State ex rel. Greer v. Schwarz
| Decision Date | 10 October 2012 |
| Docket Number | No. 2011AP2188.,2011AP2188. |
| Citation | 825 N.W.2d 497,344 Wis.2d 639,2012 WI App 122 |
| Parties | STATE of Wisconsin ex rel. Ardonis GREER, Petitioner–Respondent, v. David H. SCHWARZ, Administrator, Division of Hearings and Appeals, Respondent–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the respondent-appellant, the cause was submitted on the briefs of Jeffrey J. Kassel, assistant attorney general, and J.B. Van Hollen, attorney general.
On behalf of the petitioner-respondent, the cause was submitted on the brief of Jennifer M. Severino of Severino Law Offices, LLC, Racine.
Before BROWN, C.J., NEUBAUER, P.J., and GUNDRUM, J.
[344 Wis.2d 643]¶ 1 David H. Schwarz, Administrator for the State of Wisconsin Division of Hearings and Appeals, appeals from a final order of the circuit court reversing his decision revoking Ardonis Greer's probation. The court reversed the decision after concluding the department of corrections (DOC) was equitably estopped from seeking Greer's revocation because it had previously issued him a discharge certificate.We reverse and remand for reinstatement of the Division's decision.
¶ 2 The following facts are undisputed. Greer was convicted of two felonies, possession with intent to deliver THC, Count 1, and possession of a firearm by a felon, Count 3, in Racine county case No. 2004CF1184. Count 2 was dismissed and read in for sentencing purposes. Physically present at his sentencing on March 14, 2005, Greer was sentenced to three years in the Wisconsin Prison System on Count 1, bifurcated as fourteen months of initial confinement followed by twenty-two months of extended supervision. As evidenced by the judgment of conviction, Greer was sentenced to a bifurcated six-year term of imprisonment on Count 3, but the sentence was stayed and Greer was instead ordered to serve three years of probation “[c]onsecutive to Count 1.” The DOC failed to enter the court's order related to Greer's three-year consecutive probation term on Count 3 into its computer record system.
¶ 3 Greer served his initial confinement and extended supervision related to Count 1. The DOC agent supervising Greer on his extended supervision informed Greer his supervision would be completed when his period of extended supervision expired on September 28, 2007. A few days later, Greer received a discharge certificate from the DOC stating in part: The certificate also informed Greer his right to vote and obligation for jury duty were restored.1
¶ 4 In November 2009, Greer was involved in an incident which ultimately resulted in his plea to a new felony charge, intimidation of a witness/threat of force, on June 25, 2010. On September 1, 2010, a DOC agent conducting a presentence investigation related to Greer's new conviction discovered Greer's three-year consecutive probation term related to Count 3 from his 2005 sentencing, which was set to expire on September 28, 2010. On September 2, 2010, the DOC took Greer into custody on a probation hold and initiated revocation proceedings.
¶ 5 Following a hearing, an administrative law judge (ALJ) for the Division revoked Greer's probation. Greer appealed to the administrator of the Division, Schwarz, who upheld the revocation. Greer petitioned the Racine County Circuit Court for a writ of certiorari. The court reversed the Division's decision revoking Greer's probation, holding that the DOC was equitably estopped from seeking Greer's revocation due to its issuance of the discharge certificate to him. The Division moved the court to reconsider its decision, arguing that equitable estoppel was not an available remedy based on the limited scope of certiorari review. The court denied the motion and the Division filed this appeal. Additional facts are included as necessary throughout the decision.
¶ 6 On certiorari review of an administrative decision revoking probation, we review the Division's decision, not the circuit court's. See State ex rel. Warren v. Schwarz, 211 Wis.2d 710, 717, 566 N.W.2d 173 (Ct.App.1997), aff'd,219 Wis.2d 615, 579 N.W.2d 698 (1998). The scope of our review is the same as that of the circuit court and is limited to determining: (1) whether the Division stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the decision it made. Id. The Division, not the reviewing court, weighs the evidence presented at a revocation hearing. See Van Ermen v. DHSS, 84 Wis.2d 57, 64, 267 N.W.2d 17 (1978). The court's inquiry is limited to whether there is substantial evidence to support the Division's decision. Id. If there is, we must affirm even if there is evidence that could support a contrary determination. Warren, 211 Wis.2d at 726, 566 N.W.2d 173. Whether the Division acted according to law, however, is a question we review de novo. State ex rel. Tate v. Schwarz, 2002 WI 127, ¶ 16, 257 Wis.2d 40, 654 N.W.2d 438.
¶ 7 The Division argues that it met all four criteria under certiorari review. Greer contends it met none of them. The Division is correct on all points.
The Division retained jurisdiction over Greer
¶ 8 Wisconsin's probation statute provides that an individual who is placed on probation for a felony shall be discharged from probation and issued a discharge certificate from the DOC “[w]hen the period of probation for [the] probationer has expired.” Wis. Stat. § 973.09(5) (2009–10).2 Consistent with § 973.09(5), as relevant here, the DOC rules provide that a probationer “shall be discharged upon the issuance of a discharge certificate by the secretary at the expiration of the term noted on the court order committing the client to the custody and supervision of the [DOC].” Wis. Admin. Code § DOC 328.17(2) (Dec. 2006) (emphasis added).3
¶ 9 In his response brief, Greer acknowledges (Emphasis added.) Greer contends the DOC nonetheless lost jurisdiction over him and therefore could not move to revoke his probation when it issued him the discharge certificate indicating he was “discharged absolutely” “effective September 28, 2007.” Greer is incorrect.
¶ 10 Here, the sentencing court ordered Greer to serve a three-year period of probation on Count 3 to begin at the expiration of his three-year term of imprisonment on Count 1. The discharge certificate could not have had the effect of discharging Greer from that probation term because that three-year period of probation ordered by the court had not expired at the time the certificate was issued, as required by the cited statute and administrative code. Thus, to the extent the certificate could be interpreted as discharging Greer from the term of probation ordered by the court on Count 3, it was invalid. See State ex rel. Anderson–El v. Cooke, 2000 WI 40, ¶ 20, 234 Wis.2d 626, 610 N.W.2d 821 ().
¶ 11 Greer contends the DOC did not act in excess of its authority in issuing the discharge certificate because an administrative rule, Wis. Admin. Code § DOC 328.17(2)(c), permits the DOC to terminate supervision early when “[t]here is a reasonable probability that it is no longer necessary either for the rehabilitation and treatment of the client or for the protection of the public that the [DOC] retain custody, and discharge is merited.” Fatal to this contention, however, is the fact that Greer does not argue, and the record does not support the inference, that the DOC actually issued the discharge certificate pursuant to that code subsection, or that the certificate was issued for any reason other than an administrative error resulting from the DOC's failure to input Count 3 into its record system. Thus, § DOC 328.17(2)(c) is inapplicable here.
¶ 12 Greer also places much emphasis on our decisions in State ex rel. Rodriguez v. DHSS, 133 Wis.2d 47, 393 N.W.2d 105 (Ct.App.1986), and State v. Stefanovic, 215 Wis.2d 310, 572 N.W.2d 140 (Ct.App.1997), for the proposition that “the issuance of a discharge certificate is a ‘significant legal moment.’ ” These cases do not assist Greer.
[344 Wis.2d 649]¶ 13 In Rodriguez, Rodriguez was convicted of child abuse and battery and ordered by the court to serve a two-year probation term consecutive to a prison term on an unrelated conviction. Rodriguez, 133 Wis.2d at 49, 393 N.W.2d 105. In March 1985, unaware of the probation term due to begin upon the expiration of the unrelated sentence on April 6, 1985, Rodriguez's agent told Rodriguez he would be discharged from supervision on that date. Id. The agent discovered his mistake on May 20, 1985, and informed Rodriguez he was still on probation. Id. at 50, 393 N.W.2d 105. Between April 6 and May 20, however, Rodriguez had assaulted a woman. Id. at 49–50, 393 N.W.2d 105.
¶ 14 The department of health and social services (Department) commenced revocation proceedings against Rodriguez based in part on the assault. Id. at 50, 393 N.W.2d 105. Rodriguez argued at the revocation hearing that he had been discharged from his supervision at the time of the assault and that, because he did not know he was under supervision after April 6, it would be unfair to require him to follow the rules of supervision thereafter. Id. The hearing examiner found that Rodriguez knew he was on probation beginning April 6 because the circuit court had informed him at his sentencing...
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