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COURT OF APPEALS
DECISION
DATED AND FILED
May 5, 2010
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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DISTRICT II
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State of Wisconsin
ex rel. Titus Henderson,
Petitioner-Appellant,
v.
Alfonzo Graham, Rick Raemisch, Peter Huibrestse and
David White,
Respondents-Respondents.
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APPEAL
from an order of the circuit court for Racine County: richard
j. kreul, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Snyder, J.
¶1 PER CURIAM. Titus
Henderson appeals pro se from a
circuit court order affirming the Parole Commission’s decision to deny him
parole and deferring his next parole opportunity for forty-eight months. We agree with the circuit court that the
commission’s decision was supported by the evidence and was in all other
respects proper. We affirm.
¶2 Henderson, an inmate at the Wisconsin Secure Program Facility
(WSPF), was convicted in 1995 of first-degree reckless homicide in the shooting
death of his brother along with three counts of first-degree recklessly
endangering safety. At the time he
requested parole, Henderson
had served approximately fourteen years of his forty-year sentence. The commission denied Henderson parole for multiple reasons. Henderson’s
institution adjustment was not satisfactory as evidenced by “multiple behavior
logs and numerous conduct reports.”
After almost four years at WSPF, Henderson
had not improved his behavior and continued to engage in misconduct. Henderson
did not have an adequate parole plan.
The commission also considered the nature and seriousness of his
offenses, that release would involve an unreasonable risk to the public, and that
further incarceration was needed for punishment. Also militating against parole were Henderson’s persistent
refusal to take responsibility for his actions and his “yeah, whatever”
response to a parole commissioner’s admonition that he needs to avoid further
conduct reports.
¶3 Henderson
sought certiorari review of the parole decision in the circuit court. Henderson
complained that he did not receive parole planning documents before the parole
hearing, and he did not have access to documents. The circuit court noted that Henderson did not offer a
parole plan with regard to employment. Henderson’s request for parole materials from the prison
social worker was not made with sufficient precision so that the worker
understood that Henderson
was seeking parole materials. With
regard to Henderson’s argument that he did not
receive documents, the court determined that there was no proof in the
certiorari record that Henderson
asked for documents. The court also
concluded that Henderson was not denied the
opportunity to present evidence, and that the commission properly applied the
parole criteria to Henderson’s
case. As the circuit court succinctly
put it:
It is clear from a review of the record that the
Commission did exercise its discretion in not granting him parole because the
horrendous nature of his crimes was taken into consideration, his attitude and
actions demonstrated that he was not likely to abide by society’s rules as he
could not in a confined setting abide by prison rules, his fixation on the
“three officers” conspiring against him thus blaming them for his actions and
thus avoiding personal responsibility for them, his myopic view that an
adequate plan is a place to live and his lack of recognition of what he needs
to change summed up in his parting word, “whatever.”
¶4 On certiorari review of a decision of the parole commission,
we review whether the commission: (1) kept within its jurisdiction; (2) acted
according to law; (3) acted arbitrarily, oppressively or unreasonably; and (4)
whether the evidence was such that the commission might reasonably make the
order or determination in question. State
ex rel. Hansen v. Dane County Cir.
Ct., 181 Wis. 2d 993, 998-99, 513 N.W.2d 139 (Ct.
App. 1994). Parole rests within the
commission’s discretion. Coleman
v. Percy, 96 Wis.
2d 578, 587, 292 N.W.2d 615 (1980). The
commission’s discretion is guided by Wis.
Admin. Code § PAC 1.06(7) (Oct. 2000):
A recommendation for parole and a grant of parole shall
be made only after the inmate has:
(a) Become parole-eligible under s. 304.06, Stats., and
s. PAC 1.05;
(b) Served sufficient time so that release would not
depreciate the seriousness of the offense;
(c) Demonstrated satisfactory adjustment to the
institution and program participation at the institution;
(d) Developed an adequate parole plan; and
(e) Reached a point at which, in the judgment of the
commission, discretionary parole would not pose an unreasonable risk to the
public.
¶5 Henderson
does not contend on appeal that he satisfied criteria (b) through (e) or that
the commission improperly considered these criteria in making its parole
decision. Therefore, the commission
appropriately denied him parole because he lacked an adequate parole plan, remained
dangerous, had not served an adequate amount of time in light of the
seriousness of his offenses, and had not adjusted to the institution.
¶6 Henderson
devotes a large portion of his appellate briefs to his contention that the
conduct reports and behavior logs considered by the commission were false. As discussed above, the conduct reports, true
or not, were not the sole basis for denying Henderson parole. Furthermore, Henderson’s challenges to the veracity of the
behavior logs and conduct reports are outside the scope of this certiorari
review of the commission’s denial of parole.
¶7 Henderson
renews his argument that his failure to receive parole planning documents from
the prison was a due process violation.
To the extent there was any error in
failing to provide Henderson with parole
planning documents, which we do not decide, any such error was harmless because
Henderson’s
substantial rights were not affected. See Evelyn
C.R. v. Tykila S., 2001 WI 110, ¶28, 246 Wis. 2d 1, 629 N.W.2d 768. A party’s substantial rights are affected
only if there is a reasonable possibility that the error contributed to the
outcome of the case. Id.
¶8 The record of the parole hearing confirms that Henderson was not able to
describe his parole plan beyond his intent to live with his mother. Henderson
had an opportunity to explain his parole plan to the commissioner, he did not
do so, and the commission had myriad other reasons for denying him parole. If error occurred, it was harmless.
¶9 Henderson
incorrectly suggests that the commission denied him parole because he did not
have a parole plan. As is apparent from
the transcript of the parole hearing and the commission’s decision, the
commission was primarily concerned with Henderson’s
conduct in prison, the seriousness of his crimes and the fact that he posed a
risk to the public, all appropriate factors to consider.
¶10 Henderson
argues that the commission did not follow the appropriate procedures in
addressing his parole request.
Specifically, he argues that he was denied access to records considered
by the commission. Wisconsin Admin. Code § PAC 1.06(3)(d)
states that, with the exception of certain confidential information, an inmate
shall have access to documentary information considered by the commission in
accordance with procedures governing inmate access to records at the inmate’s
correctional institution. Henderson did not ask for documents at his parole hearing
even after the commissioner informed Henderson
of the information upon which he was relying.
¶11 Henderson
argues that he was not permitted to appeal his parole denial to the commission’s
chairperson. The governing rules do not
provide for an appeal to the chairperson of the commission. Wis.
Stat. § 304.01 (2007-08) (no administrative appeal); Wis. Admin. Code § PAC 1.07(7) (Oct.
2000) (inmate has an opportunity to comment on parole decision). Review of the parole decision is to the
circuit court on certiorari. Wis. Stat.
§ 302.11(1g)(d) (2007-08).
¶12 Henderson
posits an ex post facto argument and claims that he was entitled to parole because
he reached his statutory parole eligibility date. As is clear from Wis. Admin. Code § PAC 1.06(7)(a) – (e), reaching the parole
eligibility date is not the only criterion for release on parole. Wis.
Admin. Code § PAC 1.06(7).
¶13 The commission’s parole decision was not arbitrary, was based
upon the law and is supported in the record.
See State ex rel. Hansen, 181 Wis. 2d at 998-99. The commission properly exercised its
discretion in denying Henderson
parole. See Coleman, 96 Wis. 2d at 587.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5 (2007-08).