COURT OF APPEALS DECISION DATED AND RELEASED June
29, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2469
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN
EX
REL. JEFFREY PLUMMER,
Petitioner-Appellant,
v.
STATE
OF WISCONSIN, DEPARTMENT
OF
CORRECTIONS, DIVISION OF
PROBATION
AND PAROLE,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Rock County: JAMES E.
WELKER, Judge. Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Dykman, J.
PER
CURIAM. This is an appeal from an order
denying Jeffrey Plumber's petition for a writ of certiorari. We are asked to review a Department of
Corrections's decision to revoke Plummer's parole. We conclude that the department kept within its jurisdiction,
acted according to law, and that its decision to revoke was not arbitrary,
oppressive or unreasonable. We also
conclude that the evidence was such that the department might reasonably make
the order in question. Accordingly, we
affirm.
Background
Plummer
was paroled from prison in January of 1991.
After his release, he spent a great deal of time with Laurie and her
children. In February 1993, Laurie's
niece, Melody, was staying at Laurie's house.
One night, while she was trying to fall asleep, Plummer put his hand
down her pants and touched her buttocks.
After Melody related this incident to Laurie, Plummer telephoned Melody
in July, asked her for a truce and threatened her. Later that year, Melody finally told a police officer about
Plummer's behavior.
As
a result of these actions, the department held a hearing to determine whether
Plummer's parole should be revoked. The
hearing examiner found that Plummer had violated a condition of parole which
provides, "You shall avoid all conduct which is in violation of federal or
state statute, municipal or county ordinances or which is not in the best
interest of the public welfare or your rehabilitation." The department revoked Plummer's parole,
forfeited Plummer's "good time," and Plummer was returned to prison.
Standard of Review
In
certiorari actions we are confined to the record and our review is limited to
determining: (1) whether the
department kept within its jurisdiction; (2) whether it acted in
accordance with the law; (3) whether its actions were arbitrary,
oppressive or unreasonable; and (4) whether the evidence was such that it
might reasonably make the decision that it did. State ex rel. Jones v. Franklin, 151 Wis.2d 419,
425, 444 N.W.2d 738, 741 (Ct. App. 1989).
The department's factual findings are conclusive if supported by
"any reasonable view" of the evidence, and we may not substitute our
view of the evidence for that of the department. Id.
We
uphold an agency's factual findings as long as they are supported by
substantial evidence. Cornwell
Personnel Assocs., Ltd. v. LIRC, 175 Wis.2d 537, 544, 499 N.W.2d 705,
707 (Ct. App. 1993). Substantial
evidence is evidence that is relevant, credible, probative, and of a quantum
upon which a reasonable fact finder could base a conclusion. Id.
Substantial Evidence
Plummer asserts that the
department's decision to revoke his parole was arbitrary, oppressive and
unreasonable and not supported by substantial evidence because the examiner
failed to address a variety of inconsistencies in Melody's testimony. He asserts that this constitutes an omission
of necessary factual findings or makes the department's decision inconclusive
or unclear. See Connecticut
General Life Ins. Co. v. DILHR, 86 Wis.2d 393, 404-05, 273 N.W.2d 206,
211 (1979).
We
do not accept Plummer's assertion that because the department did not discuss
all of that part of Melody's testimony which might be inconsistent, the department's
decision is arbitrary, oppressive and unreasonable. First, Plummer cites no authority for his assertion that the
department's decision must discuss all inconsistencies in a complaining
witnesses's testimony. In State
v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370, 377-78 (Ct. App.
1980), we said that we would not consider arguments not supported by specific
citations to authority. We will not do
so here.
Second,
the department did consider the fact that Melody's testimony was inconsistent,
though not in the detail Plummer would prefer.
The
examiner noted:
Counsel points out many inconsistencies in
[Melody's] statements since the incident.
A review of [Melody's] tape recorded testimony or her handwritten
statement of October 15, 1993[,] shows [Melody] is not able to organize nor
express her thoughts clearly. That
inability does not diminish her credibility.
The examiner finds nothing in [Melody's] prior statements sufficient to
discredit her testimony regarding this assault.
(Citation omitted.)
The
examiner also noted:
There are other
factors which support Melody's testimony and cause the examiner to believe
her. [Laurie's] home was [Melody's]
sanctuary when [Melody] received a beating from her father. It is incredible [Melody] would risk losing
that sanctuary if her story were not true.
[Melody] sought out a police officer and told her story without
prompting. The client and [Laurie]
found [Melody] talking to the police and [Melody] rejected [Laurie's] offers to
take her home. The client left abruptly
from that scene. The client videotaped
[Melody] and KG sleeping without any explanation. The client's presence on the basement stairs on February 7, 1993,
also supports [Melody's] testimony.
(Citations omitted.)
These
findings were based on Melody's testimony, which the examiner found credible
and convincing. These excerpts also
show that the evidence supporting the decision was sufficient. All that was necessary was Melody's
testimony that Plummer put his hand down her pants and touched her
buttocks. There is no question but that
Melody testified that he did.
Departmental Findings
Plummer also asserts
that the department's decision must be reversed because it failed to make
necessary findings. He contends that
where the department fails to set forth adequate reasons for its decision, we
should independently review the record to determine whether it provides a basis
for the department's decision. See
State v. Pharr, 115 Wis.2d 334, 343, 340 N.W.2d 498, 502 (1983). Though we conclude that the department's
decision is adequate, we will nonetheless independently review the record.
The
question before the department was whether Plummer had violated a condition of
parole. When a trial court, on
certiorari, considers whether the evidence is such that the department might
reasonably have made the order or determination in question, the court is not
called upon to weigh the evidence; certiorari is not a de novo
review. The inquiry is limited to
whether there is substantial evidence to support the department's
decision. Cornwell Personnel,
175 Wis.2d at 544, 499 N.W.2d at 707.
Melody
testified, "I woke up with him putting his hands down my pants. Now, I know it was him because he has this
big old ring, and it was really cold.
Then I moved. I turned over
towards [K.], and he had his hands on my butt." Melody later identified Plummer as her assailant, stating,
"First I felt—I felt him. Then I
looked up." She further testified
that during a telephone conversation Plummer had told her to "watch [her]
back," after she had refused his offer to "play it truce."
Section
948.02(2), Stats., provides,
"Whoever has sexual contact or sexual intercourse with a person who has
not attained the age of 16 years is guilty of a Class C felony." Section 940.45(3), Stats., proscribes intimidation of a witness accompanied by
any express or implied threat of force, violence, injury or damage.
The
evidence is sufficient to show that Plummer violated both §§ 948.02(2) and
940.45(3), Stats. That constitutes a violation of one of his
conditions of parole. Accordingly, we
affirm the department's decision to revoke Plummer's parole.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.