Sanders v. State of Wis. Claims Bd., 2021AP373

CourtCourt of Appeals of Wisconsin
Writing for the CourtKLOPPENBURG, J.
PartiesDerrick A. Sanders, Petitioner-Appellant, v. State of Wisconsin Claims Board, Respondent-Respondent.
Decision Date09 June 2022
Docket Number2021AP373

Derrick A. Sanders, Petitioner-Appellant,

State of Wisconsin Claims Board, Respondent-Respondent.

No. 2021AP373

Court of Appeals of Wisconsin, District IV

June 9, 2022

Not recommended for publication in the official reports.

APPEAL from an order of the circuit court for Dane County: No. 2020CV1016 STEPHEN E. EHLKE, Judge. Reversed and cause remanded with directions.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.


¶1 Derrick Sanders served twenty-six years in prison for a crime that he did not commit. He submitted a claim to the Wisconsin


Claims Board (the "Claims Board") under Wis.Stat. § 775.05 (2019-20)[1] seeking compensation as an "innocent person[] who [has] been convicted of a crime." See § 775.05(1). On appeal, Sanders argues that the Claims Board erred when it awarded compensation under § 775.05(4) in the amount of the statutory maximum of $25, 000 without addressing Sanders' request for additional compensation. We conclude that the Claims Board made no findings or analysis discernible in the record to demonstrate its exercise of discretion in determining whether the statutory maximum is "an adequate compensation" as required under § 775.05(4). Accordingly, we reverse and remand to the circuit court with directions to remand to the Claims Board to properly exercise its discretion as to whether $25, 000 is or is not adequate compensation where, as here, additional compensation was requested.


¶2 The following undisputed facts are taken from the administrative record filed by the Claims Board in the circuit court.

¶3 In October 1993, Sanders was convicted in Milwaukee County circuit court of first-degree intentional homicide as party to a crime related to a


fatal shooting, and he was sentenced to life imprisonment. Sanders maintained at the time of conviction, and has consistently maintained since, that he was not involved in or aware of the shooting. In 2017, Sanders filed a motion for postconviction relief based in part on ineffective assistance of counsel. In August 2018, the circuit court granted the motion and issued a decision concluding that the State failed to show that the facts regarding Sanders' conduct satisfied the elements of party to a crime liability. In September 2018, the State informed the court on the record that it "could not prove that Mr. Sanders was a party to the crime of the homicide." The circuit court promptly vacated the judgment of conviction and, on the State's motion, dismissed the case.

¶4 In February 2019, Sanders filed with the Claims Board a claim under Wis.Stat. § 775.05 seeking the statutory maximum compensation of $25, 000 plus up to an additional $5, 729, 965 in damages for the twenty-six years he spent in prison. See § 775.05(4). Sanders supported his claim with itemized damages including approximately $30, 000 for loss of property and $500, 240 for lost wages.[3] He also calculated lost wages at higher incomes that he asserted he could have earned in occupations such as law enforcement given that, at the time of his arrest, he was employed, had no criminal record, had excelled in high school, and had been honorably discharged from the United States Navy. He calculated lost wages at annual incomes of $150, 000 and $200, 000, resulting in total amounts of lost wages over twenty-six years of $3.9 million and $5.2 million, respectively.


Sanders also sought unspecified damages for mental, physical, and emotional distress, anxiety, and harassment from staff and inmates in prison.

¶5 Upon receipt of Sanders' claim, the Claims Board forwarded a copy of the claim to the Milwaukee County District Attorney John Chisholm asking for that office's recommendation regarding the "appropriate response to the claim." The District Attorney sent the Claims Board a letter stating that the claim was reviewed by the prosecutor who had handled the 2018 dismissal of the case. The letter continued, "Based upon his review of the facts surrounding the crime and Mr. Sanders' petition for compensation, the Milwaukee [County] District Attorney's Office does not oppose his petition."

¶6 The Claims Board first considered Sanders' claim on August 22, 2019, at which time it deferred decision of the claim "in order for a hearing to be scheduled at which claimant and the Milwaukee County District Attorney's Office will be present to answer questions." The Claims Board scheduled the hearing for December 2019.

¶7 The following string of three emails between the Milwaukee County District Attorney's Office and the Claims Board in November 2019 was not copied to Sanders. In the first email, the District Attorney's Office informed the Claims Board that it "will not have anyone to send to this upcoming hearing. We have nothing further to add other than what was stated on the record in open court by [the prosecutor] at the time this matter was dismissed." In the second email, the Claims Board followed up with this message: "[The District Attorney's] April 1, 2019, response to the Claims Board stated that the Milwaukee [District Attorney]'s Office 'does not oppose' Mr. Sanders' petition. To clarify, are you saying that the [District Attorney]'s Office does not oppose payment of


$5, 754, 965 to Mr. Sanders?" In the third email, the District Attorney's Office responded:

[The District Attorney's] letter of April 1, 2019, intends to express our general support for Mr. Sanders' petition for compensation. We originally saw his form that requested the statutory maximum amount of $25, 000, which we support. Regarding his other claims for damages, which appears to have varied over the course of this process, we are not taking any position on those claims, as we understand the claims board is better situated to make that determination.

¶8 At the hearing before the Claims Board, Sanders reviewed the record of the proceedings in his criminal case and stated, "I was innocent, I always maintained my innocence, and there is no proof, there is no evidence, there [are] no facts to the contrary of that." He then asked for compensation "for the 25-26 years I spent wrongfully convicted in the Wisconsin prison system."

¶9 The Claims Board asked Sanders two questions. The first question was: "[W]here did you come up with the $5 million?" Sanders explained his earning potential based on his having had no criminal record and being ex-military, and said, "I'm not trying to say I would have earned $5 million, what I'm saying is compensation due to … the precedent that I've been seeing." Sanders referenced Wisconsin cases in which a person who had been wrongfully convicted and spent twenty-four years in prison received $7.5 million, and a person who had been wrongfully convicted and spent thirteen years in prison received $13 million.

¶10 The second question was: "[H]ave you actually made any efforts to try to sue your [defense] attorney for malpractice?" Sanders responded that he had filed a notice of claim and injury and was trying to contact attorneys in Wisconsin from where he was living in Indiana. The hearing then ended.


¶11 The Claims Board issued a written decision in February 2020 (the "initial decision"). The Claims Board determined that "the evidence is clear and convincing that Sanders was innocent of the charge" of which he was convicted and awarded Sanders "compensation in the amount of $25, 000."

¶12 Sanders submitted a Petition for Rehearing, asserting that the Claims Board's decision erred in two respects: (1) the decision misstated the District Attorney's Office's position; and (2) the decision did not address his claim for additional damages beyond the statutory maximum. The Claims Board responded with a letter denying the petition (the "rehearing decision").

¶13 Sanders then filed a petition for judicial review of the Claims Board's decisions awarding compensation and denying rehearing. In a written decision and order, the circuit court affirmed the Claims Board's decisions and dismissed Sanders' petition. This appeal follows.

¶14 We will describe in pertinent detail the substance of the Claims Board's initial decision and its rehearing decision in the Discussion below.


¶15 Sanders argues that the Claims Board erred when it awarded compensation in the amount of the statutory maximum of $25, 000 without addressing his request for additional compensation as required under Wis.Stat. § 775.05(4). We begin with the applicable law and standard of review, and then proceed with our analysis.


I. Applicable Law and Standard of Review

¶16 The legislature has provided in Wis.Stat. § 775.05 for compensation for "innocent persons who have been convicted of a crime" and who have been imprisoned as a result of the conviction. Sec. 775.05(1)-(4). Such a person must first "petition the claims board for compensation for such imprisonment." Sec. 775.05(2). The Claims Board shall send a copy of the petition to the prosecutor who prosecuted the petitioner and the judge who sentenced the petitioner, for their information. Id. The Claims Board shall then "hear[] the evidence on the petition," and make a finding as to whether "the evidence is clear and convincing that the petitioner was innocent of the crime for which he or she suffered imprisonment." Sec. 775.05(3). If the Claims Board "finds that the petitioner was innocent and that he or she did not by his or her act or failure to act contribute to bring about the conviction and imprisonment," the Claims Board shall then "find the amount which will equitably compensate the petitioner, not to exceed $25, 000 and at a rate of compensation not greater than $5, 000 per year for the imprisonment." Sec. 775.05(4). "If the [C]laims [B]oard finds that the amount it is able to award is not an adequate compensation it shall submit a report specifying an amount which it considers adequate" to the legislature. Id.

¶17 The...

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