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.

TOPICAL OUTLINE

PROBATION Maximum Term Conditions Admission to Offense Costs Home Monitoring Jail Consecutive Periods Good-Time Delegation to DOC Confinement Credit Stay, for Hospitalization Modification Overbreadth Procreation Association / No-Contact Travel / "Banishment" Sex Offender Notification Sex Offender Registration Extension Revocation Certiorari Review Court of Conviction Exhaustion Requirement PLRA Applies Collateral Review -- Newly Discovered Evidence Executive Branch Authority to Revoke Cross-examination Ineffective Assistance of Counsel Non-Compliance with Condition DOC Had No Authority to Impose Refusal to Admit Guilt Sufficiency of Evidence Waiver of Challenge by Failing to Seek Judicial Modification Rejection of Probation by Defendant

EXTENDED SUPERVISION Conditions Raising Challenge to Conditions Child Support Obligation No-contact / Association Jail Notification of "Dating Relationship" "Contribution" Payment Reconfinement -- Review Revocation Jurisdiction to Revoke Effective Assistance of Counsel

PLRA/PRISON ISSUES 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

CASE SUMMARIES

PROBATION

Probation -- Maximum Term

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." Holding: ¶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

Issue/Holding: ¶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 Issue/Holding: ¶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).

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.

Issue/Holding2: ¶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"). 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: Research shows that there is no correlation between residency restricitons and reducing sex offenses against children or improving the safety of children. Reserach does not support the belief that children are more likely to be victimized by strangers at the covered locations than at other places. 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

Issue/Holding: ¶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. Holding: ¶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.

Holding: ¶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

Issue/Holding: ¶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

Issue/Holding: ¶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.

Issue/Holding: 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.

Go To Brief

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.

Holding: ¶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.

Holding: ¶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.

Holding: ¶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 insuffici