State ex rel. Gomez v. Department of Health and Social Services
| Decision Date | 25 March 1987 |
| Citation | 138 Wis.2d 529,406 N.W.2d 172 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN ex rel. PILAR GOMEZ, Petitioner-Appellant, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent. 86-1774. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Kenosha County
Affirmed
Appeal from an order of the circuit court for Kenosha county: Robert v. Baker, Judge.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Pilar Gomez appeals from a trial court order affirming an order issued by the Department of Health and Social Services revoking his probation. He raises two issues on appeal: (1) whether sufficient evidence was presented at the probation revocation hearing to justify a conclusion that he violated the conditions of his probation; and (2) whether the department's decision to revoke his probation was arbitrary and unreasonable because made without adequate consideration of alternatives to revocation and without consideration of Gomez's ability to comply with rules prohibiting his possession and use of controlled substances. Because the evidence was sufficient to sustain the department's order and because Gomez has failed to establish that the department's decision constituted an abuse of its discretion, we affirm the trial court's order.
In reviewing a decision to revoke probation, the trial court's review is limited to four issues: (1) whether the department stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will instead of its judgment; and (4) whether the evidence was such that the department might reasonably have made the decision it did. State ex rel. Eckmann v. DH&SS, 114 Wis.2d 35, 42, 337 N.W.2d 840, 843 (Ct. App. 1983). In considering whether the evidence was such that the department could reasonably make its decision, the trial court can inquire only whether there is substantial evidence to support the decision. Van Ermen v. DH&SS, 84 Wis.2d 57, 64, 267 N.W.2d 17, 20 (1978). Substantial evidence is that quantity and quality of evidence which a reasonable mind might accept as adequate to support a conclusion. State ex rel. Eckmann, 114 Wis.2d at 43, 337 N.W.2d at 844. On appeal, the court of appeals utilizes the same standards as the trial court. See State ex rel. Cox v. DH&SS, 105 Wis.2d 378, 380, 314 N.W.2d 148, 149 (Ct. App. 1981).
In this case, the department's decision to revoke Gomez's probation is clearly supported by substantial evidence in the record. Revocation was sought based on Gomez's alleged possession of marijuana in the county jail on September 26, 1985 in violation of Rules 1, 12 and 14A of the rules of probation signed by him on June 17, 1985, and in violation of the conditions of probation set by the trial court in the judgment of conviction dated June 17, 1985. In the judgment of conviction, the trial court provided that Gomez could not have any controlled substance in his possession except by prescription. Rule 1 provided that he should avoid all conduct in violation of state law. Rule 12 provided that he should abide by all the rules of the county jail, and Rule 14A provided that he should not purchase, possess, ingest or use any controlled substance.
The department found that Gomez possessed marijuana in violation of the conditions and rules imposed on him. Its finding is supported by admissions made by Gomez to his probation agent, Patricia Drummond, and to jail authorities after a jailer discovered a green, leafy substance in a balloon taped under a bandage on Gomez's fingers when Gomez returned to the jail from work release on September 26, 1985. In his statements, Gomez admitted that the substance was marijuana.
Gomez contends that these statements are insufficient to support a finding that the substance he possessed was marijuana because they constituted hearsay and were uncorroborated. He relies on State ex rel. Thompson v. Riveland, 109 Wis.2d 580, 583, 326 N.W.2d 768, 770 (1982), holding that a probation violation may not be proven entirely by unreliable hearsay, and on Holt v. State, 17 Wis.2d 468, 480, 117 N.W.2d 626, 633 (1962), holding that there must be some corroboration of a confession in order for it to support a conviction.
Gomez's arguments are without merit. His confessions admitting that he possessed marijuana on September 26, 1985 constituted admissions by a party opponent and were thus not hearsay. Sec. 908.01(4)(b)1, Stats. Consequently, they could be relied upon by the department in making its decision. Moreover, the rule that an accused's confession must be corroborated to support a disposition has been applied only in criminal cases. E.g., Holt, 17 Wis.2d at 480, 117 N.W.2d at 633. A revocation hearing is not a criminal proceeding. State ex rel. Flowers v. DH&SS, 81 Wis.2d 376, 384, 260 N.W.2d 727, 732 (1978). Consequently, Gomez's admissions were sufficient to support a finding that he possessed marijuana on the date in question even without corroboration. In any event, his statements were corroborated by Drummond's report. The report was admitted into evidence and indicated that the balloon contained a green, leafy substance and that a deputy at the jail performed a filed test with a narcotics identification kit which indicated that the substance was marijuana. Even assuming that the evidence regarding this field test standing alone would have been insufficient under State ex rel. Eckmann to support a finding that Gomez possessed marijuana, based on Gomez's admissions the department's finding was clearly sustained by the evidence here.
Because the evidence supported a finding that Gomez possessed marijuana on September 26, 1985, the department reasonably concluded that he violated the conditions set forth in the judgment of conviction and rules of probation prohibiting him from possessing a controlled substance.f Consequently, although Gomez argues extensively that no evidence was presented as to what state statute and jail rule formed the basis for the allegation that his possession of marijuana also violated probation rules 1 and 12, it is unnecessary to address this issue. The violation of the conditions regarding possession of a controlled substance was sufficient standing alone to warrant the department's conclusion that Gomez violated the rules and conditions of his probation.
We also reject Gomez's argument that the department's decision to revoke his probation was arbitrary and unreasonable, representing its will rather than...
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