State v. Walker

• Decision Date: 01 May 2008
• Docket Number: No. 2006AP562-CR.,2006AP562-CR.
• Citation: 2008 WI 34,747 N.W.2d 673
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Clayborn L. WALKER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

747 N.W.2d 673

2008 WI 34

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

No. 2006AP562-CR.

Supreme Court of Wisconsin.

Argued January 16, 2008.

Decided May 1, 2008.

For the plaintiff-respondent-petitioner the cause was argued by Stephen W. Kleinmaier, Assistant Attorney General, with whom on the briefs was J.B. Van Hollen, Attorney General.

For the defendant-appellant there was a brief by Amelia L. Bizzaro and Henak Law Office, S.C., Milwaukee, oral argument by Amelia L. Bizzaro.

For the defendant-appellant there was a brief by Amelia L. Bizzaro and Henak Law Office, S.C., Milwaukee, oral argument by Amelia L. Bizzaro.

¶ 1 ANNETTE KINGSLAND ZIEGLER, J

This is a review of a published court of appeals' decision,¹ which reversed Walker's two year reconfinement order imposed by the Milwaukee County Circuit Court, John A. Franke, Judge. The court of appeals determined that the reconfinement hearing was defective because nothing in the record indicates that Judge Franke, who did not originally sentence Walker, reviewed the original sentencing transcript in full.

¶ 2 This appeal presents the following question: Did this court create a per se rule in State v. Brown² that a circuit court judge must review the original sentencing transcript before reconfining a defendant? Walker argues that the court of appeals properly interpreted Brown and pre-Brown decisions to conclude that when the sentencing judge and reconfinement judge are different, the original sentencing transcript must be read prior to the reconfinement hearing. The State, on the other hand, argues that Brown did not establish a per se requirement.

¶ 3 We agree with the State and conclude that State v. Gee³ misinterpreted our decision in Brown. We conclude that a circuit court is not required to read the original sentencing transcript in every reconfinement hearing. Rather, the circuit court should be familiar with the particulars of the case at issue. That can be accomplished in any number of ways, and we acknowledge that this may differ from case to case. As articulated in Brown, the circuit court must decide which factors are relevant for consideration in any given case, and the circuit court must use its discretion as to how it ascertains the information needed to consider the relevant factors. Accordingly, we reverse the court of appeals' decision in this case and overrule Gee.

I

¶ 4 The underlying facts are neither relevant to this decision nor are they in dispute. In short, however, Walker and another person confronted a man at gun point in an effort to take the man's car. Their attempt to take the car was unsuccessful, but they did flee the scene with the victim's car keys. Walker was subsequently apprehended and charged with armed robbery. Walker pled guilty to armed robbery with use of force as a party to a crime contrary to Wis. Stat. §§ 943.32(2), 939.05 (2001-02)⁴ before the Milwaukee County Circuit Court, Jean W. DiMotto, Judge. Judge DiMotto sentenced Walker to six years imprisonment — two years of initial confinement and four years of extended supervision. Just weeks after his release to extended supervision, Walker committed a number of violations that prompted the Department of Corrections (DOC) to revoke his extended supervision.

¶ 5 Walker then appeared before Judge Franke for a reconfinement hearing pursuant to Wis. Stat. § 302.113(9)(am). At the outset of the hearing, the circuit court indicated that it had reviewed the "Court Memo" prepared by a "Probation/Parole Agent" from the Department of Corrections. The court memo contained information pertinent to reconfinement such as: the relevant dates including the date of the offense, conviction, and release to extended supervision; Walker's violations of extended supervision; a Plotkin⁵ analysis; justifications for reincarceration; and a discussion of the underlying crime, institutional conduct record, and conduct while on extended supervision. The department's memo recommended two years of reincarceration.

¶ 6 At the reconfinement hearing, the prosecutor informed the circuit court of Walker's prior juvenile record, past history regarding Walker's childhood, and that the State was in agreement with the agent's recommendation of two years of reconfinement. Walker's counsel agreed that a message needed to be sent to Walker, but he argued for eight to twelve months of reincarceration. He informed the circuit court of Walker's poor relationship with his agent and described the struggles Walker faced when being released from prison, such as no job, no money, and no phone service for electronic monitoring. Walker then spoke on his own behalf.

¶ 7 In concluding that two years reconfinement was warranted, the circuit court discussed the following points in making the record at the reconfinement hearing:

• Walker's conflict with his agent: "When your agent says you have to do something, you have to do it. Whether you like your agent, whether your agent is polite about it, whether your agent even handles it well or not, you have to put up with it."

• Walker's underlying crime was "serious."

• The neglect Walker suffered throughout his childhood, which, the circuit court surmised, "ha[d] something to do with the juvenile difficulties you had and now the adult difficulties you're having."

• Absconding was not a solution to whatever difficulties Walker was having with his agent. "You served two years. You got out and you blew it immediately and you blew it in a big way. You didn't commit a new offense, at least no major offense, and there is no case pending. But short of committing a new crime, you blew it about as much as a person can."

State v. Walker, 2007 WI App 142, ¶ 24, 302 Wis.2d 735, 735 N.W.2d 582.

¶ 8 The circuit court concluded that a "message has to be sent and anything less than half of the reconfinement time would be insufficient." Id.

¶ 9 Walker moved the court for post-conviction relief. He asserted a number of theories for relief: the circuit court's consideration of inaccurate information, the court's sentence was unduly harsh, his counsel was ineffective, the circuit court failed to review the initial sentencing transcript, and Walker set forth a "new factor" which warranted a modification of reconfinement. In a written decision, the circuit court denied Walker's post-conviction motion. The circuit court wrote:

The defendant is correct that the record does not reflect whether I had reviewed the initial sentencing transcript or was specifically aware of his mental health history. It was my general reconfinement practice to review at least the judges' sentencing comments. I would sometimes review more of the transcript depending on the particular circumstances of the case and the arguments advanced by counsel. I do not recall whether I reviewed this particular transcript and note that Judge DiMotto's sentencing remarks did not reference the mental health background.

Id., ¶ 25.

¶ 10 The circuit court, citing to State v. Jones,⁶ reasoned that it was not required to review the original sentencing transcript prior to the reconfinement hearing. Additionally, the circuit court stated that it had now reviewed the sentencing transcript and concluded that modification was not warranted.

¶ 11 The court of appeals consolidated two appeals brought by Walker. The first appeal was in regard to a denial of Walker's petition for writ of habeas corpus. We, however, are not reviewing that decision. In the second appeal, Walker asserted that the circuit court erred by failing to consider or read the original sentencing hearing transcript. The court of appeals reversed the circuit court's decision and stated:

Although we conclude that the circuit court did not erroneously exercise its discretion, this court has held in a decision ordered published on February 28, 2007, [Gee], that Brown did create a per se rule, even though Brown itself did not so treat its suggestion that reconfinement courts "should consider" the original sentencing transcript. We are bound by Gee. We respectfully seek clarification from the supreme court as to whether it intended to create a per se rule, as Gee held, or whether, as we now conclude, it did not.

Id., ¶ 30 (citations omitted).

¶ 12 Judge Kessler concurred and wrote that Brown did create a per se rule that required circuit courts to review the original sentencing transcripts at reconfinement hearings. Judge Kessler remarked:

As we observed in Gee, "[i]n Brown, the court . . . imposed on trial courts the requirement that they `provid[e] reasoned explanations for reconfinement decisions.'" To provide those reasoned explanations, the court in Brown discusses a number of factors that may be relevant, and explains "[t]hese factors are not a mandatory checklist, and we do not hold that a circuit court must examine each factor on the record in every case." The Brown court then explains what is important to review in order to examine the relevant factors:

The original sentencing transcript is an important source of information on the defendant that discusses many of the factors that circuit courts should consider when making a reconfinement decision. The original sentencing transcript is readily available for a circuit court to examine, and those portions that are considered by the court to be relevant should be mentioned.

One can only wonder how a reconfinement judge who did not impose the original sentence could comply with the supreme court's clear instruction to examine the relevant factors the court described in Brown, much less mention those portions of the sentencing transcript which are relevant to those factors, unless the sentencing transcript has been reviewed.

Walker, 302 Wis.2d 735, ¶ 34, 735 N.W.2d 582 (Kessler, J., concurring) (internal citations and emphasis omitted).

II

¶ 13 Interpretation of our own case law presents a question of law that we review de novo. State v....