State ex rel. McMillian v. Dickey

• Decision Date: 11 June 1986
• Docket Number: No. 85-1198,85-1198
• Citation: State ex rel. McMillian v. Dickey, 392 N.W.2d 453, 132 Wis.2d 266 (Wis. App. 1986)
• Parties: STATE of Wisconsin ex rel. Oscar Bill McMILLIAN, Petitioner, v. Walter DICKEY, Administrator; Warren Young, Superintendent; and Department of Health & Social Services, Division of Corrections, Respondents.
• Court: Wisconsin Court of Appeals

Page 453

392 N.W.2d 453

132 Wis.2d 266

STATE of Wisconsin ex rel. Oscar Bill McMILLIAN, Petitioner, v. Walter DICKEY, Administrator; Warren Young, Superintendent and Department of Health & Social Services Division of Corrections, Respondents.

No. 85-1198.

Court of Appeals of Wisconsin.

Submitted on Briefs March 26, 1986.

Opinion Released June 11, 1986.

Opinion Filed June 11, 1986.

Oscar Bill McMillian, pro se.

Bronson C. La Follette, Atty. Gen., and John J. Ginski, Asst. Atty. Gen., for respondents.

Before BROWN, P.J., and NETTESHEIM and MOSER, JJ.

NETTESHEIM, Judge.

Oscar B. McMillian appeals from an order of the circuit court denying relief in McMillian's habeas corpus and certiorari actions. We affirm the circuit court's denial of habeas corpus relief to McMillian. We construe a portion of McMillian's writ of certiorari action as a further habeas corpus proceeding and grant habeas relief to McMillian. We premise this holding upon the following undisputed historical fact: Despite obtaining a writ of certiorari in March 1974 mandating judicial review of his probation revocation, McMillian has yet to receive a judicial hearing on the merits in this matter. We conclude this delay is a violation of McMillian's due process rights. We therefore reverse and remand with directions that the probation revocation order be vacated.

Despite a protracted history, the procedural facts of this case are undisputed. On October 23, 1973, McMillian pled guilty to one count of masked armed robbery and two counts of armed robbery. McMillian was sentenced to concurrent twelve-year terms on each count. ² These sentences were stayed and McMillian was placed on probation for a period of five years.

On November 2, 1973, McMillian was arrested by the Kenosha police department as a suspect in another armed robbery. As a result, the Department of Health and Social Services filed a probation hold against McMillian for the alleged possession of a weapon. Based upon this allegation, revocation of probation proceedings were instituted against McMillian. An administrative hearing on the department's probation revocation request was held on January 23, 1974. On February 15, 1974, McMillian's probation was formally revoked.

On March 1, 1974, McMillian filed a petition for a writ of certiorari challenging the revocation of his probation. The trial court granted McMillian's petition and the writ was filed the same day. In conjunction with the certiorari application, McMillian also obtained an order staying execution of the probation revocation.

The writ of certiorari commanded a return to the writ within fifteen days and also a transcript of the record and proceedings in the revocation action. The department's return was made on March 22, 1974, but did not include the transcript of the revocation proceedings, "[d]ue to the work load of the reporter...." The return anticipated completion of the transcript by April 10, 1974. ³

After the department filed its return to the writ of certiorari, initial correspondence from the department to the trial court revealed that the department could not fulfill the trial court's order for a transcript of the revocation proceedings because the reporter's notes were lost. By later correspondence dated July 8, 1980, the department advised McMillian that the reporter's notes had been destroyed.

McMillian's securing of the writ of certiorari was undertaken with the representation of Attorney Myron Keyes. On July 25, 1974, Attorney Keyes was replaced as counsel for McMillian by Attorney Wilbur Warren, who was representing McMillian on the then pending armed robbery charge stemming from the arrest of November 2, 1973.

On October 26, 1974, following jury trial, McMillian was convicted of the armed robbery charge. By judgment of conviction dated December 6, 1974, McMillian was sentenced to a term of twenty years in the state prisons. This sentence was imposed consecutive to the twelve-year concurrent sentences previously imposed in the instant case. ⁴

Attorney Warren's last involvement with the armed robbery conviction of December 6, 1974 was the filing of a notice of appeal to the supreme court dated December 12, 1974. ⁵ In the instant case, although Attorney Warren was appointed as McMillian's counsel on July 25, 1974, the record reveals no formal appearance nor any action taken on McMillian's behalf by Attorney Warren. Indeed, all proceedings following the replacement of Attorney Keyes by Attorney Warren were undertaken by McMillian on a pro se basis. Following the filing of the return to the writ of certiorari on March 22, 1974, McMillian's case languished in the circuit court in excess of the next eight years. The transcript of the revocation proceedings has never been filed to this date.

In December 1983, McMillian filed a pro se "brief" in support of his request that the revocation order be set aside. Among the grounds asserted by McMillian for vacation of the revocation order was that the department's loss or destruction of the records concerning the revocation hearing deprived him of his "due process" rights to review.

In January 1984, McMillian filed a pro se petition for a writ of habeas corpus with the circuit court. Among the various grounds asserted for habeas corpus relief by McMillian was the fact that the original order staying the probation revocation was still in effect. Therefore, McMillian reasoned that he was entitled to habeas relief as to these charges. ⁶

The circuit court conducted a hearing relative to both the writ of certiorari and the writ of habeas corpus on April 26, 1984. The court denied McMillian's requests for relief as to all proceedings. ⁷ These denials form the basis for McMillian's appeal.

WRIT OF HABEAS CORPUS

We first address the circuit court's denial of McMillian's request for habeas corpus relief. This denial was premised upon procedural and substantive grounds. The procedural ruling held that McMillian's application for relief was untimely. This ruling will be addressed in a later portion of this decision.

As to the substantive issue, we must first address our standard of review. No Wisconsin case has expressly set forth the standard of review an appellate court must apply when reviewing a lower court's ruling in a habeas corpus proceeding. ⁸ When federal courts have been asked in habeas cases to review a state court's factual determinations in a habeas proceeding, the state court's factual findings have been afforded "considerable deference." See, e.g., United States ex rel. Heral v. Franzen, 667 F.2d 633, 636 (7th Cir.1981); Burns v. Clusen, 599 F.Supp. 1438, 1443 (E.D.Wis.1984). This is equivalent to the clearly erroneous test we routinely apply to factual determinations made by a trial court. See sec. 805.17(2), Stats.

Although the findings of historical fact are presumed correct and normally merit federal court deference, the legal conclusions drawn by state courts from those historical facts have been subject to independent review by the federal courts. See Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980); Nash v. Israel, 707 F.2d 298, 301 (7th Cir.1983); Burns, 599 F.Supp. at 1443. This is equivalent to the de novo test we routinely apply to a trial court's conclusions of law. See, e.g., First National Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977). Thus, the federal courts have treated habeas cases as presenting mixed questions of law and fact.

We are persuaded that the same standard of review as applied by the federal courts should apply in a state appellate court review of a circuit court's habeas ruling. Moreover, although the procedural history of this case is lengthy, it is not disputed. It is upon the procedural record of this case that McMillian bases some of his habeas and certiorari claims for relief. When the facts are undisputed, the question presented upon appeal is one of law. State v. Williams, 104 Wis.2d 15, 21-22, 310 N.W.2d 601, 605 (1981).

McMillian contends that he is entitled to habeas relief because of the February 27, 1974 order staying execution of the probation revocation. The circuit court concluded that although the stay had never been lifted, the failure to do so was a technicality and oversight. In effect, the trial court concluded that the stay, as a practical matter, had been lifted.

We affirm the trial court's denial of this aspect of habeas corpus relief sought by McMillian, but on slightly different grounds. The trial court viewed the failure of the state to procure an order vacating the stay of execution of McMillian's probation revocation as a "technicality." We conclude that the stay was void ab initio. The right to suspend the execution of a sentence ⁹ after it has been pronounced cannot be sustained, except as incident to a review of the case upon a writ of error, or upon other well-established legal grounds. In re Webb, 89 Wis. 354, 356, 62 N.W. 177, 178 (1895); State v. Braun, 100 Wis.2d 77, 84, 301 N.W.2d 180, 183 (1981). "After sentence given, the matter within these limits would seem to be wholly within the hands of the executive officers of the law." Id. At the time of the entry of the order staying the probation revocation in the instant case, the only statutory authority for staying a sentence was for purposes of probation. See sec. 973.09(1), Stats. (1973). ¹⁰

Historically, it has been recognized that a stay pending appeal is appropriate. See Reinex v. State, 51 Wis. 152, 8 N.W. 155 (1881); Braun at 85, 301 N.W.2d at 184. A stay of execution of a sentence has also been allowed on a limited basis for purposes of efficient judicial administration of cases. See Weston v. State, 28 Wis.2d 136, 147, 135 N.W.2d 820, 826 (1965). McMillian's certiorari proceeding did not, however, represent an appeal from any judgment; nor was the stay entered for any purpose related to the efficient judicial administration of...