COURT OF APPEALS DECISION DATED AND FILED April 21, 2015 Diane M. Fremgen Clerk of Court of Appeals |
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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: christopher r. foley, Judge. Affirmed.
Before Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge.
¶1 PER CURIAM. Jermaine McAdory appeals a circuit court order affirming the decision
of the Administrator of the Department of Administration, Division of Hearings
and Appeals (the Division). McAdory sought
certiorari review of the Division’s
revocation of his extended supervision.
The circuit court denied relief.
On appeal to this court, he argues: (1) the Administrator lacks authority over him
because he has already completed his sentences; and (2) the evidence does not
support the revocation decision. We
reject his contentions and affirm.
BACKGROUND
¶2 McAdory pled guilty in March 2000 to
burglary of a building or dwelling, and the circuit court imposed two years of
initial confinement and five years of extended supervision. He pled guilty in December 2002 to delivery
of cocaine, and the circuit court imposed twenty months of initial confinement
and twenty-eight months of extended supervision. McAdory was released to extended supervision
in both matters but the record reflects that his extended supervision was
revoked on multiple occasions. In
February 2012, he began serving his most recent period of extended supervision.
¶3 Police
took McAdory into custody on September 10, 2012, based on allegations that he
had assaulted two people that day. His
supervising agent sought revocation of his extended supervision on behalf of
the Department of Corrections, alleging that McAdory violated the rules of his supervision
by:
(1) verbally threatening a neighbor, Y.S., in June 2012; (2) physically
assaulting a family member, W.L., in June 2012; (3) absconding from supervision
on July 17, 2012; (4) physically assaulting another family member, T.R., on
September 10, 2012; and (5) physically assaulting S.F. on September 10, 2012,
when she attempted to intervene in the dispute between McAdory and T.R. McAdory demanded a hearing.
¶4 At
the outset of the revocation hearing, McAdory stipulated to the allegation that
he had absconded from supervision, and the administrative law judge (ALJ)
accepted the stipulation. The Department
of Corrections then presented evidence to support the remaining claims. The ALJ found the evidence insufficient to
support the allegations concerning Y.S. and W.L. The ALJ concluded, however, that the
Department of Corrections proved the allegations concerning T.R. and S.F. The ALJ found credible S.F.’s testimony about
the events of September 10, 2012, and the ALJ further credited the testimony of
the officers who arrested McAdory on September 10, 2012. The ALJ found that the officers’ testimony
and reports, coupled with the photographs of S.F.’s injuries, all corroborated
S.F.’s description of the assaults.
Although McAdory testified and denied assaulting S.F. and T.R., the ALJ
rejected McAdory’s testimony as incredible and in conflict with S.F.’s reliable
and forthright account.
¶5 The
ALJ concluded that the three proven allegations warranted revocation of
McAdory’s extended supervision and ordered McAdory to serve all of the
available reconfinement time remaining on his bifurcated sentences, specifically,
two years, ten months and twenty-three days for his 2000 conviction, and ten
months and two days for his 2002 conviction. McAdory appealed the ALJ’s decision and order
to the Administrator of the Division of Hearings and Appeals. The Administrator affirmed, and McAdory next
sought certiorari review in the
circuit court. The circuit court affirmed
in turn, and this appeal followed.
DISCUSSION
¶6 Certiorari review of a revocation order
of the Department of Administration, Division of Hearings and Appeals, “‘is
limited to four inquiries: (1) whether
the [Division] acted within the bounds of its jurisdiction; (2) whether it
acted according to law; (3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will, not its judgment; and (4) whether the
evidence was sufficient that the [Division] might reasonably make the
determination that it did.’” State
ex rel. Tate v. Schwarz, 2002 WI 127, ¶15, 257 Wis. 2d 40, 654
N.W.2d 438 (citation omitted). This
court reviews the Division’s decision, not the decision of the circuit court. See State
of Wis.–Dep’t of Corrections v. Schwarz, 2004 WI App 136, ¶5, 275 Wis. 2d
225, 685 N.W.2d 585, rev’d on other
grounds, 2005 WI 34, 279 Wis. 2d 223, 693 N.W.2d 703.
¶7 On
appeal, McAdory asserts he has passed his maximum discharge date for his two consecutive
sentences but the numerous revocations of his extended supervision have served
to “add[] on additional time to [his] sentences[,] pushing [his] discharge
dates back years at a time in the process.” McAdory fails to understand the statutory
scheme that governs him as a convicted offender serving determinate sentences
imposed under Wisconsin law. In his
view, the Division and the Department of Corrections have acted unlawfully by
maintaining control over him for a period that exceeds the length of the original
bifurcated consecutive sentences.
McAdory is wrong.
¶8 Wisconsin Stat. § 302.113(9)(am)
(2013-14)[1] explains
the consequences faced by an offender after revocation of his or her extended
supervision. Under this statute, the
Division shall, following an offender’s revocation, “order the person to be
returned to prison for any specified period of time that does not exceed the
time remaining on the bifurcated sentence.”
See id.; see also § 302.113(9)(ag). The phrase “time remaining on the bifurcated
sentence” is statutorily defined as “the total length of the bifurcated
sentence, less time served by the person in confinement under the sentence
before release to extended supervision ... and less all time served in
confinement for previous revocations of extended supervision under the
sentence.” See § 302.113(9)(am).
Thus, following revocation of extended supervision, a person may be
imprisoned for any portion of the total bifurcated sentence that the person has
not already served in confinement. The
time that the person has spent on extended supervision does not count in
determining how much reconfinement time is available. See id.
¶9 Because
time spent on extended supervision is irrelevant when determining how much
reconfinement time is available upon revocation, the statutory scheme permits a
convicted offender whose extended supervision is revoked to serve a sentence
that spans a longer period than the combined total of initial confinement and
extended supervision imposed at the original sentencing. As one authority explains:
[s]uppose, for example, that a person is convicted of a new Class G felony (for which the maximum initial term of confinement is five years and the maximum initial term of E[xtended] S[upervision] is five years) and that the [circuit court] judge imposes the maximum penalties. Assume that after serving five years in prison and four years on extended supervision, the ES is revoked. Upon the offender’s return to court for sentencing after revocation, the judge has the full length of the original ES term (five years) to work with in fashioning a remedy.[[2]] The court might decide that the offender must be confined for two of those five years. When those two years have been served, the defendant returns to ES status for ... “the remaining extended supervision portion of the bifurcated sentence.” This phrase means the total length of the bifurcated sentence (10 years in the example) minus time already spent in confinement (seven years in the example) for a total remaining ES portion of three years. If the defendant serves out this disposition without additional revocation problems, the defendant will have spent a total of seven years in confinement and seven years on ES before being discharged.
Michael B. Brennan, Thomas J. Hammer, and Donald V. Latorraca, Fully Implementing Truth-in-Sentencing, Wisconsin Lawyer, Nov. 2002, at 10,
48-49 (footnote added, footnotes in original omitted).
¶10 McAdory
believes that the statutory scheme violates his right to be free from double
jeopardy and leads to unlawful detention.
Again, he is wrong. The
prohibition against double jeopardy affords a convicted person protection
against multiple punishments for the same crime. State ex rel. Ludtke v. DOC, 215
Wis. 2d 1, 13, 572 N.W.2d 864 (Ct. App. 1997). As we long ago explained in the context of
discussing indeterminate sentences that allowed for the possibility of
parole: “‘service in prison of time
successfully served on parole and forfeited through revocation does not constitute
punishment within the meaning of the double jeopardy clause.’” Id. at 14 (citation omitted). Rather, “[t]he possibility that [a] maximum
discharge date will be extended is part of the parole ... system to which a
prisoner’s sentence is subject. That
possibility does not arise out of a new sentence. It is part of the conditions which attached
to the original sentence.” State
ex rel. Bieser v. Percy, 97 Wis. 2d 702, 709, 295 N.W.2d 179 (Ct.
App. 1980). Moreover, “‘the denial of
credit for time served on parole when a parole violator is returned to prison
does not amount to an extension of the parolee’s sentence, but rather is
potentially a part of the original sentence, and hence not invalid for
violation of the double jeopardy inhibition.’”
Id. at 709-10 (citation, brackets, and one set of quotation
marks omitted). Accordingly, we reject
McAdory’s claim that the Division acted unlawfully by revoking his extended
supervision and ordering him reconfined.[3]
¶11 McAdory
also claims that the evidence presented at the administrative hearing was
insufficient to sustain the revocation decision. We consider his claims pursuant to a demanding
standard. “The evidentiary test on certiorari review is the substantial
evidence test, under which we determine whether reasonable minds could arrive
at the same conclusion that the ALJ reached.” George v. Schwarz, 2001 WI App 72,
¶10, 242 Wis. 2d 450, 626 N.W.2d 57 (italics added). We will not substitute our view of the
credibility of the witnesses or the weight of the evidence for that of the
administrative factfinder. See State
ex rel. Washington v. Schwarz, 2000 WI App 235, ¶26, 239 Wis. 2d 443,
620 N.W.2d 414.
¶12 McAdory
first challenges the finding that he absconded from supervision. He tells us he failed to report to his
supervising agent after July 17, 2012, because he had a “conflict” with the
agent and her supervisor. He does not
dispute, however, that his rules of supervision required him to report to his
agent and inform her of his activities. Further, the record of the revocation hearing reveals
he repeatedly acknowledged through counsel that he absconded, and he personally
admitted on direct examination that, by absconding, he prevented his agent from
supervising him. Any violation of a
condition of supervision, including a failure to report as required, is
sufficient grounds for revocation. See State ex rel. Cutler v. Schmidt, 73
Wis. 2d 620, 622, 244 N.W.2d 230 (1976).
For this reason alone, the evidence is sufficient to support revocation
here.
¶13 Nonetheless,
for the sake of completeness, we briefly address McAdory’s second challenge to
the sufficiency of the evidence, namely, his bare-bones allegation that the
evidence is insufficient to support revocation because witnesses to the events
of September 10, 2012, gave statements that are “not consistent.” This claim too must fail.
¶14 The
ALJ considered the testimony of S.F. and concluded that it was credible. Although McAdory evidently believes that S.F.’s
testimony was inconsistent with other evidence and should have been rejected, that
decision rested with the factfinder. See Washington,
239 Wis. 2d 443, ¶26. Based on the
evidence that the ALJ deemed credible, coupled with McAdory’s stipulation that
he absconded for a period of nearly two months, the record amply supports the finding
that McAdory violated the conditions of his extended supervision and earned
revocation of his extended supervision.[4]
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
[2] When Wisconsin implemented the second phase of determinate sentencing, the legislature gave circuit court judges the power to select the amount of reconfinement to impose after revocation of extended supervision. See State v. Brown, 2006 WI 131, ¶31, 298 Wis. 2d 37, 725 N.W.2d 262. Currently, the division of hearings and appeals in the department of administration decides how much reconfinement time to impose when, as here, the offender requested a hearing to challenge the revocation recommendation. See Wis. Stat. § 302.113(9)(ag).
[3] McAdory points to provisions in Wis. Stat. § 302.113(3)(c) that he claims limit the authority of the Department of Corrections to extend his sentences. McAdory misunderstands both the meaning and the scope of the authority that he cites. Section 302.113(3)(c) governs the authority of a prison warden or superintendent to extend an inmate’s period of confinement in prison based on violations of prison rules. The subsection has no application to the facts of the instant appeal. McAdory’s reliance on the text of § 302.113(3)(d)—which he incorrectly identifies as Wis. Stat. § 302.113(7)—is similarly misplaced.
[4] In
circuit court proceedings, McAdory complained about violations of due process
during the administrative hearing, and he suggested that his mental health
needs were not properly addressed during his periods of community
supervision. McAdory has not briefed
these issues on appeal. We deem them
abandoned and do not address them. See