COURT OF APPEALS DECISION DATED AND FILED November 4, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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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. |
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APPEAL from an order of the circuit court for Milwaukee County: william s. pocan, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Cleveland Lee, pro se,
appeals a trial court order dismissing his petition for a writ of certiorari. He contends he has been discharged from the
judgments in Milwaukee County case No. 2005CF63, and that Denise Symdon,
Administrator of the Department of Corrections Division of Community
Corrections, erred by concluding that he remains on extended supervision. We reject his contentions and affirm.
BACKGROUND
¶2 A
jury found Lee guilty of fifteen crimes charged in case No. 2005CF63. On November 9, 2005, the trial court imposed
fifteen concurrent sentences.[1]
¶3 The
crimes designated as counts one and three arose before the effective date of
the sentencing scheme known as truth-in-sentencing. The trial court imposed an indeterminate
seven-year sentence for each of those counts, and the sentences are reflected
on one judgment of conviction. The
remaining counts arose after the effective date of truth-in-sentencing, and
Lee’s sentences for those counts are reflected on a second judgment of
conviction. For each of counts two and
four–twelve, the trial court imposed a determinate thirteen-year term of
imprisonment, bifurcated as seven years of initial confinement and six years of
extended supervision. For each of counts
thirteen–fifteen, the trial court imposed a three-year determinate term of
imprisonment, bifurcated as one year of initial confinement and two years of
extended supervision. Lee remained
incarcerated following his sentencing until late July 2012, when he completed
seven years of initial confinement and was released to serve the extended
supervision component of his thirteen-year determinate sentences.[2]
¶4 By
notice dated September 4, 2012, Lee received a document captioned “Department
of Corrections Discharge Certificate Cleveland Lee Sr., #486845-A (‘A-01’
case).” The document recited that Lee
was “Sentenced to Wisconsin State Prisons on November 9, 2005 by the Circuit
Court of Milwaukee County, Court Case #05CF63,” and the document went on to
advise Lee that “[t]he department having determined that you have satisfied
said judgment, it is ordered that effective July 27, 2012, you are discharged
from said judgment only.”
¶5 Lee,
who is serving his terms of extended supervision in Texas, apparently later
received a copy of an email exchange between corrections personnel reflecting
that he remained under supervision for Milwaukee County “case 05CF63 ‘B.’”[3] Lee then contacted Wisconsin probation and
parole agent Lynn Hightire. Lee
complained that Department of Corrections personnel incorrectly believed that
he remained under extended supervision for sentences designated as “B” cases
because, he said, he was not charged or convicted in cases designated “A” or
“B”; rather, he was convicted only in Milwaukee County case No. 2005CF63. Lee contended that the discharge certificate
therefore entitled him to a full discharge from the judgments. Additionally, Lee asserted, because he was
never paroled for his indeterminate sentences, he was entitled to a full
discharge from all of the sentences.
¶6 Hightire’s
response explained to Lee that the Department of Corrections designated as “A-01” his
indeterminate sentences imposed in counts one and three, and that the Department
designated as “B-02” his determinate sentences imposed in count two and counts
four–twelve. Although Lee had completed
his A-01 sentences, Lee had not yet reached his discharge date for the B-02
sentences because he had not completed his six years of extended supervision
for the latter set of sentences.
¶7 Hightire
also addressed Lee’s complaint that he never was released to parole for his
sentences in counts one and three. She
explained:
[b]ecause all of these cases were run concurrent to each other, you were not able to release [sic] to the community until you reached your latest release date; that was 7/24/12. The fact that one sentence reached the release date did not supersede the requirement for you to remain in custody on the other active sentences.
¶8 Lee
appealed unsuccessfully through the ranks of the Department of Corrections,
eventually presenting his claims to Symdon. She too rejected Lee’s contentions, and Lee
petitioned the trial court for a writ of certiorari. The trial court dismissed the petition, agreeing
with the agency that Lee remains on extended supervision pursuant to his
sentences for count two and counts four–twelve of Milwaukee County case No.
2005CF63.[4] Lee appeals.
ANALYSIS
¶9 “Judicial
review on certiorari is limited to
whether the agency’s decision was within its jurisdiction, the agency acted
according to law, its decision was arbitrary or oppressive and the evidence of
record substantiates the decision.” State
ex rel. Staples v. DHSS, 136 Wis. 2d 487, 493, 402 N.W.2d 369 (Ct.
App. 1987) (italics added). We review
the decision of the agency, not the decision of the trial court. See
Kozich
v. Employee Trust Funds Bd., 203 Wis. 2d 363, 368‑69, 553
N.W.2d 830 (Ct. App. 1996).
¶10 In
this proceeding, Lee claims that the agency erred in concluding that he
remained subject to extended supervision because, inter alia: (1) he never
received a grant of parole for his indeterminate sentences in counts one and
three, a circumstance that he believes requires a full discharge from the
entirety of the judgments upon completion of those indeterminate sentences; and
(2) the judgments of conviction entered in case No. 2005CF63 do not designate
some sentences as “A-01” and others as “B-02,” so the discharge certificate referencing
case “A-01,” applies to all of his sentences. We address these contentions seriatim.
¶11 As
a general rule, a prisoner may be paroled, pursuant to Wis. Stat. § 304.06(1)(b) (2011-12),[5] after
serving a quarter of an indeterminate prison sentence, and a prisoner reaches
his or her mandatory release date, pursuant to Wis.
Stat. § 302.11(1), after serving two-thirds of an indeterminate
prison sentence. Lee contends that these
rules apply to him. Next, he points out
that, pursuant to Wis. Stat. § 973.15(2)(d),
a prisoner serving concurrent indeterminate and determinate sentences serves
the confinement portions concurrently and serves the parole and extended
supervision portions concurrently. He appears
to believe that, pursuant to these statutes, he should have been released to
community supervision after he reached his mandatory release date for the
indeterminate sentences, notwithstanding that he was at that time required to
complete a term of initial confinement in service of his determinate
sentences. Lee also appears to believe that,
because he was not paroled, he instead received—or at least should have
received—a full discharge from his longer, determinate sentences upon
completing the shorter sentences.
¶12 Lee
does not demonstrate that his cited authority coalesces into a basis for the
relief that he seeks. To the contrary, Lee’s
situation is common and is governed by a long-standing rule:
“[w]here sentences imposed at different times or for different periods of time run concurrently, the sentences run together during the time that the periods overlap; and the new or longer term does not necessarily terminate at the same time as the prior or shorter term....” [T]he prisoner will be discharged at the expiration of the longest of concurrent terms[.]
Medlock v. Schmidt,
29 Wis. 2d 114, 119, 138 N.W.2d 248 (1965) (citations omitted). Put differently, where all sentences are
concurrent, “the overall sentence structure [i]s controlled by the longest
sentence.” See State v. Sherman,
2008 WI App 57, ¶12, 310 Wis. 2d 248, 750 N.W.2d 500. Because Lee’s longest sentences controlled
the date of his release from prison, he did not receive a grant of parole
during service of his shorter, indeterminate sentences.[6] As we have observed, “it is in the nature of
concurrent time that service of one sentence may render service of another
sentence, for some purposes, superfluous.”
State v. Yanick, 2007 WI App 30, ¶12, 299 Wis. 2d 456, 728
N.W.2d 365.
¶13 Lee
offers nothing that defeats the normal application of the foregoing well-established
principles governing service of concurrent sentences or leads to the conclusion
that Lee received—or should have received—a discharge from the entirety of his
judgments upon completing his shorter sentences. Accordingly, the Department of Corrections
did not make an error of law or act arbitrarily in rejecting Lee’s assertions.
¶14 Lee
also contends that the text of the discharge certificate dated September 4,
2012, created a right to discharge from the entirety of the judgments. The Department of Corrections did not err in
rejecting this contention and concluding that Lee remained on extended
supervision after he received a discharge certificate.
¶15 The
discharge certificate shows that it applies to Lee’s “A-01” case, and thus the
certificate reflects that the discharge applies only to some and not to all of
his sentences. Assuming, as did the
parties and the trial court, that the discharge certificate is ambiguous as to
the precise sentences within its scope, a discharge certificate is “legally
invalid” if it is “not issued ‘at the expiration of the term noted on the court
order.’” See State ex rel. Greer v.
Wiedenhoeft, 2014 WI 19, ¶47, 353 Wis. 2d 307, 845 N.W.2d 373
(quoted source omitted). In this case,
the court’s order—the judgment of conviction—shows that on November 9, 2005,
the trial court imposed ten concurrent thirteen-year terms of imprisonment,
each bifurcated as seven years of initial confinement and six years of extended
supervision. A discharge certificate
purporting to discharge Lee from his thirteen-year terms of imprisonment after
he served only seven years of those sentences would therefore be legally invalid.
See
id. Lee does not show that, as of September 4,
2012, he had completed service of the thirteen-year sentences imposed in 2005.[7] Accordingly, the Department of Corrections
properly concluded that Lee remained on extended supervision, regardless of any
ambiguity that the parties may discern in the discharge certificate.
¶16 Lee
suggests in his reply brief that he is serving illegal, excessive sentences
that should be commuted pursuant to Wis.
Stat. § 973.13, and that a new factor warrants sentence
modification. Lee does not direct our
attention to any portion of the record showing that he raised these claims in
the trial court. We generally do not
address claims raised for the first time on appeal. See State ex rel. Warren v. Schwarz,
219 Wis. 2d 615, 634, 579 N.W.2d 698 (1998). For the sake of completeness, however, we add
that Lee cannot raise claims of excessive sentences or seek sentence
modification here. On certiorari review, a court reviews the
decision of the administrative agency. See Kozich, 203 Wis. 2d at 368-69. The instant proceeding is not the appropriate
forum for challenging a sentence.
¶17 Before
we conclude, we note that Lee seeks to support his position with a variety of additional
assertions and references to authority that we will not address individually
here. We have examined his remaining contentions
and conclude that they patently provide no basis for relief. To give but one example, Lee suggests that we
should set aside the agency’s decision based on a provision in the 1997-98
version of the Wisconsin statutes governing worker’s compensation. We decline to explain why this and other inapt
arguments and citations warrant no relief. “‘An appellate court is not a performing bear,
required to dance to each and every tune played on an appeal.’” County of Fond du Lac v. Derksen,
2002 WI App 160, ¶4, 256 Wis. 2d 490, 647 N.W.2d 922 (citation omitted). We are fully satisfied from our review of the
briefs and the record that the Department of Corrections kept within its
jurisdiction, acted according to law, and reached a decision that was neither
arbitrary nor oppressive, and we are equally satisfied that the evidence of
record supports the decision that Lee properly remains on extended supervision.
See
Staples,
136 Wis. 2d at 493. We affirm.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The Honorable David A. Hansher imposed sentence and entered the judgments of conviction.
[2] Lee received some credit against his confinement time for days he spent in presentence custody, thus hastening his release date.
[3] A copy of the email exchange is not in the record. We take the description of the exchange from Lee’s summary in another document.
[4] As the trial court similarly noted, Symdon’s decision incorrectly states in two places that Lee remains subject to the authority of the Department of Corrections under the extended supervision component of his sentences “for counts 2 and 4-15.” In fact, as Hightire’s decision correctly reflects, Lee completed service of the entirety of his sentences in counts thirteen–fifteen while he was incarcerated. We view the discrepancies in Symdon’s decision as proofreading mistakes or scrivener’s errors without any legal significance.
[5] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[6] Lee was not eligible for parole under his determinate sentences. See State v. Gallion, 2004 WI 42, ¶28, 270 Wis. 2d 535, 678 N.W.2d 197; Wis. Stat. § 302.11(1z).
[7] In his reply brief, Lee cites several statutes that he asserts are available to permit a convicted person serving a determinate sentence to obtain early discharge from confinement and extended supervision. Lee does not claim, however, that the department or any court has applied the cited provisions to him. To the extent, if any, that Lee intended to make such a claim, we conclude that it is inadequately briefed and lacks any support in the record. Accordingly, we do not discuss the claim further. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).