State ex rel. Griffin v. Smith

• Citation: 677 N.W.2d 259,2004 WI 36,270 Wis.2d 235
• Decision Date: 30 March 2004
• Docket Number: No. 01-2345, No. 02-1320.
• Parties: STATE of Wisconsin EX REL. Peter D. GRIFFIN, Petitioner-Appellant, v. Judy P. SMITH, Warden, Respondent-Respondent. STATE of Wisconsin EX REL. Micah E. GLENN, Petitioner-Appellant, v. Jon E. LITSCHER, Secretary, Department of Corrections, Judy Smith, Warden, Oshkosh Correctional Institution, and David Schwarz, Administrator, Division of Hearings and Appeals, Respondents-Respondents.
• Court: Wisconsin Supreme Court

270 Wis.2d 235

2004 WI 36

677 N.W.2d 259

STATE of Wisconsin EX REL. Peter D. GRIFFIN, Petitioner-Appellant, v. Judy P. SMITH, Warden, Respondent-Respondent.

STATE of Wisconsin EX REL. Micah E. GLENN, Petitioner-Appellant, v. Jon E. LITSCHER, Secretary, Department of Corrections, Judy Smith, Warden, Oshkosh Correctional Institution, and David Schwarz, Administrator, Division of Hearings and Appeals, Respondents-Respondents.

Nos. 01-2345, 02-1320.

Supreme Court of Wisconsin.

Oral Argument October 13, 2003.

Decided March 30, 2004.

For the petitioners-appellants there were joint briefs by Nathaniel Cade, Jr., and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Nathaniel Cade, Jr.

For the respondent-respondent and respondents-respondents the cause was argued by James M Freimuth, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. ANN WALSH BRADLEY, J.

These cases are before the court on certification from the court of appeals.¹ The petitioners, Micah E. Glenn and Peter D. Griffin, assert that they were denied effective assistance of counsel when their attorneys failed to timely file a petition for writ of certiorari seeking judicial review of an administrative appeal.

¶ 2. In its certification, the court of appeals states the issue as follows:

Whether a [parolee] has a right to the effective assistance of counsel from a [parole] revocation decision when counsel promised to file a certiorari petition.²

¶ 3. While parolees have a right to counsel at the parole revocation hearing, we conclude that there is no administrative or statutory right to counsel to timely file for certiorari in the circuit court.³ However, we determine that the petitioners here are entitled to relief on equitable grounds because they timely requested counsel to file for certiorari review, counsel promised to do so, and as a result of counsel's failure to timely file, they were denied certiorari review. Accordingly, we reverse the orders of the circuit courts dismissing the petitions for writ of habeas corpus, and remand with instructions to allow reinstatement of the petitioners' right to file for certiorari review.

I

¶ 4. Glenn and Griffin were represented by counsel at their respective parole revocation hearings. Following an adverse decision in each case, counsel timely filed an administrative appeal. The Division of Hearings and Appeals rejected both appeals. The petitioners allege that their counsel promised to file for certiorari review⁴ in the circuit court but failed to do so ¶ 5. In Glenn's case, counsel failed to file the petition for writ of certiorari altogether. In Griffin's case, counsel filed the petition, but it was dismissed as being outside the 45-day time limit established by Wis. Stat. § 893.735(2) (2001-02).⁵ Both petitioners subsequently sought habeas corpus relief in the circuit court, alleging ineffective assistance of counsel for failure to timely file their petitions for certiorari review. The circuit courts denied their petitions for writ of habeas corpus.

¶ 6. Both petitioners appealed, and the court of appeals consolidated the cases. It then certified the consolidated appeals to this court. The specific facts in each case are set forth below.

A. State ex rel. Glenn v. Litscher

¶ 7. Glenn was convicted of second-degree intentional homicide on October 17, 1995, and sentenced to seven years in prison. He was paroled from that sentence on December 15, 1997.

¶ 8. On February 14, 2000, Glenn was involved in an altercation and subsequently charged with battery and criminal damage to property. His parole agent initiated revocation proceedings and the administrative law judge revoked his parole on June 5, 2000. On administrative appeal, Glenn claimed that an additional allegation, that he threatened to kill his girlfriend, was wrongly used as a ground for revocation because he did not receive notice of the allegation before the hearing. The assistant administrator of the Division of Hearings and Appeals disagreed with Glenn, and affirmed his revocation on July 3, 2000. ¶ 9. The decision upholding Glenn's revocation informed him that judicial review may be obtained by filing a petition for a writ of certiorari within 45 days of the decision to be reviewed. Around July 1, 2000, Glenn initially requested that his attorney file a petition for a writ of certiorari.

¶ 10. On July 6, 2000, Glenn met with his attorney and again asked him to file for certiorari review. Glenn's attorney requested a letter of facts and issues together with information regarding the additional allegation that Glenn had threatened to kill his girlfriend. Glenn sent that letter on July 20, 2000. On July 27, 2000, Glenn's attorney assured him that he would file for certiorari review contesting the failure to give notice of the additional allegation of threatening to kill his girlfriend as grounds for revocation. Glenn's petition for writ of certiorari was due on August 17, 2000. His attorney never filed it.

¶ 11. On December 26, 2001, Glenn submitted a pro se petition for writ of habeas corpus to this court. He alleged that his attorney provided negligent and incompetent representation by failing to file a petition for certiorari review of the parole revocation decision despite promising to do so. This court referred the petition to the Milwaukee County circuit court on February 19, 2002. Glenn filed a motion with the circuit court for a Machner⁶ hearing on his petition for writ of habeas corpus.

¶ 12. The assistant district attorney filed a motion to dismiss Glenn's petition, and the circuit court granted it. The court determined that Glenn was not entitled to relief based upon ineffective assistance of counsel because no constitutional or statutory right to counsel exists for certiorari review of revocation decisions. It further concluded that Glenn failed to demonstrate that his attorney's alleged deficiencies unduly prejudiced his case. Glenn now appeals.

B. State ex rel. Griffin v. Smith

¶ 13. The other petitioner, Peter D. Griffin, was convicted for possession with intent to deliver cocaine base and possession with intent to deliver cocaine on December 10, 1991. He was paroled on October 14, 1997.

¶ 14. In August 2000, Griffin's parole agent found three bags of cocaine and a pager in Griffin's car. The terms of Griffin's parole prohibited possession of these items. At the revocation hearing on November 1, 2000, the administrative law judge revoked Griffin's parole. Griffin appealed and the administrator of the Division of Hearings and Appeals affirmed the revocation. That decision contained a notice that judicial review may be obtained by filing a petition for writ of certiorari within 45 days of the date of the decision to be reviewed.

¶ 15. Griffin's counsel filed a petition for writ of certiorari but missed the January 15, 2001, deadline by ten days. The attorney stated that his legal assistant had suddenly become ill, causing him to miss the deadline. He then filed a motion for extension of the 45-day filing deadline, but it was denied because the court received that motion outside the 45-day limit.

¶ 16. On May 19, 2001, Griffin filed a petition for writ of habeas corpus, alleging he had been deprived of effective assistance of counsel during the appeal of his parole revocation decision. Griffin argued that his attorney failed to timely file for certiorari review despite promising to do so.

¶ 17. The circuit court dismissed Griffin's petition. It concluded that parolees do not have a constitutional or common law right to counsel for certiorari review of an administrative appeal. Griffin filed a motion to reconsider the order dismissing his petition. The judge dismissed that motion and Griffin now appeals.

II

[1]

¶ 18. Resolution of the issue set forth in the certification by the court of appeals requires us to interpret portions of the administrative code, along with a statute. The interpretation of an administrative rule or statute presents a question of law subject to independent appellate review. State ex rel. L'Minggio v. Gamble, 2003 WI 82, ¶ 11, 263 Wis. 2d 55, 667 N.W.2d 1; State v. Byers, 2003 WI 86, ¶ 12, 263 Wis. 2d 113, 665 N.W.2d 729.

[2-4]

¶ 19. When interpreting an administrative regulation, we generally use the same rule of interpretation as applicable to statutes. State v. Busch, 217 Wis. 2d 429, 441, 576 N.W.2d 905 (1998). Our goal in statutory or administrative rule interpretation is to discern the intent of the legislature or the rule maker. See State ex rel. Staples v. Young, 142 Wis. 2d 348, 353, 418 N.W.2d 333 (Ct. App. 1987)

. Our duty to fulfill this intent requires that we uphold the separation of powers by not substituting judicial policy views for the views of the legislature or rule making authority. State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591.

III

¶ 20. We begin with the question certified by the court of appeals:

Whether a [parolee] has a right to the effective assistance of counsel from a [parole] revocation decision when counsel has promised to file a certiorari petition.

¶ 21. The habeas petitions here are predicated on the existence of a right to effective representation by counsel on certiorari review of an adverse administrative appeal. In addressing the certified question, we note 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)

. Thus, the relevant inquiry becomes whether there is a right to counsel to timely file for certiorari review of a parole revocation administrative decision.

[5, 6]

¶ 22. In this case, the petitioners do not contend that there is a constitutional right to counsel to file their petitions for certiorari review. We agree. The Supreme Court has not extended a per se Sixth Amendment right to counsel at revocation...