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SCOW: Defendants can’t rely on DOC’s discharge certificate and repeated assurances that probation has ended

State ex rel. Ardonis Greer v. Wayne J. Widenhoeft, 2014 WI 19, affirming a published court of appeals decision; case activity; Majority opinion:  Justice Ziegler; Dissent: Justice Bradley and C.J. Abrahamson

The DOC assured Greer his probation was over and issued a discharge certificate to that effect.  In truth, his probation term hadn’t yet expired.  So when he committed new crimes, the DOC revoked his probation.  The Majority rejects Greer’s claims that the DOC: (1) lacked jurisdiction to revoke probation, (2) denied due process, and (3) is subject to equitable estoppel.

Greer pled guilty to possession with intent to deliver THC and possession of a firearm by a felon.  On Count 1 he received a period of initial confinement followed by extended supervision.  On Count 2 he received 3 years of initial confinement and 3 years of extended supervision but the trial court stayed this sentence and ordered him to serve 3 years of probation consecutive to Count 1.  Thing went awry when, on September 28, 2007,  Greer completed his sentence on Count 1.  His supervising agent issued a certificate saying that he was “discharged absolutely” from the Wisconsin State Prison and restoring his civil rights.  On top of that, the agent reassured Greer repeatedly that his supervision ended on that date, and he no longer needed to see his agent.  So he didn’t.  He drank alcohol.  He committed new crimes.  And the DOC revoked the probation that it had already discharged him from 3 years earlier.

DOC jurisdiction.  Greer argued that once the DOC issued a certificate of discharge it lost jurisdiction to revoke his probation.  But SCOW held that the DOC’s error could not alter the circuit court’s actual sentence:

[I]t is inconceivable that a sentence, validly imposed by a circuit court, could be undermined by a mere clerical error by an agency. We conclude, therefore, that the DOC did possess the jurisdiction to revoke Greer’s probation, and we affirm the court of appeals.  Slip op. ¶53.

Due process (substantive and procedural).  The majority opinion rejected Greer’s claimed violation of substantive due process because that required proof that the DOC engaged in deliberate action or indifference.  See .eg. State v. Schulpius, 2006 WI 1, 287 Wis. 2d 44, 707 N.W.2d 495.  Here, the DOC’s failure to keep accurate records was mere negligence.  Slip op. ¶60.

Greer’s procedural due process claim also failed.  Although Greer’s plea and sentencing transcripts were not part of the appellate record, he conceded he was present at sentencing.  The majority thus concluded that he “should have known that he was required to serve a consecutive probation term.”  Slip op. ¶67.  They also stressed that whether he was on probation or not, he shouldn’t have committed crimes.

The dissent seized on the fact that the DOC repeatedly told Greer his sentence was over and issued a confirmatory discharge certificate.  Greer had no notice he was on probation and subject to terms like meeting with his agent (who had said “good-bye and good luck”) and abstaining from alcohol.  Justice Bradley put it best:  “We cannot know how Greer would have behaved had he been aware that he was still on probation . . . The question is not whether he should be accountable for his new criminal conduct. Rather, the question is did he have notice that his actions could lead to a revocation of probation.  Slip op. ¶11.

Equitable estoppel. Given the DOC’s misrepresentations, the circuit court equitably estopped the DOC from revoking Greer’s probation. The majority reversed on this point:  “[A]circuit court sitting in certiorari cannot properly entertain equitable arguments. As a result, the DOC cannot be equitably estopped from revoking Greer’s probation.”  Slip op. ¶89.

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