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Effective Assistance of Counsel – Revocation of Supervision, Generally; Parole Hold – DOC Jurisdiction to Revoke

State ex rel. Gerald Porter v. Cockroft, 2011AP308, 2011AP308, District 1, 3/6/12

court of appeals decision (not recommended for publication); for Porter: Joseph E. Redding; case activity

 Ineffective assistance of counsel at a revocation hearing is reviewable by habeas corpus, ¶10, citing State v. Ramey, 121 Wis. 2d 177, 182, 359 N.W.2d 402 (Ct. App. 1984). But, because there is no right to counsel on review of a revocation order, an IAC claim is limited to counsel’s performance at the revocation hearing itself, ¶12, citing State ex rel. Griffin v. Smith, 2004 WI 36, ¶45, 270 Wis. 2d 235, 677 N.W.2d 259 and State ex rel. Mentek v. Schwarz, 2000 WI App 96, ¶11, 235 Wis. 2d 143, 612 N.W.2d 746, rev’d on other grounds2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150. (In other words, you can’t argue that revocation counsel was ineffective in failing to preserve the appeal by filing a cert petition.)

In view of the trial court finding of an on-going investigation of Porter’s alleged parole violation, the temporarily lifting of his parole violation hold didn’t divest the department of corrections’ of jurisdiction to revoke, by dint of § 304.072(2), which provides that the department preserves jurisdiction over a supervisee “if it commences an investigation [of a violation] … prior to the expiration of  the person’s … term of supervision.”

¶15      Porter contends that because the parole hold was lifted, the investigation was completed.  The statute is clear, however, that so long as the Department’s investigation is ongoing, the Department retains jurisdiction over a parolee.  See Wis. Stat. § 304.072(3).  The circuit court found that the Department’s investigation continued through the two hours and twenty-six minute period in which Porter’s parole hold was lifted. …  See Jacobson v. American Tool Cos., 222 Wis. 2d 384, 390, 588 N.W.2d 67 (Ct. App. 1998) (We defer to both the implicit and explicit credibility findings of the circuit court, unless the findings are based upon an erroneous exercise of discretion, an error of law or caprice.). …

The department of corrections issued a certificate of discharge of Porter’s revocation sentence on March 10, 2008, but rescinded the discharge on November 11, 2009, claiming that its issuance was in error. The trial court rejected Porter’s habeas argument that DOC lost jurisdiction over him when it issued the discharge, but without making any factual findings as to whether issuance was in error; remand is necessary:

¶18      The Department contends that the discharge certificate did not take into consideration Porter’s consecutive sentences and Porter should not have been discharged in the 1999 case until he completed all of his consecutive sentences.  Porter contends that because there was no consecutive sentence in place at the time the discharge certificate was issued, the certificate was properly issued.

¶19      The circuit court did not make findings of fact regarding why the discharge certificate was issued and then withdrawn, but rather quashed the writ without addressing the circumstances surrounding the certificate.  If a circuit court fails to make a finding of fact, we may:  (1) affirm the order if it is clearly supported by a preponderance of the evidence; (2) reverse if not so supported; or (3) remand for findings and conclusions.  State v. Williams, 104 Wis. 2d 15, 22, 310 N.W.2d 601 (1981).  We remand to the circuit court for a fact-finding hearing on the facts surrounding the issuance, and subsequent withdrawal, of the discharge certificate in order to determine whether Porter’s maximum discharge date should be amended.

Porter’s argument, in a nutshell (Principal Br., p. 21): “Once the discharge certificate is issued, the DOC loses jurisdiction over the parolee. State ex rel Rodriquez v. Department of Health and Social Services, 133 Wis. 2d 47, 51, 393 N.W.2d 105, 106 (Ct.App.1986). ‘[T]he issuance of a discharge certificate is of significant legal moment.’ … State v. Stefanovic, 215 Wis.2d 310, 315- 316, 572 N.W.2d 140, 143 (Ct. App.1997)[.] Once the sentence term has run, the court and DOC loses jurisdiction to supervise a defendant.” DOC rejoined that discharge was erroneous, and subsequent rescission rectified the problem (Resp. Br., pp. 13, et seq.): “Because the Discharge Certificate was issued in violation of the statute and administrative rule, it was invalid. … Because the Discharge Certificate was invalid, it cannot affect the department’s legal custody of Porter.” The court of appeals doesn’t elaborate on the remand order, so the holding is a bit unclear (that is, what legal significance would follow from a given finding of fact). But it is at least possible that the court of appeals thereby agrees with DOC’s legal premise, namely that if discharge was erroneously issued, then it can’t be given effect. That said, the court’s failure to be explicit on the point leaves it conjectural.

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