COURT OF APPEALS

DECISION

DATED AND FILED

 

January 29, 2014

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

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.�

 

 

 

 

Appeal No.�

2013AP1940

Cir. Ct. No.� 2012CM664

STATE OF WISCONSIN�

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

State of Wisconsin,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Ronald Terry,

 

��������� Defendant-Appellant.

 

 

 

 

����������� APPEAL from a judgment and an order of the circuit court for Kenosha County:� MARY Kay WAGNER, Judge.� Affirmed.�

�1������� GUNDRUM, J.[1]�� Ronald Terry appeals pro se from a judgment of conviction and an order of the circuit court denying his postconviction motion.� He contended before the circuit court, as he does on appeal, that he �was not afforded a prompt judicial determination of probable cause made within 48 hours of his warrantless arrest.�� He asks that we �vacate the criminal complaint, the judgment of conviction, the sentence, the special fee assessment, fines and other restritutions [sic].�� We conclude that the circuit court correctly denied Terry�s motion and affirm.�

Background

�2������� According to the criminal complaint, on April 28, 2012, police responded to a 911 call Terry made from his residence and, upon interacting with Terry, observed a �strong smell of intoxicants� on him. �Terry told them he went to a house a few blocks away to buy some �weed� and, while there, he was punched and someone swung at him with a hatchet, causing injury to his finger.� Terry led officers around the area to show them where these events occurred, but the house could not be located.� One of the officers then learned that Terry was on probation.� Terry ran from the officers and did not stop despite several commands to do so.� The officers caught up with Terry and directed him to the ground.� Terry was taken to the jail where he provided a detective with a different story related to how his finger became injured.� He also told the detective that he never ran from the officers or told them he had been trying to buy marijuana.�

�3������� On May 8, 2012, Terry was charged with two counts of obstructing an officer related to his interaction with officers on April 28, 2012.� The record indicates a probable cause hearing related to those charges was held that same day, May 8, and bond was set.[2] �Terry eventually pled no contest to one count of obstructing an officer and the other count was dismissed.� He subsequently moved for postconviction relief and the circuit court summarily denied his motion without a hearing on the ground that it is frivolous.� He appeals.

Discussion

�4������� Terry argues that he was denied a prompt judicial determination of probable cause while detained in the Kenosha county jail, in violation of his Fourth Amendment rights.� We disagree.

�5������� Terry states on appeal that the officers who took him to jail on April 28 told him that they did so �for drinking on probation.�� He states he was �booked into the Kenosha County jail for a PO Hold only without any criminal charges or arrest,� and was detained on a probation hold.� At the same time, he also claims he was �arrested� on the probation hold and thus was constitutionally entitled to, but did not receive, a judicial determination of probable cause within forty-eight hours of being taken into custody.

�6������� A judicial determination of probable cause is generally required within forty-eight hours of a warrantless arrest.� County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); State v. Koch, 175 Wis. 2d 684, 696, 499 N.W.2d 152 (1993).� However, there is a difference between being arrested on a criminal charge and being taken into custody and detained for authorities to investigate whether a probation violation has occurred.� See State v. Martinez, 198 Wis. 2d 222, 542 N.W.2d 215 (Ct. App. 1995).

�7������� This case is very similar to Martinez.� In that case, Martinez was on probation when his probation agent searched his residence and found marijuana, scales, and a drug ledger. �Id. at 227. �He was taken into custody and detained on a probation hold. �Id. �A week later a criminal complaint was filed charging him with possession of a controlled substance with intent to deliver and no tax stamp.� Id.� He made an initial appearance in court that same day and a probable cause determination was made.� Id. at 227, 233-34.� He was subsequently found guilty of the charges.� Id. at 227-28, 233.

�8������� Like Terry here, Martinez argued that he was wrongly denied a probable cause hearing within forty-eight hours of his detention.� Id. at 233. �We concluded that Martinez was not under arrest when he was taken into custody on the probation hold and observed that �[c]riminal proceedings against Martinez were not instituted until the complaint was issued� a week after he had been taken into custody on the hold. �Id. at 233-34.� We further concluded that �[b]ecause � Martinez was detained pursuant to a probation hold, the requirements of a probable cause hearing [were] not applicable.�� Id. at 233.

�9������� The case before us differs in no material way from that in Martinez.� Terry does not dispute that he was on probation on April 28, 2012, or that he was taken into custody and detained on a probation hold on that date.[3] �One and one-half weeks later, a criminal complaint was filed charging Terry with two counts of obstruction of justice related to his interaction with officers when they made contact with him on April 28. �From the record and Terry�s brief, it appears a probable cause hearing was held the same day he was criminally charged.� Thus, as in Martinez, �the requirements of a probable cause hearing are not applicable� for the time Terry was detained on the probation hold, and once the criminal complaint was filed, he timely received such a hearing.� Id. at 233.

�10����� The circuit court properly denied Terry�s postconviction motion.

����������� By the Court.�Judgment and order affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(f) (2011-12).� All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

[2] �Terry acknowledges he �appeared in open court� and was served with the criminal complaint on May 8, 2012.

[3] �The record also identifies that on May 18, 2012, ten days after the criminal complaint was filed, Terry filed a �Motion to Dismiss Charges with Prejudice� in which he stated:� �On
4-28-12, Mr. Ronald Terry was taken into custody by Kenosha Police for a Probation Hold only.� None [sic] Criminal Arrest.�