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Sentencing Case Analysis

In light of this decision, defendants whose extended supervision is revoked appear to have substantially greater rights than revoked parolees have.

Under the parole system, a revoked parolee is sent back to prison for a period of time determined by the administrative law judge. Either the entire period remaining, or a partial period, may be ordered. Administrative review to the Division of Hearings and Appeals is available, and judicial review via certiorari is available if, among other reasons, the action was "arbitrary, oppressive or unreasonable and represented its will and not its judgment."

In practice, however, the procedure is highly arbitrary, and judicial review is so limited as to be the functional equivalent of no review. There is little an attorney can do, even if the period of reincarceration seems unduly harsh under the circumstances and relative to similarly situated parolees.

Unless a credible challenge can be made to the amount of time remaining on the sentence, or whether the conclusions of the ALJ or the DHA could reasonably be drawn from the facts in evidence, the period of reincarceration is all but unchallengeable.

For those on extended supervision, however, courts determining reconfinement must now make findings and conclusions comparable to those required at the original sentence, pursuant to State v. Gallion, 2004 WI 42, 270 Wis.2d 535, 678 N.W.2d 197. The court has much discretion, and much deference is given to that decision, but, at the least, the review is not as meaningless as it is for revoked parolees.

It also appears that the right to counsel attaches to the whole process, and a revoked defendant can complain that his appointed counsel was ineffective.

The trial court briefly raised this issue in its written decision, stating, "Although it may be argued that a defendant has a right to counsel at the reincarceration hearing and for purposes of appealing the results of the revocation hearing, that right must be created by the legislature."

In the parole system, there is no constitutional right to counsel, although there is a statutory right. Earlier this year, however, in State of Wisconsin ex rel. Griffin v. Smith, 2004 WI 36, 270 Wis.2d 235, 677 N.W.2d 259, the Wisconsin Supreme Court declined to hold that parolees have a right to counsel to pursue review of a revocation order.

In Griffin, two parolees were revoked, and filed unsuccessful administrative appeals. Their attorneys promised to file for certiorari review in the circuit court but either failed to do so, or did so untimely. Under these circumstances, the Wisconsin Supreme Court held they were entitled to equitable relief. Griffin, 677 N.W.2d at 269.

However, as noted, the court declined to create a right to counsel. Id., at 268. One ramification of that is the anomaly that defendants aggrieved by ineffective assistance of counsel have no remedy, but can seek equitable relief if their attorney promises to seek review, but does not do anything at all.

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Revoked prisoners can appeal reconfinement

Under truth in sentencing, however, if the reconfinement of a defendant on extended supervision is a "sentencing," within the meaning of Rule 809.30, as the court of appeals held in the case at bar, then, logically, there is a right to direct appeal, just as in State v. Scaccio, 2000 WI App 205, 240 Wis.2d 95, 622 N.W.2d 449, 453-454. Scaccio involved a defendant who was placed on probation, with sentence withheld, subsequently revoked, and sentenced after revocation.

Furthermore, if there is a right to appeal, then there is also a right to effective counsel. State ex rel. Flores v. State, 183 Wis.2d 587, 604-605, 516 N.W.2d 362 (1994).

Thus, even though circuit courts have enormous discretion at reconfinement hearings, and appellate courts must give substantial deference to the exercise of that discretion, it appears that defendants who have their extended supervision revoked have far more protections than parolees did under the old system, when it comes to determining the length of their reincarceration.

– David Ziemer

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David Ziemer can be reached by email.

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