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COURT OF APPEALS DECISION DATED AND FILED September 24, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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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.� |
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����������� APPEAL from an order of the circuit court for Milwaukee County:� maxine a. white, Judge.� Affirmed. �
����������� Before Fine, Kessler and Brennan, JJ. �
�1������� PER CURIAM. Arthur J. Fariole appeals the
circuit court�s order affirming a decision revoking his parole.� Fariole argues: �(1) that the circuit court should have held an
evidentiary hearing; (2) that the circuit court should have allowed him to
introduce evidence showing that the testimony of Gary Klotz, one of the
witnesses at the revocation hearing, was false; (3) that the circuit court
erred when it stated that he admitted to a rule violation; (4) that the hearing
examiner should not have allowed Klotz to testify by phone because it violated Fariole�s
constitutional right to confront and cross-examine the witnesses against him;
(5) that the hearing examiner improperly admitted a written statement because
it was hearsay; and (6) that he is entitled to a new parole hearing or, in the
alternative, an evidentiary hearing based on newly discovered evidence.� We affirm.�
�2������� Fariole was convicted of first-degree sexual assault, armed burglary, and armed robbery in 1980.� He was sentenced to fifty years in prison.� He was paroled in 2003, but revoked in 2004.� In 2010, he was again paroled.� A few months after his second release, the department again sought revocation.� The hearing examiner revoked Fariole�s parole, concluding that he should serve the remainder of his sentence, twenty-four years.� The circuit court denied Fariole�s petition for certiorari review of the revocation proceedings without a hearing.� Fariole appeals the circuit court�s order.
�3������� An appeal of an order denying a petition for certiorari review of a parole revocation decision, we review the decision of the agency, not the circuit court.� State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 385�386, 585 N.W.2d 640, 646 (Ct. App. 1998).� Our review of the agency�s decision is limited.� State ex rel. Riesch v. Schwarz, 2005 WI 11, �13, 278 Wis. 2d 24, 30�31, 692 N.W.2d 219, 222.� We determine only whether: �(1) the agency stayed within its jurisdiction; (2) the agency acted according to law; (3) the agency�s action was arbitrary, oppressive or unreasonable; and (4) the agency might reasonably make the decision it did based on the evidence.� Id.�
�4������� Fariole�s first three arguments center on actions taken by the circuit court.� He contends that the circuit court should have held an evidentiary hearing before making its decision, that the circuit court should have allowed him to introduce evidence that Klotz�s testimony at the revocation hearing was false, and that the circuit court erred when it stated that he admitted to a rule violation.� These alleged errors by the circuit court are not grounds for appellate relief because we review the decision of the agency, not the circuit court.� State ex rel. Ortega, 221 Wis. 2d at 385�386, 585 N.W.2d at 646.� Therefore, we do not address these claims.�
�5������� Fariole next argues that the hearing examiner should not have allowed Klotz to testify by phone because it violated his constitutional right to confront and cross-examine the witnesses against him.� This argument, like others Fariole makes, mistakenly assumes that during the parole revocation proceeding, Fariole was entitled to the same rights that a criminal defendant enjoys.� It is well established that �[a]n individual on parole is not entitled to the full range of constitutional rights accorded citizens.�� State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 12, 572 N.W.2d 864, 869 (Ct. App. 1997).� The Wisconsin Administrative Code explicitly permits appearances by telephone at parole revocation proceedings. �Wis. Admin. Code � HA 2.05(6)(a) (May 2010). �Fariole had an opportunity to object to Klotz�s appearance by phone, but did not.� Moreover, Fariole�s attorney was permitted to cross-examine Klotz by telephone during the hearing.� The hearing examiner did not err by allowing Klotz to testify by phone.
�6������� Fariole next argues that the hearing examiner improperly admitted into evidence a written statement from James Nichols because it was hearsay.� Hearsay is admissible during all administrative proceedings, including parole revocations.� Wis. Admin. Code � HA 2.05(6)(d).� The hearing examiner did not err by allowing Nichols�s written statement.
�7������� Finally, Fariole argues that David Schwarz, the Administrator of the Division of Hearings and Appeals, should have granted his request for a new parole hearing or, in the alternative, an evidentiary hearing based on newly discovered evidence.� Fariole contends he has an affidavit establishing that Klotz told people about a man who took his �money, dog and tools� in February, March, and April of 2010, before Fariole was released from prison. �Fariole contends the story was similar to Klotz�s testimony about him in this case, and therefore undermines Klotz�s credibility.�
�8������� �[W]hether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted [is] governed by procedures analogous to those in criminal cases.�� State ex rel. Booker v. Schwarz, 2004 WI App 50, �14, 270 Wis. 2d 745, 756, 678 N.W.2d 361, 368.� A movant is entitled to a new trial based on newly discovered evidence if the following criteria are met:
(1) [t]he evidence must have come to the moving party�s knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.
State v. Bembenek, 140 Wis. 2d 248, 252, 409 N.W.2d 432, 434 (Ct. App. 1987) (citation omitted).
�9������� We agree with Schwarz�s conclusion that Fariole�s assertions do not warrant a new hearing:�
[Y]our request for a new hearing on the basis of newly discovered evidence fails under point five in [Bembenek, which requires that �it must be reasonably probable that a different result would be reached.�]� The purported evidence that you cite as contradicting Mr. Klotz�s testimony is not specific enough to cast doubt on any of the underlying findings and conclusions.� Moreover, the allegations relating to Mr. Klotz were not the only ones proven at the final hearing.� Independent of Mr. Klotz�s testimony, the record established that you committed serious violations by visiting a shopping mall and lying to your agent.� A new hearing is therefore not likely to result in a different outcome.
�10����� A single parole violation is sufficient grounds for revocation.� See State ex rel. Cutler v. Schmidt, 73 Wis. 2d 620, 622, 244 N.W.2d 230, 231 (1976).� Fariole had multiple violations.� Even if the affidavit had been more specific and had significantly undermined Klotz�s credibility, a new hearing would not likely result in a different outcome because Fariole�s parole was revoked for more violations than the one about which Klotz testified.�
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.