State ex rel. Ortega v. McCaughtry

Decision Date06 August 1998
Docket NumberNo. 97-2972,97-2972
Citation221 Wis.2d 376,585 N.W.2d 640
PartiesSTATE of Wisconsin ex rel. Jesus ORTEGA, Jr., Petitioner-Appellant, v. Gary R. McCAUGHTRY, Respondent-Respondent.
CourtWisconsin Court of Appeals



Jesus Ortega, Jr., appeals an order quashing a writ of certiorari which had been issued for the review of prison disciplinary proceedings against him. Ortega claims the circuit court erred in affirming Warden Gary McCaughtry's decision to let stand the adjustment committee's finding that Ortega had disobeyed orders. In this appeal, Ortega argues: (1) there was insufficient evidence before the adjustment committee to find him guilty of the offense; (2) he was denied his right to the assistance of a staff advocate; and (3) he did not timely receive a copy of a police report relied on by the committee in finding him guilty. We reject Ortega's claims of error and affirm the circuit court's order.


A social worker at Waupun Correctional Institution (WCI), prepared and submitted a conduct report charging Ortega with violating WIS. ADM.CODE § DOC 303.24 ("Disobeying Orders"). 1 In the conduct report, the social worker alleged the following:

On 1-13-97, I received a phone call from a social worker in Sheboygan County (Larry Samet) who informed me that the ex-wife of Jesus Ortega (Melissa Garcia) had received mail at her home address from inmate Ortega. Ms. Garcia is currently in the Victim Witness Protection Program. Per divorce decree and as being victim in Ortega's offenses, Ortega was to only send mail to a P.O. Box number and mail was to only be to the children.

Ortega had been given a direct written and verbal order from me 8-29-96 and 9-11-96 respectively, to have no contact with Melissa Garcia (see attached).

Also attached is a police report from Sheboygan Police Dept. regarding Ms. Garcia's receipt of the mail from Ortega. Per police report, the mail was destroyed by them.

Ortega is in direct violation of 303.24--Disobeying Orders.

The August 29, 1996 document referred to in the conduct report contains an order from the social worker to Ortega directing him "to not communicate with [ex-wife, Melissa Garcia] again." (Emphasis in original.) The document also recites that Melissa's request was that Ortega not "write, call, or contact" her again, and it directs that he not attempt contact through third parties, particularly his children. A document entitled "Interview/Information Request" indicates that Ortega asked to meet with the social worker after receiving the August 29th order. The worker noted on the form that she met with Ortega on September 11, 1996, and told him: "Can send letters to kids in c/o their mother. No letters to her & no mention of her to kids."

The police report referred to in the conduct report was prepared by an officer of the Sheboygan Police Department who had interviewed Ortega's ex-wife, Melissa. She told the officer that she had received a Christmas card from Ortega bearing a personal message in handwriting she recognized as Ortega's. Melissa also informed the officer that she believed Ortega had obtained her current address from a "letter" that he had received from Sheboygan County Social Services relating to their son's involvement in delinquency proceedings. The officer reports that he took possession of the greeting card, which had been mailed from "Doylestown WI on Dec. 16th of 1996," and subsequently destroyed the card because it "could not be used for any type of evidence." (According to the police report, there was apparently no "active restraining order intact" which could form the basis for criminal charges against Ortega concerning the written contact with Melissa.)

The conduct report was processed as a "major" violation, and Ortega was given a "Notice of Major Disciplinary Hearing Rights." See WIS. ADM.CODE § DOC 303.76. A staff advocate was appointed to assist Ortega in preparing his defense. See WIS. ADM.CODE § DOC 303.78. The advocate met with Ortega prior to the hearing and talked to him "for quite some time." The advocate stated at the hearing before the adjustment committee that he had a copy of the Sheboygan police report at the time of his meeting with Ortega but that Ortega had not requested a copy of it. At Ortega's request, a "Sgt. Otto" was also present as a character witness at the hearing, but the sergeant testified that he had "no knowledge of this incident."

Ortega gave both an oral and a written statement to the adjustment committee. In the written statement, he claimed his ex-wife had fabricated the story about receiving a card from him. He also claimed that the conduct report he received was defective because it was not accompanied by the "physical evidence" of the violation, that is, the greeting card his ex-wife allegedly received from him; that the Sheboygan police report should not be relied upon because it contained, and was itself, hearsay; and that he needed "an additional 14 or 21 day extension" to prepare for the hearing because he had not seen or read the Sheboygan police report. Ortega also requested that a different staff advocate be appointed because his advocate had "a lot of hostility" and bias against him. After being shown a copy of the Sheboygan police report at the disciplinary hearing, Ortega offered the following in refutation: "She is not on my visiting list, how could I see her soon? I don't know where Doylestown is? That's where it is postmarked from. I think my ex-wife is being vindictive because I'm trying to get my son here with my family."

The adjustment committee gave the following reasons for its decision to find Ortega guilty of disobeying orders:

We find the reporting officer credible. The inmate did not present any evidence to contradict the report other than to state that he did not write a letter to his ex-wife. We do not find the inmate credible. A card was turned over to the Sheboygan Police Department. We believe he sent the card through a 3rd party, thus the Doylestown postmark. Ortega received a copy of this report on 1-14-97, giving him ample opportunity to prepare for this hearing. Sgt. Otto has no knowledge of this incident.

After a review of the conduct report, the inmate's statement, witness testimony and the evidence, we find that he intentionally disobeyed a verbal and written order to have no contact with his ex-wife by sending a Christmas Card to her through a 3rd party.

The committee imposed three days of adjustment segregation and ninety days program segregation as a sanction for the offense. Ortega appealed the committee's decision to McCaughtry. He challenged the sufficiency of the evidence to find him guilty because the greeting card or a copy of it had not been produced. He also asserted the lack of adequate assistance from his appointed staff advocate, his failure to receive a copy of the Sheboygan police report prior to the hearing, and the denial of his request for additional time to prepare for the hearing.

McCaughtry remanded the matter to the adjustment committee for the purpose of "considering new evidence," and he directed that Ortega be given a copy of the new evidence prior to the hearing. The new evidence consisted of a copy of a delinquency petition which the Sheboygan County District Attorney had filed against Ortega's son in November 1996. Ortega had apparently been sent a copy of the petition at the time of its filing. 2 Melissa's address was blanked out in the caption on the first page of the faxed copy of the petition. An address, which appears to be that of Melissa's residence, is contained in the text on page two of the petition, however.

The adjustment committee convened to consider the new evidence on March 13, 1997. Ortega submitted a second written statement to the committee. This statement repeats some of Ortega's assertions from his earlier statement, and in it, he also demands that the greeting card be produced so that handwriting and fingerprint analyses could be performed. In the statement, Ortega also challenges the committee's reliance on the hearsay contained in the Sheboygan police report, but he does not address the significance, if any, of the newly produced delinquency petition. The committee concluded that "the new evidence submitted [is] irrelevant to the charge."

Ortega appealed the committee's decision on remand to the warden. In his second appeal, Ortega again challenged the sufficiency of the evidence, asserting that the new evidence discredits the Sheboygan police report, in that it establishes that the "letter from social services" referred to in the police report did not reveal Melissa's address to Ortega because the address had been blanked out on the delinquency petition he received. Finally, he again complained of the failure to produce the greeting card in the disciplinary proceedings against him. McCaughtry affirmed the adjustment committee's decision, concluding as follows:

No procedural errors. Proper consideration on all available evidence was properly given at rehearing. Facts support findings of guilt and penalty imposed. Records complete and correct.

Ortega then petitioned the circuit court for a writ of certiorari, which the court issued for a return of the record of the disciplinary proceedings. After reviewing the record, the circuit court affirmed the imposition of discipline and ordered the writ quashed. Ortega appeals the circuit court's order.

a. Standard of Review

Judicial review on certiorari is limited to whether the agency's...

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