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COURT OF APPEALS
DECISION
DATED AND FILED
September 2, 2009
David
R. Schanker
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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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State of Wisconsin,
Plaintiff-Respondent,
v.
Michael Lee Washington,
Defendant-Appellant.
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APPEAL
from orders of the circuit court for Racine County: gerald
p. ptacek, Judge. Affirmed.
Before
Neubauer, P.J., Anderson
and Snyder, JJ.
¶1 SNYDER, J. Michael
Lee Washington appeals from a reconfinement order and an order denying his
motion for postconviction relief. Washington asserts that
he waived his final revocation hearing in reliance upon an agreement with the
Department of Corrections (DOC) regarding a recommended term of
reincarceration. He contends that the
prosecutor breached the agreement by not following the DOC recommendation at
the reconfinement hearing. Washington
further argues the circuit court failed to properly weigh relevant sentencing factors;
specifically, he contends the court did not give enough weight to the DOC
recommendation. We reject both of Washington’s arguments
and affirm.
BACKGROUND
¶2 On March 18, 2005, a jury convicted Washington of
Forgery-Uttering, a Class H felony under Wis.
Stat. § 943.38(2) (2007-08). The circuit court sentenced Washington to two years and six months of
initial confinement followed by three years of extended supervision. On April 3, 2007, Washington was granted extended supervision
status. On April 11, 2007, Washington began
violating conditions of his extended supervision. A violation investigation report by DOC agent
Vickee Ostrowski described several incidents wherein Washington failed to comply with the
conditions of his release. On April 30,
Ostrowski recommended referring Washington
to a halfway house as an alternative to revocation. Washington
absconded from the halfway house, failed to report his whereabouts, and was
later arrested for obstructing an officer.
¶3 On August 30, 2007, Washington
was taken into custody and Agent Ostrowski recommended revocation of his
extended supervision. In a memorandum to
the circuit court dated November 9, 2007, the DOC advised the court of its
recommendation that Washington
be reincarcerated for a period of one year, one month, and twenty-four days. By memorandum dated December 13, Ostrowski
advised the court that Washington
had waived his right to a final revocation hearing on November 8.
¶4 A circuit court hearing for sentencing after revocation took
place in January 2008. There, the
prosecutor recommended two years and six months of reincarceration. Washington
implored the circuit court to follow the DOC recommendation of thirteen months
and twenty-four days, but acknowledged that the court “has some discretion in
that.” The court went over Washington’s original conviction, the presentence
investigation report, Washington’s
violations since being released on extended supervision, the competing
recommendations by the parties, and the minimum amount of custody to promote
rehabilitation. Based upon all of the
factors, the court sentenced Washington
to two years in prison with extended supervision to complete the balance of the
original sentence.
¶5 Washington
moved for postconviction relief. At the motion
hearing, Washington
argued that the DOC revocation hearing form does not warn the offender that the
state will be free to recommend whatever term of reincarceration it sees fit,
regardless of the recommendation provided by the DOC. He further asserted that the circuit court
did not address all of the relevant factors prior to deciding on the term of
reincarceration. The court held that any
challenge to the DOC revocation hearing form is an administrative matter,
suggesting the matter was not properly before the court. Nonetheless, the court determined that it
owed no deference to the DOC recommendation and that the form properly informed
Washington of
that fact. The court further stated that
it was satisfied that it had considered all of the relevant sentencing factors
and was “well aware of the facts of this case.”
The court denied Washington’s
motion for relief. Washington appeals.
DISCUSSION
¶6 Washington
clarifies his appellate issues in his reply brief, stating that he is not
challenging the administrative waiver of his revocation hearing. Rather, his question is whether the
prosecutor was “bound to follow the [DOC] recommendation at the reconfinement
hearing.” He also claims that the
circuit court failed to properly consider mitigating factors or accord
sufficient weight to the DOC’s recommended term of reconfinement. He seeks a modification of the term of
reincarceration imposed by the court.
The DOC Recommendation
¶7 We begin with Washington’s
characterization of his understanding with the DOC as a “plea agreement.” A plea agreement is analogous to a contract
and we draw upon contract principles in determining the rights of the parties
to a plea agreement and whether there has been a breach. State v. Deilke, 2004 WI 104, ¶12,
274 Wis. 2d
595, 682 N.W.2d 945. The question of
whether the State’s conduct breached the terms of the plea agreement is a
question of law that we review de novo. State
v. Howard, 2001 WI App 137, ¶15, 246 Wis. 2d 475, 630 N.W.2d 244.
¶8 The State responds that no plea negotiations took place here
and no plea agreement was in place. We
agree. We note that while the record
confirms the DOC recommended thirteen months and twenty-four days of
reincarceration and that Washington
waived his final revocation hearing, there is nothing to suggest that one
served as consideration for the other.
The State explains that when a person waives his or her revocation
hearing, the DOC is required to “make a recommendation to the court concerning
the period of time for which the person should be returned to prison.” See
Wis. Stat. § 302.113(9)(at). The DOC consults a “penalty schedule” and
other criteria to arrive at an appropriate recommendation. See, e.g., George v. Schwarz, 2001
WI App 72, ¶¶17-18, 242 Wis.
2d 450, 626 N.W.2d 57. We reject Washington’s assertion
that there was a plea agreement in place.
¶9 The DOC recommendation for reincarceration following
revocation is more appropriately analogized to a presentence investigation
report (PSI) at the original sentencing.
See State v. Brown, 2006 WI
131, ¶24, 298 Wis.
2d 37, 725 N.W.2d 262. The securing of a
PSI is an integral part of the sentencing function and is solely within the
judicial function. Young v. State, 49 Wis. 2d 361, 368, 182
N.W.2d 262 (1971). The purpose of a PSI
is to assist the judge in selecting the appropriate sentence for the individual
defendant. State v. Knapp, 111 Wis. 2d 380, 384, 330
N.W.2d 242 (Ct. App. 1983). The DOC does
not function as an agent of either the State or the defense in fulfilling its
PSI role but as an agent of the court in gathering information relating to a
specific defendant. State v. Suchocki, 208 Wis. 2d 509, 518, 561
N.W.2d 332 (Ct. App. 1997), abrogated on
other grounds by State
v. Tiepelman, 2006 WI 66, ¶31, 291 Wis. 2d 179, 717 N.W.2d 1. In Wisconsin,
the entire sentencing process is to be a search for truth and an evaluation of
alternatives and any advance understanding between the prosecutor and defendant
must not involve any persons conducting a PSI for the court. Farrar v. State, 52 Wis. 2d 651, 657, 191
N.W.2d 214 (1971).
¶10 To accept Washington’s
argument that the prosecutor is bound by a reconfinement recommendation from
the DOC, we would have to accept that the district attorney’s office is bound
by the internal operating procedures of the DOC. That premise is incorrect. Cf.
George,
242 Wis. 2d
450, ¶20 (an administrative agency cannot regulate the activities of another
agency). A DOC recommendation is not
binding on the prosecutor at a reconfinement hearing. Consequently, Washington’s argument that he had an
agreement with the prosecutor for a specific recommendation fails, and his
argument that the prosecutor breached any such agreement must likewise fail.
The Court’s Consideration of Sentencing
Factors
¶11 Washington
next argues that the circuit court failed to consider proper sentencing factors
and to weigh them appropriately.
Washington’s specific complaints are as follows: (1) the court failed to
consider the “mitigating nature and severity of the underlying offense,” (2)
the court did not “acknowledge any of [Washington’s] successes on supervision
or treatment,” and (3) the court did not consider Washington’s “acceptance of
responsibility for the allegations leading to revocation,” as demonstrated by
his waiver of the final revocation hearing.
¶12 A reconfinement hearing is akin to a sentencing hearing, and our
review is limited to determining whether the circuit court exercised its
discretion erroneously. State
v. Walker, 2008 WI 34, ¶13, 308 Wis. 2d 666, 747 N.W.2d
673. Our supreme court recently provided
the following guidance on reconfinement:
In making a
reconfinement decision, “we expect that circuit courts will usually consider [the
recommendation from the DOC,] the nature and severity of the original offense,
the client’s institutional conduct record, as well as the amount of
incarceration necessary to protect the public from the risk of further criminal
activity, taking into account the defendant’s conduct and the nature of the
violation of terms and conditions during extended supervision.” . . . . Other
factors that may be relevant include “consideration of the defendant’s record,
attitude, and capacity for rehabilitation, and the rehabilitative goals to be
accomplished by imprisonment for the time period in question in relation to the
time left on the violator’s original sentence.”
Id., ¶17 (citations omitted). As we consider Washington’s arguments, we are aided by the
fact that the same circuit court judge presided over the original sentencing
and the reconfinement hearing. We review
the two sentencing proceedings on a global basis, noting that the circuit court
referred back to the original sentencing in its reconfinement rationale. See
State
v. Wegner, 2000 WI App 231, ¶7, 239 Wis. 2d 96, 619 N.W.2d 289
¶13 First, Washington
contends that the court did not consider the fact that his original crime was
economic, not violent, and that it should have had a mitigating effect. At the reconfinement hearing, the court
stated that:
The nature and severity of the original offense. While it’s an economic crime, it’s your
record basically that’s problematic here in terms of the sentence that was
imposed originally and really what to do now.
The amount of reincarceration that is necessary to protect the public
from risk of further criminal activity I think is paramount here. Your past record as reflected by the
pre-sentence report that’s in the file includes a burglary, battery on [a]
person in ’84 where you got probation, misdemeanor theft in ’84. Disorderly conduct, obstructing in ’88. Possession of cocaine in ’89. ’90 theft.
’90 disorderly conduct. Retail
theft as a habitual offender in ’91, you were on probation and got revoked and
went to prison. Disorderly conduct as a
habitual offender in ’92. Possession of
cocaine with intent to deliver in ’92 amended from delivery, got put on
probation and got revoked twice. ’93 obstructing. ’99 misdemeanor battery, jail. Then the uttering charge where you were
sentenced. You have a burglary conviction on your juvenile record.
¶14 At the hearing on Washington’s
postconviction motion, the court added:
This is an
unusual case. Mr. Washington it’s clear was very
manipulative. He took advantage of a
gentleman who was trying to extend kindness to people and do public good, and
Mr. Washington
took clear advantage of this person.
Because of his age he was vulnerable, and this is in my opinion a very
severe offense in terms of victimization of someone who’s vulnerable, elderly,
and it was very serious. So I’m
satisfied those factors were all considered and were in my mind at the time I
was the original sentencing judge.
It is clear from the record
that the court considered Washington’s
original offense, acknowledged it was economic, and placed it in context by
reference to the victim and to Washington’s
record. Washington’s assertion that the nature of
his original offense was ignored is incorrect.
¶15 Next, Washington argues that
the circuit court failed to consider Washington’s
successes on supervision and in treatment.
Again, the record demonstrates otherwise. The court observed:
[Washington]
gets released and within a short time he has problems here. The rules that are violated include using
cocaine and marijuana on April 11th of ’07 and on the 13th he failed to follow
the electronic monitoring schedule and his whereabouts were unknown. He failed to follow the rules of the
Transitional Living Place … he failed to follow the electronic monitoring
schedule … he failed to report to his agent for an office visit … he absconded from the AODA Halfway House …
[and] he gave a false name to police.
….
Your
attitude here is really—I’m not aware of it other than your conduct, which I
think speaks loudly here because you have basically chosen not to follow any of
the programming they offered to you.
¶16 The court’s review of Washington’s
violations while on extended supervision is exhaustive. If there were successes that Washington experienced,
he does not identify them in his brief.
At the hearing he did mention his completion of one phase of an AODA
program, and explained that some of his failures were simply a result of being
associated with “somebody who was doing something wrong.” In light of the number of violations of his
conditions of release, Washington’s
assertions that he was successful on supervision are unpersuasive.
¶17 Finally, Washington
contends that the circuit court did not properly weigh the importance of the
DOC recommendation. He argues that the
recommended term of reincarceration should have carried more weight and that
his waiver of the final hearing should have been a credit to his willingness to
accept responsibility for his actions.
First, we observe that the weight given to sentencing factors is fully
within the discretion of the circuit court.
See Brown, 298 Wis. 2d 37, ¶39. Next, we emphasize that Wis. Stat. § 302.113(9)(at) requires
the DOC to make a recommendation concerning the period of reconfinement, but it
does not require the court to follow it.
“Although the DOC’s recommendation may be helpful, and should be considered
by the circuit court in a reconfinement decision, that recommendation is not
entitled to any deference.” Brown,
298 Wis. 2d
37, ¶24.
¶18 “Courts are to identify the general objectives of greatest
importance. These may vary from case to
case. In some cases, punishment and
protection of the community may be the dominant objectives. In others, rehabilitation of the defendant
and victim restitution may be of greater import.” State v. Gallion, 2004 WI 42, ¶41,
270 Wis. 2d
535, 678 N.W.2d 197. Here, the court
clearly considered the forgery-uttering offense a serious one that was
perpetrated against a vulnerable victim.
After an extensive review of relevant sentencing factors, it also
concluded that “the minimum amount of custody on reconfinement to impose here
in order to protect the public and based upon [Washington’s] rehabilitation
needs is to impose two years of reincarceration.” We conclude that the court’s imposition of a
two-year term of reincarceration is well supported by its rationale.
CONCLUSION
¶19 When extended supervision is revoked and the DOC submits a
recommended term of reincarceration for consideration at the reconfinement
hearing, neither the prosecutor nor the circuit court is bound by that
recommendation. The State is free to
make an independent recommended term of reincarceration. The court is to craft a term of
reincarceration that meets the general sentencing objectives it determines to
be most important for each case.
Accordingly, the reconfinement order and postconviction order of the
circuit court are affirmed.
By the Court.—Orders affirmed.