Revoked probationer can reopen proceedings

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“Our system of justice would have little meaning if it failed to provide a procedure for individuals who have substantial credible evidence to prove their innocence.” Hon. Ted E. Wedemeyer Wisconsin Court of Appeals

A probationer has the right to reopen a revocation hearing based on newly discovered evidence, the Wisconsin Court of Appeals held on Feb. 10.

On July 14, 1993, Raymond Booker was convicted of burglary and sentenced to a 10-year prison term, which was stayed. Booker was placed on six years’ probation. After three years on probation, the Department of Corrections recommended that Booker’s probation be revoked.

The revocation recommendation was based on an incident which occurred on Aug. 12, 1996. Booker was walking on a sidewalk near his house when a vehicle being driven by Dennis Adams approached. Adams stopped the vehicle near Booker and Booker recognized a passenger, Myles Marshall.

Marshall exited the vehicle, and Booker and Marshall walked along the sidewalk talking. They discussed a 1989 incident, in which Marshall pointed an air gun in Booker’s face and pumped it twice. Booker believed the gun was real and Marshall told Booker the only reason Booker was alive was because the gun jammed.

The two men returned to the vehicle. As Marshall reached for the door handle, Booker hit him. The exact nature of the hit was disputed. Booker claimed he pushed him because he thought Marshall was reaching for a shotgun to kill him. Marshall stated that Booker punched him three times, once in the chest, once in the stomach and once to his wrist, breaking it in three places. Marshall denied that he was reaching for a gun; he maintained that he asked Adams to “hand me that thing,” referring to a bar that locks the steering wheel, rather than a shotgun.

Both testified at the probation hearing. The administrative law judge (ALJ) found Marshall to be credible and found that Booker’s claim of self-defense was not credible. Booker’s probation was revoked, and he began serving the 10- year burglary sentence. Booker appealed to the Division of Hearings and Appeals, which affirmed the ALJ’s revocation decision.

On April 23, 2002, Booker moved the Division, seeking vacation of the revocation or, in the alternative, an evidentiary hearing to determine whether newly discovered evidence entitled him to a new revocation hearing.

The newly discovered evidence related to the substantial battery charge that was filed against him as a result of the physical encounter with Marshall. Booker had been convicted of substantial battery, but the conviction was vacated as a result of newly discovered evidence.

The evidence consisted of the medical opinion from an orthopedic surgeon that Marshall’s injuries could not have been caused by Booker, as Marshall described.

Booker also cited contradictions between Marshall’s testimony at the revocation hearing and at trial.

The Division denied the motion for three reasons: (1) lack of legal authority for reopening revocation hearings; (2) the administrator was “not convinced” that the proffered evidence would likely result in a “different outcome” insofar as Booker’s self-defense claim was “fully considered” at the revocation hearing and Booker started the confrontation by punching Marshall in the abdomen; and (3) the proffered medical evidence is not “newly discovered” since Booker “could have raised this issue years ago.”

Booker appealed, but Milwaukee County Circuit Court Judge Timothy G. Dugan denied the petition, holding that the motion was not timely, and finding that Booker was negligent in failing to discover the medical evidence earlier or in failing to bring the motion earlier.

Booker appealed, and the court of appeals reversed in a decision by Judge Ted E. Wedemeyer.

Due Process

The court concluded that due process requires that there be a process for reopening revocation proceedings similar to those for criminal proceedings.

Although there is no statutory provision for such proceedings, the court reasoned, “our system of justice would have little meaning if it failed to provide a procedure for individuals who have substantial credible evidence to prove their innocence. Due process is the quintessential foundation upon which fairness and justice rest, not only at the time of trial, but at all stages of proceedings.”

The court added, “[State v. Bembenek, 140 Wis.2d 248, 409 N.W.2d 432 (Ct.App.1987)], together with Wis. Stat. sec. 974.06, provide that avenue in the criminal area, as long as certain requirements are satisfied. We have not been presented with any legitimate reason as to why a similar procedure to ensure due process of law should not also apply to an individual in Booker’s situation, considering the personal liberty interest at stake.”

Accordingly, the court set forth the following standard: “If a movant wishes to have an evidentiary hearing on a newly discovered evidence claim, he or she may not rely on conclusory allegations. If the claim is conclusory in nature, or if the record conclusively shows that the movant is not entitled to relief, the Division may deny the motion without an evidentiary hearing.”

The movant must allege with specificity the five Bembenek factors, just as in a criminal case: “(1) The evidence must have come to the moving party’s knowledge after a [hearing]; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at [the hearing]; and (5) it must be reasonably probable that a different result would be reached on a new [hearing].”

Application

Applying the factors, the court concluded that all five were satisfied. The state conceded that the first and fourth were met.

Turning to the second factor, the court found that Booker sufficiently alleged the absence of negligence. Chronologically, Booker could not have been negligent in discovering changes in Marshall’s subsequent testimony.

Discussing the medical records, the court found, “There was some dispute as to whether Booker was negligent in discovering this information because Marshall’s injury existed at the time of the revocation hearing. It was unclear, however, from the record as to whether Marshall’s medical records were available for review. Regardless, this dispute does not defeat Booker’s entitlement to an evidentiary hearing. Rather, this is the type of information that will be fleshed out and resolved during the evidentiary hearing.”

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Turning to the third factor, the court also concluded that the allegations were sufficient, and should be resolved at an evidentiary hearing, citing State ex rel. Thompson v. Riveland, 109 Wis.2d 580, 586, 326 N.W.2d 768 (1982)(“A claim of self-defense is available to all persons in society whether on probation or not.”).

Finally, the court held the fifth factor satisfied — that it is reasonably probable that a different result would be reached at a new hearing.

Booker argued that, if the evidence had been presented at the revocation hearing, the ALJ would not have found Marshall to be credible and would have found Dr. Keane’s opinion to be substantial corroboration for Booker’s self-defense claim.

The court agreed, noting both the various exhibits, and the fact that the circuit court vacated the conviction based on same newly discovered ev
idence.

Accordingly, the court held all five Bembenek standards satisfied, and reversed and remanded the case to the Division of Hearings and Appeals for an evidentiary hearing.

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David Ziemer can be reached by email.