author: DEININGER, J.

text:
    M&I Marshall & Ilsley Bank, Plaintiff-Respondent, v. Urquhart Companies, Glen G. Urquhart, Colleen Urquhart, HMU Incorporated, HMU Management Corporation, Birch Hill Health Care Center, Inc., Evergreen Health Care Center, Inc., and Ellsworth Health Care Center, Inc., Defendants, Michael S. Polsky and Receiver, Defendants-Respondents, Reinhart Foodservice, Inc., Defendant-Appellant.
    Court of Appeals

      No. 2004AP2743.

      Submitted on briefs May 23, 2005.

      Decided September 15, 2005.

    2005 WI App 225
    (Also reported in 706 N.W.2d 335.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Samuel C. Wisotzkey of Kohner, Mann & Kailas, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of David I. Cisar of Von Briesen & Roper, S.C., Milwaukee.
    Before Vergeront, Deininger and Higginbotham, JJ.
   DEININGER, J.

¶ 1. Reinhart Foodservice, Inc., a supplier of food to three nursing homes being operated by a receiver, appeals an order that denied its motion to intervene in the receivership proceeding and its petition for leave to sue the receiver. Reinhart claims that the circuit court erred by denying both of its requests, thereby depriving it of any opportunity to pursue its claim for payment for goods it provided during the receivership that were necessary to the continued operation of the nursing homes. We conclude that Rein-hart "claims an interest relating to the property or transaction which is the subject" of the receivership proceeding, such that it is entitled to intervene as a matter of right in the receivership proceeding. See Wis. Stat. § 803.09(1) (2003-04). Accordingly, we reverse the appealed order insofar as it denies Reinhart's motion to intervene. Because we conclude that Reinhart must be permitted to intervene in this action, we affirm the circuit court's order denying Reinhart's request for leave to commence a separate action against the receiver.

BACKGROUND

¶ 2. The Urquhart Companies and related entities owned and operated three nursing homes in Pierce and Shawano Counties. M&I Marshall & Ilsley Bank provided financing for Urquhart's nursing home business and the bank held first-mortgage liens on the three nursing home parcels, together with security interests in the business's personal property. After Urquhart defaulted on its obligations to M&I, the bank foreclosed. Incident to the foreclosure action, the bank successfully petitioned for the appointment of a receiver and the court appointed Michael S. Polsky to act in that capacity.

¶ 3. The parties to the foreclosure action (which did not include Reinhart) stipulated to the entry of an order appointing receiver. The order authorized the receiver "to immediately take possession and control of the Properties, to operate the business thereon." The order also authorized the receiver to use "the Properties' existing bank accounts" and those maintained by HMU Management Corporation "as a depository of any funds which may come into the possession of the Receiver in the liquidation of the assets of the Property." It further authorized the receiver "to borrow from Plaintiff [M&I] any money necessary to properly carry out the terms of this Order and his duties as Receiver." The order also approved the receiver's entry into a management services contract with HDG-WI LLC "for the management of the Properties." Finally, the order authorized the receiver to be paid $225 per hour for his services, plus expenses, "out of the receivership proceeds, or advanced by [M&I]."

¶ 4. The foreclosure judgment authorized a sheriffs sale of the nursing home properties after a six-month redemption period, but M&I chose to forgo a foreclosure sale. Instead, M&I elected to have the receiver operate the nursing homes until they could be sold as going concerns to an entity licensed to operate the facilities. After the receiver had operated the homes for eleven months, the foreclosure parties stipulated to, and the court approved, a negotiated sale of the foreclosed real and personal property to a third party. Under this stipulation and order, the receiver was authorized to accomplish the transfer of assets to the buyer, to pay the commission and "all necessary closing costs," and to "pay the net proceeds from the sale of the Property to M & I in partial satisfaction of its secured claim in this matter." The present record contains no information regarding the terms of the sale, no accounting by the receiver of his operation of the business prior to the sale and no order for discharge of the receiver or release of his bond.

¶ 5. Reinhart supplied food to the three nursing homes while they were owned and operated by Urquhart, and it continued to supply food to them after the receiver took possession of them. Reinhart received timely payments for its deliveries during the receivership except for its deliveries made during the final month before the homes were sold. In order to obtain payment of its $14,022.42 claim for its final food deliveries during the receivership, Reinhart requested the circuit court to either (1) grant it leave to sue the receiver for its final bill, or (2) permit it to intervene in the receivership proceeding to present its claim for payment. M&I opposed both requests. The circuit court concluded that, because Reinhart was an "unsecured creditor" and "no assets of the receivership [are] available to unsecured creditors," Reinhart was not owed a duty by the receiver and did not possess an interest in the property subject to the receivership. Accordingly, the court denied both of Reinhart's requests and entered an order to that effect. Reinhart appeals.

ANALYSIS

¶ 6. We first address whether the circuit court erred in denying Reinhart's motion to intervene in the receivership proceeding. Whether a party is entitled to intervene in an action as a matter of right under Wis. Stat. § 803.09(1) is a question of law we decide de novo. Armada Broadcasting, Inc. v. Stirn, 183 Wis. 2d 463, 470, 516 N.W.2d 357 (1994). The statute provides as follows:

Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties.

Section 803.09(1).

¶ 7. The supreme court has explained that a prospective intervenor, in order to prevail, must demonstrate that: (1) the movant claims an interest "relating to the property or transaction which is the subject of the action"; (2) the disposition of the action may as a practical matter impair or impede the proposed intervenor's ability to protect that interest; (3) the movant's interest will not be adequately represented by existing parties to the action; and (4) the motion to intervene was made in a timely fashion. State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 545, 334 N.W.2d 252 (1983). This court has noted that motions to intervene must be evaluated "with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." Wolff v. Town of Jamestown, 229 Wis. 2d 738, 742-43, 601 N.W.2d 301 (Ct. App. 1999).

¶ 8. We first address whether Reinhart meets the threshold requirement for intervention as of right — a claim to an interest in the property or transaction that is the subject of the receivership proceeding. The circuit court concluded that Reinhart had no interest in the receivership proceeding because it held no lien against the real or personal property that M&I had foreclosed upon, which property, in turn, was entrusted to the receiver to protect and manage until it could be sold. M&I urges us to adopt the circuit court's view, arguing that the term "interest" for purposes of Wxs. Stat. § 803.09(1) must be understood as an "interest in the collateral" that the receiver held and managed. The bank maintains that, because all of Urquhart's real and personal property was encumbered by mortgages and security interests in its favor, and Reinhart had no interest of any kind in the collateral, Reinhart can claim no interest in the property or transaction that is the subject of the foreclosure and receivership proceedings.

¶ 9. We note first that M&I's argument overlooks an important distinction that must be drawn between unpaid, unsecured creditors of the Urquhart companies, and the persons or entities who supplied goods or services during the period of the receivership. We agree with M&I that Reinhart may not intervene in the foreclosure and receivership proceedings to seek payment for any balance remaining unpaid for food delivered to Urquhart prior to the appointment of the receiver. Reinhart seeks to intervene, however, to obtain payment for goods it furnished to the nursing homes after the receiver took possession of the homes and operated them pursuant to the circuit court's order. In other words, even though Reinhart may also be an unpaid, unsecured creditor of the Urquhart companies, its status as an unpaid supplier of goods to the receiver is what provides Reinhart the basis for claiming "an interest relating to the property or transaction which is the subject" of the receivership proceeding.

¶ 10. There appears to be no dispute that the receiver in this case was appointed under Wis. Stat. § 813.16(1), which provides that a "receiver may be appointed":

On the application of either party, when the applying party establishes an apparent right to or interest in property which is the subject of the action and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially impaired.

A receiver's primary responsibility, when appointed incident to a foreclosure action, is to preserve and protect the value of the property entrusted to the receiver until the same is sold, that is, to "prevent waste." See, e.g., Dick & Reuteman Co. v. Jem Realty Co., 225 Wis. 428, 274 N.W. 416 (1937). The order appointing the receiver in this case, at M&I's request and with the foreclosure defendants' consent, also directed the receiver "to operate the business [on the foreclosed properties] in the ordinary course" and "to borrow from Plaintiff [M&I] any money necessary to properly carry out the terms of this Order."

¶ 11. The provisions of the court-approved management services contract make clear that the receiver was to purchase and pay for the "supplies and non-capital equipment" necessary to operate the nursing homes. (See footnote two.) Reinhart does not claim to be a third-party beneficiary of the management services contract, and we do not suggest that to be the case. Our present point is simply that the circuit court's appointing order and the management contract it approved establish that the mortgage debtors (i.e., the former owners and operators of the three nursing homes) were wholly supplanted by the receiver and his contracted managers. Those who provided goods or services necessary to the continued operation of the homes during the receivership did not, therefore, become creditors of the mortgagors, but of the receiver who controlled the properties and operated the business thereon "in the ordinary course."

¶ 12. In addition to any provisions set forth in an appointing order, a receiver who is appointed by a court to operate a business also incurs a statutory obligation to obtain and pay for items necessary to the continuation of the business:

Whenever a receiver shall be appointed to manage or close up any business, the receiver shall immediately report to the court the amount due the employees in such business; and said court shall order the receiver to pay out of the first receipts of said business, after the payment of costs, debts due the United States or this state, taxes and assessments and the current expenses of carrying on or closing said business, the wages, including pension, welfare and vacation benefits, of such employees earned during the last 3 months of employment and within one year prior to the receiver's appointment.

Wis. Stat. § 813.17 (emphasis added). M&I maintains, however, that "the only reasonable interpretation" of the emphasized language is that "the first receipts of said business" means "those receipts collected by the receiver after payment of any amount owed to secured creditors of the business" (emphasis added).

¶ 13. We reject M&I's proffered interpretation. First, nothing in the language of Wis. Stat. § 813.17 suggests such a qualification or limitation on the meaning of "first receipts of said business." Furthermore, we doubt that M&I would advance an argument that, had the receiver determined that roof repairs were necessary to preserve and protect the property during the receivership, the receiver would be under no obligation to pay for the repairs unless the sale of the property generated a surplus over the secured debt. In our view, Reinhart stands in the same position as the hypothetical roofing contractor because Reinhart provided goods necessary to the continued operation of the nursing homes during the receivership, thereby preserving their value by permitting them to be sold as going concerns.

¶ 14. We thus conclude that Reinhart claims an interest "relating to the property or transaction which is the subject" of the receivership proceeding. See Wis. Stat. § 803.09(1). Specifically, Reinhart, as a supplier of goods to the receiver, has an interest in ensuring that the receiver carries out his court-ordered and statutory obligations to pay "the current expenses of carrying on" the nursing home business. See Wis. Stat. § 813.17. Because Reinhart claims to have furnished goods necessary to the receiver's operation of the nursing homes during the receivership, Reinhart must be allowed to present its claim for payment in the receivership proceeding, provided it satisfies the remaining requirements for intervention as a matter of right.

¶ 15. The second part of the intervention test requires a movant to show that its ability to protect its interest will be impaired by the disposition of the original action. State ex rel. Bilder, 112 Wis. 2d at 545. Reinhart contends that if it is not allowed to intervene in the receivership proceeding and present its claim for payment before the receiver submits his accounting and is discharged, Reinhart's ability to obtain payment for the goods it delivered to the receiver will be substantially impaired. We agree.

¶ 16. The receivership proceeding may not be the only forum in which Reinhart could seek to obtain payment of its claim, but it certainly provides the most logical forum and the most convenient one for all concerned. Not only are the receiver and M&I already subject to the circuit court's jurisdiction in this action, but so are the funds generated during the receivership from which Reinhart hopes to be paid. The resolution of Reinhart's claim will almost certainly involve an analysis of the receiver's duties and obligations arising under the court's appointing order, as well as an examination of the receiver's acts and possible omissions in discharging his duties. If the nursing homes operated at a deficit during the receivership, a resolution of Reinhart's claim may also involve an analysis of M&I's obligations, if any, arising from its request for the appointment of a receiver and its election to pursue a negotiated sale of the properties as going concerns.

¶ 17. If Reinhart is not permitted to intervene and the receiver is discharged in this action, a subsequent attempt by Reinhart to sue either the receiver or M&I might well be met with claims that the receiver can no longer be sued, or that Reinhart should be precluded from "re-litigating" M&I's entitlement to all moneys remitted to it by the receiver, an issue that was arguably litigated and determined by the foreclosure judgment, the order approving sale and any subsequently entered order for discharge of the receiver. These potential obstacles to Reinhart's ability to protect its interest in being paid for goods it supplied to the receiver are simply not present if Reinhart is permitted to intervene in this action. We thus conclude that Reinhart has demonstrated that it is "so situated that the disposition of the action may as a practical matter impair or impede [Reinhart]'s ability to protect that interest." Wis. Stat. § 803.09(1).

¶ 18. As for whether Reinhart's interests are adequately represented by the existing parties, we easily conclude they are not. The inadequacy of representation by existing parties is satisfied "if the applicant shows that the representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal." Wolff, 229 Wis. 2d at 747. None of the existing parties in this action are aligned with Reinhart or its interests. M&I certainly has no interest in seeing that Reinhart gets paid because any plausible source of payment to Reinhart will diminish the sum M&I will realize from its foreclosure action against Urquhart. The foreclosure defendants also presumably want to see M&I's cash recovery maximized so as to maximize the reduction of their debt and any resulting deficiency judgment. Finally, the receiver would have little or no personal interest in seeing that Reinhart gets paid for the food it delivered. At this point in the proceeding, the receiver would seem to be most interested in being discharged by the court as promptly as possible. The fact that the receiver has aligned himself with M&I on appeal to oppose Reinhart's intervention demonstrates the point.

¶ 19. Finally, we address the last factor relevant to intervention as of right, whether Reinhart moved to intervene in a timely fashion. M&I asserts that Reinhart's motion was untimely. The Wisconsin Supreme Court has identified two factors a court should consider when deciding whether a motion to intervene is timely. See State ex rel. Bilder, 112 Wis. 2d at 550. The "critical" factor is "whether, in view of all the circumstances[,] the proposed intervenor acted promptly," and a "second factor is whether the intervention will prejudice the original parties to the lawsuit." Id.

¶ 20. The receiver was appointed in January 2003. Reinhart made food deliveries to the nursing homes under receivership from January through October 2003, and was apparently paid for these deliveries. Reinhart also made deliveries in November, but it claims that it did not receive any payment for them. The foreclosure parties filed their stipulation for the negotiated sale of the properties to a third party on November 25, 2003, and the transaction presumably closed shortly thereafter. On the same day the stipulation was filed, the court entered an order authorizing the sale and directing the receiver to pay the commission and necessary closing costs and remit the net proceeds to M&I.

¶ 21. Reinhart alleged in its petition for leave to sue the receiver that it first learned of the receivership and sale "[s]ubsequent to December 2003," and it then requested but was denied payment from the receiver for its November deliveries. M&I does not appear to dispute these allegations. Reinhart filed a "Request for Notices and Pleadings" in this action on April 9, 2004, in which it identified itself as "a creditor of the Receiver appointed in this matter" and requested that its counsel be provided copies of all subsequent filings in the action. On June 8, 2004, Reinhart filed a petition for leave to sue the receiver, and, in conjunction with briefing on M&I's objection to the petition, Reinhart filed its alternative motion to intervene in this action on June 23rd.

¶ 22. The receiver apparently gave no notice at any time to Reinhart that the nursing homes were being operated under a receivership. Reinhart would thus have had no reason to inquire into the management or operation of the businesses while it was receiving timely payments for its deliveries. It was not until at least December 2003 or early in 2004, when Reinhart had not received payment for its November deliveries, that it had cause to inquire into the circumstances surrounding the operation of the nursing homes and to determine who was responsible for paying their operating expenses. Within a reasonable time thereafter, Reinhart retained counsel, notified M&I and the receiver of its interest in the receivership proceeding and made appropriate requests of the court for leave to sue the receiver or to be allowed to intervene in the existing proceeding. In short, we are satisfied, in view of all the circumstances, that Reinhart acted promptly to intervene in the receivership proceeding.

¶ 23. The second part of the timeliness inquiry requires us to consider whether the existing parties to the action would be prejudiced by Reinhart's intervention. State ex rel. Bilder, 112 Wis. 2d at 550. Noting that the sale proceeds have been distributed and that it is still owed some $3 million, M&I contends that Reinhart's intervention in this proceeding is without support in Wisconsin law, will "disturb M&I's rights as a secured creditor... [and] would not only be futile, it would needlessly prolong this case." We are not persuaded that M&I's rights as a secured creditor are necessarily prejudiced by Reinhart's intervention, but even if that is the case, any prejudice will be slight as compared to the prejudice Reinhart would suffer if it is denied the opportunity to present its claim in the receiver proceeding.

¶ 24. M&I acknowledges that the receiver has not filed his final report or been discharged by the court, which means that the receivership proceeding is still pending. M&I requested the court to authorize the receiver to operate the nursing home business during the pendency of the foreclosure action. When the bank elected to forgo a sheriffs sale and, instead, to have the operation of the homes continue under the receivership until they could be sold as going concerns, M&I knew or should have known that additional costs would be incurred in keeping the homes in operation. Given the provisions of the order appointing receiver, M&I must also have understood that it might he called upon to advance the sums necessary to cover those costs. We cannot conclude that it is unfair to M&I to allow Reinhart's claim to be presented and resolved in this proceeding before the receiver is discharged.

¶ 25. For the reasons stated above, we reverse the trial court's order insofar as it denies Reinhart's motion to intervene in the receivership proceeding. We emphasize again (see footnote four) that we do not decide in this opinion whether Reinhart is entitled to the payment it seeks or, if so, who is liable for any sum Reinhart may be due. On remand, the parties will have the opportunity to make the necessary factual record and legal arguments addressing these questions. Our present conclusion is only that Reinhart must be permitted to intervene in this action in order to present its claim.

¶ 26. Reinhart's initial request of the court was for leave to sue the receiver. See Arthur v. Brendel, 165 Wis. 2d 324, 329, 477 N.W.2d 655 (Ct. App. 1991) (explaining that a party may not commence an action against a receiver without leave of the court that appointed the receiver). The parties agree that the determination whether to grant leave to sue a receiver lies within the circuit court's discretion. See Crosby v. Keilman, 206 Wis. 252, 254, 239 N.W. 431 (1931); Nash v. Meggett, 89 Wis. 486, 61 N.W. 283 (1894), overruled on other grounds by Bloomquist v. Better Bus. Bureau of Milwaukee, 17 Wis. 2d 101, 115 N.W.2d 545 (1962). The parties devote a major portion of their appellate arguments to the question of whether the circuit court properly exercised its discretion in denying Reinhart leave to sue the receiver. Given our conclusion that Reinhart may intervene in the existing action, our treatment of the leave-to-sue issue will be brief.

¶ 27. Although the precedent is an old one, we see no reason why the supreme court's conclusion and disposition in Mechanics' Nat'l Bank of New York v. Landauer, 68 Wis. 44, 31 N.W. 160 (1887), should not govern on the present facts. The court concluded in Mechanics' Nat'l Bank of New York that, if the relief sought can be obtained by petition in the action in which a receiver is appointed, the decision to refuse to grant leave to bring a separate action against the receiver does not constitute an erroneous exercise of discretion. Id. at 47-48. Had the circuit court granted Reinhart's request to intervene as a matter of right in the present action, its denial of Reinhart's alternative request for leave to sue the receiver would thus have been an affirmable exercise of discretion. Because Re-inhart will now be permitted to intervene in the receivership proceeding, we see no reason to disturb the circuit court's denial of Reinhart's request for leave to commence a separate action against the receiver.

¶ 28. Reinhart's two requests were made in the alternative, and one has now been granted. We affirm the circuit court's denial of leave to sue the receiver.

CONCLUSION

¶ 29. For the reasons discussed above, we reverse the appealed order insofar as it denies Reinhart's motion to intervene in the receivership proceeding. We affirm the denial of Reinhart's request for leave to commence a separate action against the receiver. We remand to the circuit court for further proceedings consistent with this opinion.

By the Court. — Order affirmed in part; reversed in part and cause remanded with instructions.

       All references to the Wisconsin Statutes are to the 2003-2004 version.

       The management services contract was submitted to the court with the parties' stipulation. It provides, among other things, that, "[c]onsistent with budgets approved by Receiver and on Receiver's behalf, Manager will have the authority to purchase supplies and non-capital equipment necessary and appropriate for the operation of the Facilities." The contract further specifies that "Receiver will be liable for all Facilities Operating Costs" and that, "[t]o the extent required to provide funds to pay Facilities Operating Costs on a timely basis, Receiver will deposit funds in Receiver's bank accounts utilized for payment of operational expenses and make such payments." Finally, the contract specified monthly management fees to HDG of between $11,000 and $13,000 for each of the three facilities.

       M&I and the receiver, Michael Polsky, are represented by the same counsel on appeal and they have filed a joint brief. For convenience, we will refer in our analysis to both, collectively, as "M&I" except where it is necessary to separately identify them.

       Generally, a party who requests and obtains the appointment of a receiver incurs no liability for the expenses of the receivership "unless there are special circumstances which dictate that, in equity, the expenses of the receivership ought to be charged against" the party requesting the appointment. First Nat'l Bank of Neenah v. Clark & Lund Boat Co., 68 Wis. 2d 738, 742, 229 N.W.2d 221 (1975). Special circumstances may arise when a plaintiff has agreed to pay the receiver's compensation. Id. The present order appointing the receiver provides that his fees "shall he paid out of the receivership proceeds, or advanced by the Plaintiff [M&I]."
      The present record contains no evidence regarding the receiver's receipts and disbursements during the receivership. The receiver asserted during argument in the circuit court on Reinhart's motion that "the bank left (sic) the business substantial amounts during the receivership so that the health and welfare of the patients of the nursing home could be maintained and employees could be paid." We have no evidence or findings before us, however, as to whether the nursing homes operated at a surplus or a deficit during the receivership, how much M&I may have advanced to pay the receiver's fees or other receivership expenses, whether there are other unpaid suppliers of goods or services to the receivership, the amount of sale proceeds the receiver turned over to M&I, or whether the receiver remitted any other funds to the bank. We express no opinion regarding whether, or from whom, Reinhart is entitled to recover on its claim. We conclude only that Reinhart must be permitted to intervene in this action in order that its claim may be presented and resolved.

       Reinhart would have us conclude that receivers appointed under Wis. Stat. § 813.16(1), like those governed by Wis. Stat. § 128.14, should be required to give notice of the receivership to all who supply goods or services to a business being operated by the receiver. It argues that, because it had no notice of the receivership, it was unable to take timely steps to protect itself, such as terminating food deliveries to the nursing homes or requiring cash pre-payments for all deliveries. If we were to conclude that a supplier of goods to a receiver appointed under § 813.16(1) has no right to intervene in the receivership proceeding to advance a claim for payment for goods delivered during the receivership, we might conclude that it would be unfair for a receiver not to give notice that the business was in receivership and that suppliers of goods might not get paid for their deliveries. However, because we conclude that Reinhart has a right to intervene, and that it has done so in a timely fashion, we do not address whether the lack of notice to Reinhart of the receivership constituted actionable fraud or other wrongdoing, as Reinhart asserts.

       The receiver told the circuit court during argument on Reinhart's motion that, because the bank did not hold the required state license to operate the nursing homes, it could not purchase the homes at a sheriffs sale and keep them operating. The receiver explained that, therefore, operation of the homes under a receivership and a negotiated sale to a properly licensed purchaser was "the only way to ... maintain the health and welfare of the residents of the nursing home[s]." It also seems reasonable to infer, however, that M&I hoped to obtain a better price for its collateral by selling the real and personal property as a part of a going concern, rather than as abandoned and empty former nursing homes. Regardless of what prompted M&I to have a receiver appointed to operate the homes until a suitable buyer could be found, that is the choice it made. The order appointing the receiver, drafted by M&I's counsel, directed the receiver to take "possession and control" of the nursing home properties, "to operate the business thereon in the ordinary course," and "to borrow from Plaintiff [M&I] any money necessary to properly carry out the terms of this Order."

       This case is listed as Davis v. Michelbacher in the Northwestern Reporter.


source: Caselaw Access Project

author: HOOVER, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Earnest Alexander, Defendant-Appellant.
    Court of Appeals

      No. 2005AP466-CR.

      Submitted on briefs September 6, 2005.

      Decided September 20, 2005.

    2005 WI App 231
    (Also reported in 706 N.W.2d 191.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Phillips, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Katherine Lloyd Tripp, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. Earnest Alexander appeals a judgment of conviction for possession of cocaine with intent to deliver and an order denying his motion to suppress evidence. Alexander argues police lacked reasonable suspicion to detain him, so evidence obtained from the subsequent frisk should have been suppressed. We agree and reverse the judgment and order, remanding the cause to allow Alexander to withdraw his plea.

Background

¶ 2. At 11:30 p.m. on March 20, 2004, a man was shot on Milwaukee's north side. Officer Curt Charles was first at the scene and took a description of the assailant. The victim said the shooter was a black male wearing a thigh-length coat with fur around the hood and carrying an unknown gun type. Later, at the hospital, the victim provided further details, adding that the coat was black and that the shooter was also wearing a black stocking cap and dark pants.

¶ 3. A description of the perpetrator was added to the police department's "major crime summary." Officer Chad Boynack received the summary at midnight roll call on March 22, more than a day after the shooting. The summary described the shooting suspect as a black male wearing a black skull cap, black jacket, and dark pants.

¶ 4. On patrol around 1:30 a.m., Boynack noticed Alexander walking ten blocks east of the crime scene, wearing a black skull cap, black waist-length jacket, and black pants. When approached, Alexander allegedly "stutter-stopped," paused one or two seconds, and avoided eye contact, but continued walking and neither fled nor changed direction. Based on Alexander's perceived hesitation, aversion to eye contact, and similarity to the description in the crime summary, Boynack stopped Alexander.

¶ 5. When frisking Alexander for weapons, Boynack discovered forty-nine corner cuts of cocaine. Alexander was arrested and charged with possession of cocaine with intent to deliver, but was never questioned about the shooting.

¶ 6. Alexander filed a motion to suppress evidence from the frisk, arguing Boynack lacked reasonable suspicion to stop him. The court stated it was a close case but denied the motion, finding the stop justified because: Alexander matched the description in the crime summary, he was directly east of the shooting, the shooting was a significant crime that warranted intense investigation, and the twenty-six elapsed hours meant that the stop was not so remote from the crime as to be pretextual. The court also ruled that, given the hour, it was not unreasonable for Boynack to do a weapons frisk.

¶ 7. After the motion was denied, Alexander pled guilty to possession with the intent to deliver one to five grams of cocaine. He was sentenced to five years' imprisonment consisting of fourteen months' initial confinement and forty-six months' extended supervision. Alexander appeals.

Discussion

¶ 8. When we review the trial court's ruling on a motion to suppress, we uphold factual findings unless, clearly erroneous. State v. Eskridge, 2002 WI App 158, ¶ 9, 256 Wis. 2d 314, 647 N.W.2d 434. We decide independently whether the facts establish that a particular search or seizure occurred and, if so, whether it violated constitutional standards. See State v. Richardson, 156 Wis. 2d 128, 137-38, 456 N.W.2d 830 (1990). Alexander concedes, though, that if the stop was valid, the search was valid. A valid investigatory stop requires reasonable suspicion. Reasonable suspicion requires the officer have "a particularized and objective basis" for suspecting the person stopped has been engaged in criminal activity. State v. Washington, 2005 WI App 123, ¶ 16, 700 N.W.2d 305 (citations omitted). "[R]easonable suspicion cannot be based merely on an inchoate and unparticularized suspicion or hunch." Id. (internal quotations omitted).

¶ 9. Our supreme court has recognized that this traditional standard "at times provides little guidance for courts and law enforcement officials in determining the quantum and nature of information necessary to establish the reasonableness of the stop." State v. Guzy, 139 Wis. 2d 663, 676, 407 N.W.2d 548 (1987). As such, the court approved of six factors enumerated by Professor Wayne R. LaFave that "must be considered in reaching the required determination" of reasonableness:

(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender's flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

Id. at 677 (citations omitted). We will skip the first factor for the moment, because Alexander has an additional argument related to it. As a whole, however, we conclude Boynack lacked reasonable suspicion to stop Alexander.

¶ 10. Given that twenty-six hours had passed, the "size of the area in which the offender might be found" was essentially infinite. As Alexander points out, twenty-six hours provided sufficient time for the offender to flee the immediate area, if not the city, state, or even country. Thus, the number of people about in "the area" was also essentially infinite. Even on a slightly smaller scale, if the offender remained in Milwaukee, given the city's population, the chance that the shooter would be randomly encountered is negligible.

¶ 11. Additionally, Alexander was found ten blocks east of the shooting location, but the victim reported that the shooter fled to' the south. Alexander was doing nothing particularly suspicious when he was stopped-certainly nothing suspicious before Boynack approached him and Alexander averted his gaze. And because there is no indication Boynack knew Alexander by sight, Boynack did not have any suspicion that Alexander might have "been involved in other criminal.. ity of the type presently under investigation."

¶ 12. Finally, returning to the first factor, "the particularity of the description of the offender" we agree with Alexander that the description in the crime summary was too vague. Indeed, there was no mention of age, height, build, complexion, facial hair, or other distinguishing characteristics. Rather, the description was of a black male in dark clothes which, as the trial court acknowledged, was likely to encompass much of the area's population.

¶ 13. But Alexander also advocates, relative to this first factor, application of the "collective knowledge" doctrine. "Under the collective knowledge doctrine, there are situations in which the information in the hands of an entire police department maybe imputed to officers on the scene to help establish reasonable suspicion or probable cause." State v. Orta, 2000 WI 4, ¶ 20, 231 Wis. 2d 782, 604 N.W.2d 543 (Prosser, J., concurring) (citations omitted).

¶ 14. Alexander contends the doctrine can also impute to officers knowledge that would negate probable cause. Thus, the information given to officer Charles — that the jacket was thigh-length with a furry hood — and to officers at the hospital — that the suspect was really wearing a stocking, not a skull, cap — should be imputed to Boynack. Armed with that information, Alexander contends, Boynack would have no reasonable suspicion to stop a man wearing a waist-length coat with no hood, no fur, and no stocking cap.

¶ 15. The State has neglected to respond to this argument. Arguments not refuted are deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Thus, for purposes of this case only, we deem Alexander's argument persuasive: the collective knowledge doctrine may also be used to negate reasonable suspicion justifying an investigatory stop.

¶ 16. Applying the collective knowledge doctrine, coupled with the LaFave factors our supreme court acknowledged, we conclude Boynack lacked reasonable suspicion to stop Alexander. Evidence from the frisk should have been suppressed. Accordingly, we reverse the judgment and order and remand this case to allow Alexander to withdraw his plea.

By the Court. — Judgment and order reversed and cause remanded with directions.

       "An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty." Wis. Stat. § 971.31(10) (2003-04).


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Cornell D. Reynolds, Defendant-Appellant.
    Court of Appeals

      No. 2004AP2389-CR.

      Submitted on briefs August 8, 2005.

      Decided September 20, 2005.

    2005 WI App 222
    (Also reported in 705 N.W.2d 900.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Terry Evan Williams of Williams Law Office, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Alan Lee, assistant attorney general.

    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Cornell Reynolds appeals a judgment convicting him of operating an automobile without the owner's consent while armed, causing death; operating an automobile without the owner's consent while armed, causing great bodily harm; and being a felon in possession of a firearm. He also appeals an order denying his motion for postconviction relief. He argues he was denied the effective assistance of counsel because his trial attorney failed to investigate and present his alibi defense and that the circuit court erred when it denied him a Machner hearing. Because Reynolds's postconviction motion contained sufficient facts that, if true, would entitle him to relief, we reverse and remand to the circuit court with directions to conduct a Machner hearing.

BACKGROUND

¶ 2. On May 25, 2001, two men approached a group of teenaged boys and girls talking in a parking lot in Milwaukee. One of the men shot two of the boys, injuring one and killing the other. The men drove away in the vehicle the teenaged boys had been driving.

¶ 3. Reynolds was identified as the shooter and arrested two days later. On August 14, 2001, Reynolds's counsel, Peter Goldberg, informed the court that he would be asking for a continuance, in part to investigate his client's claimed alibi. However, a week later, Goldberg withdrew as counsel. New counsel was appointed, but no notice of alibi was filed.

¶ 4. A jury trial was held, and Reynolds’s defense was identification. Defense counsel cross-examined witnesses who identified Reynolds as the shooter. The defense rested without introducing any evidence. The jury found Reynolds guilty of all three charges, and the circuit court entered a judgment of conviction upon the jury's verdict.

¶ 5. On June 25, 2003, Reynolds moved for post-conviction relief. He sought a new trial because, among other things, his counsel was ineffective by failing to present an alibi defense. The circuit court denied Reynolds's motion without a hearing. The court concluded that Reynolds had not alleged sufficient facts to establish an alibi. It assumed, as Reynolds contended, that the crimes occurred between 10:30 p.m. and 10:50 p.m. Reynolds's affidavit stated he was with Mario Mills from 10 p.m. to 1 a.m. on the night of the crimes. Mills's affidavit claimed he was with Reynolds between 10:45 p.m. and 12:30 a.m. that night. However, the circuit court concluded the affidavits did not constitute a denial that Reynolds was at the crime scene and thus did not adequately present an alibi.

DISCUSSION

¶ 6. To establish ineffective assistance of counsel, a defendant must show both that trial counsel's performance was deficient and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 697 (1984). Performance is deficient if it falls outside the range of professionally competent representation, measured by the objective standard of what a reasonably prudent attorney would do under the circumstances. State v. Pitsch, 124 Wis. 2d 628, 636-37, 369 N.W.2d 711 (1985). Prejudice is demonstrated where, but for counsel's deficient performance, there was a reasonable probability of a different trial outcome. State v. Erickson, 227 Wis. 2d 758, 773, 596 N.W.2d 749 (1999).

¶ 7. A defendant alleging ineffective assistance of counsel is not entitled to an evidentiary hearing as a matter of right. To obtain an evidentiary hearing, the defendant must allege sufficient facts in a postconviction motion that, if true, would entitle the defendant to relief. State v. Thornton, 2002 WI App 294, ¶ 27, 259 Wis. 2d 157, 656 N.W.2d 45. If the record conclusively demonstrates that the defendant is not entitled to relief, no hearing need be held. See State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). An evidentiary hearing is needed to resolve most credibility issues. See State v. Hampton, 2002 WI App 293, ¶ 25, 259 Wis. 2d 455, 655 N.W.2d 131, aff'd, 2004 WI 107, 274 Wis. 2d 379, 683 N.W.2d 14.

¶ 8. When the circuit court is presented with an ineffective assistance of counsel claim, it must review the postconviction motion on its face to determine whether the defendant has alleged sufficient facts that would entitle the defendant to relief. Bentley, 201 Wis. 2d at 309-10. We review the motion's sufficiency independently. Id. at 310. If the circuit court determines that the defendant has failed to allege sufficient facts, it may in its discretion deny the motion without an evidentiary hearing. Id. We review this decision for an erroneous exercise of discretion. Id. at 311.

¶ 9. Reynolds submitted three affidavits in support of his postconviction motion, one by his postconviction counsel, one by himself, and one by his alibi witness, Mills. Reynolds's counsel's affidavit asserted that Reynolds had informed his trial attorneys of his alibi, that Reynolds was out drinking at bars with Mills and others at the time of the shooting and therefore could not have been the shooter, that neither of Reynolds's trial attorneys contacted Mills, and that the alibi witnesses were essential to Reynolds's defense. Reynolds's affidavit alleged that he was with Mills at several bars from 10 p.m. to 1 a.m., that he told his trial attorneys about his alibi, and that neither attorney contacted his alibi witness. Mills's affidavit stated he was with Reynolds from 10:45 p.m. to 12:30 a.m. and identified the bars they visited during that time. Mills also stated he was not contacted by Reynolds's trial counsel.

¶ 10. The State argues that Reynolds's motion and supporting affidavits do not contain sufficient facts to entitle him to relief. The State points out that Reynolds's affidavit does not allege that he was not at the crime scene, nor that he is innocent. However,

[t]he word, "alibi," is merely a shorthand method of describing a defense based on the fact that the accused was elsewhere at the time the alleged incident took place. The word, "alibi," is simply the Latin word for "elsewhere."

State v. Brown, 2003 WI App 34, ¶ 13, 260 Wis. 2d 125, 659 N.W.2d 110 (citations omitted). Thus, Reynolds's alibi claim by definition says he is alleging he was not at the scene.

¶ 11. The State also argues the facts alleged do not present a coherent alibi. It questions how Mills recalls the time 10:45 p.m. and contends if Mills is estimating the time, his affidavit does not constitute an alibi. Thus, the State argues that there is no evidence that Mills's testimony would have helped Reynolds. It also contends that Mills's affidavit does not preclude that Reynolds and his first attorney discussed and dismissed pursuing an alibi defense. However, the State's arguments challenge the credibility of Reynolds's factual assertions, an issue ordinarily determined based on five testimony. See Hampton, 259 Wis. 2d 455, ¶ 25.

¶ 12. The State also contends that the record conclusively shows that Reynolds is not entitled to relief and therefore the circuit court properly denied an eviden-tiary hearing. See Bentley, 201 Wis. 2d at 310. However, the State fails to cite such conclusive evidence in the record. It points out that Reynolds gave an eleven-page statement to police and suggests that, in that statement, he admitted being at the scene of the crime. However, the statement is not part of the record. Nonetheless, the State argues the statement was admitted at three hearings and those transcripts "leadO to the conclusion that Reynolds did admit to being at the scene of the crime." However, the State fails to give record citations to portions of those transcripts in support of that conclusion. See Wis. Stat. Rule 809.19(l)(e) and (3)(a)2.

¶ 13. The State also argues the record conclusively shows that Reynolds and his counsel agreed to a trial strategy of minimizing Reynolds's culpability for the crimes, and thus counsel could not be ineffective for failing to pursue a different strategy. At a hearing held the day before trial, Reynolds's counsel indicated the defense would include an admission that Reynolds was at the scene. However, no such defense was ultimately presented. Also, because Reynolds was required to notify the State of his alibi defense at least fifteen days before trial, see Wis. Stat. § 971.23(8)(a), an alibi defense was not an option at the time defense counsel made this statement.

¶ 14. The State also relies on comments made at the sentencing hearing. Defense counsel stated that Reynolds remembered taking the car but did not remember the shooting and also reminded the court that Reynolds did not take the stand and make false statements. Reynolds also spoke, and he took responsibility and expressed remorse for his crimes. These sentencing comments certainly raise a factual dispute regarding the veracity of Reynolds's alibi claim. However, that is precisely the sort of dispute that should be resolved by a Machner hearing. We cannot conclude that the comments conclusively show Reynolds did not have an alibi that was not investigated or presented by his trial counsel.

¶ 15. Reynolds's postconviction motion, on its face, alleges sufficient facts that, if true, would entitle him to relief. To be clear, we make no holding as to whether Reynolds actually received ineffective assistance of counsel. Rather, because he has raised sufficient facts that, if found credible at an evidentiary hearing, would entitle him to relief and nothing in the record conclusively demonstrates otherwise, we reverse and remand with directions to conduct a Machner hearing.

By the Court. — Judgment and order reversed and cause remanded with directions.

        State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

       Reynolds also argues, for the first time on appeal, that counsel was ineffective for failing to adequately cross-examine witnesses regarding police suggestion in line-ups, failing to argue that no one actually saw him shoot the victims, and abandoning a motion to suppress statements. Because we conclude Reynolds is entitled to a Machner hearing regarding his counsel's failure to raise an alibi defense, we need not reach the merits of Reynolds's alternate arguments.

       The State argues Reynolds should have obtained an affidavit from his trial counsel to submit with the postconviction motion. However, the State provides no authority for the bright-fine rule that a defendant is required to submit such an affidavit in order to be entitled to an evidentiary hearing. See State v. Shaffer, 96 Wis. 2d 531, 545-46 n.3, 292 N.W.2d 370 (Ct. App. 1980) (We need not address arguments unsupported by citation to authority.).

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.


author: NETTESHEIM, J.

text:
    State of Wisconsin ex rel. Frederick Lee Pharm, Petitioner-Appellant, v. Byran Bartow, Director, Wisconsin Resource Center, Respondents-Respondents.
    Court of Appeals

      No. 2004AP583.

      Submitted on briefs August 10, 2005.

      Decided September 21, 2005.

    2005 WI App 215
    (Also reported in 706 N.W.2d 693.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Roisin H. Bell, Nia Enemuoh-Trammell, and Brian A. Mayer, of Michael, Best & Friedrich, L.L.P., and the pro se brief of Frederick Lee Pharm.
    On behalf of the respondent-respondent, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Warren D. Weinstein, assistant attorney general.
    Before Brown, Nettesheim and Anderson, JJ.

       Petition to review granted 3-1-06.

   NETTESHEIM, J.

¶ 1. Frederick Lee Pharm appeals from an order denying his petition for habeas corpus discharge from a commitment pursuant to Wis. Stat. ch. 980 (2003-04). Pharm argues that his waiver of extradition from Nevada to Wisconsin under the Interstate Agreement on Detainers (IAD) authorized only the Wisconsin criminal prosecution, not the later ch. 980 commitment proceeding. We hold that Pharm's rights under his waiver of extradition and the IAD were fully honored and that neither Pharm's waiver of extradition nor the IAD immunized Pharm from the subsequent ch. 980 commitment proceeding. We affirm the circuit court order denying Pharm's request for habeas corpus relief.

¶ 2. At the outset, we express our appreciation and gratitude to Attorney Roisin H. Bell of Michael Best & Friedrich LLP who represents Pharm pro bono on this appeal. Bell's representation of Pharm is in keeping with the highest standards of the legal profession and with SCR 20:6.1 (2005).

PROCEDURAL HISTORY

¶ 3. The controlling facts of this case are not in dispute. In 1977, Pharm was convicted of murder in Nevada and sentenced to life in prison. In October 1987, the Nevada Department of Prisons informed Pharm that Wisconsin had filed a detainer against him based on pending charges in Milwaukee county of sexual perversion and indecent behavior with a child. In response, Pharm executed a waiver of extradition on October 10, 1987, in which he requested "final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against me ...Pharm's waiver also covered "[service of] any sentence there imposed upon me, after completion of my term of imprisonment in this state." Finally, the waiver recited Pharm's "further consent voluntarily to be returned to the institution in which I now am confined."

¶ 4. Based on Pharm's waiver of extradition, Nevada offered to deliver Pharm's temporary custody to Wisconsin pursuant to a custody offer which stated, "[Nevada] hereby offers to deliver temporary custody ... in order that speedy and efficient prosecution may be had of the indictment, information or complaint ...." Nevada then submitted its custody offer, Pharm's waiver of extradition, and other paperwork required under the IAD to Wisconsin via a transmittal letter stating, 'You may return the above subject to your jurisdiction for disposition of pending charges." Wisconsin accepted Pharm's temporary custody and returned him to this state in January 1988.

¶ 5. Pharm pled not guilty and the matter went to a jury trial in Milwaukee county where Pharm was found guilty. The Milwaukee County Circuit Court imposed consecutive sentences totaling fifteen years and further ordered those sentences to be served consecutively to the life sentence Pharm was then serving in Nevada. Following the sentencing, Wisconsin returned Pharm to Nevada in October 1990 where Pharm continued serving his Nevada sentence. The Wisconsin detainer remained in effect because Pharm was subject to the unserved Wisconsin sentence.

¶ 6. Shortly after his return to Nevada, Pharm received a grant of parole from the Nevada Board of Parole Commissioners. The Parole Agreement recited as a parole condition, "Parole to Wisconsin Detainer." Accordingly, Pharm was returned to Wisconsin where he began serving his fifteen-year sentence on the Milwaukee county convictions. The terms of this exchange of custody were documented in a letter from the Nevada authorities to the Wisconsin authorities:

The above named subject has been paroled to your hold and will remain under Nevada's parole supervision for Life. To assist us in fulfilling our responsibility in this matter, we request that you notify us immediately should the subject escape from your custody or of the final disposition of any pending charges.
Please accept this letter as a request for sixty (60) days notification prior to the subject's release or transfer within your system.

¶ 7. During the time Pharm was serving his Wisconsin sentence, the Nevada authorities periodically wrote to the Wisconsin Department of Corrections, reminding them that Pharm was still under parole supervision in Nevada and that Nevada should be informed of any impending release of Pharm by the Wisconsin authorities.

¶ 8. Pharm was scheduled for mandatory release from his Wisconsin sentences on October 28, 1997. Shortly before this scheduled release, Nevada wrote to Pharm and advised him that he was to immediately contact the Nevada Division of Parole and Probation upon his release. However, on the date of Pharm's scheduled mandatory release, Wisconsin commenced a Wis. Stat. ch. 980 commitment proceeding alleging that Pharm was a sexually violent person. A jury agreed and the Milwaukee County Circuit Court entered an order committing Pharm to a secure mental health facility. The commitment was upheld on appeal. See State v. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163.

¶ 9. Acting pro se, Pharm filed a motion pursuant to Wis. Stat. § 806.07(l)(h) seeking to "open judgment," claiming that his Wis. Stat. ch. 980 commitment violated the Uniform Criminal Extradition Act, Wis. Stat. § 976.03. The circuit court denied the motion, Pharm appealed pro se, and we summarily affirmed the circuit court's ruling. State v. Pharm, No. 2001AP2835, unpublished slip op. (WI App Apr. 8, 2003). Pharm followed with a habeas corpus action in the federal district court claiming a violation of the IAD. However, the district court dismissed the case because Pharm had not exhausted his state remedies.

¶ 10. Still acting pro se, Pharm then commenced the instant habeas corpus action in state court, claiming that his Wis. Stat. ch. 980 commitment was unconstitutional because it violated the IAD. The circuit court rejected Pharm's request for discharge. Pharm again appealed pro se, but has since received the pro bono representation by Attorney Bell.

DISCUSSION

¶ 11. A circuit court's order denying a petition for a writ of habeas corpus presents a mixed question of fact and law. Factual determinations will not be reversed unless clearly erroneous. However, whether ha-beas corpus relief is available to the petitioner is a question of law that we review de novo. State v. Pozo, 2002 WI App 279, ¶ 6, 258 Wis. 2d 796, 654 N.W.2d 12. In this case, the procedural history is not in dispute. Rather, the question before us is one of law, requiring us to interpret the IAD, a matter of statutory construction. See Carmain v. Affiliated Capital Corp., 2002 WI App 271, ¶ 11, 258 Wis. 2d 378, 654 N.W.2d 265.

¶ 12. Pharm's pro se habeas corpus petition alleged that his Wis. Stat. ch. 980 commitment was unconstitutional "because it violates the Interstate Agreement on Detainers codified in Wisconsin at Wis. Stat. § 976.05." In his pro se brief in support of his petition, Pharm elaborated on this claim, arguing that the commitment was invalid because his waiver of extradition authorized only the Wisconsin criminal prosecution, not the later ch. 980 commitment proceeding. The circuit court denied habeas corpus relief to Pharm, ruling that Pharm was then subject to a valid order of commitment as a sexually violent person pursuant to ch. 980. However, as the State acknowledges, the court's ruling did not address Pharm's core argument that his waiver of extradition did not extend to the ch. 980 proceedings. We will do so in this opinion.

¶ 13. The IAD is a congressionally sanctioned interstate compact under the Compact Clause of the United States Constitution, Article I, Section 10, Clause 3. Cuyler v. Adams, 449 U.S. 433, 442 (1981); see also State v. Grzelak, 215 Wis. 2d 577, 580, 573 N.W.2d 538 (Ct. App. 1997). Wisconsin is a party to the Agreement pursuant to Wis. Stat. § 976.05. Grzelak, 215 Wis. 2d at 580. While the rights under the IAD are statutory, State v. Miller, 2003 WI App 74, ¶ 9, 261 Wis. 2d 866, 661 N.W.2d 466, they have the force of federal law. See Cuyler, 449 U.S. at 442.

¶ 14. We begin with the IAD as codified by Wis. Stat. § 976.05. The statute states in relevant part:

(3) Aeticle III. (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, the prisoner shall he brought to trial within 180 days after the prisoner has caused to be delivered... his or her request for a final disposition to be made of the indictment, information or complaint.... (Emphasis added.)
(5) Aeticlb V. (a) In response to a request made under sub. (3) .. . the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had ....
(c) If the appropriate authority refuses or fails to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided ... the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice .... (Emphasis added.)

This statutory language clearly and unambiguously states that the IAD pertains to detainers based on untried charges and that a prisoner's request for a final disposition necessarily relates to such untried charges.

¶ 15. In this case, Wisconsin lodged a detainer against Pharm while Pharm was serving his life sentence in Nevada. In response, Pharm invoked his right to seek a timely disposition of the Wisconsin charges by executing his waiver of extradition. In fact, Pharm's waiver echoed the very words of the IAD — Pharm requested "final disposition of all untried indictments, informations or complaints on the basis of which de-tainers have been lodged against me.. . ." (Emphasis added.) Pharm's waiver of extradition also stated his "consent... to be returned to the institution in which I now am confined." Finally, Pharm's waiver acknowledged that it extended to "[service of] any sentence there imposed upon me, after completion of my term of imprisonment in this state." This latter statement was in keeping with Wis. Stat. § 976.05(3)(e), which provides that a prisoner's waiver of extradition is "deemed to be ... a waiver of extradition to the receiving state to serve any sentence there imposed upon the prisoner after completion of the prisoner's term of imprisonment in the sending state."

¶ 16. Thus, when Pharm executed his waiver of extradition, he had the following rights and expectations: (1) he would be transported to Wisconsin to answer to the pending Wisconsin criminal charges; (2) the Wisconsin charges would be tried within 180 days; (3) regardless of the outcome of the Wisconsin proceedings, he would be returned to Nevada to continue serving his Nevada sentence upon completion of the Wisconsin proceedings; and (4) upon completion of his Nevada sentence, he would be returned to Wisconsin to serve any sentence resulting from the Wisconsin prosecution. Pharm makes no argument that these rights and expectations were not honored and fulfilled. Rather, Pharm's complaint is that the Wisconsin commitment proceedings under Wis. Stat. ch. 980 upon the completion of his Wisconsin sentence were not within the scope of his waiver of extradition and the IAD.

¶ 17. We agree with Pharm that his waiver of extradition did not extend to the Wisconsin commitment proceedings under Wis. Stat. ch. 980, and we do not read the State to argue otherwise. However, that argument assists the State, not Pharm. As our analysis has indicated, the reach and purpose of Pharm's waiver of extradition was completed upon his return to Wisconsin to serve his Wisconsin sentence. Nothing under Pharm's waiver of extradition or the IAD dictated Pharm's fate thereafter.

¶ 18. Moreover, at the time Pharm was returned to Wisconsin to serve his Wisconsin sentence, he was no longer in custody serving his Nevada sentence. Rather, he was a Nevada parolee. The same was obviously true when Wisconsin later commenced the Wis. Stat. ch. 980 commitment proceeding against Pharm. Based on Carchman v. Nash, 473 U.S. 716 (1985), we hold that the IAD does not apply to a parolee. In Carchman, Richard Nash was on probation from New Jersey when he was taken into custody and charged with various offenses in Pennsylvania. Id. at 721. New Jersey filed a detainer with Pennsylvania seeking Nash's custody, alleging that the Pennsylvania offenses constituted violations of Nash's New Jersey probation. Id. at 721-22. Nash responded with a request to New Jersey for final disposition of the probation violation charges. Id. at 722. However, New Jersey failed to bring Nash to trial within the 180-day time limit under the IAD. Id.

¶ 19. Nash then brought a petition for habeas corpus in the federal district court seeking dismissal of the probation violation charges. Id. The district court stayed the action pending Nash seeking relief in state court. Id. Nash then petitioned for habeas corpus relief in the New Jersey state courts, which relief was denied at the trial and appellate levels. Id. Nash then returned to the federal district court, which granted Nash's request for habeas corpus relief. Id. at 722-23. The Third Circuit Court of Appeals affirmed, ruling that an outstanding probation violation charge is an "untried indictment, information or complaint" within the meaning of Article III of the IAD. Id. at 723.

¶ 20. However, the United States Supreme Court reversed the Court of Appeals. Id. at 734. Construing the same provisions of the IAD that we have analyzed, the Supreme Court concluded, as have we, that the language of the act is clear. Id. at 725. In addition, the Court held that the IAD does not apply to a probationer:

The language of the [IAD] therefore makes clear that the phrase "untried indictment, information or complaint" in Art. Ill refers to criminal charges pending against a prisoner. A probation-violation charge, which does not accuse an individual with having committed a criminal offense in the sense of initiating a prosecution, thus does not come within the terms of Art. III. Although the probation-violation charge might be based on the commission of a criminal offense, it does not result in the probationer's being "prosecuted" or "brought to trial" for that offense.

Id. Carchman dealt with a probationer, but we can discern no reason why the same result would not apply to a parolee. If probation status or an allegation of a probation violation does not constitute an "untried indictment, information or complaint" under the IAD, it logically follows that the same must be said of parole status or an allegation of a parole violation.

¶ 21. Pharm, however, relies on Snyder v. Sumner, 960 F.2d 1448 (9th Cir. 1992). There, Snyder was serving a prison sentence in Iowa when Nevada filed a detainer against him. Id. at 1450. Pursuant to the detainer and Snyder's response, Snyder was transferred to Nevada to stand trial on the Nevada charges. Id. While awaiting trial in Nevada, Iowa placed Snyder on parole. Id. Nevada did not bring Snyder to trial until well beyond the deadline prescribed by the IAD. Id. Snyder appealed to the Nevada Supreme Court, which upheld the conviction, ruling that most of the delay was attributable to Snyder. Id.

22. Snyder then pursued a habeas corpus action in the federal district court. Id. at 1451. In response, the State argued for the first time that the IAD deadlines did not apply because Iowa had paroled Snyder after his transfer to Nevada. Id. The district court agreed, but the Ninth District Court of Appeals reversed. Id. at 1451,1457. In identifying the issue, the court of appeals said, "The issue here is whether the [IAD] continues to apply to a prisoner when he or she is paroled from the sending state while awaiting trial in the receiving state." Id. at 1453. Holding that the IAD continued to apply to Snyder, the court said:

[W]e hold that the parole status of a prisoner, after he [or she] is sent to the receiving state, does not affect the applicability of the [IAD] .... We hold that once the defendant has been received by the receiving state, the . . . clock starts to run and cannot be turned off by a grant of parole by the sending state.

Id.

¶ 23. We find Snyder unpersuasive for two reasons. First, the decision fails to address Carchman. To the extent the decisions conflict, we obviously must follow the decision of the Supreme Court.

¶ 24. Second, this case is factually different from Snyder. The Ninth Circuit Court of Appeals identified the issue as "whether the [IAD] continues to apply to a prisoner when he or she is paroled... while awaiting trial in the receiving state." Snyder, 960 F.2d at 1453 (emphasis added). In resolving that issue, the court said, "[W]e hold that the parole status of a prisoner, after he [or she] is sent to the receiving state, does not affect the applicability of the [IAD]." Id. (emphasis added). Unlike Snyder, Pharm was not placed on parole in Nevada while he was awaiting trial in Wisconsin. To the contrary, Pharm was placed on parole in Nevada after he had been tried in Wisconsin and returned to Nevada to continue his Nevada sentence. Also unlike Snyder, Pharm was not a prisoner in custody serving his Nevada sentence when he was returned to Wisconsin to serve his Wisconsin sentence. Instead, Pharm was already on parole. The same was obviously true at the time of Pharm's later commitment under Wis. Stat. ch. 980. Snyder does not govern this case.

¶ 25. To sum up, Pharm's waiver of extradition and the IAD expressly gave Wisconsin the right to Pharm's custody to serve his Wisconsin sentence. At the completion of that sentence, the scope and purpose of Pharm's waiver of extradition and the IAD were satisfied and completed. Nothing in Pharm's waiver of extradition or the IAD governed or guaranteed future events. Specifically, Pharm had no right to be returned to Nevada upon the completion of his Wisconsin sentence, nor a legitimate expectation that he would be. Similarly, Pharm had no right or legitimate expectation of immunization from potential commitment proceedings under Wis. Stat. ch. 980.

CONCLUSION

¶ 26. We hold that Pharm's waiver of extradition and the IAD did not bar the Wis. Stat. ch. 980 commitment proceedings against him. We affirm the order denying Pharm habeas corpus relief.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       SCR 20:6.1 states:
      Pro bono publico service. A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

       At the time of Pharm's Wisconsin conviction, Wis. Stat. ch. 980 had not yet been enacted.

       The record does not include any direct evidence of Wisconsin notifying Nevada of Pharm's scheduled mandatory release date. However, in light of Nevada's letter to Pharm, it is clear that Nevada was aware of Pharm's imminent release.

       We note that Pharm has taken inconsistent appellate positions as to whether he was returned to Nevada following his conviction in Milwaukee county. In summarily affirming Pharm's commitment, we noted, and rejected, Pharm's argument that Wisconsin was without jurisdiction to commence the Wis. Stat. ch. 980 commitment proceeding because Pharm had not been returned to Nevada following the Milwaukee convictions. State v. Pharm, No. 2001AP2835, unpublished slip op. at ¶ 6 (WI App Apr. 8, 2003). However, in this case, Pharm's position is just the opposite. Pharm contends he was returned to Nevada following the Milwaukee county convictions. The State agrees and, in fact, bases a portion of its argument on this fact.

        Given this history, it is likely that the court of appeals' rejection of Pharm's challenge to his extradition in appeal no. 2001AP2835 represents the law of the case on the question before us. However, the State does not invoke the law of the case doctrine. Instead, as noted, the State agrees with Pharm's present historical rendition and addresses Pharm's arguments on the merits. We therefore do not invoke law of the case against Pharm, and we address the issue on the basis of the parties' agreement that Pharm was returned to Nevada following the Milwaukee county convictions.

       The State also draws a distinction between statutory ha-beas corpus and common law habeas corpus, contending that the circuit court properly ruled that Pharm was not entitled to statutory habeas corpus relief because he was committed under a valid judgment of commitment. However, the State says that the circuit court failed to address the common law aspects of Pharm's habeas corpus action. This form of habeas corpus relief lies for violations of the United States Constitution, see State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 451, 593 N.W.2d 48 (1999), and is an equitable doctrine allowing a court to tailor a remedy applicable to the particular facts. State ex rel. Richards v. Leik, 175 Wis. 2d 446, 452, 499 N.W.2d 276 (Ct. App. 1993).
      We question the State's contention that Pharm would not have been entitled to statutory habeas corpus relief if the Wis. Stat. ch. 980 commitment proceeding was barred by Pharm's waiver of extradition and the IAD. Under that scenario, the Milwaukee County Circuit Court arguably would not have had the requisite competency to proceed in a ch. 980 commitment proceeding. Thus, the commitment order would not be valid. However, we need not address this question since we hold that Pharm's rights under the IAD were fiilly honored and the State was not barred from seeking Pharm's commitment pursuant to ch. 980. Thus, Pharm is not entitled to statutory or common law habeas corpus relief.

       We may uphold the result of a trial court's ruling irrespective of the trial court's rationale if the record supports our result. State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679 (Ct. App. 1985); State v. Rash, 2003 WI App 32, ¶ 4 n.2, 260 Wis. 2d 369, 659 N.W.2d 189.

       True, Pharm remained in custody in Nevada despite being granted parole. But that custody was the result of the Wisconsin detainer, not the Nevada sentence.

       We acknowledge that here Pharm seeks to invoke the IAD as a shield against the Wis. Stat. ch. 980 proceedings, whereas in Carchman v. Nash, 473 U.S. 716 (1985), Nash affirmatively invoked the IAD as a sword to obtain extradition to the demanding state. Carchman, 473 U.S. at 722. But that does not mandate a different result in this case.

       The fact that Nevada continued to monitor Pharm's status and requested notification in the event of Pharm's release does not alter our interpretation of the IAD. It is the statute, not Nevada's conduct, that controls the appellate issue.