State ex rel. Sveum v. Wiersma

• Decision Date: 11 March 2021
• Docket Number: Appeal No. 2020AP811
• Citation: 2021 WI App 27,959 N.W.2d 93 (Table),397 Wis.2d 244
• Parties: STATE of Wisconsin EX REL. Michael A. SVEUM, Petitioner-Appellant, v. Lance A. WIERSMA, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

397 Wis.2d 244

959 N.W.2d 93 (Table)

2021 WI App 27

STATE of Wisconsin EX REL. Michael A. SVEUM, Petitioner-Appellant, v. Lance A. WIERSMA, Respondent-Respondent.

Appeal No. 2020AP811

Court of Appeals of Wisconsin.

March 11, 2021

PER CURIAM.

¶1 Michael Sveum, pro se, appeals a circuit court order affirming decisions of the Wisconsin Department of Corrections to deny each of Sveum's requests to modify special conditions of extended supervision imposed by the Department. ¹ Sveum purports to raise exclusively constitutional challenges to eight special conditions. We conclude that, with one partial exception, Sveum fails to establish by a clear preponderance of the evidence that any condition is overly broad in protecting the community and victims or is not reasonably related to his rehabilitation. We also conclude that any additional constitutional arguments he may intend to make are without merit, undeveloped, or both. Accordingly, we affirm on all issues with one exception that requires remand. ²

¶2 As we explain below, the exception requiring remand involves the aspect of one condition that prohibits Sveum from owning, possessing, or having access to "any" "style of facemask."

¶3 We now briefly summarize some of the pertinent history from the record that is cited by the State, none of which Sveum disputes for purposes of this appeal. ³ Sveum was convicted in December 1994 for violating a restraining order in October 1994. The restraining order prohibited him from contacting A.B. ⁴ He was given a disposition of 18 months of probation. Sveum's unlawful contact with A.B. involved letting air out of one of her car tires while it was parked outside her residence.

¶4 In addition, A.B. reported that one day in October 1994, Sveum, then her former boyfriend, confronted her in the front entrance to her apartment building. He grabbed A.B., and told her that he would ruin all of her future relationships and that he would be hiding in the bushes and blow her head off.

¶5 A mutual friend of Sveum and A.B. reported to police that Sveum had said all of the following to the mutual friend. Sveum "would never allow [A.B.] to have a relationship with a guy and would harass any relationship she tried to start" with anyone else, because he wanted her to be "single until she's 30 and then she would see that he was the only one left that was available." Sveum was not concerned about conditions of the restraining order or of probation because he did not think that "he was going to get caught." Sveum would go into A.B.’s garage when she was not home and check the mileage on her car, and he used a log to track her movements and car mileage. He would go to the residences of men A.B. dated and damage their cars.

¶6 In October 1996, Sveum was convicted of offenses that included felony stalking, based on conduct in April 1996 in which he preyed upon A.B. The conduct included damaging a vehicle owned by a man who dated A.B. This resulted in prison sentences.

¶7 While Sveum was in prison, in 1999 and 2001, he enlisted his sister to help track A.B., providing information about her employment, car, and living arrangements.

¶8 Sveum was released from prison and was placed on parole and probation supervision in July 2002, with conditions that included no contact with A.B., and no possession of photos or items belonging to A.B. In a May 2003 search pursuant to a warrant, police seized items belonging to Sveum and his sister. These items included three photos of A.B., a log recording A.B.’s activities in March, April, and May 2003, including an entry that stated, "3/19 found her," and "a sheet listing addresses of Internet sites for conducting residence searches and background checks."

¶9 In April 2003, police placed a global positioning system (GPS) tracking unit on Sveum's car, which revealed Sveum driving "within yards" of A.B.’s residence and in the vicinity of a pay phone that someone used to place hang up calls to her residence.

¶10 In October 2006, Sveum was convicted of the felony of stalking after a previous stalking conviction based on his conduct regarding A.B. from September 1999 to May 2003. The circuit court sentenced him to seven years and six months of initial confinement, followed by five years of extended supervision.

¶11 In December 2006, a search of Sveum's prison cell revealed items that included the following: tax forms for A.B. from three different employers; an envelope addressed to A.B. from a municipal agency; an insurance card for A.B.; notes referencing people whom A.B. had allegedly dated, her employers, cars she had owned, and names and phone numbers of co-workers; and a handwritten list of items that included the following: "storage unit," "revolvers," "ammo," "knives," "meat grinder," "garbage bags," "saws," "helmet," "gloves," "wig," "tracking device," "facemask," "binoculars," "scanner," "tie-downs," "silencer," "Halloween mask," "Illinois/Minn. Plates," and "chloroform." This last list also included the following:

Muriatic Acid—Eats away skin, eyeballs, lungs, etc. Use elbow length Rubber gloves, rubber apron, face shield & respirator. Use outside and wash with water. Cleans blood up.

¶12 In October 2018, Sveum was again released from prison and began the term of extended supervision with the conditions at issue in this appeal. At that time, the Department informed him of both standard and special rules of supervision ("special" meaning, specific to Sveum) that the Department was imposing on him. ⁵

¶13 Sveum filed a motion with the circuit court seeking, as pertinent here, an order modifying some of the Department's special conditions, which the court addressed in an order in April 2019. ⁶ The order denied this aspect of Sveum's motion on the ground that it was not properly before the court, ruling that he could seek judicial review through a writ of certiorari only after he first exhausted his potential administrative remedies with the Department.

¶14 Sveum then unsuccessfully sought modifications from, in turn, his agent, the agent's supervisor, regional chief, and administrator. The administrator stated in a letter to Sveum that the challenged special rules "bear a reasonable relationship to your rehabilitation while offering protection to the community, and therefore are appropriate."

¶15 Sveum initiated this proceeding by filing a petition for a writ of certiorari in July 2019. The parties briefed the issues and the court entered a decision and order affirming the Department's denial of all modification requests. Below we address in turn the arguments of the parties and our conclusion regarding each modification request.

¶16 Certiorari review of the Department's decision is limited to four inquiries:

(1) whether the agency acted within the bounds of 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 sufficient that the agency might reasonably make the determination that it did.

State ex rel. McElvaney v. Schwarz , 2008 WI App 102, ¶6, 313 Wis. 2d 125, 756 N.W.2d 441. As best we can discern, Sveum now argues that, as to each challenged condition, the Department is not acting "according to law" by imposing an unconstitutional condition.

¶17 We review the Department's decision, not the decision of the circuit court, although as we explain at various points we concur with, and have benefitted from considering, the acute analysis of the circuit court. See id.

¶18 We recently had occasion to address constitutional challenges to supervision conditions imposed by a circuit court, as opposed to special conditions imposed by the Department. State v. King , 2020 WI App 66, ¶¶13, 18, 24, 394 Wis. 2d 431, 950 N.W.2d 891. However, neither party gives us any reason to think that the following pertinent standards from King , which address a range of different types of constitutional challenges that overlap with Sveum's challenges, do not apply equally to Sveum's constitutional challenges to the Department-imposed conditions:

"[C]onvicted felons do not enjoy the same degree of liberty as those individuals who have not been convicted of a crime." [ State v. Stewart , 2006 WI App 67, ¶12, 291 Wis. 2d 480, 713 N.W.2d 165 ].

We apply a two-part test to determine whether a condition of extended supervision is unconstitutional. A condition of extended supervision "may impinge upon constitutional rights as long as" the condition: (1) is not overly broad in protecting the community and victims; and (2) is "reasonably related to the person's rehabilitation." State v. Rowan , 2012 WI 60, ¶¶4, 10, 341 Wis. 2d 281, 814 N.W.2d 854 (quoted sources omitted); Stewart , 291 Wis. 2d 480, ¶12 ; see alsoState v. Miller , 175 Wis. 2d 204, 208, 499 N.W.2d 215 (Ct. App. 1993) (stating that this court uses those same standards when considering whether a supervision restriction is constitutional under the First Amendment).

A condition of supervision is reasonably related to a defendant's rehabilitation if the condition "assists the convicted individual in conforming his or her conduct to the law." Rowan , 341 Wis. 2d 281, ¶10, 814 N.W.2d 854 (quoting State v. Oakley , 2001 WI 103, ¶21, 245 Wis. 2d 447, 629 N.W.2d 200 ). This is appropriate in part because "encouraging lawful conduct" increases "protection of the public." Id.

Where, ..., the condition is content neutral, that is to say, where the condition is imposed without reference to the content of the regulated activity, intermediate scrutiny is applied. SeeState v. Jackson , 2020 WI App 4, ¶6 n.4, 390 Wis. 2d 402, 938 N.W.2d 639 ; see also [ Packingham v. North Carolina , 137 S. Ct. 1730, 1736 (2017) ]. The intermediate scrutiny test allows the government to impose reasonable, content-neutral restrictions on speech that are "narrowly tailored to serve a significant governmental interest." Packingham , 137 S. Ct. at 1736 (quoting McCullen

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