COURT OF APPEALS DECISION DATED AND FILED December 4, 2007 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
Before
¶1 FINE, J. Dorian Brown appeals, pro se, a circuit-court order affirming on certiorari review the revocation of his probation. Brown claims that: (1) the Division of Hearings and Appeals did not have jurisdiction to revoke his probation; (2) he was denied the right of confrontation; and (3) his revocation-hearing lawyer was ineffective. We affirm.
I.
¶2 In October of 2002, Brown was convicted of two counts of not paying child support in the 1990s. See Wis. Stat. § 948.22(2) (1993–94). The circuit court imposed a stayed prison sentence and placed him on probation in July of 2003. Brown did not sign written probation rules in connection with the failure-to-support convictions. He had, however, signed written probation rules in May of 2002, when he was placed on probation for the unrelated crimes of possessing cocaine and tetrahydrocannabinols and obstructing an officer. Among the rules that Brown signed were directions that he: (1) avoid all conduct that violated federal or state statutes; (2) not engage in any assaultive, violent, or threatening behavior; (3) reside in and not leave Milwaukee County without his probation agent’s written consent; and (4) pay monthly supervision fees. Brown was discharged from probation on the drug and obstructing crimes in November of 2004. He remained on probation for the child-support crimes.
¶3 In February of 2006, Brown’s probation agent notified
1. Since on or
about
2. On or about
3. On or about
4. On or about
5. On or about
6. On or about
7. Between
05-03-2002 and 08-21-2005, Dorian Brown left
(Rule violations omitted; first set of brackets in original.)
¶4 Several witnesses testified at Brown’s probation revocation hearing, including Brown’s probation agent. On cross-examination, the agent told the judge that while Brown did not receive a set of rules when he was placed on probation for the child-support crimes, she told him that the rules he signed in May of 2002 still applied:
Q Could you
clarify, for the record, did
A He was still on supervision for the other case and at that point, it wasn’t necessary, I didn’t think, to do rules again. So, rules were still in effect.
Q Was this
communicated to
A Yes. Because this … this probation started while he was still on the previous probation.
(Ellipses in original.)
¶5 In a written decision, the administrative law judge determined that Brown had committed all of the violations. Brown appealed to the Division of Hearings and Appeals. The Division sustained the administrative law judge’s findings of fact and legal conclusions.
II.
¶6 On appeal, we review the decision of the Division of Hearings
and Appeals. State ex rel. Simpson v. Schwarz,
2002 WI App 7, ¶10, 250
A. Jurisdiction.
¶7 Brown claims that the Division did not have jurisdiction
because he had been discharged from the probation imposed for the drug and obstructing
crimes, and, also, because he had not signed the rules in connection with his
child-support convictions. Although he
did not assert these two interrelated arguments before the Division, we address
them because the jurisdiction of an administrative agency may be raised at any
time.
¶8 Wisconsin
Stat. § 973.10(1) places a probationer in the custody of the Department,
and thus within the jurisdiction of the Division, “under conditions set by the
court and rules and regulations established by the department.” See
also § 973.10(2).[1] Thus, even though Brown did not sign written
rules when he was placed on probation for the child-support crimes, he was
still required to abide as a matter of law with departmental regulations,
including the requirements in Wis. Admin. Code §§ DOC 328.04(3)(a),
(d), and (n), that he: “[a]void all
conduct which is in violation of a state statute”; “[i]nform the agent of his
or her whereabouts and activities as directed”; and “[p]ay [a] supervision or
monitoring fee.” See State ex rel. Rodriguez v.
Department of Health & Soc. Servs., 133
B. Confrontation.
¶9 Brown contends that he was denied his right to confrontation
because the administrative law judge allowed Ricardo Morales, Bambi Loeffler’s
neighbor, to testify by telephone at Brown’s probation revocation hearing. He also argues that at least part of Morales’s
telephonic testimony was hearsay. Brown
did not argue these contentions before the Division. Accordingly, we decline to review them on
appeal.
C. Ineffective Assistance.
¶10
¶11 A defendant claiming ineffective assistance of counsel must
establish that: (1) the lawyer was
deficient; and (2) the defendant was prejudiced as a result.
¶12 Brown contends that his lawyer should have interviewed Morales
to determine whether Morales’s testimony was credible. Brown has not shown prejudice. He does not allege what his lawyer would have
learned had she interviewed Morales or how this information could have affected
the administrative law judge’s assessment of Morales’s credibility. See
State
v. Flynn, 190
¶13 Brown also claims that his lawyer should have: (1) subpoenaed Morales to appear at the probation
revocation hearing; and (2) objected when the administrative law judge allowed
Morales to testify by telephone. He
alleges that Morales could have been “reading from a script” or “being led with
his testimony over the telephone.” He
offers no support in the Record, however, for these conclusory speculations. Further, in connection with the “prejudice”
aspect of the two-fold Strickland test, Brown does not even
allege that his lawyer was not able to meaningfully cross-examine Morales or
that Morales’s telephonic testimony made Brown’s probation revocation hearing
unfair. See Town of Geneva v. Tills,
129
¶14 Finally, Brown argues that his lawyer did not ensure that the
administrative law judge prepared an adequate Record. Brown asserts that “[t]here are several
omissions in the record and transcript that would leave a reviewing court
without a complete record to review on certiorari to be able to determine a
decision on a factual basis.” This claim
is conclusory and undeveloped. Brown,
who, of course, was at the revocation hearing and thus would be able to tell us
what, if anything affecting our review was missing, does not tell us what he
claims was missing or how alleged gaps in the Record made the certiorari review either impossible or
unreliable. See Barakat v. Department of Health & Soc. Servs., 191
By the Court.—Order affirmed.
Publication in the official reports is not recommended.
[1] Wisconsin Stat. §§ 973.10(1) and (2) provide, as material:
(1) Imposition of probation shall have the effect
of placing the defendant in the custody of the department and shall subject the
defendant to the control of the department under conditions set by the court
and rules and regulations established by the department for the supervision of
probationers, parolees and persons on extended supervision.
….
(2) If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order.