State v. Wiedenhoeft
| Citation | 845 N.W.2d 373,353 Wis.2d 307,2014 WI 19 |
| Decision Date | 17 April 2014 |
| Docket Number | No. 2011AP2188.,2011AP2188. |
| Parties | STATE of Wisconsin ex rel. Ardonis GREER, Petitioner–Respondent–Petitioner, v. Wayne J. WIEDENHOEFT, Administrator, Division of Hearings and Appeals, Respondent–Appellant. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the petitioner-respondent-petitioner, there were briefs by Jennifer M. Severino and Severino Law Offices LLC, Racine, and oral argument by Jennifer M. Severino.
For the respondent-appellant, the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
¶ 1 This is a review of a published decision of the court of appeals, State ex rel. Greer v. Schwarz, 2012 WI App 122, 344 Wis.2d 639, 825 N.W.2d 497, that reversed the decision of the Racine County Circuit Court, 1 which had reversed a decision of the Division of Hearing and Appeals affirming the Wisconsin Department of Corrections' (“DOC”) revocation of Ardonis Greer's (“Greer”) probation.
¶ 2 This case presents three issues for our review. First, we are asked to determine whether the issuance of an erroneous discharge certificate deprived the DOC of jurisdiction to revoke Greer's probation, despite a validly imposed sentence to the contrary. Second, we are asked to determine whether the DOC, in revoking Greer's probation, violated Greer's procedural or substantive due process rights. Finally, we are asked to determine whether the circuit court, sitting in certiorari, was empowered to equitably estop the DOC from revoking Greer's probation.
¶ 3 Greer argues that the issuance of the discharge certificate was a “significant legal moment” that deprived the DOC of jurisdiction to revoke his probation. Greer also argues that, in revoking his probation, the DOC violated both his substantive and procedural due process rights. Finally, Greer argues that the DOC should be equitably estopped from revoking his probation.
¶ 4 The State argues that the DOC retained jurisdiction over Greer, despite the erroneous issuance of the discharge certificate. The State further argues that Greer's due process rights have not been violated. Finally, the State argues that equitable estoppel is not available in a certiorari action, and that even if it were available, Greer is not entitled to equitable relief.
¶ 5 We conclude that the DOC retained jurisdiction over Greer despite the erroneous issuance of a discharge certificate. We further conclude that Greer's due process rights were not violated, and that equitable estoppel is not available in the context of certiorari review. We therefore affirm the court of appeals.
¶ 6 On September 29, 2004, the State filed a criminal complaint 2 charging Greer with one count of possession of THC with intent to deliver while armed as a repeater, contrary to Wis. Stat. §§ 961.41(1m)(h) 2, 961.48(1)(b), and 939.63(1)(c) (2003–04), one count of maintaining a drug trafficking place while armed as a repeater, contrary to Wis. Stat. §§ 961.42(1), 961.48(1)(b), and 939.63(1)(c) (2003–04), and one count of possession of a firearm by a felon, contrary to Wis. Stat. § 941.29(2) (2003–04).
¶ 7 On January 25, 2005, Greer pled guilty to possession with intent to deliver THC (“Count 1”), and possession of a firearm by a felon (“Count 3”). The charge of maintaining a drug trafficking place was dismissed, but read in for sentencing purposes. The court ordered a presentence investigation report.
¶ 8 On March 14, 2005, Greer was sentenced to three years of imprisonment on Count 1, comprised of 14 months of initial confinement to be followed by 22 months of extended supervision. On Count 3, Greer was sentenced to six years of imprisonment, comprised of three years of initial confinement to be followed by three years of extended supervision, but the sentence was stayed and Greer was instead ordered to serve three years of probation consecutive to Count 1. Greer was personally present, and represented by counsel, at both the plea hearing and the sentencing hearing.3
¶ 9 On September 28, 2007, Greer completed his sentence on Count 1 and began serving his period of probation. Greer's supervising agent, however, erroneously informed him that he would be discharged from supervision after September 28. Subsequently, Greer was erroneously issued a discharge certificate 4 dated October 3, 2007, which stated:
You were sentenced to Wisconsin State Prisons.
The department having determined that you have satisfied said sentence, it is ordered that effective September 28, 2007, you are discharged absolutely.
....
Restoration of civil rights for felony convictions:
This certifies that the following civil rights are restored to you:
1. The right to vote.
2. The obligation for jury duty.
The following civil rights are not restored to you:
1. Firearms may not be used or possessed unless a pardon, which does not restrict possession of firearms, is received from the governor.
2. Public office can not be held unless a pardon is obtained from the governor.
In fact, Greer's consecutive probation was not set to end until September 28, 2010, three years later.
¶ 10 On November 5, 2009, Greer was allegedly involved in an argument with his then-girlfriend Veronica Wilkerson (“Wilkerson”). During the course of that argument, Wilkerson's nephew, Shawn Griffin (“Griffin”), entered the bedroom where the two were arguing and told Greer to get away from Wilkerson or he would call his father and the police. Greer then displayed what appeared to be a silver handgun and implied that he would shoot Griffin's father and Wilkerson if Griffin made the calls. Police later recovered an airsoft pistol from the apartment. Greer subsequently admitted to holding the airsoft pistol while obscuring the orange tip in order to frighten Griffin.
¶ 11 On November 6, 2009, the State filed a criminal complaint against Greer, charging him with one count of felony intimidation of a witness using a dangerous weapon as a repeater, contrary to Wis. Stat. §§ 940.43(3), 939.50(3)(g), 939.63(1)(b), and 939.62(1)(b) (2009–10),5 a class G felony; one count of second-degree reckless endangerment as a repeater, contrary to Wis. Stat. §§ 941.30(2), 939.50(3)(g), and 939.62(1)(b), a class G felony; and one count of disorderly conduct as an act of domestic abuse using a dangerous weapon as a repeater, contrary to Wis. Stat. §§ 947.01, 939.51(3)(b), 939.63(1)(a), 973.055(1), and 939.62(1)(a), a class B misdemeanor.
¶ 12 On June 25, 2010, Greer pled no contest to intimidating a witness, contrary to Wis. Stat. § 940.43(3). The court found him guilty and ordered a presentence investigation report. In exchange for his plea, the State dismissed the other charges and penalty enhancers. While preparing the presentence investigation, the DOC reviewed Greer's file and discovered that Greer was still purportedly serving the probation term from his 2004 conviction. On September 2, 2010, police took Greer into custody on a DOC hold.
¶ 13 On September 8, 2010, DOC Agent Leah Zeni (“Zeni”) interviewed Greer. In a written statement, Greer admitted that he had not reported during his consecutive probation, that he had threatened Griffin, and that he had violated the speed limit and consumed alcohol. Greer wrote that he did not realize that he was still on probation.
¶ 14 On September 16, 2010, the DOC initiated revocation proceedings against Greer, alleging he had violated the terms of his probation by failing to report for supervision, threatening Griffin, possessing a firearm, speeding, and consuming alcohol. Greer's revocation hearing was set for November 15, 2010.
¶ 15 On November 8, 2010, Greer filed a motion objecting to the jurisdiction of the DOC. In his motion, Greer argued that the issuance of the discharge certificate deprived the DOC of jurisdiction to revoke him. Relying on Wis. Stat. § 304.072(3)6 and State ex rel. Rodriguez v. DHSS, 133 Wis.2d 47, 393 N.W.2d 105 (Ct.App.1986), Greer reasoned that the DOC has jurisdiction only prior to the expiration of a probationer's term of supervision, and that because Greer had been discharged, his term of supervision had ended. Alternatively, Greer argued that he had been deprived of adequate notice as to the case under which the DOC was seeking revocation, because paperwork related to his revocation inconsistently appended the letters “A” and “B” to the case number.7
¶ 16 On November 15, 2010, Greer received a revocation hearing before an administrative law judge (“ALJ”). At the hearing, the DOC presented testimony from Griffin in support of revocation. Griffin testified that during the argument between Wilkerson and Greer, he entered Wilkerson's bedroom and stated, “I'm gonna tell the police,” and “I'm gonna tell my dad.” Griffin testified that Greer responded, “I don't care.” Griffin stated that Greer then retrieved a gun and said “this is what I got for your dad” while cocking the weapon. Griffin then stated “I'm gonna tell the police,” to which Greer responded, “I would shoot your auntie and this is what I got for your dad” while once again cocking the weapon. Griffin further testified that he was sure that the gun was real.
¶ 17 Greer also testified at the hearing in opposition to revocation. Greer stated that, while he was physically present at his March 14, 2005 sentencing hearing, he nonetheless believed that his probation was completed because he had been discharged through the issuance of the discharge certificate. Greer testified that he did not have “any acknowledgment of a consecutive or a concurrent” at the sentencing hearing, stating “[t]hose things are not definite to me.” He further admitted that he had threatened Griffin, but testified that he had used an “aerosol gun” and not a real pistol.
¶ 18 On November 23, 2010, the ALJ issued his decision and ordered Greer's probation revoked.8 The ALJ rejected Greer's...
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