Revoked prisoners can appeal reconfinement

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Hon. Ralph Adam Fine

A defendant whose extended supervision is revoked may seek appellate relief, the Wisconsin Court of Appeals held on Oct. 19.

Christopher Swiams pleaded guilty to the delivery of fewer than five grams of cocaine as a second or subsequent offense, and was sentenced on Nov. 20, 2001, to a bifurcated term of 15 months in prison and 27 months of extended supervision. When sentenced, he formally indicated that he did not intend to seek postconviction relief.

Swiams served the confinement portion of his sentence and was released to serve the 27 months of extended supervision. The Department of Corrections revoked his extended supervision on April 17, 2003.

Swiams was then returned to court for imposition of a period of reconfinement, and Milwaukee County Circuit Court Judge Elsa C. Lamelas ordered that he be sent to prison for 18 months.

Swiams sought review of the trial court’s reconfinement order by filing a timely notice of intent to pursue postconviction relief under Rule 809.30. The court denied the motion, ruling that his postconviction rights under Rule 809.30 had long expired. Swiams appealed, and the court of appeals reversed in a decision by Judge Ralph Adam Fine.

The court concluded that a defendant resentenced after revocation has the right to seek further review of the new order.

When Swiams was revoked, sec. 302.113(9)(am) — the relevant statute — provided at the time, in relevant part, "If the extended supervision of the person is revoked, … the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence."

The trial court had reasoned that Swiams had no rights under sec. 809.30, because sec. 302.113(9) merely gave the court one function previously performed by the administrative law judge at the revocation hearing — to determine the reincarceration time period after revocation.

Thus, the trial court concluded, the only challenges a defendant could raise is a petition for writ of certiorari, or a motion for sentence modification based on a new factor, but that the time for all other appellate remedies had expired. In certiorari review of a judicial decision, the only question is whether the judicial tribunal acted within its jurisdiction

Swiams argued, in contrast, that the reconfinement hearing was a "sentencing" as that term is used in Rule 809.30, triggering the possibility of postconviction relief pursuant to the statute.

The court of appeals began by noting that the term, "sentencing," although seemingly plain, has conflicting meanings in Wisconsin law, and that, "If anything is clear it is that the word ‘sentence’ is not; the word is colored by the light with which it is viewed."

The court rejected the trial court’s interpretation — that a defendant whose extended supervision has been revoked may only challenge a reconfinement order if he shows a "new factor."

The court concluded, "This would effectively immunize from review a trial court’s decision under Wis. Stat. sec. 302.113(9)(am) (2001-02) as to how long the defendant should be reconfined; the only avenues of complaint would be if the trial court either ignored the mandate that the defendant may ‘be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence,’ or misapplied the law as to what is or is not a ‘new factor.’ As recognized by the Wisconsin Criminal Penalties Study Committee, which advised the legislature as Wisconsin’s truth-in-sentencing scheme made it through the legislative process, this would hardly be consistent with the need for meaningful appellate review of trial court reconfinement orders that could result in the defendant being ‘returned to prison for a substantial length of time.’ (cites, footnote omitted)."

The court also rejected an approach that would limit a defendant’s remedy to common-law certiorari. The court acknowledged that this was the method of review when reconfinement decisions were made by the Division of Hearings and Appeals.

However, when a court reviews an administrative agency, four grounds exist for reversal: (1) whether the board kept within its jurisdiction, (2) whether the board acted according to law, (3) whether the board’s action was arbitrary, oppressive or unreasonable and represented its will and not its judgment, and (4) whether the evidence was such that the board might reasonably make the order or determination in question.

In contrast, certiorari review of decisions by judicial tribunals is limited to whether the tribunal had the jurisdiction to do what it did. Thus, the court agreed with Swiams that, "a review of a trial court’s reconfinement order by common-law certiorari would provide ‘no review at all’ — or, at the very least, review so limited as to be the functional equivalent of ‘no review.’
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The court acknowledged that the word "sentencing" is absent from sec. 302.113(9)(am), and the legislative history makes clear that this was deliberate. However, the court found that the reason for the avoidance was to avoid double jeopardy concerns were the reconfinement order formally viewed as "resentencing."

Holding that reconfinement should be viewed as a "sentencing," triggering review via Rule 809.30, the court reasoned, "In light of the need for meaningful assessment of decisions that deprive persons of their liberty, we perceive no reason why a ‘sentencing’ under Wis. Stat. Rule 809.30 should not encompass reconfinement under Wis. Stat. sec. 302.113(9)(am) (2001-02). Indeed, other than a concern expressed at oral argument that to require the trial courts to fully explain a reconfinement order might take too much time, the State does not point to any adverse consequences that could possibly flow from permitting defendants to seek review of reconfinement orders via Rule 809.30, and we see none. We reject the State’s attempted expediency-based justification for any truncation of the sentencing explanation to which every person deprived of his or her liberty is entitled."

Accordingly, the court reversed, and remanded the case for further proceedings.

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David Ziemer can be reached by email.