State v. Sullivan
| Decision Date | 15 February 2000 |
| Docket Number | 98-3539 |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. State of Wisconsin ex rel.Robert Skenandore, Appellant, v. Michael J. Sullivan, Secretary of Department of Corrections,Respondent.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
1. PER CURIAM.
Robert Skenandore, Sr., appeals from an order denying his petition for a writ of certiorari. He claims the trial court erred in refusing to grant the petition. Because the trial court did not err, we affirm.
2. Skenandore pled guilty to a charge of burglary on September 7, 1983. He received a sentence of seven years in prison, followed by seven years of probation. On May 30, 1995, he pled guilty to a battery charge and was sentenced to five months' incarceration consecutive to the burglary sentence. In 1989, he completed the initial burglary sentence and began his seven-year period of probation. From 1992-1995 he served several periods of incarceration resulting from escapes. In May 1995, he was convicted of the battery. In November 1996, he was incarcerated at the Kettle Moraine Correctional Institution and was paroled from there on November 27, 1996. In March 1997, his parole was revoked and he is presently incarcerated at the Oshkosh Correctional Institution. On May 15, 1998, Skenandore was given a parole interview, but parole was denied and he received a twelve-month deferral.
3. Skenandore then petitioned for the issuance of a writ of certiorari alleging, in essence, that he was entitled to a presumption of parole and that the record did not support the denial of parole. The circuit court denied his petition. Skenandore now appeals.
4. This court's scope of review is identical to that of the circuit court on certiorari. See State ex rel. Staples v. DHSS, 136 Wis. 2d 487, 493, 402 N.W.2d 369 (Ct. App. 1987). A decision to deny parole is reviewable by common law certiorari. See State v. Goulette, 65 Wis. 2d 207, 213-16, 222 N.W.2d 622 (1974). The certiorari standard of review for parole denial is as follows:
The scope of review on certiorari is limited to whether: (1)the Commission kept within its jurisdiction; (2) it acted according to law; (3) its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) the evidence was such that it might reasonably make the order or determination in question.
State v. ex rel. Hansen v. Dane County Cir. Court, 181 Wis. 2d 993, 998-99, 513 N.W.2d 139 (Ct. App. 1994) (citation omitted).
5. It is the inmate who must prove that the action was arbitrary and capricious and, unless that burden is met, the court will not interfere with the decision. See State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185 N.W.2d 306 (1971). There is a presumption of regularity attached to administrative agency action and orders. See Pire v. State Aeronautics Comm., 25 Wis. 2d 265, 273, 130 N.W.2d 812 (1964). Thus, the burden placed on a petitioner in a certiorari action is considerable:
Johnson, 50 Wis. 2d at 550 (citation omitted).
6. On review by certiorari, we are confined to the record. See State ex rel. Conn v. Board of Trustees, 44 Wis. 2d 479, 482, 171 N.W.2d 418 (1969). The court may not substitute its view of the evidence for that of the corrections officials. See Van Ermen v. DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978). Under the substantial evidence test, the court is not permitted "to pass on credibility or to reverse an administrative decision because it is against the great weight and clear preponderance of the evidence, if there is substantial evidence to sustain it;" where two conflicting views may be sustained by substantial evidence, it is for the agency to determine which view of the evidence it wishes to accept. See Robertson Transp., Co. v. Public Serv. Comm'n, 39 Wis. 2d 653, 658, 159 N.W.2d 636 (1968).
7. The agency's decision must be upheld if supported by any reasonable view of the evidence. See Nufer v. Village Bd. of Palmyra, 92 Wis. 2d 289, 301, 284 N.W.2d 649 (1979). The court's inquiry is limited to whether there is substantial evidence to support the decision; i.e., "whether reasonable minds could arrive at the same conclusion reached by the Department." State ex rel. Palleon v. Musolf, 120 Wis. 2d 545, 549, 356 N.W.2d 487 (1984).
8. In reviewing this appeal it was not easy to ascertain the precise issues that Skenandore asserts. To the best of our ability, we deem the following to be the basis for this appeal: (1) whether Skenandore was improperly deprived of a property interest; (2) whether he was entitled to a presumption of parole because he obtained a G.E.D. in August 1980; (3) whether his rights were violated by failure to include in the record the standards and criteria for parole; (4)whether the reference by the circuit court in its decision to sexual assaults violated any of his rights; and (5) whether the record supports the parole commission's action. We shall address each perceived issue in turn.1
9. We first consider what we believe to be Skenandore's underlying complaint: that he had a protected Fourteenth Amendment liberty interest in obtaining a discretionary parole. Such an interest can arise from the due process clause or from the laws of the states. See Hewitt v. Helms, 459 U.S. 460, 466 (1983). However, discretionary parole, which is at issue here, involves only the possibility of parole and is no more than a mere hope; accordingly, the possibility is not protected by due process. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 11 (1979).
10. Under the law of some states, it is possible to create a protected property interest in a parole release decision. See Board of Pardons v. Allen, 482 U.S. 369, 377-80 (1987). Wisconsin's parole, however, is wholly discretionary, and clearly does not grant the right or privilege to parole upon a prisoner. See Tyler v. State Dep't of Pub. Welfare, 19 Wis. 2d 166, 119 N.W.2d 460 (1963). In the absence then of a protected property interest, due process concerns are not implicated.
11. Skenandore's second claim of error is the failure to recognize his entitlement to a presumption of parole under Wis. Stat. 304.06(lr) (1989-90), because he obtained a G.E.D. in August 1980. We have examined the record and find no mention of this...
To continue reading
Request your trial