COURT OF APPEALS

DECISION

DATED AND FILED

 

March 6, 2012

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

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. ß 808.10 and Rule 809.62.

 

 

 

 

Appeal No.

2011AP308

Cir. Ct. No.2010CV13302

STATE OF WISCONSIN

IN COURT OF APPEALS

 

DISTRICT I

 

 

 

 

State of Wisconsin ex rel. Gerald Porter,

 

††††††††††††††††††††††† Petitioner-Appellant,

 

††††††††††† v.

 

Michael Cockroft, Superintendent, Felmers O. Chaney

Correctional Center,

 

††††††††††††††††††††††† Respondent-Respondent.

 

 

 

 

††††††††††† APPEAL from an order of the circuit court for Milwaukee County:JOHN SIEFERT, Judge.Affirmed in part and remanded with instructions consistent with this opinion.

††††††††††† Before Fine, Kessler and Brennan, JJ.

1††††††† KESSLER, J.    Gerald Porter appeals from a circuit court order quashing his petition for writ of habeas corpus. Porterís petition alleged ineffective assistance of revocation counsel on the grounds that his counsel did not investigate the lifting of Porterís parole hold, nor did revocation counsel file a petition for writ of certiorari contending that the Department of Corrections (ďthe DepartmentĒ) lost jurisdiction to revoke Porterís parole when the parole hold was lifted. Porter also argues that the Department lost jurisdiction over him when it issued a discharge certificate, stating that his sentence had been completed. Because we conclude that the Department did not lose jurisdiction over Porter when it lifted Porterís parole hold, we affirm the circuit court. However, because the circuit court did not make factual findings as to the circumstances surrounding the issuance of the discharge certificate, we remand to the circuit court for a fact-finding hearing on that issue.

BACKGROUND

2††††††† In May 1999, Porter was sentenced to five years in prison in Milwaukee County Circuit Court Case No. 1999CF980. Porter was placed on parole in November 2000, and was scheduled for discharge on September 6, 2004.On September 4, 2004, Porter was arrested on suspicion of attempted armed robbery as party to a crime and attempted first-degree intentional homicide as party to a crime. Porter was eventually charged in Milwaukee County Circuit Court Case No. 2004CF5027.

3††††††† The Department sought to revoke Porterís parole based on the allegations which resulted in Porterís arrest.A parole hold was placed on Porter on September 5, 2004. On September 22, 2004, the hold was lifted; however, two hours and twenty-six minutes later, the hold was reinstated after Porter was identified in a photo line-up as the armed robber in the robbery that led to his September 4th arrest.

4††††††† A revocation hearing was held on January 4, 2005.An Administrative Law Judge (ďALJĒ) determined that the Department did not have jurisdiction to seek revocation of Porterís parole and ordered that Porterís parole not be revoked.The Department appealed the ALJís decision to the Division of Hearings and Appeals (ďthe DivisionĒ).On February 11, 2005, the Division reversed the ALJís decision, finding that the Department preserved its jurisdiction over Porter by commencing an investigation of Porterís alleged parole violations.The Division ordered Porterís parole revoked and ordered him reincarcerated for one year and six months, with the sentence credit noted by the ALJ.Porter did not petition the circuit court for certiorari review.

5††††††† Approximately one year later, on February 10, 2006, Porter was convicted in Case No. 2004CF5027 and was given a total sentence of twenty-one years.On March 10, 2008, the Department issued a discharge certificate as to the prior offense, Case No. 1999CF980, stating that Porterís discharge was effective as of March 2, 2008.At this time, Porter was incarcerated on the 2004 case.

6††††††† On October 30, 2008, Porter was granted a new trial in the 2004 case and the previous judgment of conviction in that case was vacated.Approximately one year later, Porter entered an Alford[1] plea to amended charges in the 2004 case and received a total sentence of seven years, consisting of five years of initial confinement and two years of extended supervision.Because he remained incarcerated while the new trial was pending, Porter also received a sentence credit of 1330 days.

7††††††† On November 11, 2009, the Department rescinded Porterís discharge certificate stating his discharge from the 1999 case because it claimed that the certificate was issued in error. The Department ordered the paperwork regarding the discharge destroyed and instructions were given to prepare a new discharge certificate once Porter reached his new discharge date.According to the Department, Porterís current maximum discharge date is February 17, 2015.

8††††††† Porter, through counsel, filed a petition for writ of habeas corpus with the circuit court, arguing that the Department lost jurisdiction over Porter when it lifted the parole hold on September 22, 2004, and when it issued a discharge certificate on March 10, 2008. Porterís petition argued that: (1) if the 1999 case expired when the parole hold was lifted on September 22, 2004, then Porter should not be incarcerated; or, alternatively, (2) if Porterís sentence under the 1999 case was truly discharged as a result of the discharge certificate, then his maximum discharge date should be changed to January 29, 2013. The Department objected to the petition, arguing that Porterís sole recourse was through a writ of certiorari, and that the deadline to file the writ of certiorari had passed.Porterís counsel responded with an amended writ of habeas corpus, alleging ineffective assistance of revocation counsel for not filing a writ of certiorari arguing the jurisdictional issues.

9††††††† A three-day hearing was held before the circuit court.During the hearing, Porter, his revocation counsel, Attorneys Michael Hart and Christopher Eippert, and a Department agent, Sandra Turman-Bounds, all testified.The circuit court quashed Porterís motion, finding that the Department did not lose jurisdiction over Porter when it lifted the parole hold due to its ongoing investigation of Porterís alleged parole violations, and was therefore able to revoke his parole.Therefore, the circuit court found, Porterís revocation counsel was not ineffective.The circuit court did not make factual findings as to whether the Department issued the discharge certificate in error. This appeal follows.

DISCUSSION

Standard of Review.

10††††† ďA circuit courtís order denying a petition for writ of habeas corpus presents a mixed question of fact and lawÖ. Factual determinations will not be reversed unless clearly erroneousÖ. Whether writ of habeas corpus is available to the party seeking relief is a question of the law that we review de novo.Ē State v. Pozo, 2002 WI App 279, ∂6, 258 Wis. 2d 796, 654 N.W.2d 12 (citations omitted; some emphasis omitted). Ineffective assistance of counsel at a revocation hearing is reviewable by habeas corpus. State v. Ramey, 121 Wis. 2d 177, 182, 359 N.W.2d 402 (Ct. App. 1984).

11††††† To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden to establish both that counselís performance was deficient and that the deficient performance produced prejudice. State v. Sanchez, 201 Wis. 2d 219, 232-36, 548 N.W.2d 69 (1996). ďTo demonstrate deficient performance, the defendant must show that his counselís representation Ďfell below an objective standard of reasonablenessí considering all the circumstances.Ē State v. Carter, 2010 WI 40, ∂22, 324 Wis. 2d 640, 782 N.W.2d 695 (citation omitted). To show prejudice, the defendant must demonstrate ďthat there is a reasonable probability that, but for counselís unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Ē Strickland v. Washington, 466 U.S. 668, 694 (1984).


 

A.    The Parole Hold.

12††††† Porter argues that Attorney Eippert, after consulting with Attorney Hart, decided not to file for a writ of certiorari, and that this was ineffective assistance of counsel. Case law does not establish a right to counsel on review of revocation of probation or parole. See State ex rel. Griffin v. Smith, 2004 WI 36, ∂45, 270 Wis. 2d 235, 677 N.W.2d 259 (ď[A]lthough parolees have a right to counsel at the parole revocation hearing, they have no administrative or statutory right to counsel to timely file for certiorari in the circuit court.Ē); see also State ex rel. Mentek v. Schwarz, 2000 WI App 96, ∂11, 235 Wis. 2d 143, 612 N.W.2d 746, revíd on other grounds, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150 (ďWisconsin and federal constitutional law do not recognize a right to appointed counsel, nor by extension a right to effective assistance of counsel, on an administrative appeal of a probation revocation decision.Ē).Our review of whether Porterís revocation counsel was ineffective is therefore limited to whether counsel was ineffective at the revocation hearing for not investigating the jurisdictional question at issue in this appeal. Porter contends that his revocation counsel was ineffective for not investigating whether the Department lost jurisdiction to revoke Porterís parole when it lifted his parole hold. Specifically, Porter contends that he alerted Attorney Hart that his parole hold had been lifted, to which Attorney Hart allegedly responded ďthereís no proof that it happened.ĒThe failure to investigate whether the parole hold had been lifted, Porter contends, was both prejudicial and deficient because the Department lost jurisdiction to revoke Porterís parole when it lifted the hold. Porter is mistaken.

13††††† Porter relies on Wis. Stat. ß 304.072(2) (2009-10)[2] to support his contention. The statute provides:

If a parolee, probationer or person on extended supervision is alleged to have violated the terms of his or her supervision but the department or division determines that the alleged violation was not proven, the period between the alleged violation and the determination shall be treated as service of the probationary, extended supervision or parole period.

(Emphasis added.)

14††††† Porterís reliance on Wis. Stat. ß 304.072(2) is mistaken because the record contains no findings that parole violations were not proven. Rather, the circuit court found that, pursuant to ß 304.072(3), the Departmentís investigation of Porterís alleged violations preserved its jurisdiction over Porter such that it was later able to lawfully revoke his parole because, despite the lifting of the parole hold, the Department never ceased its investigation. Section 304.072(3) provides:

Except as provided in s. 973.09 (3) (b), the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationerís, paroleeís or personís term of supervision.

(Emphasis added.)

15††††† Porter contends that because the parole hold was lifted, the investigation was completed. The statute is clear, however, that so long as the Departmentís investigation is ongoing, the Department retains jurisdiction over a parolee. See Wis. Stat. ß 304.072(3). The circuit court found that the Departmentís investigation continued through the two hours and twenty-six minute period in which Porterís parole hold was lifted.Turman-Bounds testified that during those two hours and twenty-six minutes, the Department discovered, through further investigation, that the victim of the armed robbery identified Porter in a photo line-up.Turman-Bounds further testified that upon learning of Porterís identification in the line-up, a Department agent issued an email rescinding the order to lift Porterís parole hold.The circuit court therefore found that the investigation ďwas not complete when the lift of [the] hold was issued Ö [i]t was ongoing. And it is that investigation that keeps the DOCís jurisdiction in place.ĒIn making this finding, the circuit court accepted as credible Turman-Boundsís explanation that the practical result of rescinding the order to lift the hold was that the hold remained in place and was never lifted.See Jacobson v. American Tool Cos., 222 Wis. 2d 384, 390, 588 N.W.2d 67 (Ct. App. 1998) (We defer to both the implicit and explicit credibility findings of the circuit court, unless the findings are based upon an erroneous exercise of discretion, an error of law or caprice.). As a result, Porterís revocation counsel could not have been ineffective for failing to investigate the jurisdictional effect of the lifting of the parole hold. See State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994) (Counsel is not ineffective for failing to pursue a meritless claim.).

B.     The Discharge Certificate.

16††††† Porter also contends that the Department lost jurisdiction over him when it issued a Certificate of Discharge relating to the 1999 case.On March 10, 2008, the Department issued a certificate relating to the 1999 cases stating:

The department having determined that you have satisfied said judgment, it is ordered that effective March 2, 2008, you are discharged from said judgment only.

A series of emails dated November 11, 2009, however, indicate that a Department agent noticed that the certificate had been issued in error. Instructions were given to the agent to prepare an amended certificate once Porter reached his new discharge date.

17††††† The Department contends that the reason the certificate was issued in error concerns the imposition of a consecutive sentence in the 2004 case. On June 8, 2006, Porter received a twenty-one year sentence in the 2004 case to be served consecutive to his sentence in the 1999 case.The 2004 conviction was vacated on October 30, 2008. However, on October 9, 2009, Porter was again convicted in the 2004 case. He was given a seven-year sentence in the 2004 case to be served consecutive to his sentence in the 1999 case.

18††††† The Department contends that the discharge certificate did not take into consideration Porterís consecutive sentences and Porter should not have been discharged in the 1999 case until he completed all of his consecutive sentences.Porter contends that because there was no consecutive sentence in place at the time the discharge certificate was issued, the certificate was properly issued.

19††††† The circuit court did not make findings of fact regarding why the discharge certificate was issued and then withdrawn, but rather quashed the writ without addressing the circumstances surrounding the certificate.If a circuit court fails to make a finding of fact, we may: (1) affirm the order if it is clearly supported by a preponderance of the evidence; (2) reverse if not so supported; or (3) remand for findings and conclusions. State v. Williams, 104 Wis. 2d 15, 22, 310 N.W.2d 601 (1981).We remand to the circuit court for a fact-finding hearing on the facts surrounding the issuance, and subsequent withdrawal, of the discharge certificate in order to determine whether Porterís maximum discharge date should be amended.

††††††††††† By the Court.óOrder affirmed in part and remanded with instructions consistent with this opinion.

††††††††††† Not recommended for publication in the official reports.

 


 

 

 

 



[1]  See North Carolina v. Alford, 400 U.S. 25 (1970).

[2]  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.