State v. Walker, 2006AP562-CR.

• Decision Date: 08 May 2007
• Docket Number: No. 2006AP562-CR.,No. 2006AP1738.,2006AP562-CR.,2006AP1738.
• Citation: 735 N.W.2d 582,2007 WI App 142
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Clayborn L. WALKER, Defendant-Appellant. State of Wisconsin ex rel. Clayborn Walker, Petitioner-Appellant, v. Matthew J. Frank, Secretary, Wisconsin Department of Corrections, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

735 N.W.2d 582

2007 WI App 142

STATE of Wisconsin, Plaintiff-Respondent, v. Clayborn L. WALKER, Defendant-Appellant.

State of Wisconsin ex rel. Clayborn Walker, Petitioner-Appellant, v. Matthew J. Frank, Secretary, Wisconsin Department of Corrections, Respondent-Respondent.

No. 2006AP562-CR.

No. 2006AP1738.

Court of Appeals of Wisconsin.

Submitted on Briefs April 3, 2007.

Opinion Filed May 8, 2007.

On behalf of the defendant-appellant and petitioner-appellant, the cause was submitted on the briefs of Amelia L. Bizzaro of Henak Law Office, S.C. of Milwaukee.

On behalf of the plaintiff-respondent and respondent-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and Stephen W. Kleinmaier, Assistant Attorney General.

Before WEDEMEYER, P.J., FINE and KESSLER, JJ.

¶ 1 FINE, J

This is a consolidated appeal. In appeal number 06AP1738, Clayborn L. Walker appeals the order of the circuit court, the Honorable Richard J. Sankovitz, presiding, denying his petition for a writ of habeas corpus challenging the revocation of his extended supervision. In appeal number 06AP562-CR, Walker appeals an order of the circuit court, the Honorable John A. Franke, presiding, reconfining him for two years. See WIS. STAT. § 302.113(9)(am) (reconfinement). We affirm the order entered in appeal number 06AP1738, but reverse, as we are required to do, the order in appeal number 06AP562-CR. See State v. Gee, 2007 WI App 32, ¶ 15, ___ Wis.2d ___, ___, 729 N.W.2d 424, 430 (discussed in ¶ 30 below).

I. APPEAL FROM THE DENIAL OF WALKER'S PETITION FOR WRIT OF HABEAS CORPUS.

A.

¶ 2 In May of 2003, Walker pled guilty to armed robbery with the use of force, as a party to a crime. See WIS. STAT. §§ 943.32(2), 939.05 (2001-02). According to the criminal complaint, Walker and a friend accosted a man at gun point, took the man's car keys, and were going to drive away, when the grandmother of the victim's girlfriend came out of her house in front of which the car was parked and scared them away. The complaint asserts that Walker's friend had the gun and hit the victim with it when the victim at first would not surrender the keys. The sentencing court, the Honorable Jean W. DiMotto, presiding, imposed two years of initial confinement followed by four years of extended supervision. See WIS. STAT. § 973.01 (bifurcated sentences of initial confinement and extended supervision).

¶ 3 Walker was released on extended supervision on either October 26, 2004, or October 28, 2004 (the documents in the Record conflict on this point). Within weeks, he violated the rules of his supervision and also absconded. He was ultimately arrested, and his extended-supervision agent recommended revocation of his extended supervision on the following grounds, notice of which was given to Walker in writing:

• On November 11, 2004, Walker "failed to be home for a scheduled home visit."

• On November 11, 2004, Walker changed "his residence without prior approval from his agent."

• On November 15, 2004, Walker "failed to report to his agent for a scheduled office visit."

• On November 23, 2004, Walker "failed to report to his agent for a scheduled office visit."

• On November 23, 2004, Walker absconded from extended supervision and "his whereabouts and activities remained unknown until his arrest on 02/23/05."

• Walker resisted his arrest on February 23, 2005, "by running from officers and struggling with officers during the arrest procedure."

Walker admitted five of the six violations, denying that he fought with the officers.

¶ 4 The notice form advised Walker of his right to both a preliminary and final revocation hearing, and also explained that although there were almost four years left on his sentence, Walker's agent recommended that Walker be re-incarcerated for only two of the almost four years. As material to Walker's appeal, the form also had a paragraph saying:

After having been informed of my rights, including the right to have alternatives to revocation considered at the final revocation hearing, I hereby waive all right to be heard at both the final revocation hearing and the good time forfeiture/reincarceration hearing. . . . I further understand this will result in the Department making a decision upon information prepared by the Probation/Parole Agent, and that this waiver will probably result in revocation and imprisonment.

(Emphasis added.) Walker's agent read the paragraph to Walker, Walker signed the form immediately beneath the paragraph, and the agent witnessed his signature. They signed the form on April 12, 2005. The lawyer who represented Walker for the revocation proceedings, Donald C. Dudley, was with Walker when the agent read the paragraph to him and when Walker and the agent signed it.

¶ 5 The crux of Walker's complaint in connection with his appeal from the circuit court's denial of his petition for a writ of habeas corpus is that Dudley ineffectively represented him because, according to Walker, Dudley did not, as phrased by Walker's brief-in-chief, "explain to Walker his right to present possible alternatives to revocation," and, also, because Dudley did not investigate alternatives to revocation to present to the administrative law judge who would preside at the final revocation hearing. Further, Walker claims that his agreement to waive a final revocation hearing was not voluntary because, again as phrased by Walker's brief-in-chief, "he was never advised that, despite his admissions to the factual allegations, alternatives could be presented at the final revocation hearing." He does not allege that his admissions to the violations were not voluntary.

¶ 6 The circuit court held an evidentiary hearing on Walker's contentions and issued a written decision explaining why it was denying Walker's petition. The circuit court found that Dudley met with Walker twice, on April 5, 2005, and on April 12, 2005, to discuss the revocation proceedings, and that at the April 5 meeting Dudley "discussed Mr. Walker's case and their strategy in depth."¹ The circuit court also found that given the realities of what they faced, "Mr. Walker and Mr. Dudley focused their strategy not on avoiding revocation but on minimizing the length of reconfinement," and that this strategy was chosen at least in part by Dudley's discovery before the revocation hearing that they would have to appear before an administrative law judge whom Dudley knew was tough on absconders. This is what the circuit court found:

Her assignment dismayed them [Walker and Dudley], because Mr. Dudley's experience led him to believe that if Mr. Walker challenged his revocation, the [administrative law] judge not only would revoke Mr. Walker for absconding but also recommend [to the reconfinement circuit court] a period of reconfinement in prison that exceeded the two-year recommendation his agent was making.

Significantly, the administrative law judge assigned to preside over Walker's final revocation hearing had guidelines for lawyers appearing before her that warned that they "need to weigh the risks and benefits of going through with a hearing and communicate this to their clients" because "[i]t is important to remember that [the Division of Hearings and Appeals] is not bound by the Department [of Corrections]'s recommendations. It is not unheard of for [administrative law judges] to exceed the Department [of Corrections]'s recommendations." (Emphasis omitted.)

¶ 7 The circuit court found that although Dudley "did not investigate any particular program that might serve as an alternative to revocation," Dudley did discuss the possibility with Walker's agent, who told Dudley that, as phrased by the circuit court in its written decision, "he believed that an alternative to revocation would demean the seriousness of Mr. Walker's absconding." Accordingly, as found by the circuit court, although Dudley "discussed alternatives to revocation with Mr. Walker, but only in general terms," Dudley "did not pursue the subject because he did not believe he could prevail upon an administrative law judge to entertain an alternative to revocation if Mr. Walker's [extended-supervision] agent was unwilling to join in the request." Thus, "Mr. Dudley did not discuss with Mr. Walker the possibility that the administrative law judge might grant an alternative to revocation over the objection of the agent because Mr. Dudley considered that possibility extraordinarily unlikely." Indeed, as required by State ex rel. Plotkin v. Department of Health & Social Services, 63 Wis.2d 535, 544-545, 217 N.W.2d 641, 645-646 (1974), Walker's extended-supervision agent made an alternative-to-revocation analysis, and determined that revocation was "justified" for the following reasons: (1) Walker's "[c]onfinement in a structured correctional setting is necessary to protect the community"; (2) Walker's "[c]onfinement in a structured correctional setting is necessary in order to address [his] treatment needs" because "Walker has shown that he is unable or unwilling to cooperate with community supervision making it impossible for Mr. Walker to receive these treatment needs within the community"; and (3) Walker's almost immediate failure to comply with rules of his extended supervision meant that "[i]t would unduly depreciate the seriousness of the violations if [Walker]'s supervision were not revoked," and that "[f]ailure to revoke will send a negative message to all offenders and the community."

¶ 8 The circuit court also found that Dudley "advised Mr. Walker that if he agreed to waive his revocation hearing, the [administrative law] judge might temper her recommendation, in the way that judges sometimes credit defendants who accept responsibility rather than forcing the State to prove their guilt." The circuit court also rejected Walker's testimony that no one read the waiver form to him before he signed it, crediting Dudley's testimony that the agent did read it, and that...