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COURT OF APPEALS DECISION DATED AND RELEASED July 31, 1996 |
NOTICE |
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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. 95-1137
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN EX
REL.
DAVID S. FREDERICK,
Petitioner-Appellant,
v.
COLUMBIA CORRECTIONAL
INSTITUTION,
JEFFREY P. ENDICOTT,
SUPERINTENDENT,
MARK HEISE, PROGRAM
COORDINATOR,
Respondents-Respondents.
APPEAL from an order of
the circuit court for Columbia County:
DANIEL GEORGE, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER
CURIAM. David S. Frederick appeals from an order dismissing
his petition for writ of habeas corpus.
The circuit court held that it lost subject matter jurisdiction when
Frederick failed to comply with § 13.56, Stats.,
by serving the Joint Committee for Review of Administrative Rules (JCRAR)
within sixty days of filing his complaint.
We conclude that whatever the procedural status of the appeal, Frederick
would lose on the merits. Accordingly,
we affirm.[1]
BACKGROUND
In 1987, Frederick was
convicted of three crimes and sentenced to thirty-nine years'
imprisonment. In 1988, Wis. Adm. Code § DOC 302.14 was changed by adding a
fifteenth subsection. Under subsection
15, an inmate's security classification is set, taking into account,
"[t]he inmate's risk rating as high risk, moderate risk or low risk,
determined by employing the department's risk rating system...."[2]
Under Wis. Adm. Code § DOC 302.14 as it existed before
amendment, Frederick alleges that he would be more leniently classified than he
is under subsection 15. Because the
amendment post-dates his conviction, he argues that subsection 15 is an ex
post facto law as applied to him.
This identical argument
was raised before the United States District Court for Wisconsin's Eastern
District. Payton v. Fiedler,
860 F. Supp. 606 (E.D. Wis. 1994). In
rejecting the argument, the court set forth a two-part test:
1. Whether
§ DOC 302.14 applies
retroactively; and
2. Whether § DOC 302.14 constitutes punishment.
If § DOC 302.14 applies retroactively and
constitutes punishment, it would violate the ex post facto clause.[3]
The court concluded that
§ DOC 302.14 does apply
retroactively, thus triggering the first part of the test. However, the court concluded the punishment
part of the test was not triggered.
Even if the condition of imprisonment is made more difficult for a
particular prisoner, § DOC
302.14(15) evinces no punitive intention because there is no evidence it was
intended to be a "component of punishment." 860 F. Supp. at 608. The
court therefore concluded § DOC
302.14(15) is not an ex post facto law.
860 F. Supp. at 609.
Because we adopt this
analysis, we conclude that Frederick could not prevail on the merits. Accordingly, we need not consider whether
Frederick's claim fails for failure to comply with § 13.56, Stats., or whether the State did, or
could, waive service on JCRAR. See
Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App.
1983).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] It is immaterial that we affirm on a different ground than the circuit court's decision. See State v. Alles, 106 Wis.2d 368, 391, 316 N.W.2d 378, 388 (1982).
[2] Wisconsin Adm. Code § DOC 302.14(15)
reads in full as follows:
The following factors may be taken into
consideration in assigning a security classification to an inmate:
...
(15) The inmate's risk rating as high risk, moderate risk or low risk, determined by employing the department's risk rating system. Under the risk rating system, if one or more factors are rated high risk, the risk rating is high risk. If one or more factors are rated moderate risk and no factors are rated high risk, the risk rating is moderate risk. If all factors are rated low risk, the risk rating is low risk. In this subsection, “risk rating system" means the interpretive guidelines, procedures and forms used to assess the risk that an inmate presents to public safety and to the security and management of the correctional institution.