State Ex Rel. Leach v. Schwarz, No. 2007AP1425 (Wis. App. 4/15/2008), 2007AP1425.
| Decision Date | 15 April 2008 |
| Docket Number | No. 2007AP1425.,2007AP1425. |
| Court | Wisconsin Court of Appeals |
| Parties | State of Wisconsin Ex Rel. William Leach, Petitioner-Appellant, v. David Schwarz, Administrator, Division of Hearings and Appeals, Respondent-Respondent. |
APPEAL from an order of the circuit court for Milwaukee County: RICHARD J. SANKOVITZ, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
William Leach appeals pro se from a circuit court order affirming a decision of the Division of Hearings and Appeals that revoked Leach's parole and forfeited his good time. We agree with the circuit court's analysis and conclusions. We affirm.
¶ 2 Leach was imprisoned following multiple felony convictions in 1982. He was released in November 2004, but absconded from supervision in January 2006. After receiving a formal alternative to revocation, Leach was arrested in March 2006 for two armed robberies. The Department of Corrections (Department) then sought revocation of Leach's parole on the basis of five alleged rule violations, including the two armed robbery charges. An Administrative Law Judge (ALJ) determined that the Department proved the violations and that there were no appropriate alternatives to revocation. The ALJ revoked Leach's parole and ordered the forfeiture of twenty-five years, four months, and six days of good time. Leach appealed to the Administrator of the Division of Hearings and Appeals, who affirmed.
¶ 3 Leach petitioned the circuit court for a writ of certiorari to review the administrative decision. Leach contended that: (1) his jury trial on the two armed robbery charges resulted in one acquittal and one conviction of a lesser offense, warranting a new revocation hearing; (2) the administrative decisions to revoke his parole and forfeit all accumulated good time are unreasonable; (3) the ALJ denied him due process when it refused him a continuance to present the testimony of a character witness; (4) the ALJ improperly refused to allow him to present evidence about his medical condition and treatment; (5) the Department unconstitutionally predicated his parole revocation on his refusal to give a statement to his parole agent; and (6) the Department lacked jurisdiction to proceed with revocation because Leach's parole agent failed to secure a supervisor's signature on the form recommending administrative action. The circuit court denied the petition, and this appeal followed.
¶ 4 On certiorari review of an administrative decision revoking parole, we review the decision of the agency, not that of the circuit court. 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). Our review is limited to four issues: "(1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State ex rel. Thorson v. Schwarz, 2004 WI 96, ¶12, 274 Wis. 2d 1, 681 N.W.2d 914. Our scope of review is identical to that of the circuit court. See State ex rel. Staples v. DHSS, 136 Wis. 2d 487, 493, 402 N.W.2d 369 (Ct. App. 1987).
¶ 5 In its review of the agency's decision, the circuit court applied the proper legal standards to the relevant facts in a thorough and thoughtful written opinion. We conclude that the circuit court reached the correct conclusions for reasons that express our view of the law. Accordingly, we adopt the circuit court's attached decision as our own and affirm its order. See WIS. CT. APP. IOP VI(5)(a) (Oct. 14, 2003) (court of appeals may adopt circuit court's opinion).
By the Court.—Order affirmed.
DECISION AND ORDER
This case comes before the court for review of a decision of David Schwarz, Administrator of the Division of Hearings and Appeals affirming the decision of the Department of Corrections to revoke William Leach's parole.
Because substantial evidence supports the Department's decision to revoke his parole and because the Department's procedure does not violate the law, I must affirm his revocation.
Mr. Leach was convicted in 1982 of four armed robberies, an attempted armed robbery an attempted murder and false imprisonment. He was confined until his mandatory release date of November 9, 2004.
Mr. Leach was unsuccessful on parole. He absconded from supervision in January, 2006 and was not apprehended until March, 2006. He was released under the terms of a formal alternative to revocation, but within about two weeks he was apprehended for the robbery of Angeline Opsahl and William Holdmann.
Upon his apprehension the second time, the Department sought the revocation of his parole, claiming five violations of the rules governing his supervision (1) absconding; (2) ingesting cocaine; (3) using what was thought to be a gun to rob Angeline Opsahl; (4) using what was thought to be a gun to rob William Holdmann; and (5) refusing to provide a statement to his agent on April 27, 2006.
On June 26, 2006, after hearing testimony and argument at a revocation hearing, ALJ Charles Goukas decided that the Department proved all of these allegations. The All ordered that Mr. Leach be reconfined for the entire time that was available, 25 years, 4 months and 6 days. The All ordered that Mr. Leach was eligible to earn good time.
On July 10, 2006, the Administrator of the Division of Hearings and Appeals, David Schwarz, affirmed the ALJ's decision.
Mr. Leach was prosecuted for the robberies of Ms. Opsahl and Mr. Holdmann. On July 19, 2006, the State went to trial on charges of attempted armed robbery of Ms. Opsahl and armed robbery of Mr. Holdmann. On July 21, 2006, the armed robbery charge was amended to a charge of robbery. On July 21, 2006, the jury rendered its verdicts. It acquitted Mr. Leach of the charge involving Ms. Opsahl and convicted Mr. Leach of the amended offense of robbing Mr. Holdmann.
Mr. Leach argues that the Department failed to provide substantial evidence to support the revocation and that the Department denied him due process. Mr. Leach makes the following six claims: (1) He is entitled to a new revocation hearing because the ALJ's finding that he attempted to rob Ms. Opsahl and Mr. Holdmann using a toy gun is refuted by the subsequent jury verdicts. (2) Even if he is not entitled to a new hearing, the decision to revoke him for 25 years was unreasonable and contrary to law given the lesser severity of the offense of which he ultimately was convicted. (3) The ALJ erroneously denied his request for a continuance to furnish the testimony of Wilma Wells about his condition and behavior during the time he was living with her. (4) The ALJ refused to allow Mr. Leach to present evidence about his various medical conditions, and that he was taking a prescription narcotic for some or all of them. (5) He declined to give a statement to his agent only because his attorney told him not to. (6) The All lacked jurisdiction or violated Mr. Leach's right to due process because the All proceeded without requiring Mr. Leach's agent to obtain a supervisor's or regional chief's signature on a DOC-44 Form Recommendation for Administrative Action.
When the circuit court is asked to conduct a certiorari review of a parole revocation decision, the scope of the court's review is limited to four familiar inquiries: (1) whether the Department acted within the bounds of its jurisdiction; (2) whether the Department acted according to law; (3) whether the Department's action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that revocation was reasonable. State ex rel. Tate v. Schwarz, 2002 WI 127, ¶ 15, 257 Wis. 2d 40, 48.
Mr. Leach's attack on his revocation seems to focus on first, second and fourth factors.
What may seem to be the most compelling claim Mr. Leach makes is that a jury acquitted him of one of the offenses on which the Department relied to revoke his parole, and the offense of which he was convicted was less egregious than the other offense for which his parole was revoked. In Mr. Leach's view, the jury's verdict trumps the ALJ's conclusions. Mr. Leach contends further that once the robbery allegations are put aside, the Department's remaining allegations against him provide little justification for ordering him confined for 25 years.
The flaw in Mr. Leach's argument is the jury verdict does not trump the ALJ's decision. The Department is not held to the same heavy burden of proof as the State is held in a criminal trial. The Department was not required to prove the robbery allegations against Mr. Leach beyond a reasonable doubt. Furthermore, on a certiorari review, the court does not hold the Department to such a heavy burden. I am not authorized to scrutinize the record for proof beyond a reasonable doubt that Mr. Leach committed the offenses which led to revocation.
The evidence in support of the allegations against Mr. Leach need merely be "substantial" for the court to uphold revocation. In Van Ermen v. Department of Health & Social Services, 84 Wis. 2d 57, 64 (1978), the supreme court explained:
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