|
COURT OF
APPEALS DECISION DATED AND
RELEASED June
20, 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. 95-1792
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN EX REL. LENE CESPEDES-TORRES,
Petitioner-Appellant,
v.
DONALD
W. GOLDMAN, WARDEN,
OSHKOSH
CORRECTIONAL INSTITUTION,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Dodge County: JOSEPH E. SCHULTZ, Judge.
Affirmed.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
PER
CURIAM. Lene Cespedes-Torres appeals from an order affirming a
prison disciplinary decision finding him guilty of possession, manufacture and
alteration of a weapon in violation of Wis.
Adm. Code § DOC 303.45.[1] Cespedes-Torres claims: (1) the disciplinary committee failed
to consider his evidence; (2) he was denied adequate assistance of a staff
advocate; and (3) one of the disciplinary committee members was
biased. We reject each contention and
affirm.
After
investigating a report that Cespedes-Torres may have had a shank in his
possession, prison officers discovered an altered potato peeler (shank) in his
bedsheets. The conduct report written
after the investigation states that two confidential informants overheard
Cespedes-Torres telling two others he intended to use a shank in his possession
to harm other inmates. The reporting
officer expressed confidence that the statements were credible based on prior
credible information given by one of the informants. In addition, the conduct report states the violation was a major
offense, that Cespedes-Torres was recently warned about the same or similar
conduct, and that the violation created both a risk of serious disruption at the
facility and of serious injury to another.
A
disciplinary hearing was held in which Cespedes-Torres supplied the
disciplinary committee with a written statement explaining that he had been
"set up" by his roommate.
The
adjustment committee found Cespedes-Torres guilty as charged, stating that it
found the staff member's reliance on the confidential informants more credible
than Cespedes-Torres's oral and written testimony.
The
committee ordered eight days' adjustment segregation and three hundred sixty
days' program segregation. The warden
upheld the decision of the committee.
Cespedes-Torres sought certiorari review in the circuit court, and the
court upheld the adjustment committee's decision.
A
disciplinary decision of an adjustment committee is reviewable by
certiorari. State ex rel. Meeks
v. Gagnon, 95 Wis.2d 115, 119, 289 N.W.2d 357, 361 (Ct. App.
1980). Judicial review on certiorari
is limited to whether: (a) the
agency kept within its jurisdiction; (b) it acted according to law;
(c) its action was arbitrary, oppressive or unreasonable; and (d) the
evidence presented was such that the agency might reasonably make the decision
it did. State ex rel. Jones v.
Franklin, 151 Wis.2d 419, 425, 444 N.W.2d 738, 741 (Ct. App. 1989).
This
court does not review the findings of the circuit court, but reviews the record
of the adjustment committee to which certiorari is directed. Gordie Boucher Lincoln-Mercury Madison,
Inc. v. City of Madison Plan Comm'n, 178 Wis.2d 74, 84, 503 N.W.2d 265,
267 (Ct. App. 1993). The reviewing
court does not weigh the evidence presented to the committee. Van Ermen v. DHSS, 84 Wis.2d
57, 64, 267 N.W.2d 17, 20 (1978). Our
inquiry is limited to whether any reasonable view of the evidence supports the
committee's decision. State ex
rel. Jones, 151 Wis.2d at 425, 444 N.W.2d at 741.
Cespedes-Torres's
argument that the disciplinary committee failed to consider his defense--that
he was set-up--is related to his argument on the inadequacy of the investigation. He argues that the committee acted
arbitrarily when it decided that he was not credible, without first having
conducted an investigation to locate "critical documentation" that
would have demonstrated the confidential informants' gang activity, and the
identity of the two individuals with whom the confidential informants
reportedly saw Cespedes-Torres discussing his "shank." Cespedes-Torres maintains that without this
information, the adjustment committee could not have considered his defense.
We
first consider whether the evidence before the committee and its statement of
the reasons for its decision were sufficient.
In addition to the "shank," the committee had before it
Cespedes-Torres's oral and written testimony, the conduct report and the statements
of the confidential informants.[2] The committee was faced with conflicting
evidence and chose to believe the confidential informants, based on the
reporting officer's assessment of their credibility, rather than
Cespedes-Torres. The committee did not
"refuse to" consider his defense.
Rather, after they considered all the evidence presented to them, they
rejected his defense. Cespedes-Torres
has not met his burden of showing that the decision is not supported by any
reasonable view of the evidence.
We
next consider Cespedes-Torres's argument that he was denied adequate assistance
of the staff advocate because the staff advocate did not conduct an
investigation as he requested. There is
no evidence in the record to show whether the advocate did or did not
investigate the issues in question, or what the scope or extent of the
investigation was. Additionally, there
is nothing in the record to show that Cespedes-Torres made any requests of the
staff advocate. Nor is there a record
that Cespedes-Torres objected to the adequacy of the investigation before the committee. Because a certiorari court may not consider
matters outside the record, State ex rel. Irby v. Israel, 95
Wis.2d 697, 703, 291 N.W.2d 643, 646 (Ct. App. 1980), we do not address this
issue.
Finally,
Cespedes-Torres argues that he did not receive a fair hearing because one of
the adjustment committee members was biased and not impartial.[3] He states that the adjustment committee
member wrote him a letter in which she established her bias by expressing her
predetermination of his guilt before the hearing took place. This letter is not contained in the
record. We therefore do not address
this issue.
By
the Court.—Order affirmed.
This
opinion will not be published. See Rule 809.23(1)(b)5, Stats.
[1] Wisconsin
Adm. Code § DOC 303.45 provides:
(1) Any inmate
who knowingly possesses any item which could be used as a weapon, with intent
to use it as a weapon, is guilty of an offense.
(2) Any inmate
who makes or alters any item with intent to make it suitable for use as a
weapon is guilty of an offense.
(3) Any inmate
who knowingly possesses an item which is designed exclusively to be used as a
weapon or to be used in the manufacture of a weapon is guilty of an offense.