State v. Quiroz

• Citation: 439 N.W.2d 621,149 Wis.2d 691
• Decision Date: 22 March 1989
• Docket Number: No. 88-1589-CR,88-1589-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Nilda E. QUIROZ, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

Page 621

439 N.W.2d 621

149 Wis.2d 691

STATE of Wisconsin, Plaintiff-Appellant, v. Nilda E. QUIROZ, Defendant-Respondent.

No. 88-1589-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 23, 1989.

Opinion Released March 22, 1989.

Opinion Filed March 22, 1989.

Donald J. Hanaway, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., on brief, for plaintiff-appellant.

Elizabeth E. Stephens, Asst. State Public Defender, on brief, for defendant-respondent.

Before SCOTT, C.J., and NETTESHEIM and SUNDBY, JJ.

NETTESHEIM, Judge.

The state of Wisconsin appeals from an order dismissing a criminal complaint against Nilda Quiroz for escape, contrary to sec. 946.42(3)(a), Stats. The trial court held that the criminal action against Quiroz was barred under the fifth amendment double jeopardy clause because Quiroz had already been punished for the escape when her mandatory release date was extended by the prison disciplinary committee. Relying on State v. Killebrew, 115 Wis.2d 243, 340 N.W.2d 470 (1983), we conclude the criminal proceeding against Quiroz is not barred by double jeopardy considerations despite the prison disciplinary action. We also conclude that extension of Quiroz' mandatory release date is not punishment per se and therefore also not violative of her double jeopardy right. Accordingly, we reverse and remand for further proceedings on the criminal complaint.

While serving a two-year sentence at Taycheedah Correctional Institution, Quiroz absconded from the institution grounds. She was recaptured a few hours later, and prison officials filed a conduct report alleging violation of a prison rule. A prison disciplinary committee determined that Quiroz had left the prison without permission and imposed eight days of administrative segregation, 360 days of program segregation, and a ten-day extension of Quiroz' mandatory release date.

At the time of the alleged escape, Quiroz' mandatory release date was established at sixteen months, which is two-thirds of her two-year sentence. See sec. 53.11(1), Stats. The committee's disciplinary action had the effect of not only extending Quiroz' mandatory release date by the ten days, see sec. 53.11(2)(a), but also extending such date by one day for every two days she actually spent in program segregation, see sec. 53.11(2)(b). The institution registrar testified that Quiroz could be removed from program segregation earlier than 360 days if security determines that her conduct merits the action. See also Wis.Adm.Code sec. HSS 303.70(12). Assuming, however, that Quiroz spends the entire 360 days in program segregation, her mandatory release date would be extended by a total of 190 days as a result of the prison disciplinary action.

Subsequently, Quiroz was charged in circuit court with criminal escape based upon the same incident and facts which resulted in the prison disciplinary action. See sec. 946.42(3)(a), Stats. Quiroz moved to dismiss the complaint on the grounds that she had already been punished and therefore the criminal proceedings were barred under the fifth amendment double jeopardy clause. The trial court agreed.

In reaching its conclusion, the trial court rejected the state's argument that Killebrew controlled the issue. In Killebrew, the supreme court held that a criminal escape prosecution is not barred by the double jeopardy clauses of the Wisconsin and federal constitutions if the escapee has already been subjected to prison disciplinary action. Killebrew, 115 Wis.2d at 244, 340 N.W.2d at 472. The trial court reasoned that the Killebrew holding was limited to cases in which the inmate lost good time. The trial court stated, "My understanding is a forfeiture of good time ... would never extend the mandatory release date." Concluding that the extension of Quiroz' mandatory release date constituted punishment for purposes of the double jeopardy clause, the trial court ordered the criminal escape charge against Quiroz dismissed.

The state appeals, arguing that Killebrew controls. Quiroz responds that: (1) the Killebrew rule is inapplicable to her case because Killebrew does not specifically address whether extension of a mandatory release date constitutes punishment; (2) Killebrew is distinguishable because it was decided under sec. 53.11, Stats. (1981-82), which was subsequently amended to evince a more punitive intent; and (3) extension of a prisoner's mandatory release date constitutes punishment per se. We are unpersuaded by Quiroz' arguments.

The Wisconsin Supreme Court has held that administrative disciplinary action taken by prison authorities is not punishment under the constitution and therefore the state is not barred by the double jeopardy clause from prosecuting the defendant for escape. Killebrew, 115 Wis.2d at 256, 340 N.W.2d at 477. In Killebrew, two cases were consolidated on appeal. One of the defendants, Espinoza, had escaped from prison and was administratively disciplined under Wis.Adm.Code ch. HSS 303 (1980). This discipline included 180 days of program segregation, eight days of adjustment segregation and loss of all accumulated good time. Killebrew, 115 Wis.2d at 245-46, 340 N.W.2d at 472.

In analyzing whether this constituted "punishment" for double jeopardy purposes, the supreme court determined the intent behind the prison disciplinary rules codified in Wis.Adm.Code ch. HSS 303 (1980). Killebrew, 115 Wis.2d at 251, 340 N.W.2d at 475. To do so, the court examined the stated objectives of the disciplinary rules in Wis.Adm.Code sec. HSS 303.01(3) (1980), and the accompanying notes. Killebrew, 115 Wis.2d at 254-55, 340 N.W.2d at 477. The court concluded that "[p]unishment is not the primary or even a principal reason for the regulations. The primary purposes behind the ... regulations are maintaining institutional order and safety and assisting individual rehabilitation." Id. at 256, 340 N.W.2d at 477. Therefore, the disciplinary action, including the forfeiture of accumulated good time, was not punishment under the constitution, and the state was not barred by the double jeopardy clause from prosecuting Espinoza for escape. Id.

Quiroz first argues that the supreme court's analysis of the intent behind the prison disciplinary rules "was not fully relevant to the issue presented in Killebrew." Instead of determining intent by looking at the "Applicability and purposes" section of Wis.Adm.Code ch. HSS 303, Quiroz suggests that the Killebrew court should have analyzed each individual rule under which Espinoza was disciplined in order to determine the intent behind the disciplinary rules of ch. HSS 303. In essence, Quiroz is arguing that the supreme court wrongly decided Killebrew and that this court should employ a different analysis when deciding a Killebrew double jeopardy issue. Even if we were persuaded by Quiroz' argument, we are bound by supreme court precedent in deciding the issue before us. State v. Grawien, 123 Wis.2d 428, 432, 367 N.W.2d 816, 818 (Ct.App.1985). We are powerless to alter supreme court law on this question.

Next, Quiroz attempts to distinguish Killebrew. She notes that she, like Espinoza, was disciplined under Wis.Adm.Code ch. HSS 303. Quiroz claims that since Killebrew, there has been "substantial change" in the administrative rules. Thus, she reasons that a different result is mandated. We disagree.

The Killebrew analysis relied solely on Wis.Adm.Code sec. HSS 303.01(3), and the accompanying notes in determining whether the prison disciplinary action was punishment for double jeopardy purposes. Killebrew, 115 Wis.2d at 254-55, 340 N.W.2d at 477. Our research reveals that this section and the accompanying notes remain in effect and unchanged since the Killebrew decision. Compare Wis.Adm.Code sec. HSS 303.01(3) (1980) and accompanying notes with Wis.Adm.Code sec. HSS 303.01(3) (1987) and accompanying notes. This alone convinces us that Killebrew governs this case and we should...