COURT OF APPEALS

DECISION

DATED AND FILED

 

April 26, 2011

 

A. John Voelker

Acting 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.�

2009AP3058

Cir. Ct. No.� 2008CV16973

STATE OF WISCONSIN���

IN COURT OF APPEALS

 

DISTRICT I

 

 

 

 

State of Wisconsin ex rel. Adam Howard,

 

����������������������� Petitioner-Appellant,

 

����������� v.

 

David H. Schwarz, Administrator,

Division of Hearings and Appeals,

 

����������������������� Respondent-Respondent.

 

 

 

����������� APPEAL from an order of the circuit court for Milwaukee County:� dennis p. moroney, Judge.� Affirmed.�

����������� Before Curley, P.J., Kessler and Brennan, JJ.

�1������� PER CURIAM.    Adam Howard, pro se, appeals an order of the circuit court affirming a Division of Hearings and Appeals decision sustaining revocation of his parole.� We conclude that the Division�s decision was appropriate and we affirm the circuit court.

�2������� Howard was convicted of armed robbery, as party to a crime, and second-degree murder in 1987.� He was given an indeterminate sentence of thirty years and released to parole supervision on November 28, 2006.� In 2008, the Department of Corrections� Division of Community Corrections sought to revoke his parole based on two allegations:� that, while working at Summerfest, Howard intentionally touched Zenither Turner�s left breast without her consent and falsely represented himself as a United States marshal.

�3������� Following a hearing at which Howard and Turner testified, the administrative law judge concluded Turner�s testimony was credible and that her explanation of events was more reasonable, and that the Department had proven the allegations against Howard.� The administrative law judge ordered Howard�s parole revoked and ordered him imprisoned for three years and three months.� Howard appealed to the Division, which sustained the administrative law judge�s decision.� Howard then petitioned the circuit court for certiorari review; the writ was granted and the circuit court affirmed the Division.� Howard appeals.� Additional facts will be set forth below as necessary.

�4������� On appeal, Howard makes five arguments:� (1) his right to
cross-examine a witness was compromised; (2) the circuit court failed to address Howard�s claim that not all evidence had been made available to him; (3) the circuit court failed to address whether substantial evidence supports the administrative law judge�s decisions; (4) substantial evidence did not support a particular factual finding of the administrative law judge; and (5) the record does not support the administrative law judge�s determination that Turner was credible.

�5������� According to the administrative law judge�s decision, Turner and Howard were working security at the Summerfest grounds.� Turner asked Howard why he was in plain clothes; he responded that he was a United States marshal.� As he was describing his marshal duties, he reached out and touched or poked Turner�s breast.� Believing it might have been an accident, or that he was reaching for her identification, she called him on the contact.� He apologized and said, �It�s been awhile.�� Turner reported the incident to a co-worker, who reported the incident to a supervisor, who called police.

�6������� Howard�s first two claims of error relate to the co-worker and supervisor.� He claims his right to cross-examine these �witnesses� was violated.� He also contends he was �not made aware of any co-workers prior to hearing,� and suspects that statements or testimony were taken that were not shared with him.� Neither the co-worker nor the supervisor were called to testify, and Howard cites no authority for the proposition that he has a right to examine uncalled witnesses.� His attorney had documents prior to the hearing, including a list of staff on duty at the time of the incident.� That Howard did not personally see the information does not mean it was not disclosed.� There is nothing in the record to support a claim of surreptitious testimony:� the administrative law judge�s decision on its face is based on Turner�s and Howard�s testimony, not statements of others.�

�7������� We now turn to Howard�s remaining arguments.� When we review a certiorari matter, we review the merits independently of the circuit court.� See State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 385-86, 585 N.W.2d 640 (Ct. App. 1998).� In other words, we review the agency�s decision, not the circuit court�s decision.� Therefore, we need not address Howard�s third argument, that the circuit court failed to address the sufficiency of the evidence.

�8������� Our review on certiorari is limited to four questions:� Whether the tribunal acted within its jurisdiction; whether it acted according to law; whether its action was arbitrary and represented its will and not its judgment; and whether the evidence was such that the tribunal might reasonably make the decision it did.� See
Van Ermer v. DHSS, 84 Wis. 2d 57, 63, 267 N.W.2d 17 (1978); State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997).

�9������� The only prong at issue here is the sufficiency of the evidence.� In the certiorari context, we ask whether substantial evidence supports the agency�s decision.� State ex. rel Washington v. Schwarz, 2000 WI App 235, �17, 239 Wis. 2d 443, 620 N.W.2d 414.� Because parole revocation is the result of a civil proceeding, see id., �16, the evidentiary burden is low, see id., �17.� The substantial evidence burden asks only whether reasonable minds could arrive at the same conclusion.� Ortega, 221 Wis. 2d at 386.� It is the administrative law judge�s role, not ours, to make determinations on the credibility and weight of evidence.� See Washington, 239 Wis. 2d 443, �26.

�10����� Here, the administrative law judge�s determination is premised on her acceptance of Turner�s testimony over Howard�s testimony.� Howard�s last two arguments�that substantial evidence does not support Turner�s claims and that the record does not support a finding that Turner was credible�are evaluated under this standard.

�11����� Howard assails Turner�s particular claim that, when she confronted him for touching her, he said, �it�s been awhile,� because Turner did not report this statement to police.� Instead, she simply testified at the revocation hearing that it had occurred.� The administrative law judge acknowledged Howard�s challenge to this claim, but noted in her decision that Turner had testified she did not remember Howard�s words when she spoke to police.� The administrative law judge accepted this explanation, finding it plausible given the stress of the situation.� We do not disturb that credibility decision.

�12����� Howard�s general complaint about Turner�s credibility is premised on discrepancies between Turner�s statement to police and her testimony at the revocation and a lack of substantiation of her testimony, which he calls conjecture.� Turner�s testimony was not conjecture; she was testifying about events she personally observed.� Further, while corroborating evidence may in certain circumstances bolster a witness�s credibility, it does not follow that uncorroborated testimony is patently unreliable or inherently incredible.� In addition, the factfinder in its role is free to disregard portions of testimony it finds incredible and accept only what it finds believable.� See Nabbefeld v. State,
83 Wis. 2d 515, 529, 266 N.W.2d 292 (1978) (A factfinder, �even where a single witness is inconsistent and testifies to diametrically opposed facts, may choose to believe one assertion and disbelieve the other.�).� Ultimately, the administrative law judge concluded that Turner�s explanation of events was far more plausible than Howard�s explanation, which was simply that he did not touch Turner but if he did, it was accidental.� We discern no error in the decisions of the administrative law judge, the Division, or the circuit court.

����������� By the Court.�Order affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).