State v. Brown
| Decision Date | 19 December 2006 |
| Docket Number | No. 2005AP584-CR.,2005AP584-CR. |
| Citation | 2006 WI 131,725 N.W.2d 262 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. John C. BROWN, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs and oral argument by Randall E. Paulson, assistant state public defender.
For the plaintiff-respondent the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
An amicus curiae brief was filed by Robert R. Henak, Amelia L. Bizzaro, and Henak Law Office, S.C., Milwaukee, on behalf of Wisconsin Association of Criminal Defense Lawyers.
An amicus curiae brief was filed by Walter J. Dickey and David E. Schultz, Madison, on behalf of the University of Wisconsin Law School, and there was oral argument by Walter J. Dickey.
This is a review of a published decision1 of the court of appeals affirming an order of the Circuit Court for Milwaukee County, Judge David A. Hansher, reconfining John C. Brown (Brown) to prison for three years following revocation of his extended supervision, and the court's order denying Brown's motion for reconsideration.
¶ 2 Brown contends that the circuit court erroneously exercised its discretion when it ordered Brown to serve three years of reconfinement in prison and denied Brown's postconviction motion for a reduction in reconfinement time. In his postconviction motion, Brown argued that the court should follow the Department of Corrections (DOC) guidelines to determine the minimum custody necessary, that the court had not given sufficient deference to the DOC recommendations, and that a reconfinement sentence should comply with due process requirements and standards for exercising discretion.
¶ 3 Brown asks this court to reverse the decision of the court of appeals, which affirmed the circuit court's decision, and to remand his case for a new reconfinement hearing. Brown further petitions this court to address what standard courts should apply when explaining and reviewing reconfinement decisions.
¶ 4 The State of Wisconsin (State) asserts that the circuit court properly exercised its discretion and applied the appropriate standards in determining that Brown should return to prison for three years following revocation of extended supervision. The State therefore asks this court to affirm the court of appeals, which affirmed the reconfinement orders of the circuit court.
¶ 5 Under the circumstances set forth, we hold that the circuit court did not erroneously exercise its discretion, when the court imposed three years of reconfinement. Since this court has not, until now, set forth any guidelines as to the factors that should be considered in reconfinement hearings, we further hold that the circuit court adequately explained the basis for its reconfinement decision, when it stated that it believed the DOC's recommendation of one year, ten months, and thirty days was too low, that Brown had a cocaine problem, and that he would be a risk to the community if he were to be released after the DOC's suggested reconfinement period.
¶ 6 Under Truth in Sentencing, extended supervision and reconfinement are, in effect, substitutes for the parole system that existed under prior law. A reconfinement hearing occurs after there has been an original sentencing and a revocation of extended supervision and is, therefore, closely akin to a sentencing hearing.
¶ 7 We do not intend to set forth a required checklist that must be followed in every instance. Nevertheless, a circuit court, in demonstrating an exercise of discretion in a reconfinement decision, should consider many of the factors discussed herein when making reconfinement decisions, and should explain on the record those factors which are relevant to the circumstances of a particular case. A circuit court should consider the recommendation from the DOC. The court should also consider the nature and severity of the original offense, the defendant's institutional conduct record, and the defendant's conduct and the nature of the violation of terms and conditions during extended supervision, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity. The court should impose the minimum amount of confinement which is consistent with the protection of the public, the gravity of the offense, and the defendant's rehabilitative needs. McCleary v. State, 49 Wis.2d 263, 276, 182 N.W.2d 512 (1971). A circuit court also should consider the defendant's prior record, attitude, and capacity for rehabilitation, and the rehabilitative goals to be accomplished by reconfinement for the time period in question in relation to the time left on the defendant's original sentence.
¶ 8 We realize that not all of these factors will apply in every case. We provide this listing not as a mandatory checklist, but as guidance to a circuit court in making what often is a difficult reconfinement decision. For the reasons set forth herein, the decision of the court of appeals is affirmed.
¶ 9 In October 2001 Brown was charged with armed robbery, threat of force, party to a crime, contrary to Wis. Stat. §§ 943.32(1)(b) and (2) and 939.05 (1999-2000). The charge arose from an incident in which Brown and a codefendant, Dejuan Rainey (Rainey), engaged in what was charged as a planned armed robbery of an individual, Robert Young (Young), in an alley. Young told police that Brown came to his home and asked him to come to a gas station with him. While Brown and Young were walking through an alley, Rainey pointed a gun at Young and demanded him to empty his pockets and place the items on the ground. Brown picked up the items, and Young fled.
¶ 10 Young encountered a squad car and told police of the robbery. The police entered the alley and found Rainey and Brown in a vehicle driven by a third man, Christopher Blunt (Blunt). The police stopped the vehicle and seized the gun and Rainey's possessions. According to the criminal complaint, Blunt told police that he had been waiting in the vehicle while Brown and Rainey went to purchase marijuana from Young. Rainey also told police that he and Brown were buying marijuana from Young. Young denied the allegation that he was involved in dealing drugs.
¶ 11 At the plea hearing, the prosecutor sought to amend the charge to theft-from-person, in part because of the allegations about Young's drug dealing. The prosecutor stated, "I don't believe my own victim completely as to what happened, I seek an amendment." As part of a negotiated plea agreement, the State reduced the charges against Brown to a charge of felony theft pursuant to Wis. Stat. § 943.20(1)(a)(1999-2000). In January 2002 Brown pled guilty to that reduced charge.
¶ 12 The circuit court sentenced Brown to eight years, consisting of one year and seven months of initial confinement and six years and five months of extended supervision. During sentencing, then Milwaukee County Circuit Court Judge Robert Crawford considered the gravity of the offense, and determined that it was serious enough to warrant confinement in prison. The court noted that Brown had planned the crime with two other men, and had lured the victim into the alley. The sentencing court also considered the fact that Brown had family support, and had no prior criminal record, but the court decided that prison time was necessary to promote the goal of deterring further crime in the community. The sentencing court also noted that Brown had a substance abuse problem, which was documented in the presentence investigation report.
¶ 13 After serving his term of initial confinement, Brown was released to extended supervision on May 13, 2003. Three months later, on August 23, 2003, police found Brown in possession of two cocaine rocks weighing .41 grams. The DOC alleged that Brown had possessed, and attempted to deliver, crack cocaine in violation of his rules of community supervision. Brown waived his right to a revocation hearing, and the DOC revoked Brown's extended supervision.
¶ 14 A reconfinement hearing was scheduled in Milwaukee County Circuit Court. As noted previously, the DOC recommended one year, ten months, and thirty days of reconfinement. The DOC agent arrived at the recommendation by taking approximately 30 percent of the remaining time on Brown's bifurcated sentence, which was six years, four months, and nineteen days.
¶ 15 During Brown's reconfinement hearing, the circuit court stated:
Well, the probation basically—or extended supervision is to make sure that—it's basically giving you a chance to follow the rules and regulations as set out by the State and to be free of criminal conduct. There's time hanging over your head. You were warned when you were released from prison that if you commit another offense you'll go back to prison, and you committed it, and it's a serious crime here. It's selling crack cocaine, and I understand you have a pending case with Judge Siefert.
The Department looks at this grid and comes up with these, I think, ludicrously low recommendations, and I think this is too low. The time available is six years four months and they're recommending I believe one year and ten months, and I think that's insufficient to send a message here.
I think obviously you have a cocaine problem that's going to be with you for years. It's going to be hard for you to beat it, and I think you're a risk to the community to be out in one year and ten months.
And I don't know what Judge Siefert is going to do. He may give you concurrent time or consecutive time. That is between you, your attorney and Judge Siefert.
But, based upon all the facts and circumstances of this case and the recommendations and the information before me, the court is going to sentence you to three years in the Wisconsin State Prison.
¶ 16...
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