CA Blank Order

Before Brown, C.J., Neubauer, P.J., and Reilly, J.

Juan Milanes appeals pro se from a circuit court order affirming on certiorari review a decision of the Program Review Committee (PRC) to deny his petition to modify his sentence due to an extraordinary health condition. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. Wis. Stat. Rule 809.21 (2013-14).[1] We affirm the circuit court.

Milanes is serving a forty-five year term for two counts of discharging a firearm toward a building or vehicle, one count of criminal damage to property, and one count of arson. The crimes arose out of Milanes’s anger toward a family member. Over a two-week period in
March 2000, Milanes fired a weapon into his own home, slashed the tires of three automobiles, obstructed an officer, attempted to firebomb another home, and fired a weapon through the window of a Radio Shack store. State v. Milanes, 2006 WI App 259, ¶2, 297 Wis. 2d 684, 727 N.W.2d 94. Milanes pled no contest to four of these offenses. We affirmed the circuit court’s denial of his Wis. Stat. § 974.06 (2003-04) motion. Milanes, 297 Wis. 2d 684, ¶1.

Pursuant to Wis. Stat. § 302.113(9g), Milanes petitioned to modify his sentence due to an extraordinary health condition.[2] The PRC denied the petition, and the circuit court affirmed on certiorari review. The circuit court[3] noted that the PRC did not find that modifying Milanes’s bifurcated sentence would serve the public interest. The court characterized the PRC’s review of Milanes’s petition as “well-documented” and “reasoned.”

We review the PRC’s decision, not that of the circuit court. See State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 385, 585 N.W.2d 640 (Ct. App. 1998). Our review is limited to the record created before the PRC. State ex rel. Whiting v. Kolb, 158 Wis. 2d 226, 233, 461 N.W.2d 816 (Ct. App. 1990). We consider whether: (1) the PRC stayed within its jurisdiction; (2) whether the PRC acted according to law; (3) whether the PRC’s action was arbitrary,

oppressive or unreasonable and represented its will rather than its judgment; and (4) whether the evidence was such that the PRC might reasonably make the order or determination in question. Id. We do not substitute our own view of the evidence; rather, we determine whether the PRC’s decision was supported by substantial evidence. Von Arx v. Schwarz, 185 Wis. 2d 645, 656, 517 N.W.2d 540 (Ct. App. 1994).

Wisconsin Stat. § 302.113(9g)(b)3. states that an inmate serving a bifurcated sentence “may seek modification of the bifurcated sentence … if … [t]he inmate has an extraordinary health condition.” If, after reviewing the inmate’s petition, the PRC “determines that the public interest would not be served by” modifying the inmate’s bifurcated sentence, the PRC “shall deny the inmate’s petition.” Section 302.113(9g)(cm).

We conclude that in denying Milanes’s petition, the PRC applied the proper legal standard, its decision was not arbitrary, and its decision was supported by substantial evidence. State ex rel. Whiting, 158 Wis. 2d at 233; Von Arx, 185 Wis. 2d at 656.

We agree with the State that the standard to be applied by the PRC is whether a modified sentence would be in the public interest. We do not agree with Milanes that his extraordinary health condition required the PRC to approve his petition for referral to the sentencing court. Wis. Stat. § 302.113(9g)(cm).

The PRC considered Milanes’s extraordinary health condition, including the limitations imposed on his mobility. Milanes argued that his physical limitations lower his risk of firing a weapon or making a bomb and releasing him would save tax dollars. The PRC noted that while Milanes’s mobility is reduced due to his health condition, affidavits from his treating physicians state that Milanes will remain able to care for himself for several years in the future. The PRC stated:

It is the committee’s opinion that [Milanes] is capable of committing additional offenses if placed in an aggravating situation. The observation of the PRC and Unit staff monitoring him on a daily basis demonstrate that he continues to have the strength and mobility of his extremities to engage in behaviors similar to those that occurred in his current offense, including possessing and firing a gun and creating an explosive device.

The PRC considered the facts surrounding Milanes’s crime spree. Milanes told the PRC that he made a stupid mistake in reaction to various family pressures. The PRC noted that even though he completed a Department of Corrections anger management program, Milanes exhibited anger management issues at the PRC hearing. “[T]he committee unanimously agreed that Mr. Milanes does not appear to practice the tools learned through the program. This was clearly evident during the hearing when he became upset with the committee’s recommendation not to refer the petition to the court….” The PRC determined that Milanes “continues to present a risk for release to the community,” and the committee did not find that the public interest would be served by modifying his sentence.[4]

The PRC further considered that Milanes demonstrated no remorse at sentencing and after twelve years of incarceration, he continued to blame a family member for provoking his criminal conduct. The PRC found that for Milanes, “standing up for the honor, pride and integrity of his family values was more important than the crimes he committed.” The PRC found that “the dynamics of the offense behaviors were premeditated, calculated and lasted over a significant period of time.”

Finally, the PRC considered that Milanes did not offer any specific details of his release plan other than collecting his pension and living with a friend.

On appeal, Milanes argues that the PRC should have granted his Wis. Stat. § 302.113(9g) petition. Milanes argues that the primary public interest is whether releasing the inmate will save money by relieving the prison system of the financial burden of the inmate’s medical care. Milanes cites his good prison record and his multiple, serious medical problems that require expensive treatment. He complains that the PRC did not consider a Sentence Reform Risk Assessment completed in February 2011, one year before Milanes filed his PRC petition. Milanes disagrees with the PRC’s findings that he lacks remorse and has anger management issues.

The PRC’s determination that releasing Milanes was not in the public interest is supported by substantial evidence. The PRC members were able to observe Milanes at the petition hearing and form opinions about his demeanor and the risk he would pose to the public if released under Wis. Stat. § 302.113(9g). The physicians’ affidavits did not substantiate that Milanes would be physically unable to engage in the type of criminal activity for which he is incarcerated.

Milanes argues that the PRC did not consider his February 2011 risk assessment which he contends was prepared in relation to his petition. The risk assessment predates Milanes’s petition by almost a year. Furthermore, the assessment was part of Milanes’s file. This argument does not persuade us.

On appeal and particularly in his reply brief, Milanes offers additional support for his claim that he is no longer a risk to the public. We only consider what was before the PRC, not any argument or fact offered for the first time on appeal.

Upon the foregoing reasons,

IT IS ORDERED that the order of the circuit court is summarily affirmed pursuant to Wis. Stat. Rule 809.21.

[1] All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.

[2] Milanes retained counsel for the PRC petition proceeding. He proceeds pro se on appeal.

[3] We take the circuit court’s reasoning from its January 16, 2014 decision. The circuit court later granted reconsideration but reaffirmed its decision in the May 8, 2014 order from which this appeal is taken.

[4] The record does not contain a transcript of the PRC hearing. These findings are found in the December 2012 document entitled “Program Review Committee Action.”



	2014AP1154	Juan Milanes v. Program Review Committee (L.C. #2013CV912)