State ex rel. Gibson v. Department of Health and Social Services, 77-682
| Decision Date | 31 October 1978 |
| Docket Number | No. 77-682,77-682 |
| Citation | 272 N.W.2d 395,86 Wis.2d 345 |
| Parties | STATE of Wisconsin ex rel. Sanford GIBSON, Defendant-Respondent, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff-Appellant. |
| Court | Wisconsin Court of Appeals |
Review of a judgment by a certiorari court reversing and terminating parole and probation revocation proceedings by the Department of Health and Social Services.
James H. Petersen, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-appellant.
Mel S. Johnson, Asst. State Public Defender (argued), with whom on the brief was Howard B. Eisenberg, State Public Defender, for defendant-respondent.
Before MOSER, P. J., and BROWN and BODE, JJ.
The respondent, Sanford Gibson, has a history of involvement with the criminal justice system. In 1969, he was convicted of armed robbery and robbery. He was sentenced to ten years in prison on the armed robbery charge and received five years probation, to commence upon parole, on the robbery charge. He was paroled in 1972 but was revoked in 1974 as an absconder. On January 28, 1975, he was convicted of armed robbery and received an additional ten-year prison sentence, which was stayed with a five-year term of probation imposed consecutive to the prison term. Gibson was paroled again in December, 1975.
On March 21, 1976, Gibson was arrested and subsequently charged with three counts of armed robbery and two counts of false imprisonment. The department immediately sought to revoke his parole and probation. At that time the alleged violation was that Gibson was found in possession of stolen property. Proper notice and an outline of revocation procedures were served on Gibson, and a final hearing was held on August 18, 1976. After the department had presented its case, the hearing examiner refused to allow Gibson to testify stating the defense to be presented by his counsel was frivolous. An offer of proof was made and the hearing concluded. Following the recommendation of the hearing examiner, the department later revoked Gibson's parole and probation.
Gibson challenged the revocation by writ of certiorari on the grounds that he had been denied due process. Judge William G. Callow heard the certiorari and reversed the revocation, finding Gibson's due process rights had been violated when the hearing examiner refused to allow him to testify or present his case against revocation. On January 15, 1977, the case was remanded for an "extended final revocation hearing" under the following guidelines:
a. The Department shall not be given an opportunity to add any evidence to its case for revocation but must rest on the evidence it presented at the original revocation hearing on August 18, 1976, except for rebuttal of any evidence offered by defendant;
b. The extended hearing shall begin with presentation of defense testimony and arguments in opposition to revocation;
c. The hearing examiner's amendment of the allegation, striking rule one and substituting rule two, shall be withdrawn and the revocation decision shall be based on whether petitioner's conduct violated rule one.
Following a motion for a change of hearing examiners, a new hearing examiner was appointed to conduct the extended revocation hearing. This hearing was held on March 11, 1977, at which time the alleged violation was that Gibson had been convicted of two counts of armed robbery and two counts of false imprisonment. A certified copy of a judgment of conviction was introduced to support these allegations. Gibson moved to dismiss, arguing the introduction of new allegations with new evidence violated the remand order of the county court. He also moved to exclude the judgment of conviction on the grounds it was not proper under the remand order and varied from the allegations, thereby making it irrelevant. The hearing examiner reserved rulings on both issues.
On March 17, 1977, the hearing examiner called Assistant Attorney General James H. Petersen to get his opinion as to whether the second hearing violated the remand order. Petersen sent a memorandum to both the hearing examiner and defense counsel in which he stated his belief that the second hearing was a "new revocation proceeding" begun on new grounds, and therefore did not violate the remand order. The hearing examiner adopted this position and on March 22, 1977 recommended that Gibson's parole and probation be revoked. Based on this recommendation, Gibson was revoked on the new allegations.
A second writ of certiorari was then filed. The certiorari was again heard by Judge Callow, who again reversed in a judgment entered December 22, 1977. This appeal is from the judgment reversing Gibson's revocation for the second time.
The department contends the court erred in two respects with regard to its decision on the second certiorari. It argues the court erred:
1) in finding the second hearing was a continuation of the first; and
2) in determining the new allegations and evidence at the second hearing violated a valid remand order.
It is the department's position that the hearing examiner found the first proceedings were abandoned and new charges preferred. Such a finding, it submits, was conclusive on the certiorari court and could not be disregarded because examiner findings are not subject to De novo review. While it is true that certiorari is not a De novo review, and the court is not permitted to weigh the evidence considered by the examiner, the court may, nevertheless, independently determine whether there is substantial evidence to support the administrative determination. Van Ermen v. Department of Health & Social Services, 84 Wis.2d 57, 64, 267 N.W.2d 17, 20 (1978). However, before asking if the examiner's finding was supported by substantial evidence, the court must first determine what the findings were.
In this situation it is not at all clear that the examiner found the prior proceedings had been abandoned. Indeed, the specific language of the finding in question was as follows: "(N)either the order nor due process precludes abandonment of the prior Allegations by the Bureau of Probation and Parole followed by the assertion and administrative notice of new convictions as grounds for revocation." (Emphasis added.) Since the examiner's statement is ambiguous as to whether he found the second hearing to be a continuation of the first, or an entirely new proceeding, the court had to decide how to interpret the finding.
We believe the certiorari court correctly interpreted the examiner's statement to mean the second hearing had been a continuation of the first. This interpretation we find implicit in the court's initial finding that "the extended final revocation hearing" violated the remand order of January 15, 1977. To have interpreted the statement to mean the second hearing was a new proceeding, as the department urges, would have required the court to accept an interpretation unsupported by the record or the evidence.
The evidence is overwhelming that the second hearing was merely an extension of the first. The hearing examiner opened the proceeding by observing that "(t)he hearing today is being held pursuant to the amended order of Judge Callow remanding this matter for (an) extended revocation hearing." Mr. Piotrowski, who represented the Bureau of Probation and Parole, made no objection to this characterization of the status of the hearing. In addition, the transcript of the hearing indicates the new allegations were consistently referred to as being "substituted" for the original ones, with the recommendation being "amended" to reflect the new allegations. It is also important to note that while Gibson's attorney received a letter notifying him that the allegations were being amended, Gibson himself never received the notice required whenever a revocation proceeding is begun. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Bureau of Community Corrections, Division of Corrections, Department of Health and Social Services, Operations Manual, sec. 3.02(5)(b)(1), (as amended December 1, 1976).
Indeed, the only evidence in the record to support the contention that this was a new proceeding is the memo by Assistant Attorney General James Petersen. That memo, written as a result of an Ex parte communication from the hearing examiner, states the bureau position that an entirely new revocation proceeding had been commenced. However, the date of the memo is March 17, 1977, two days After the hearing was held, and does not reflect what appears to have been...
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