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Petition for Compensation on Basis of Innocence

David R. Turnpaugh v. State of Wisconsin Claims Board, 2012 WI App 72; case activity

Turnpaugh, whose conviction for soliciting was overturned when the court of appeals concluded that it was unsupported by any evidence, State v. Turnpaugh, 2007 WI App 222, 305 Wis. 2d 722, 741 N.W.2d 488, petitioned for compensation on the basis of innocence, § 775.05. The Claims Board denied the petition on two grounds: he had failed to prove his innocence; and, notwithstanding having served three days in custody, he hadn’t satisfied the separate requirement he had been “imprisoned” under the wrongful conviction. The circuit court, on Ch. 227 certiorari review of this administrative ruling, affirmed the Board. The court of appeals now reverses.

¶7        As we have seen, Wis. Stat. §§  775.05(3) directs the Claims Board to “find either that the evidence is clear and convincing that the petitioner was innocent of the crime for which he or she suffered imprisonment, or that the evidence is not clear and convincing that he or she was innocent.”  After reciting the history of Turnpaugh’s conviction and our subsequent reversal, the Claims Board offered only this ipse dixit conclusion without analysis:  “The Board concludes that the claimant has not presented clear and convincing evidence that he was innocent of the crime for which he was convicted.”  Of course, this ignores our decision in Turnpaugh, which specifically held that Turnpaugh was innocent as a matter of law.  Stated another way, the issue here is not whether the Claims Board improperly weighed the evidence before it. Thus, the Claims Board’s reliance on Le Fevre v. Goodland, 247 Wis. 512, 19 N.W.2d 884 (1945), is misplaced.

¶8        … Referencing its four-to-three decision in the criminal case reversing Le Fevre’s conviction, Le Fevre v. Goodland opined:  “At most the reversal and acquittal pursuant to the appeal was based upon the determination by this court, by a 4 to 3 decision, that, ‘Upon the whole record we cannot say that the proof is sufficient to enable the jury to find that defendant was guilty beyond a reasonable doubt.’”  Id., 247 Wis. at 516, 19 N.W.2d at 885.  See Le Fevre v. State, 242 Wis. at 429, 8 N.W.2d at 294. Unlike the situation in Le Fevre v. Goodland, however, Turnpaugh’s claim is not a quibble on whether the evidence was sufficient to convict him of violating Wis. Stat. § 944.30(1); as we have set out at length, there was no evidence in support of his conviction, and he was innocent as a matter of law.  The Claims Board’s finding to the contrary is inexplicable.

¶9        Although the Claims Board found that Turnpaugh “was sentenced to 60 days in [the] Milwaukee County Jail for the prostitution charge [the alleged violation of Wis. Stat. § 944.30(1)] and ultimately served three days in custody and 57 days on electronic monitoring[,]” it determined that this did not satisfy the “imprisonment” requirement of Wis. Stat. § 775.05(1) & (3).  Its “explanation,” however, was as terse and devoid of reasoning as was its determination that Turnpaugh had not shown by clear and convincing evidence that he was innocent of the crimes for which he was convicted:  “The Board further concludes that the claimant has failed to show that he was imprisoned, under the meaning of s. 775.05, Wis. Stats., as a result of this conviction.”  Even giving the Claims Board the highest level of deference, this conclusion flies in the face of the statute, which, significantly, describes the potential punishment for violating Wis. Stat. § 944.30(1), a Class A misdemeanor, as “imprisonment not to exceed 9 months[.]”  See Wis. Stat. § 939.51(3)(a).  (Emphasis added.)  See also Wis. Stat. §§ 973.02 & 973.03 (recognizing that incarceration in a “jail” is “imprisonment”).

Of possible interest: the court not only takes judicial notice of the Claims Board website, but concludes that the assertions on that site “are not hearsay from David Turnpaugh’s perspective,” under the party-opponent rule, § 908.01(4)(b)1. ¶5 n. 2.

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