regulated by Wisconsin law, so that s/he is not entitled to the award of good-time credit under the other state's law.
¶13. In other words, no matter where a prisoner serves his sentence, if he has been sentenced to the Wisconsin prison system and is in the custody of the department, Wisconsin law still controls his sentence, even if the prisoner is transferred to another institution within Wisconsin or to one in another state. Griffin's assertion that he can accumulate Oklahoma earned credits implicitly concludes that, by contracting with CCA to house prisoners at North Fork, the department has relinquished jurisdiction over prisoners transferred there. The department's contract with CCA, however, only delegates day-to-day decisionmaking; the department retains custody and final decisionmaking authority over transferred prisoners. See Treat, 2002 WI App 58 at ¶15; Evers, 2000 WI App 144 at ¶14 (A "sentence to the Wisconsin state prisons" is a "commitment to the custody of the department.").
Somewhat relatedly, see Overturf v. Massie, 10th Cir. No. 04-6037, 10/4/04:
We do not think it is reasonably debatable, despite the distinguishing facts that Petitioners claim undercut the holding in Olim, that inmates have no protected liberty interest in the location of their confinement. Olim, 461 U.S. at 247-48; see also Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Thus, their incarceration in Oklahoma following conviction and sentencing in Hawaii state court cannot, by itself, form the basis for a due process challenge. Petitioners' claim that Hawaii lost jurisdiction over them is legally incorrect. In Blango v. Thornburgh, 942 F.2d 1487, 1490 (10th Cir. 1991) (per curiam), we specifically rejected a theory that a transferring jurisdiction loses jurisdiction over a transferred inmate: "Criminal jurisdiction over a state's inhabitants remains with the respective states and territories whose jurisdiction the prisoners were originally sentenced." Thus, Petitioners were always incarcerated under authority of the State of Hawaii.

Prison Issues -- Parole/Revocation

Prison Issues – Parole – Liberty Interest -- Detaining Inmate Beyond MR Date
James Allen v. Guerrero, et al., 2004 WI App 188
For Allen: Jeff Scott Olson
Issue/Holding: Deliberately holding an inmate beyond the mandatory release date violates the 8th amendment. ¶2.
This is a 1983 suit; the background limned by the court, ¶¶4-5, is interesting enough but still requires a bit of reading between the lines. Sexual-assault prisoner Allen reached MR, but “DOC was unable to secure appropriate housing for” him and so moved him to a minimum security prison. This is a problem – not to make too fine a point of it – that has plagued DOC for years: DOC must release some given sexual-assault inmate, but runs into strenuous opposition from the community chosen for placement. The problem is especially acute for ch. 980 inmates, see generally State v. William L. Morford, 2004 WI 5 (re: aggressive attempts to rescind supervised release in face of local disfavor); and State v. Shawn D. Schulpius, 2004 WI App 39, rev. granted and scheduled for oral argument 10/28/04 (very lengthy delay implementing order for supervised release). Back to Allen: He had to be released because he’s reached MR, yet DOC couldn’t release him (presumably for what might broadly be termed “political” reasons). The DOC minds must have been fully concentrated by the jaws of this trap, and so they contrived an elegant bureaucratic solution – they commenced parole revocation proceedings. Just one little problem: given that they’d refused to release him from custody, how could they say he’d been “paroled”? The ALJ agreed he wasn’t on parole, and the revocation was dismissed. Undaunted, DOC wound up and tried the same pitch, with the same result. Allen finally brought matters to a head with a habeas petition, and he won release a mere 377 days after reaching MR. And so Allen commenced this 1983 claim, the overarching question of which is whether state actors violated a clearly established constitutional right. Allen says that deliberately holding him beyond MR violated the 8th amendment – though no Wisconsin cases has previously addressed that issue, federal decisions have, and the court adopts them, ¶12, citing Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001) and Russell v. Lazar, 300 F.Supp. 2d 716 (E.D. Wis. 2004). Wisconsin precedent previously established that DOC couldn’t continue to detain an inmate past MR, State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 591 N.W.2d 922 (Ct. App. 1999); State ex rel. Olson v. Litscher, 2000 WI App 61, 233 Wis. 2d 685, 608 N.W.2d 425, but the defendants say, geez, those cases merely establish a violation of state law. Not so fast, the court says: the claim is one of deliberate indifference to Allen’s right to be released, ¶20; if the first thwarted attempt to “revoke” the non-existent parole didn’t acquaint the officials with Allen’s right to be released, the 2nd surely did (D’oh!).
Prison -- Parole -- Liberty Interest -- Repeal of  304.06(1r) (1989-90)
State ex rel Darrent Britt v. Jane Gamble
, 2002 WI App 238, PFR filed 9/23/02
Issue: Whether  304.06(1r) (1989-90) (parole "shall" be granted absent overriding considerations where inmate obtains HSED while incarcerated) conferred a liberty interest on a parole candidate even though the provision had been repealed by the time of parole eligibility.
¶18. First, as already noted, Wis. Stat.  304.06(1r) (1989-90) was repealed before Britt's PED; further, the legislative history does not indicate that the presumption created by  304.06(1r) (1989-90) should continue for inmates who were sentenced during the dates when the statute was in effect. See 1995 Wis. Act 444. Thus, we hold that Britt does not have a liberty interest derived from  304.06(1r) (1989-90) because it was not in effect at the time of his parole consideration and was not intended by our legislature to apply to his parole consideration.
(In what is obvious dicta given this holding, the court goes on to "conclude that Wis. Stat.  304.06(1r) (1989-90) did not create a due process liberty interest in parole release even when it was in effect at the time of an inmate's parole consideration." ¶20, citing State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163 (retention of discretion by parole commission defeats idea of protectible liberty interest).)
Revocation – Conduct Occurring Before Current Term of Supervision as Basis, § 304.072(3)
DOC v. Schwarz and James Dowell, 2005 WI 34, reversing, 2004 WI App 136
For Dowell: Michael K. Gould, SPD, Milwaukee Appellate
Issue: Whether § 304.072(3) permits DOC to revoke a parolee for conduct occurring during a prior term of supervision.
¶2. We hold that the phrase "term of supervision" in Wis. Stat. § 304.072(3) is ambiguous, since it can reasonably be interpreted to apply to both the current term of supervision and any time prior to the final discharge from an underlying sentence. We rely upon extrinsic sources such as the legislative history and relevant case law behind § 304.072(3), and the interplay among parole statutes to determine that the phrase "term of supervision" was intended to apply to all parole violations that occur before the offender's date of discharge from his or her entire sentence. We conclude that the legislature intended to promote offender accountability and, therefore, the DOC had jurisdiction to revoke Dowell's parole for a violation that he committed during his first period of parole supervision.
About the best you can hope to come out of this result-oriented decision is so few cases as to make the practical impact negligible. The court surveys the world of DOC field supervision Gaul, divided into three parts: parole, probation, extended supervision. And, yes, they are distinct parts, about which momentarily. Dowell was a (pre-TIS, of course) parolee; he was revoked and returned to prison and paroled a second time. DOC then discovered Dowell’s link to a crime committed during his first parole term, and sought (long-after-the-fact) revocation of the current, second term of parole. (He had not yet reached discharge on the sentence, so there was still a bit of time remaining on paper.) It might strike you intuitively as wrong, that someone can be returned to prison for past conduct, and you would be right -- at least as a matter of common law. But there is a statute to deal with, the court's treatment of which is numbingly circular. Sec. 304.072(3) says that DOC “preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision.” The phrase “term of supervision” is, the court holds, ambiguous with respect to whether it means currentterm – could mean, “final discharge,” or alternatively some supervision-ending event such as revocation, ¶¶18-19. And so the court trains its field glasses on the legislative-history terrain; a largely featureless one, as it turns out, though the court is plainly minded to see what it wants, ¶¶22, et seq. The long and short of it is that the drafting file contains persuasive indications of legislative intent to more or less codify State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 314 N.W.2d 148 (Ct. App. 1981), a case which says the department preserves jurisdiction over a probationer if it issues a warrant during the term of supervision. Is that what happened here? No. Does that case control these facts, then? No. So, what’s the court’s rationale for applying it? “It represents “the intent to provide for offender accountability,” ¶24. If that seems to be a non-answer, that’s because it is a non-answer; (see, dissent, ¶¶40-41); what in some circles is called question-begging, though here it passes for statutory analysis. The court also suggests that reading into the statute the word “current” (term of supervision) would violate the principle that courts may not add words to a statute to provide a certain meaning, ¶20. Consider, though, just how the court has managed to mangle the statutory text, so that it now reads something like, “an alleged violation prior to the expiration of the probationer's, parolee's, or person's term of supervision, until discharge from the entire sentence.” (And you thought the Vanna White power was reserved for the governor.)

But it is not simply that the court's analysis is unconvincing in its right. There remain two crucial matters -- distinctive types of supervision; common law -- that the court simply ignores. Recall the three categories of supervised convicts. Each is distinct from the others, none more so than probationer – though each of the other two categories is theoretically subject to serial revocations, you can only be a probationer once; if probation is revoked, it’s over and done with. With that key distinction in mind, the statutory text as actually written makes sense as a codification of Cox: a probationer necessarily has but a single term of supervision, which therefore cannot be anything other than “current” (which therefore would be superfluous to spell out); and thus, by conjoining probation, parole and ES, the legislature plainly meant to preserve revocation jurisdiction if a warrant (or other event) occurs during the current term of supervision.

Seen in that light, the court's textual and legislative history analysis leaves a bit to be desired. There is the separate matter of the common law, whose “rule (is) that a defendant ordinarily cannot be required to serve his sentence in installments—that is, a prisoner normally should serve his sentence continuously once he is imprisoned," United States v. Melody, 863 F.2d 499, 504 (7th Cir. 1988). For more elaboration, see Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994):

... There is, however, a common law rule, which has been held applicable to federal sentencing, that unless interrupted by fault of the prisoner (an escape, for example) a prison sentence runs continuously from the date on which the defendant surrenders to begin serving it. The government is not permitted to delay the expiration of the sentence either by postponing the commencement of the sentence or by releasing the prisoner for a time and then reimprisoning him. The government is not permitted to play cat and mouse with the prisoner, delaying indefinitely the expiation of his debt to society and his reintegration into the free community. Punishment on the installment plan is forbidden. ...
And that is precisely the regime now sanctioned by Dowell, incarceration on the installment plan. It might be answered that the installments have been occasioned by the convict's own misconduct, hence there is no governmental "cat-and-mouse." But that quite ignores the very fact that the convict has already been revoked and sent or returned to the prison and has committed no additional misconduct. Of course, we are talking now about common law, which a statute certainly may override. But that only draws attention back to principles of statutory construction, and highlights from a different angle the deficiencies in the court's approach.
¶29. Statutes in derogation of the common law are to be strictly construed. Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶25, 244 Wis. 2d 758, 628 N.W.2d 833 (citing Maxey v. Redev. Auth. of Racine, 94 Wis. 2d 375, 399, 288 N.W.2d 794 (1980)). "A statute does not change the common law unless the legislative purpose to do so is clearly expressed in the language of the statute." Id. "To accomplish a change in the common law, the language of the statute must be clear, unambiguous, and peremptory." Id. Because there is no such language in Wis. Stat. § 895.85(3) regarding the phrase "disregard of rights," we look to the common law to shed light on legislative intent.
Strenke v. Hogner, 2005 WI 25. See also, e.g., State v. Gomaz, 141 Wis.2d 302, 324, 414 N.W.2d 626 (1987) (court must pay "due regard to principles of statutory construction providing that statutes are not to be read in derogation of the common law, unless intent to change common law is clearly expressed"). And now the problematic nature of Dowell's very cavalier construction of the statute is revealed more sharply: whatever else may be said of the statutory text, it undeniably fails to express clear intent to alter the common law preclusion against prison-on-the-installemnt plan.

Can the court’s holding be extended to ES and probation? It's not clear, but on its facts this is a parole case, and its extension ought to be resisted.

Prison -- Parole -- "Presumptive" MR Liberty Interest
State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163
Issue: Whether the "presumptive mandatory release date" under 302.11(1g) creates a liberty interest in parole protected by due process.
Holding: Prisoners sentenced for a "serious felony" between April 21, 1994, and December 31, 1999, are given a "presumptive" MR date. Discretionary parole does not create a due process-protected liberty interest, while mandatory release does.
  • The "presumptive" MR regime is a form of discretionary parole, because the inmate is not entitled to release; instead, the parole commission has broad discretion to deny parole "when the prisoner either poses a risk to the public or refuses to participate in necessary counseling and treatment." ¶¶9-10.
  • Moreover, by providing a hearing at which Gendrich could present his case for parole, and by providing written reasons for denial of parole, the commission afforded all the process he was due even had his interest in release been protectible. ¶11.
  • Finally, the evidence supported the decision to deny parole, in
    that Gendrich's release would pose a substantial risk to the public because he remains an untreated sex offender. Gendrich has completed the 'Denier's Program' but has not yet completed Sex Offender Treatment. Early during his incarceration, he refused to participate in the treatment program because he was still pursuing an appeal of his conviction. Recently, he has been on the institution's waiting list for Sex Offender Treatment. No matter the reason for his not participating in treatment, a reasonable person could conclude that as an untreated sex offender, Gendrich poses a substantial risk to the public. (¶13)
Note: This decision has the effect of denying parole based on failure to obtain or submit to SOT. Though the implication isn't discussed in the opinion, this situation could create "compulsion" sufficient to trigger 5th amendment protection. That is, SOT is generally conditioned on full disclosure of assault history, which the inmate is now compelled to reveal on pain of forgoing release on parole. Moreover, even on its face, the decision at least arguably punishes Gendrich for asserting his rights: he refused to talk during pendency of his appeal of his conviction -- something he was plainly entitled to do, see State ex rel. Gary Tate v. Schwarz, 2002 WI App 127 -- which delayed his entry into SOT and thereby made him ineligible for parole. ¶11 n. 9. Gendrich, a pro se litigant, never raised this issue. As for general considerations, see McKune v. Lile, 536 U.S. __, 122 S. Ct. 2017 (2002), reversing Lile v. McKune, 224 F.3d 1175 (10th Cir. 2000) (four-Justice plurality and concurrence agree that transfer from medium to maximum security and concomitant reductions in visitation, spending and earnings privileges don't amount to constitutional compulsion sufficient to trigger fifth amendment protection for refusal to participate in sex offender program that required admissions of both charged and uncharged offenses; but: concurrence and dissent agree, establishing majority vote on the point, that fifth amendment compulsion analysis isn't lessened by prison setting), on remand, Lile v. McKune, 299 F.3d 1229 (10th Cir. 2002) (Supreme Court holding found in Justice O'Connor's concurrence, namely insufficient compulsion). Accord, on point that this concurrence represents Court's holding, Gwinn v. Awmiller, 10th Cir. 00-1485, 1/12/04 ("we view her concurrence as the holding of the Court in McKune"); U.S. v. Antelope, 9th Cir No 03-30334, 1/27/05.

Even making parole much more difficult for failure to participate in a prison treatment program, itself conditioned on admitting criminal conduct, may not be sufficient compulsion within the fifth amendment. Ainsworth v. Risley, 244 F. 3d 209, 215-20 (2001), vacated, 536 U.S. __, 122 S. Ct. 2652 (2002), on remand, Ainsworth v. Stanley, 317 F.3d 1 (1st Cir. 2002) (also deeming Justice O'Connor's concurrence as representing Court's holding, but indicating that McKune nonetheless offers "no clear guideposts" and court therefore reaffirms earlier conclusion: burden placed on exercise of rights mitigated by 1) lack of additional penalty caused by denial of parole; 2) voluntary nature of program; 3) possibility, albeit slight, of parole notwithstanding failure to complete SOTP); State v. Carter, 146 N.H. 359, 772 A.2d 326 (2001). See also Gwinn (refusal to admit committing sex offense, which results in inelgibility for good time credit does not amount to fifth amendment compulsion, even for inmate who was not convicted for sex offense); and Wirsching v. State of Colorado, 10th Cir. No. 00-1437, 2/19/04 (refusal to participate in prison SOTP, because of required aknowledgement of guilt, resulted in consequences not present in McKune, namely loss of opportunity to earn good time at accelerated rate and loss of visitation with own children; nonetheless, these consequences didn't amount to compulsion within meaning of 5th amendment). For a pre-McKune case, see Doe v. Sauer, 186 F.3d 903, 906 (8th Cir 1999) (upholding denial of parole based on refusal to participate in SOTP, which in turn required candid disclsoure of sexual abuse: "denial of parole is permissible if it is based on the prisoner’s refusal to participate in his rehabilitation and not based on his invocation of his privilege").

But see DeFoy v. McCullogh, 3rd Cir. No. 03-3474, 1/5/05 (inmate argued that refusal to admit guilt made him ineligible for SOTP, hence caused him to be denied parole, violated 5th amendment; court, stressing "the tension between what should be the touchstone of any penal system -- rehabilitation -- and a convicted sex offender's rights against self-incrimination under the Fifth Amendment," remanded to distirct court to determine whether DeFoy's "unenviable choice" violated his right against coerced self-incrimination).

Note, separately, the distinction drawn between a prisoner and a probationer or parolee under court order to participate in a treatment program. Ainsworth, 244 F.3d at 217 (collecting cases). Illustrtaing this point very well: U.S. v. Antelope, 9th Cir No 03-30334, 1/27/05 (defendant's revocation, for refusing to comply with court-ordered treatment as condition for supervised release because it would require candid disclosure of potentially incriminating sexual history, held to violate 5th amendment). See also U.S. v. York, 357 F.3d 14 (1st Cir. 2004), to effect that requiring defendant to submit to polygraph testing as condition of supervised relase, such that refusal to answer any question, even on valid 5th amendment grounds, could support revocation, "would be constitutionally problematic. ... (I)f York and his probation officers dispute whether he refused to answer a question on valid Fifth Amendment grounds, York will be entitled to a hearing before a court before any penalty can be imposed." (Indeed, Antelope relied on York as support for its result; more on polygraph testing as condition of release and 5th amendment, in U.S. v. Johnson, 2nd Cir No. 04-4992-cr, 5/1/06.) And, the prisoner's loss of good-time credit for nonparticipation presents a different situation. See Bender v. New Jersey DOC, 356 N.J. Super. 432, 812 A.2d 1154 (2003) (McKune prohibits State from extracting information from inmate about past criminal history under penalty of lost good-time, unless use immunity is provided), unavailable on-line. Prison setting or no, in some instances court-ordered treatment may be enough to create the necessary compulsion. State v. Evans, 144 Ohio App.3d 539, 760 N.E.2d 909 (2001), unavailable on-line.) But it must be kept in mind that merely asking questions in the context of a polygraph doesn't create a 5th amendment problem; the privilege may be invoked only if a truthful answer would create exposure to criminal prosecution as opposed to revocation, U.S. v. Locke, 5th Cir No. 06-40270, 3/21/07.

(For discussion on plethysmograph testing as condition of ES, as to which court suggests polygraph testing as less intrusive alternative, see U.S. v. Weber, 451 F.3d 552 (9th Cir 2006). cases collected re: concerns over plethysmograph testing on liberty interests and questionable reliability, in U.S. v. Lee, 6th Cir No. 06-5848, 9/13/07.

For a very detailed analysis see Seth Grossman, Note: A Thin Line Between Concurrence and Dissent: Rehabilitating Sex Offenders in the Wake of McKune v. Lile, 25 Cardozo L. Rev. (2004) (No link available) (conclusion: Justice O'Connor's opinion is key; the program in McKune likely represents the outer limit of acceptability; and, "programs that affect good-time credits and programs that require admissions of guilt outside of the prison context with the automatic result of parole revocation for failure to do so" are likely to be deemed unconstitutional).

Prison -- Parole -- Rescission of Grant -- Procedure for Challenging
State ex rel. Odis Purifoy v. Malone, 2002 WI App 151
Issue/Holding: Challenge to parole rescission is by certiorari, rather than habeas, because the petitioner isn't asserting illegal restraint but, instead, the refusal to grant him a hearing on rescission. State ex rel. Szymanski v. Gamble, 2001 WI App 118, 244 Wis. 2d 272, 630 N.W.2d 570, distinguished. (However, court construes habeas petition as one for certiorari, and proceeds to merits. ¶8.)
Prison -- Parole -- Rescission of Grant -- Propriety
State ex rel. Odis Purifoy v. Malone, 2002 WI App 151
¶19. Wisconsin Admin. Code PAC 1.03(12) defines "parole grant" as "the action by the chairperson or designee ordering the release of an inmate to field supervision by the department of corrections on or after a specific date." The March 6 document falls squarely into that definition. Smith (the chairperson) ordered the release of Purifoy to parole supervision on or after November 19, 2001.  The document includes conditions of supervision. We therefore conclude that Smith issued a parole grant, not a recommendation, to Purifoy on March 6. Morgan was not entitled to rescind this grant without complying with the requirements of Wis. Admin. Code PAC 1.07(5)(c).
¶20. Under Wis. Admin. Code PAC 1.07(5)(c), the parole commission may rescind a parole grant only if there are "circumstances" "subsequent to the issuance of the grant" that require the rescission. Further, Purifoy has the right to be provided with the reasons for the parole rescission and the evidence supporting that decision and a right to a hearing before DHA, to present evidence and witnesses and to be represented by counsel at the hearing. Wisconsin Admin. Code PAC 1.07(5)(c). We therefore remand for that purpose.
Prison -- Parole -- Rescission -- Certiorari Review -- Time Limit
State ex rel. Odis Purifoy v. Malone, 2002 WI App 151
Issue/Holding: The prisoner's claim accrued on the date he was notified that he wouldn't be given a hearing on rescinding his parole (and not the date his parole was rescinded); measured from the correct date, his petition was timely filed. ¶¶11-12.
Prison -- Parole Revocation -- Jurisdiction -- Prisoner Held Beyond Mandatory Release Date, Due to Refusal to Cooperate with Parole Rules
State ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella
Issue: Whether an inmate who has reached his release date is subject to revocation proceedings if he has not actually been released from physical custody but, rather, remained in detention because he refused to sign parole rules and was otherwise non-compliant.
¶21. We are not persuaded by Riesch's arguments. Woods and Olson are unlike the present case because the inmates in those cases did nothing to warrant their continued detention at the time of their mandatory release date. …

¶25. Unlike the inmates in Woods and Olson, Riesch engaged in conduct that warranted custody at the time of his mandatory release date. Specifically, he committed the first of the violations underlying his parole by refusing to cooperate with his social worker at the Kettle Moraine Correctional Institution (KMCI) in arranging a suitable residence plan upon his release. This took place simultaneous to the date of his mandatory release, and a parole hold was immediately lodged against him. …

¶26. Because Riesch's first violation occurred immediately and simultaneously with his mandatory release date, we find the Macemon cases instructive. …

¶28. Neither Macemon I nor Macemon II stand for the proposition that a person can be revoked from parole before being granted parole status. However, they do support the State's claim that a person can attain the status of a parolee without being released from physical custody. Given the foregoing discussion, we are satisfied that Macemon rather than Woods and Olson control this case. …

As the court goes on to say, ¶29, the ultimate lesson is that jurisdiction to revoke isn’t dependent on a form-over-substance of release from physical custody. Where, as in Riesch’s instance, the violation is simultaneous with reaching the release date, then detention continues and revocation may commence. “Where inmates violate these terms immediately and simultaneously with their scheduled mandatory release dates, the DOC should be able to maintain continuous custody, even though that person's status changes from a prisoner serving a sentence to a parolee detained on a parole hold,” ¶30. In that sense, this is a narrow holding, especially given the court’s admonition, “that the DOC is not free to hold inmates indefinitely for such problems as failure to find suitable housing on its part.” Id., citing Olson with approval. But much is left unsaid, and it’s hard to believe we’ve heard the last of this problem [indeed, the court itself perceived the problem as recurrent, else would have dismissed the appeal as moot]. Start with “failure to find suitable housing” – a somewhat elliptical reference to systemic problems placing sex-crimes inmates (and Riesch was one), exemplified by such cases as State v. Shawn D. Schulpius, 2004 WI App 39, pfr granted, decision pending; and State v. Morford, 2004 WI 5. And note, especially, that Riesch’s non-cooperation took the particular form of refusing to agree to “treatment,” at a half-way house. Although the decision in McKune v. Lile, 536 U.S. __, 122 S. Ct. 2017 (2002) may have resolved a good deal of the fifth amendment issues involving “treatment” of confined inmates, and although there’s no particular reason to be optimistic about the outcome of litigation where actual loss of liberty results from refusal to agree to treatment, the issue virtually begs for litigation until definitive resolution. See discussion under “Gendrich” summary, above.
Prison -- Parole Revocation -- Jurisdiction -- Prisoner Held Beyond Mandatory Release Date
State ex rel. Larry E. Olson v. Litscher, 2000 WI App 61, 233 Wis. 2d 685, 608 N.W.2d 425
For Olson: Dennis Egre, SPD, Kenosha
Issue: Whether the Department of Corrections is authorized to detain an inmate in a penal institution beyond his or her mandatory release date.
Holding: The court accepts DOC's concession "that there is nothing in either the administrative code or the statutes that authorizes it to detain Olson beyond his mandatory release date." ¶5.
Analysis: There's little worth adding on the merits. As the court says, "But there is no gray area in the statute - it is crystal clear." ¶5. The court's discussion on the merits is thus deservedly terse; but the case's tortuous procedural history deserves mention. Olson filed a habeas in circuit court on 4/19/99. The circuit court ordered briefing on whether it lacked jurisdiction because the judgment of conviction hadn't been attached to the habeas petition. Olson filed a supervisory writ petition in the court of appeals, seeking to compel the circuit court to decide the merits of his petition, or alternatively for the court of appeals itself to grant habeas relief. While that request was pending, the circuit court did reach the merits, denying relief for reasons too arcane to discuss. That action mooted out the mandamus portion of the writ, but left the habeas request viable, and it was that request that generated this opinion. In other words, this is an original action for habeas relief, not an appeal. And there it sat, 9+ months, despite DOC's concession. More importantly, perhaps, habeas would seem to be the correct way to raise this sort of issue, and although the court of appeals would certainly have jurisdiction over the habeas petition, as a practical matter it can and should be filed in circuit court. Take note, too, that when DOC does keep someone in prison past his/her release date, the person is considered a prisoner, not a parolee, and is therefore not subject to revocation proceedings. State ex rel. Woods v. Morgan, 224 Wis.2d 534, 591 N.W.2d 922 (Ct. App. 1999).
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Prison -- Parole Revocation - Jurisdiction -- prisoner paroled but not actually released.
State ex rel. Aaron Ben Woods v. Morgan, 224 Wis.2d 534, 591 N.W.2d 922 (Ct. App. 1999).
For Woods: Terry W. Rose
Holding: Woods reached MR but for unspecified reasons was kept in a minimum security facility. He committed a violation at the institution and was "revoked." Just one problem: how could be subject to parole revocation while still in prison? The state argues that "temporary placement at a correctional facility after his MRD has no bearing on his status as parolee." The court applies common sense: though Woods had signed parole rules, etc., he "was a prisoner because he was deprived of his liberty and held in custody at a state prison." Since he was a prisoner rather than parolee, the revocation is overturned, and he's entitled to be released on parole. Of equal interest: this challenge is prosecuted by way of habeas corpus rather than certiorari. The court doesn't discuss the propriety of this procedure. Habeas is presumably ok here because it reaches jurisdiction of the underlying order. Woods wasn't on parole, and there wasn't jurisdiction to revoke him. But certiorari also raises the administrative body's jurisdiction. So, how does this square with State ex rel. Reddin v. Galster, 215 Wis. 2d 179, 186, 572 N.W.2d 505 (Ct. App. 1997) (reviewability by cert "precludes the issuance of a writ of habeas corpus")?
Prison -- Parole Revocation -- DOC Guidelines Binding DHA
Larry L. George v. Schwarz, 2001 WI App 72, 242 Wis. 2d 450, 626 N.W.2d 57
For George: Leonard D. Kachinsky
Issue: Whether the Division of Hearings and Appeals is bound by Department of Corrections Operations Manual guidelines for establishing the period of reincarceration after revocation.
Holding: No, for three reasons: 1) One administrative agency can’t regulate the activities of another (DHA and DOC being distinct agencies); 2) DHA discretion would be seriously undermined (the decision to impose reincarceration time being DHA’s sole responsibility); 3) DHA wouldn’t be neutral and detached (as required by due process) if required to accept the reincarceration recommendation of the agency responsible for prosecuting the revocation.

Prison Issues -- PLRA

Prison Litigation Reform Act -- Application to Appeals -- "Three-Strikes" Provision,
State ex rel. Mark Anthony Adell v. Smith, State ex rel. Ira Lee Anderson v. Smith, 2000 WI App 188, 238 Wis.2d 655, 618 N.W.2d 208
Issue: Whether the "three-strikes" provision of § 801.02(7)(d), which subjects an indigent prisoner's "action or special proceeding" to dismissal, applies to appeals.
¶8 We conclude that there is no ambiguity in WIS. STAT. § 801.02(7)(d), and therefore, there is no need to look to other sources to determine the meaning of the statute. The statute does not include appeals in the list of matters which are subject to dismissal for the simple reason that the legislature did not intend appeals to be dismissed.
Prison Litigation Reform Act - Application to habeas challenge to MR calculation.
State ex rel. Joseph Stinson v. Morgan, 226 Wis.2d 100, 593 N.W.2d 924 (Ct. App. 1999).
Holding: The Prison Litigation Reform Act applies to a habeas challenge to calculation of mandatory release date following parole revocation. A "prisoner" as defined by the PLRA doesn't include a litigant attacking sentence or conviction. Stinson seeks to reduce the amount of time he's incarcerated, but the validity of his sentence won't be affected in any way. See State v. Johnson, 101 Wis. 2d 698, 305 N.W.2d 188 (Ct. App. 1981). But this merely begs the quesiton of whether the PLRA can (or is intended to) impose restrictions on the right to petition for writ of habeas corpus. See, Kincade v. Sparkman, 117 F.3d 949, 950 (6th Cir. 1997); United States v. Levi, 111 F.3d 955, 956 (D.C. Cir. 1997) (federal PLRA, 28 USC § 1915 doesn't apply to habeas), a possibility the court didn't consider.
Prison Litigation Reform Act -- Application to Out-of-State Inmate
State ex rel. Frowirth v. Wisconsin Parole Commission, 2000 WI App 139, 237 Wis.2d 627, 614 N.W.2d 541
Issue: Whether the Prison Litigation Reform Act 45-day time limit for filing certiorari challenge to parole denial applies to an inmate transferred out of state.
Holding: Although the PLRA does not apply to an inmate transferred out of state, it does apply to an inmate who is incarcerated in Wisconsin at the time of the parole decision, and who remains in Wisconsin for the following 45 days, i.e., running of the PLRA limitation period.
Prison Litigation Reform Act -- Applicabilition to Out-of-State Inmate
State ex rel. William Speener v. Gudmanson, 2000 WI App 78, 234 Wis. 2d 461, 610 N.W.2d 136
For Speener; Howard B. Eisenberg, Dean, Marquette Law School
Issue: Whether the Prison Litigation Reform Act applies to an inmate who, at the time he seeks in forma pauperis status, has been transferred to an out-of-state county jail.
Holding: The PLRA requires that the applicant be a "prisoner" in a "correctional institution," which, as defined by the PLRA, does not include a litigant housed in an out-of-state county jail.
Prison Litigation Reform Act -- Application to pro se litigant
State ex rel. Leonard Collins v. Cooke, 2000 WI App 101, 235 Wis.2d 63, 611 N.W.2d 774
Issue: Whether the PLRA "only applies to certiorari actions made 'on behalf of a prisoner," not by the prisoner himself or herself."
Holding: "(A)ny petition for writ of certiorari under § 893.735 must be made within forty-fiverdays of the government's decision, regardless of whether the petition is filed by the prisoner or by his or her counsel." ¶1.
Prison Litigation Reform Act -- Application to Revocations
State ex rel Jason J. Cramer, 2000 WI 86, 236 Wis. 2d 473, 613 N.W.2d 591, on original action.
For Cramer: Brian Findley, SPD, Madison Appellate
Issue: Whether the Prison Litigation Reform Act applies to challenges to probation/parole revocation raised via certiorari.
¶51 We hold that a petitioner who seeks to overturn the revocation of probation by a writ of certiorari is a 'prisoner' within the meaning set forth in Wis. Stat. § 801.02(7)(a)2 and therefore is governed by the provisions created by the PLRA. A probation revocation is not analogous to a judgment of conviction or a sentence, and therefore a writ of certiorari challenging revocation is not subject to the exclusion created by Wis. Stat. § 801.02(7)(a)2.c. We conclude that Cramer's writ of certiorari seeking review of the Division of Hearings and Appeals decision is subject to the 45-day deadline established by Wis. Stat. § 893.735(2). We therefore deny his petition for declaratory relief. We expressly do not address whether the PLRA applies to prisoners situated in out-of-state facilities.
Analysis: The PLRA's purpose is to make filing prisoners' file lawsuits as difficult as possible. Trouble began when the court of appeals decided to apply the PLRA to a pro se revocation litigant, in State ex rel. Marth v. Smith, 224 Wis. 2d 578, 592 N.W.2d 307 (Ct. App. 1999). Marth is based almost solely on a 7th Circuit case, Newlin v. Helman, 123 F.3d 429 (1997), which said that the federal PLRA -- the model for ours -- applies to parole revocations. Newlin, however, was subsequently overruled, in Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000). So, the court of appeals' holding is based purely on now-discredited caselaw. The supreme court, however, takes a different tack, confecting a bright-line distinction between habeas (used for revocation-review in federal court) and certiorari (used in Wisconsin). But the distinction is wholly arbitrary: even in Wisconsin, revocations can be reviewed at times by habeas. See, e.g., State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 523, 563 N.W.2d 883 (1997) ("habeas corpus was a proper method for [a defendant] to use in challenging . . . probation revocation") -- a principle the court even quotes, ¶41, but without bothering to explain its significance. The court also ducks one of the most obvious problems with the PLRA: it does not apply to out-of-state prisoners (which would mean, as a matter of statutory construction, that the PLRA almost certainly doesn't apply to revocations, because it would be absurd to hinge application on the litigant's whereabouts versus nature of the suit.
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Though the PLRA doesn't apply to habeas filings in the 7th Circuit, that court isn't without power to sanction frivolous habeas filings, Montgomery v. Davis, 7th Cir. No. 03-1524, 3/30/04 ("These appeals represent a growing trend in abusive filings: state prisoners who are restricted filers using habeas corpus petitions to challenge noncustodial state actions.... Accordingly, Montgomery and Sumbry are fined $500 each .... Because both Montgomery and Sumbry have received federal habeas corpus review of their current convictions, they are effectively barred from filing any civil action in the district courts until they settle their debts to the federal judicial system.").
Prison Litigation Reform Act -- Application to Revocations.
State ex rel. Dennis C. Marth v. Smith, 224 Wis.2d 578, 592 N.W.2d 307 (Ct. App. 1999).
Holding: Marth filed a pro se habeas petition in the court of appeals, to collaterally attack his 1994 probation revocation, on ground of ineffective assistance of counsel. Without benefit of meaningful adversarial argument, the court uncritically adopts the AG's argument that Marth is a "prisoner" within the meaning of the PLRA. The court's analysis is scanty; it relies almost solely on a federal case without acknowledging that it represents the minority view of the federal PLRA. (Ironically, even that case was subsequently overruled.)
Prison Litigation Reform Act - Application -- Solvent Litigant.
State ex rel. Sol Coleman, Jr. v. Sullivan, 229 Wis.2d 804, 601 N.W.2d 335 (Ct. App. 1999).
Issue: Whether the PLRA 3-strike rule applies to a solvent litigant.
In this case, we interpret provisions of the Prisoner Litigation Reform Act (PLRA) to hold that a prisoner who has sufficient funds in his or her prison trust fund accounts to pay the entire filing fee is not barred from commencing an appeal by the three dismissals rule of § 801.02(7)(d), STATS. We also hold that the prisoner requires a court order to gain access to his or her prison trust fund accounts to pay the filing fee if access to those accounts is restricted by a non-PLRA statute or administrative code provision.
Prison Litigation Reform Act -- Certiorari Review of Prison Discipline -- Circuit Court Authority to Dismiss Petition
State ex rel. James J. Kaufman v. Karlen, 2005 WI App 14
Issue/Holding: Though the circuit court has authority to dismiss a petition for writ of certiorari on the basis of failure to state a claim upon which relief can be granted, the court erred in dismissing in this instance, without first ordering a return to the petition:
¶9. Whether the court had before it all the documents that would have been contained in the return is unknowable. This uncertainty is eliminated when the return is filed. Once a court chooses to consider a prisoner's petition on the merits, due process requires the court to base its decision on a complete record of the proceedings below and on briefs submitted by the parties.3 Here, the court chose to decide the case on its merits based solely on Kaufman's petition and attachments. However, "[t]he petition for writ is not ... the full development of the petitioner's position." Id. at 501. "If an inmate petitioner is limited to his or her petition for certiorari, the inmate has not been given an opportunity to be heard at a meaningful time in a meaningful manner." Id. We conclude Kaufman's right to be heard in this case has been limited by the court's decision to decide the case without the record and by failing to afford Kaufman the opportunity to argue his objections to the disciplinary committee's decisions. Because the circuit court denied Kaufman's right to be heard in accord with the dictates of due process, we reverse and remand to the circuit court to afford Kaufman that opportunity.
3   We do not suggest that a circuit court may not dismiss a certiorari petition without ordering a return if the petition fails to state a claim, such as where the petition fails to allege or attach documents showing that the petitioner exhausted his or her administrative remedies or when a petition shows on its face that it is untimely or for the other reasons as stated in Wis. Stat. § 802.05(3)(b). See generally State ex rel. Schatz v. McCaughtry, 2003 WI 80, 263 Wis. 2d 83, 664 N.W.2d 596.
Prison Litigation Reform Act -- Certiorari Review of Security Clearance -- "Notice" Pleading
State ex rel. Mark Anthony Adell v. Smith, 2001 WI App 168
Issue: Whether Adell adequately stated a claim upon which relief could be granted, in a certiorari petition alleging that his prison file contained erroneous and damaging information.
Holding: Under the Prison Litigation Reform Act, the trial court's authority to dismiss for failure to state a claim (upon a request to proceed in forma pauperis) is the same as in an ordinary civil case: only fair, not detailed, notice is required; and, pro se prisoner pleadings must be ocnstrued liberally. ¶5. Adell (for fact-specific reasons) adequately pleaded his claim. He alleged in effect that he received a higher security classification (medium) than he would have obtained (minimum) absent erroneous information.; given the potential impact on parole and work assignments, this alleged injury suffices to withstand a motion to dismiss. ¶10.
Prison Litigation Reform Act -- Costs: Use of Prison Release Account to Pay for Transcripts on Appeal
State ex rel Talib Amin Akbar, 2004 WI App 108
¶3. The PLRA sets forth the requirements for a prisoner who seeks to proceed without prepaying the "fees or costs." Wis. Stat. § 814.29(1m)(b). The cost of preparing a transcript is a "fee" within the meaning of Wis. Stat. § 814.29(1). State ex rel. Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 153, 454 N.W.2d 792 (1990). The word fee, as used in Wis. Stat. § 814.29(1), is defined in Wis. Stat. § 814.69(1) to include a court reporter's fee. Id. at 153-54. We conclude that the phrase costs and fees used in Wis. Stat. § 814.29(1m) must, for the reasons articulated in Girouard, include the costs and fees for preparing transcripts.

¶4. The PLRA sets forth the procedure for this court to follow when we have determined that a prisoner has assets in a trust fund account to contribute towards the payment of the filing fee. Wis. Stat. § 814.29(1m)(d). While this subsection refers specifically to filing fees, it is contained within a statute which addresses costs and fees more generally. We see no reason why this same procedure should not apply to a prisoner who asks to have the cost for preparation of transcripts deducted from his trust fund accounts. Consequently, we shall follow the same procedure for this type of request as we do for a request to proceed without the prepayment of the filing fee. The agency having custody of the prisoner shall also follow the same procedure. Sec. 814.29(1m)(e). Akbar's motion to pay for the preparation of transcripts from his release account is granted. The correctional institution having custody over Akbar shall consider this opinion to be an order authorizing the release of $49.50 from his release account to pay for the preparation of transcripts.

Prison Litigation Reform Act -- Costs and Fees After Prevailing
State ex rel Daniel Harr v. Berge, 2004 WI 105, PFR filed 5/12/04
¶2. Harr, while an inmate at the Supermax prison, successfully pursued a common law certiorari action to overturn a disciplinary reprimand imposed after prison authorities intercepted a letter to Harr's parents in which he described a corrections officer in derogatory terms….

¶3. Harr appeals. He contends that Wis. Stat. § 814.25(2) violates his constitutional right to equal protection because it prohibits him from an award of costs and fees after he prevailed in a common law certiorari action.

¶10 Thus, we see that Wisconsin's PLRA serves two distinct purposes: first, deter frivolous lawsuits and second, limit prisoner litigation that is subsidized by the taxpayer….

¶12. The general rule is that each party bears its own costs of litigation, no matter how meritorious their claim or defense. This general rule is known as the "American Rule" ….

¶15. We cannot quarrel with the legislature's conclusion that successful prisoner litigators are not entitled to the reimbursement of any costs. The rational basis test obligates us to locate or construct a rationale that might have influenced the legislative development of classifications. Id. We can think of two compelling rationales the legislature could have embraced.

1. In the case of prisoner actions challenging the conditions of confinement, the legislature could validly conclude that the successful prisoner should not be reimbursed from the public treasury because the only person who benefited from the litigation was the prisoner. See Johnson, 339 F.3d at 591 ("Litigation produces benefits (and sometimes costs) for third parties; it is to this extent a public good, and determining how much of a public good to supply (and at whose cost) is an intractable problem.").

2. The legislature could reasonably conclude that a prisoner is not entitled to the reimbursement of costs and fees because the prisoner already receives, from the public treasury, paper and pen to draft legal documents, Kirsch v. Endicott, 201 Wis. 2d 705, 718, 549 N.W.2d 761 (Ct. App. 1996) (if indigent, a prisoner "must be provided at state expense with paper and pen to draft legal documents"), and law libraries, State ex rel. Tyler v. Bett, 2002 WI App 234, ¶18, 257 Wis. 2d 606, 652 N.W.2d 800, review denied, 2002 WI 121, 257 Wis. 2d 120, 653 N.W.2d 891 (Wis.
Oct. 21, 2002) (No. 01-2808). In addition, a prisoner is given access to adequate assistance from "writ writers" and "jailhouse lawyers," see id., a form of assistance a free person is not provided by the State.

Prison Litigation Reform Act -- Due Process -- Right to notice Before Dismissal of Court Action
State ex rel. Leslie Schatz v. McCaughtry, WI 80, reversing 2002 WI App 167, 256 Wis. 2d 770, 650 N.W.2d 67
For Schatz: T. Christopher Kelly
Issue/Holding: Sua sponte dismissal under § 802.05(3) of a certiorari petition challenging prison discipline did not violate due process because constructive notice of such dismissal is provided, as are procedural safeguards for challenging the dismissal. ¶¶30-40.
Prison Litigation Reform Act -- Equal Protection
State ex rel. Saffold v. Schwarz, 2001 WI App 56, 241 Wis. 2d 253, 625 N.W.2d 333
For Saffold: Brian C. Findley, SPD, Madison Appellate
Issue: Whether the PLRA violates equal protection because it applies only to certain inmates.
¶10 Therefore, we implicitly recognized that the legislature, in defining ‘prisoner’ and ‘correctional institution,’ and in enacting the PLRA, allowed for different procedures to govern litigation from prisoners, depending on whether they are incarcerated in Wisconsin or elsewhere. The distinction is not ‘patently arbitrary.’ Generally, Wisconsin legal resources—statutes, case law, law students regularly providing services in Wisconsin correctional institutions under the auspices of the University of Wisconsin Law School’s Frank J. Remington Center, and lawyers familiar with Wisconsin law—are more readily available to prisoners incarcerated in Wisconsin. See Sambs v. City of Brookfield, 97 Wis. 2d 356, 371, 293 N.W.2d 504 (1980) (In reviewing an equal protection challenge, where the 'legislature has not set forth its rationale' for a statutory provision, ‘it is the court’s obligation to locate or to construct, if possible, a rationale that might have influenced the legislature and that reasonably upholds the legislative determination.’).

¶11 Thus, the shorter filing deadline for prisoners in Wisconsin challenging parole revocation has a rational relationship to the legitimate governmental interests of the PLRA—‘to restrict frivolous lawsuits’ and ‘to limit broadly prisoner litigation at taxpayers’ expense.’ Cramer, 2000 WI 86 at ¶40. Accordingly, we conclude that the forty-five-day filing deadline under WIS. STAT. § 893.735 does not deny Saffold equal protection of law.

Analysis: Where to start?
  • First, the court defines the classes (hence, the discriminatory treatment) too narrowly. It’s not really in-state vs. out-of-state prisoners, but prisoners in Wisconsin state/local-run institutions vs. all others. If you’re in the federal pen at Oxford you’re still in Wisconsin but not under the PLRA; if you’re in a private facility in Wisconsin, same thing. So the court’s premise that non-PLRA litigants have less access to Wisconsin resources simply because they’re not in Wisconsin is palpably false.
  • Second, LAIP is a fine program and does many great things, but revocations aren’t among them. Which gets to ...
  • The third point, a procedural one: the court seems to be taking judicial notice of the (non)availability of legal resources when it has no business doing so. No record was created on availability of resources, so the court must think the fault line for accessibility to Wisconsin legal resources is wholly beyond dispute; it’s not.
  • Fourth, what difference does it make whether or not there’s access to Wisconsin resources? Review of a revocation is merely paper review. No evidence to marshal; no witnesses to investigate; etc. The whole point of the PLRA is to deter frivolous suits. But this is a fiction: the real point is to inhibit any inmate filing. Period.  It’s simply not clear -- and the court fails to explain -- how an expanded deadline for out-of-state revocation litigants will somehow serve the purpose of deterring frivolous suits. 
Prison Litigation Reform Act -- Equal Protection -- Differential Treatment of Prisoners and Non-Prisoners on Initial Pleading Review
State ex rel. Leslie Schatz v. McCaughtry, WI 80, reversing 2002 WI App 167, 256 Wis. 2d 770, 650 N.W.2d 67
For Schatz: T. Christopher Kelly
Issue/Holding: ¶43. The State has a legitimate interest in deterring non-meritorious lawsuits and preserving judicial resources. Kahn, 235 Wis. 2d 260, ¶10. As noted above, the objectives of the PLRA include enhancing judicial economy, protecting defendants from needlessly expending resources to defend inappropriate prisoner-initiated litigation and reducing the taxpayer expense associated with such litigation. See Cramer, 236 Wis. 2d 473, ¶¶38-40. The initial pleading review procedure advances these objectives by permitting circuit courts to dispose of a prisoner lawsuit at the initial pleading stage of the suit if the circuit court determines that the lawsuit is frivolous, is being used for an improper purpose, seeks monetary damages from a defendant who is immune from such relief, or fails to state a claim upon which relief may be granted.
Prison Litigation Reform Act -- Exhaustion of Administrative Remedies -- Failure to File Timely Inmate Complaint
State ex rel. Adrian Laurich v. Litscher, 2004 WI App 150
For Laurich: Virginia M. Antoine, Pro Bono Project
Issue: Holding:
¶9. The parties agree that the question whether Laurich exhausted his administrative remedies turns on the timeliness of the complaint he filed with the institution complaint examiner…. 10. The first step in the Inmate Complaint Review System is the filing of a complaint under Wis. Admin. Code § DOC 310.09. Subsection (6) of § DOC 310.09 imposes a fourteen-day time limit for filing complaints…

¶15. The time-limit language in Wis. Admin. Code § DOC 310.09(6) plainly advises inmates that an "institution complaint examiner may accept a late complaint for good cause." The warden's decision-issued on a standard form with a date box-shows the "Date of Decision" as "12-17-01." When an inmate files a complaint knowing it is late, § DOC 310.09(6) effectively advises the inmate that his or her complaint will only be accepted if the institution complaint examiner determines that there is "good cause" for the late filing. Consequently, if the inmate believes there are facts constituting "good cause," he or she must advise the institution complaint examiner by means of including the asserted facts in the complaint. The failure to reasonably apprise the institution complaint examiner, by means of the complaint itself, of the facts the inmate believes constitute "good cause" waives the inmate's right to later complain that his or her complaint should have been accepted late for "good cause."

¶24. Accordingly, we affirm the circuit court, but use different reasoning. We conclude that when Laurich failed to assert in his complaint that he did not receive the warden's decision until January 2, 2002, and indicate that this fact constituted "good cause" for his late-filed complaint, the institution complaint examiner properly rejected the complaint as late and Laurich waived his right to make his "good cause" argument in subsequent proceedings. Laurich's failing is apparent from a review of the attachments to his petition for a writ of certiorari. The attached complaint shows that Laurich made no assertions suggesting "good cause" for accepting his late-filed complaint. It follows that Laurich failed to exhaust his administrative remedies, and the circuit court properly dismissed his petition.

The exhaustion of state adminsitrative remedies is also likely to be strictly enforced on federal review, see, e.g., Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002):
To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require. Pozo filed a timely and sufficient complaint but did not file a timely appeal. He therefore failed to exhaust his administrative remedies, and his federal suit must be dismissed.
Prison Litigation Reform Act -- Exhaustion of Administrative Remedies -- Notification Requirement
State ex rel. Quintin D. L’Minggio v. Gamble, 2003 WI 82, reversing summary order of the court of appeals
For L’Minggio: Colleen D. Ball, State Bar Pro Bono Project
Issue/Holding: The Prison Litigation Reform Act requires that a prisoner exhaust administrative remedies before filing suit. § 801.02(7)(b); Admin. Code DOC § 310.04. Thus, an inmate challenging prison discipline must appeal to the warden (§ DOC 303.76) and also file an inmate complaint (§ DOC 310.08(3)). However, DOC’s failure to advise the prisoner of these procedural deadlines estops DOC from subsequently asserting the prisoner’s failure to exhaust within those deadlines. ¶15.
Prison Litigation Reform Act -- Exhaustion of Administrative Remedies Where Challenge Is to Constitutionality of Rule
State ex rel. Spriggie Hensley v. Endicott, 2001 WI 105, 629 N.W.2d 686, reversing State ex rel. Hensley v. Endicott, 2000 WI App 189, 238 Wis. 2d 649, 618 N.W.2d 245
For Hensley: Beth E. Hanan, Pro Bono Project, State Bar Appellate Litigation sect;ion
Issue1: Whether the Prison Litigation Reform Act contains a common law futility exception -- here, for challenging a prison regulation on constitutional grounds -- to the exhaustion requirement, § 801.02(7)(b).
¶9 ... The plain language of the PLRA here indicates the intent of the legislature. ... The plain language contains no exception regarding futility. It is not within our judicial function to insert the phrase 'where they are not shown to be futile' after 'administrative remedies' in the statute. Therefore, we conclude that the plain language of the PLRA requires prisoners to exhaust all their administrative remedies prior to challenging a condition in their respective facilities through any civil actions or special proceedings, including common law writs of certiorari.
Oddly, the court doesn't really say whether an administrative challenge would have been futile. Does the prison, or an ALJ, have the authority to declare a DOC rule unconstitutional? The court says we should let nature take its course and see. ¶16. Thus, Hensley's futility argument rests on an "unsupported assumption." Id. So, in effect, the court's entire discussion can be characterized as dicta.)
Issue2: Whether the declaratory judgment statute, § 227.40(1) (which specifically eschews an exhaustion requirement), trumps the PLRA.
¶21. We reject Hensley's argument. The rule of statutory construction that a more specific statute controls over a more general statute is not measured by the relief requested, but by the subject matter in question. See Sigma Tau Gamma Fraternity House v. City of Menomonie, 93 Wis. 2d 392, 402, 288 N.W.2d 85 (1980). To be sure, there is a slight overlap between the PLRA and § 227.40(1) in that both relate to bringing causes of actions. However, the PLRA is more specific than § 227.40(1) in that it is targeted at challenges to 'conditions in the facility' while § 227.40(1) broadly allows judicial review of any administrative 'rule.' The PLRA, then, is confined to prison conditions while § 227.40(1) encompasses all rules promulgated by all administrative agencies in Wisconsin. Therefore, the breadth of § 227.40(1) is much greater than the PLRA. That the PLRA trumps § 227.40(1) where challenges are made to a condition in the facility where a prisoner is incarcerated is bolstered by the fact that the PLRA was passed later in time than § 227.40(1). See Martineau v. State Conservation Comm'n, 46 Wis. 2d 443, 449, 175 N.W.2d 206 (1970) (ruling that a specific statute controls over a general statute is especially true when the specific statute is enacted after the general statute). Accordingly, where a prisoner challenges a condition in the facility in which he or she has been incarcerated, the PLRA controls.
As the dissent points out, the inmate complaint procedure requires that a complaint be filed within 14 days of the challenged "occurrence," which in a facial attack on a rule is presumably its promulgation. Someone imprisoned more than 14 days after the rule's promulgation is necessarily barred from pursuing this remedy. So what's next? A determination that the prisoner waived his or her right to litigate the issue by being incarcerated more than 14 days after the rule was passed?
Prison Litigation Reform Act -- Filing Deadline
State ex rel. Curtis Steldt v. McCaughtry, State ex rel. Robert A. Pond v. Litscher, State ex rel. Willie McKinley v. Sondalle, 2000 WI App 176, 238 Wis.2d 393, 617 N.W.2d 201
Issue: Whether, for purposes of the Prison Litigation Reform Act, filing occurs when the pleadings and indigency application are received.
¶17 Therefore, we must interpret WIS. STAT. §§ 893.735, 814.29(1m) and 59.40(3) in a manner that accounts for both the discretion of the clerks of court and the lack of control that prisoners have over many of the steps needed to file a certiorari action within forty-five days. We conclude that, for a prisoner seeking to file a certiorari action without payment of the fees due to indigency, the forty-five-day deadline is tolled once the clerk of court receives the petition for a writ of certiorari, the request for a fee waiver, the affidavit of indigency and the certified copy of the prisoner's trust account statement, provided that the prisoner has authorized the prison to make any appropriate payments toward the filing fees from his or her accounts. At that point, the time taken by the court to determine whether the prisoner must pay any fees before proceeding is out of the prisoner's control.

¶18 If the court orders that the prisoner be allowed to proceed without prepayment of the fees, then the certiorari action should be considered filed on the date of that order. If the court finds that the prisoner has funds available in his or her trust accounts and orders the prisoner to pay as much of the fees as is available in those accounts, the time limit begins to run again once the prisoner receives a copy of the order. Finally, the certiorari action should be considered filed on the date the prisoner requests a disbursement of the ordered amount from his or her prison accounts, because at that point the payment to the clerk of courts is in the control of the prison.

Prison Litigation Reform Act -- Filing Deadline -- Certiorari

State ex rel. Quintin D. L’Minggio v. Gamble, 2003 WI 82, reversing summary order of the court of appeals

For L’Minggio: Colleen D. Ball, State Bar Pro Bono Project
Issue/Holding: The PLRA (§ 893.735(2) establishes a 45-day deadline for filing a petition for writ of certiorari. However, that deadline is tolled while the inmate exhausts administrative remedies, in this instance complaint to the Inmate Complaint Examiner. The 45-day deadline doesn’t begin running until the inmate receives notice of the ICE rejection; L’Minggio’s filing is timely as measured against that event. Another potential deadline obstacle remains:
¶28. Even if the 45-day time period did not begin to toll until June 21, 2000, the Dane County Circuit Court also noted that L'Minggio's petition was incomplete. This court has stated that a "tolling rule will not excuse a pro se prisoner who ultimately fails to pay filing fees, address the petition properly, or otherwise comply with filing requirements." State ex rel. Nichols v. Litscher, 2001 WI 119, ¶27, 247 Wis. 2d 1013, 635 N.W.2d 292. L'Minggio claims that his incomplete petition was not his fault, but rather was due to the "vagaries of the mail." L'Minggio explains that he placed his certiorari petition materials in two envelopes that were taped together, and which unfortunately became separated in the mailing process.

¶29. If L'Minggio can present proof by affidavit or another evidentiary submission that he placed both envelopes (i.e. a complete petition) in the prison mailbox system before August 5, 2000, and otherwise complied with the filing requirements, then his filing might be acceptable in light of the tolling rule for pro se prisoners. State ex rel. Shimkus v. Sondalle, 2000 WI App 262, ¶14, 240 Wis. 2d 310, 622 N.W.2d 763. With respect to certiorari petitions, the tolling rule provides that "when a prison inmate places a certiorari petition in the institution's mailbox for forwarding to the circuit court, the forty-five day time limit in Wis. Stat. § 893.735(2) is tolled." State ex rel. Shimkus v. Sondalle, 2000 WI App 238, ¶14, 239 Wis. 2d 327, 620 N.W.2d 409; see also Nichols, 247 Wis. 2d 1013, ¶24. We conclude that if L'Minggio can provide evidence that he complied with the filing requirements for a petition for certiorari by depositing the proper materials for his petition in the prison mailbox system prior to August 5, 2000, then his petition for certiorari may be deemed timely filed under § 893.735(2).

Prison Litigation Reform Act -- Filing Deadline -- Discretion to Extend
State ex rel. Earl Johnson v. Litscher, 2001 WI App 47, 241 Wis. 2d 407, 625 N.W.2d 887
Issue: Whether the circuit court properly dismissed the prisoner’s challenge to a disciplinary decision where it was filed more than 45 days after exhaustion of administrative remedies, but the prisoner submitted unrefuted proof that filing was within 45 days of actual receipt of the final administrative decision.
Holding: ¶1:
The circuit court determined that because Johnson filed his petition for certiorari more than forty-five days after Litscher had issued his final decision on Johnson’s appeal, his action must be dismissed and the writ quashed. We disagree because we conclude that even though the petition was filed more than forty-five days after Litscher’s decision, on the record before us, Johnson proved the number of days that elapsed between the decision and his receipt of it. We also conclude that the record discloses no circumstances that would make it a proper exercise of discretion not to extend the time for filing the petition under WIS. STAT. § 893.735(2) (1999-2000). Accordingly, we reverse the order of the circuit court and remand the petition for a decision on the merits.
Prison Litigation Reform Act -- Filing Deadline Equitable Tolling
State v. Michael Locklear, 2001 WI App 74, 242 Wis. 2d 327, 629 N.W.2d 30
Issue: Whether the PLRA-imposed time limit for filing certiorari challenge to probatioon revocation must be equitably tolled between the time the DOJ three-strike certiifcation is requested and received.
¶28 Locklear could not proceed with his petition without this DOJ certification, the receipt of which lay totally in the hands of government officials; we therefore toll the running of the statute of limitations from [date Lockyear asked DOJ for certification] until Locklear’s receipt of this certification.
Analysis: The facts won’t be summarized; the decision has to be read to be believed. Among choicer tidbits of the bureaucratic mind at work: the prison refused Locklear’s request to provide photocopies of legal documents, on the ground he had $4.64 in his account and wasn’t indigent. But the prison then refused to make the copies at his own expense, because he had insufficient funds, and to top it off, then denied him a loan that would have enabled him to pay for the copies, because he had too much money. When all is said and done, Lockyear exhausted administrative remedies October 28, 1998, and he is only now receiving his right to have a circuit court deny relief on the merits. The PLRA is supposed to prevent needless litigation. Guess again, as this case shows. A great deal of time has been, and will continue to be, spent litigating the assertion of procedural rights under the PLRA -- something that should be unnecessary, inasmuch as the Act was never intended to apply to revocations, despite what the courts have said on this point.
Prison Litigation Reform Act -- Filing Deadline -- Tolling for Government Compliance with Documentation Request
State ex rel. Tony D. Walker, 2001 WI App 110
Issue: Whether the PLRA filing deadline is tolled during the time the litigant requests a governmental agency to take necessary action in support of the petition to be filed.
Holding: The "mailbox rule" (pleading considered filed when pro se prisoner deposits it in prison mailbox) is extended to other requests for governmental response necessary to PLRA litigation:
¶16. We now apply that same reasoning to a prisoner's trust account statement. The prisoner loses control over that document the moment he or she requests it. Here, it appears that the Department of Corrections (DOC) processed the request and forwarded Walker's trust account statement to the court. It would be inequitable to penalize Walker for the DOC's delay in providing the court with this required documentation. Therefore, we toll the statute of limitations from the date Walker requested the trust account statement to the date the court received it....

¶18. Unlike other litigants, prisoners also have to submit documents not within their control. However, this does not permit a prisoner to serially toll the forty-five-day period by requesting one document, and after receiving that document, requesting the next, tolling the time further. This would give an advantage to prisoners over other litigants, contrary to legislative intent. Therefore, the tolling begins when the documents over which prisoners have control have been mailed, and all of the documents over which prisoners have no control have been requested. The time begins running again when those documents are within the prisoner's control, such as when a prisoner receives a DOJ certification for forwarding to the court. See Locklear, 2001 WI App 74, 242 Wis. 2d 327 at ¶28, ¶32. By requiring prisoners to submit documents under their control within a designated period, the prisoner is treated equitably and the legislative intent is fulfilled.

(Because record is unclear as to when Walker requested the necessary documents, matter remanded for further fact-finding. ¶26.)
(Note: The Wisconsin supreme court has recognized the "mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988), see State ex rel. Nichols v. Litscher, 2001 WI 119 [re: pro se inmate petitions for review]; and the court of appeals has extended this rule to notices of appeal, see State ex rel. Dillard Earl Kelley, 2003 WI App 81.)
Prison Litigation Reform Act -- Filing Deadline -- "Mailbox Rule"
State ex rel. Matthew Tyler v. Bett, 2002 WI App 234, PFR filed 8/26/02
Subsequent history: on habeas review, Tyler v. McCaughtry, 293 F. Supp. 2d 920 (E.D. Wis. 2003) (allegation that prison didn't provide current statutes satisfied cause requirement for procedural default stemming from failure to meet deadline [implicitly rejecting court of appeals' holding on this point]; parties ordered to brief question of prejudice)
¶2 ... (T)he "mailbox rule" tolls the statutory filing deadline only after a prisoner deposits for mailing a petition that is complete, in proper form and accompanied by the required filing fee or fee-waiver documents. We also reject Tyler's claim that the alleged inadequacy of legal resources and assistance available to prison inmates provides grounds for tolling of the statutory deadline.
Prison Litigation Reform Act -- Filing Deadline -- "Mailbox Rule" Tolling
State ex rel. Mark Shimkus v. Sondalle (I), 2000 WI App 238, 239 Wis.2d 327, 620 N.W.2d 409
Issue: Whether a PLRA action is timely commenced when placed in a prison mailbox prior to, but not received by the court until after, the § 893.735(2) filing deadline.
Holding: ¶1:
Because it is undisputed that Shimkus deposited his petition, along with an authorization to withdraw the filing fee from his prison account, in the appropriate mail receptacle at Fox Lake well within the time limit for filing such actions, we reverse, concluding that the petition should be deemed received by the court on the date it was deposited in the prison mail receptacle.
Analysis: The court adopts (largely) the "mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988) (prisoner's notice of appeal deemed filed when delivered by prisoner to prison authorities for forwarding to court). The big caveat: filing under the PLRA isn't accomplished until either fees are paid or ordered waived. ¶9. The court recently held that the 45-day filing deadline is tolled while the court considers a fee waiver request, and if the request is rejected, the limit begins running again when the prisoner receives that order. State ex rel Steldt v. McCaughtry, 2000 WI App 176, 238 Wis.2d 393, 617 N.W.2d 201 17-18. The mailbox rule should have the effect of adding some more time to the deadline (because the deadline should now be tolled when put in the prison mailbox, and not when actually received by the court). Note, too, the exceptionally aggressive posture taken by the AG. E.g., ¶3 n. 2 (Shimkus's authorization to disburse funds not authenticated, despite use of DOC form containing approval signature); ¶13 n. 12 (the 30 days that Shimkus -- a pro se prisoner -- had to prepare and file his petition was "plenty of time," the situation was therefore "of his own making [] and for that reason alone [he] should be denied relief)".
Prison Litigation Reform Act -- Filing Deadline -- "Mailbox Rule" Tolling, Proof of
State ex rel. Mark Shimkus v. Sondalle (II), 2000 WI App 262, 240 Wis. 2d 310
Issue: Whether Shimkus adequately proved the "mailbox rule," namely that he placed his petition in the prison mailbox to be sent to the court within the PLRA filing deadline.
¶2 Since the parties have completed briefing in this case, we have decided Shimkus v. Sondalle [2000 WI App 238, 239 Wis.2d 327, 620 N.W.2d 409], in which we held that the forty-five-day time limit is tolled when a prison inmate places a certiorari petition in the institution mailbox for forwarding to the circuit court. However, we did not decide in Shimkus what proof an inmate needs to present to the circuit court when the inmate wishes to invoke the tolling rule of Shimkus. We now hold that when an inmate wishes to invoke that tolling rule, the inmate must present proof, by affidavit or other evidentiary submission, of the date on which he or she placed the certiorari petition in the institution mailbox. Because Shimkus did not submit an affidavit, but relies on unsworn assertions in his briefs, and because the disbursement request form he submitted is not sufficient to prove that date, we conclude Shimkus has not established that he deposited his petition in the institution mailbox before the expiration of the forty-five days. We therefore affirm.
Prison Litigation Reform Act -- Filing Fee -- Constitutionality
State ex rel. Nathaniel A. Lindell v. Litscher, 2003 WI App 36
Issue/Holding1: Access to courts. A litigant's right to initiate in forma pauperis fillings in a civil matter not implicating a fundamental right is not constitutionally guaranteed. ¶2, citing State ex rel. Khan v. Sullivan, 2000 WI App 109, ¶¶5-6, 235 Wis. 2d 260, 613 N.W.2d 203. The PLRA expressly excludes litigation involving enumerated fundamental rights, namely "any inmate who is seeking relief from, among other things, a sexually violent person commitment, a judgment terminating parental rights, a judgment of conviction or sentence of a court, or a mental commitment. See WIS. STAT. § 801.02(7)(a)2." Thus, Lindell’s facial, access-to-courts challenge is not supportable. ¶3. Nor does Lindell's particular litigation fare any better -- mandamus to obtain release of prison documents does not involve a fundamental right. ¶4.
(Note: Why doesn't revocation -- loss of liberty -- fall into the category of "fundamental right"? See State ex rel. Cramer v. Court of Appeals, 2000 WI 86, 236 Wis. 2d 473, 613 N.W.2d 591.)
Issue/Holding2: Freedom of religion/association. The fact that the prison freezes an inmate's trust account until PLRA fees are discharged does not work a deprivation of freedom of religion or association: "Quite simply, Lindell's inability to purchase these items is the direct result of his own decision to litigate." ¶6.
Issue/Holding3: Equal protection. Freezing trust accounts is a rational means of conserving state resources and deterring frivolous litigation; prisoners are more likely to limit use of the court system to meritorious claims. ¶11.
(That's one way of looking at it. Another is, under the PLRA regime prisoners are more likely to limit use of the court system, period, which may be the real if unacknowledged purpose of the PLRA.)
Prison Litigation Reform Act -- Penalty Provision, Effective Date
State ex rel. Robert Garel v. Kenneth Morgan, 2000 WI App 223, 239 Wis.2d 8, 619 N.W.2d 285
Issue: Whether application of the PLRA "penalty" provision, § 807.15, which permits a court to extend a prisoner-litigant's MR date, is limited by date of the litigant's offense.
¶18 In sum, the circuit court did not have the authority to extend Garel's mandatory release date pursuant to Wis. Stat. § 807.15. sect;ion 807.15 applies only to those prisoners who have committed an offense on or after September 1, 1998, and Garel's offense predates September 1, 1998. Consequently, § 807.15 cannot be applied to him.
Prison Litigation Reform Act -- Prison Discipline -- Certiorari Review -- Jurisdiction and Naming Proper Respondent

State ex rel. Brook Grezelak v. Bertrand, 2003 WI 102, reversing summary order of court of appeals

For Grezelak: Jennifer S. Mirus

Issue/Holding: Under the particular facts naming the prison warden (as opposed to the DOC Secretary) as respondent in a petition for certiorari review of a disciplinary proceeding sufficiently established jurisdiction.
Note: Judicial review of prison discipline is by common law certiorari, whose writ must be directed to the proper “board or body” in order “to perfect jurisdiction.” ¶12. Grezelak named the warden; the warden says Grezelak should have named the DOC Secretary, hence the writ was misdirected and had to be dismissed. The court refuses to exempt pro se inmates from the proper-respondent rule, ¶17, and so it’s onward, into the morass. The administrative review process (which must be exhausted before judicial review is attempted) is roughly as follows (¶¶8-10): hearing before adjustment committee; appeal to warden (whose decision is final as to substantive issues); complaint (as to procedural issues) with inmate complaint review system and determination by institution complaint examiner whose decision is reviewed by the “appropriate reviewing authority”; appeal to corrections complaint examiner of appropriate reviewing authority’s decision; appeal of CCE’s decision to DOC Secretary. See also State ex rel. Quintin D. L’Minggio v. Gamble, 2003 WI 82. (Again: as to non-procedural issues, the warden’s ruling is final and if that’s the only challenge, then the succeeding steps are not only unnecessary but may well throw you outside the time limit for filing certiorari. See State ex rel Smith v. McCaughtry, 222 Wis. 2d 68, 586 N.W.2d 63 (Ct. App. 1998). What’s a non-procedural error? Sufficiency of the evidence, and probably nothing else. See ¶9.) Grezelak raised procedural errors, so he had to – and did – run the exhaustion gauntlet. And, because the Secretary was responsible for the final decision, “the secretary is implicitly the proper respondent in a petition for certiorari review of procedural errors relating to conduct reports.” ¶14. Failure to name the Secretary isn’t fatal here, though, because statutes, administrative rules and case law are ambiguous on that point. ¶19. No need to go into those ambiguities: the larger (if unstated) issue is whether they survive this case, in that inmates are now at least arguably on notice that the Secretary must be named. It may be readily imagined that this case will be said to have clarified the ambiguities and then to hold future inmates to that clarification. Moreover, this case is fact-specific in the sense that Grezelak also had substantive claims which required that he name the warden, leading the court to explicitly hold open the question of whether it would reach the same conclusion in a case involving only procedural issues. ¶¶30-31. One last point. Some members of the court seem troubled at the combination of a “serpentine labyrinth” of rules that coil around the review process, ¶17, and DOC’s energetic attempt to keep inmates in the dark. Thus, the court stresses that DOC failed to provide notice to Grezelak about how to proceed with judicial review, ¶27, and strongly recommends that DOC “specifically and clearly give written notice to an inmate and indicate who is the appropriate party to name as respondent and serve in a petition for certiorari,” ¶32. In L’Minggio, ¶2, similarly, because DOC “failed to provide notice to L'Minggio of any further appeal rights when his inmate complaint was rejected, we conclude that the Department is estopped from claiming that L'Minggio failed to exhaust his administrative remedies in this case.” See also State ex rel. Ira Lee Anderson-El v. Cooke, 2000 WI 40, ¶2: “when the Department does not notify an inmate of the proceedings against him or her, in violation of the Department’s own regulations, then those proceedings must be invalidated for failure to provide a fundamental procedural right.”

Prison Litigation Reform Act -- Prison Discipline -- Review by Certiorari vs. Habeas

State ex rel. Quintin D. L’Minggio v. Gamble, 2003 WI 82, reversing summary order of the court of appeals

For L’Minggio: Colleen D. Ball, State Bar Pro Bono Project
Issue/Holding: Certiorari (rather than habeas) is the “well-established mode of judicial review” of conditions of confinement. And although certiorari review is limited to the record established before the administrative body, and L’Minggio seeks to introduce post-administrative hearing affidavits from recanting witnesses, certiorari is nonetheless an adequate remedy in this circumstance: § DOC 310.09(3) allows the complaint examiner to receive a late complaint for good cause, ¶24:
It is arguable that these affidavits, which were not before the adjustment committee, could constitute "good cause" for allowing a late complaint. Therefore, a certiorari court could consider whether the ICE acted according to law and whether its actions were unreasonable, arbitrary or oppressive when it rejected L'Minggio's complaint for untimeliness, despite the fact that L'Minggio received affidavits from witnesses, who had withdrawn their accusations after the adjustment committee had already made its decision. If a certiorari court finds that an adjustment committee did not act according to law or acted unreasonably, arbitrary or oppressive, then it may vacate the committee's decision and remit the punishment imposed. See, e.g., State ex rel. Irby v. Israel, 184 Wis. 2d 831, 847-48, 522 N.W.2d 9 (1994); Santiago v. Ware, 205 Wis. 2d 295, 337-38, 556 N.W.2d 356 (Ct. App. 1996)
Prison Litigation Reform Act -- "Three-Strikes" Provision -- Strike Designation and Amended Pleading
State ex rel. Nathaniel Allen Lindell v. Litscher, 2005 WI App 39
Pro se
Issue/Holding: Amendment to initial pleading of PLRA claim must satisfy screening requirement of § 802.05(3), ¶16. Where the trial court determines that the PLRA petitioner has stated an arguably meritorious claim for relief, but later dismisses the claim as moot, the dismissal does not qualify as a “strike” under § 801.02(7)(d).
Not for the faint-hearted. PLRA cases never are. But there’s at least an interesting sort of subtext to this one: Lindell’s court of conviction erroneously entered a restitution order and the prison deducted $12.26 from his account until the order was rescinded; then – the interesting part – DOC restored the deducted amount, ¶5. This is mentioned because there’s authority that the court can’t order DOC to refund money erroneously deducted. State v. James D. Minniecheske, 223 Wis.2d 493, 590 N.W.2d 17 (Ct. App. 1998) (deeming the request a claim against the state which in turn means filing a claim with the claims board, etc.). Did Lindell simply get lucky? Or is his instance meaningfully distinguishable from Minniecheske’s – the latter’s restitution order was valid (DOC simply lacked authority at that time to take it out of his earnings); Lindell’s order wasn’t valid. It's not clear, but it remains to be seen what effect will result from burdening the court’s docket with such weighty problems as PLRA strikes and authority to refund $12, given that the very purpose of the stinting PLRA regime is reducing litigation.
Prison Litigation Reform Act -- "Three-Strikes" Provision, Specific Designation by Court
State ex rel. Mark Anthony Adell v. Smith, State ex rel. Ira Lee Anderson v. Smith, 2000 WI App 188, 238 Wis.2d 655, 618 N.W.2d 208
Issue: Whether, to constitute a strike, a prior dismissal must have been designated as such under § 802.05(3) by the court when it ordered dismissal.
¶20 We agree with the State's position that there is nothing in the statute which requires a court to specifically designate a matter as a strike. We encourage the circuit courts, however, to carefully consider the language used when dismissing matters filed by prisoners. Until recently, 'failure to state a claim upon which relief may be granted' was a relatively innocuous way of telling a prisoner that he or she had lost for a variety of reasons. Now this language has a potent impact. This language is enough for the State to count the case as one of the three strikes. We ask the circuit courts to avoid boiler plate language or forms which also do not indicate the reasons for a strike in a prisoner case.

¶21 If, however, a court has considered the PLRA implications of a decision, it would be helpful to all litigants, as well as to the appellate courts, if the court states whether it considers the dismissal to be of the type which constitutes a strike under the PLRA. Although the courts are not required to do so by statute, we ask that the courts state in a judgment or order whether the matter is one which was dismissed for any of the reasons listed in WIS. STAT. § 802.05(3)(b).

Prison Litigation Reform Act -- Three-Strikes Provision, Validity
State ex rel. Tayr Kilaab Al Ghashiyah (Kahn) f/k/a Casteel v. Sullivan, 2000 WI App 109, 235 Wis.2d 260, 613 N.W.2d 203
Issue: Whether the PLRA's three-strikes provision, which denies indigency status where the litigant has had three or more previous filings dismissed as frivolous or otherwise improper, was constitutionally applied.
Holding: Yes, though the holding is somewhat narrow. Casteel is appealing a denial of back pay, following a prison disciplinary proceeding (this appeal, in other words, does not involve any "fundamental" right). Turns out he's had three prior cases dismissed for reasons that qualify him under the "three-strikes" provision, § 802.05(3)(b). This means he's not entitled to proceed in forma pauperis. He argues that this impairs the right to habeas corpus; the court says that because he's not seeking habeas, habeas isn't burdened in any way. ¶4. And, because he's not seeking vindication of a fundamental right, requiring prepayment of filling fees doesn't deprive him of access to the courts. ¶¶5-8. His equal protection argument also fails: it's rational to distinguish frequent frivolous-filers from other litigants.  ¶10.