author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Peter C. Ramuta, Defendant-Appellant.

    Court of Appeals

      No. 02-1431-CR.

      Submitted on briefs February 4, 2003.

      Decided March 4, 2003.

    2003 WI App 80
    (Also reported in 661 N.W.2d 483.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Peter M. Koneazny, assistant state public defender, and Richard D. Martin, assistant state public defender of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sarah K. Larson, assistant attorney general.
    Before Fine, Schudson and Curley, JJ.

       Petition to review filed.

   FINE, J.

¶ 1. Peter C. Ramuta appeals from a judgment entered on his no-contest pleas convicting him of eight serious crimes: six counts of robbery with threat of force, see Wis. Stat. § 943.32(l)(b); one count of first-degree recklessly endangering safety, see Wis. Stat. § 941.30(1); and one count of fleeing an officer, see Wis. Stat. § 346.04(3). He also appeals the trial court's order denying his motion for postconviction relief.

¶ 2. The trial court sentenced Ramuta, who was then forty-one years old, on each of the robbery counts to seven years of imprisonment, with an initial confinement of five years, and two years of extended supervision. These sentences were consecutive to each other, but the sentence on the first count was made concurrent to a sentence Ramuta was then serving. The trial court sentenced Ramuta to ten years of imprisonment on the recklessly-endangering-safety count, with an initial confinement of five years, and five years of extended supervision. This sentence was made consecutive to the others. Finally, the trial court sentenced Ramuta to two and one-half years of imprisonment on the fleeing-an-officer count, with an initial confinement of twenty months, and ten months of extended supervision. This last sentence was made to run concurrent with the sentence on the recklessly-endangering-safety count. Ramuta's total time of initial confinement is thirty-five years.

¶ 3. Ramuta was later sentenced by a circuit court in Waukesha County to thirty years of initial confinement in connection with another robbery spree. The Waukesha sentences were made consecutive to the Milwaukee sentences, and Ramuta contends that the sentences and his less-than-average life expectancy caused by his morbid obesity are new factors warranting modification of his Milwaukee sentences. He also argues that the Milwaukee sentences were unduly harsh and that the trial court erroneously exercised its sentencing discretion. We affirm.

I.

¶ 4. Ramuta committed the Milwaukee robberies over a two-week period in November of 2000. On November 1, he held up a bank by giving a teller a note that said he had a gun. On November 5, he held up a motel and told the victim from whom he took the money that he had the gun. Also on November 5, he held up another motel and threatened the clerk by saying that he had a gun. On November 6,10, and 13 he again held up banks by giving tellers a note that said he had a gun. None of the victims ever saw a gun that Ramuta claimed he had, and he later told police that he only pretended to have it.

¶ 5. The fleeing and endangering-safety charges stem from when Julia Cole, a Milwaukee police officer, saw a man whom she later learned was Ramuta sitting in a pickup truck that had been connected with at least some of the robberies. She went over to him, and told him not to leave because other officers wanted to speak to him. She was reaching into the truck when he took off, dragging her some twenty yards. Other officers chased Ramuta for what the criminal complaint alleges was approximately twenty minutes before he was stopped by spike sticks that punctured his tires. The criminal complaint also alleges that an officer with Cole shot at Ramuta as he was dragging Cole with his truck, and, when she finally fell free of the truck, she, too, fired at Ramuta as he sped away.

¶ 6. Ramuta committed the Waukesha robberies in October and November of 2000: October 11 (a bank), 23 (a bank), 29 (a motel), 30 (a bank), and November 5 (a motel). In each case, the victims said that Ramuta told them, either orally or in a note, that he had a gun. One of the victims said that she saw Ramuta holding a large revolver. Ramuta claimed it was only a wrench. The sentencing court in Waukesha said that it believed the victim, and, also, noted that Ramuta wore disguising clothing to make his identification "less likely." Unlike the situation in Milwaukee, the Wauke-sha crimes were charged as armed robberies. Two of the charges were dismissed as a result of a plea bargain. Ramuta blamed his spree on what his brief on appeal calls a "cocaine binge."

II.

¶ 7. As noted, Ramuta makes two assertions of trial-court error. First, he contends that the Waukesha sentences and his obesity are new factors that warrant modification of the Milwaukee sentences. Second, Ra-muta claims that the trial court erroneously exercised its sentencing discretion. We consider his arguments in turn.

A. Alleged New Factors.

¶ 8. The law appropriately recognizes that sentences may be based on what is unknowingly incomplete information, and, if they are, that there should be some mechanism to correct a resulting injustice. Thus, if after sentencing it turns out that there was something that would have been important to the sentencing court but was either unknown or unknowingly overlooked, the court may resentence the defendant to take the new matter into account. State v. Macemon, 113 Wis. 2d 662, 668, 335 N.W.2d 402, 406 (1983). The hurdle, however, is fairly high: the new factor must be "highly relevant" to the sentence so that its newly revealed existence "frustrates" the court's sentencing intent. State v. Michels, 150 Wis. 2d 94, 98-99, 441 N.W.2d 278, 280 (Ct. App. 1989). A defendant must prove by "clear and convincing evidence" that what he wants the sentencing court to consider is a "new factor." State v. Franklin, 148 Wis. 2d 1, 9, 434 N.W.2d 609, 611 (1989).

¶ 9. We review de novo whether something is a new factor. Id., 148 Wis. 2d at 8, 434 N.W.2d at 611. "[Wlhether the new factor justifies modification of the sentence" is, however, within the trial court's discretion. Ibid.

¶ 10. Our recent decision in State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, is an excellent example of how something that happens after sentencing can be a new factor warranting sentencing modification because it frustrates what the sentencing court wanted the sentence to accomplish. Steve Norton was on probation, with a nine-month sentence hanging over his head when he stole a purse from a woman waiting for a bus. Id., 2001 WI App 245 at ¶¶ 2-3, 248 Wis. 2d at 165-166, 635 N.W.2d at 658. Norton pled guilty to the purse-snatching, and Norton's probation agent told the trial court in a written report that Norton's probation would not be revoked. Id., 2001 WI App 245 at ¶ 4, 248 Wis. 2d at 166, 635 N.W.2d at 658. The agent recommended that the trial court incarcerate Norton for between two and four years so Norton could get in-prison alcohol and drug treatment. Ibid. Although as part of a plea bargain with Norton, the prosecutor said that he would not recommend any specific sentence, the prosecutor suggested that Norton be locked up for thirty months. Ibid. Norton's lawyer also suggested that Norton be sent to prison so he could " 'dry out and get drugs out of his system.'" Ibid.

¶ 11. The trial court sentenced Norton to incarceration for forty-two months, and directed that the sentence be " 'consecutive to any other sentence.'" Id., 2001 WI App 245 at ¶ 5, 248 Wis. 2d at 166, 635 N.W.2d at 658-659. Six weeks later, Norton's probation agent suggested to Norton that he voluntarily submit to the revocation of his probation and told him that he would serve the nine-month stayed sentence concurrently with the forty-month sentence imposed for the purse-snatching. Id., 2001 WI App 245 at ¶ 5, 248 Wis. 2d at 166, 635 N.W.2d at 659. Norton agreed, and his probation was revoked. Ibid. The plan misfired, however, because Norton's forty-two month sentence was, as we have seen, made " 'consecutive to any other sentence.'" Id., 2001 WI App 245 at ¶ 5, 248 Wis. 2d at 166, 635 N.W.2d at 658-659. Norton claimed that this was a new factor that warranted modification of the sentence for the purse-snatching, and we agreed. Id., 2001 WI App 245 at ¶¶ 7-16, 248 Wis. 2d at 167-171, 635 N.W.2d at 659-661. We explained:

Although we agree with the State that, in general, revocation of probation in another case does not ordinarily present a new factor, the specific facts involved in this case require an exception to the general rule. It is clear from the sentencing transcript that everyone understood that Norton's probation would not be revoked at the time of sentencing, or subsequent to sentencing, as a result of the felony theft. Instead, the probation agent intended to use an alternative to revocation as a consequence for committing another crime while on probation. Therefore, Norton would not be exposed to the stayed nine-month sentence from the misdemeanor theft.

Id., 2001 WI App 245 at ¶ 10, 248 Wis. 2d at 168, 635 N.W.2d at 659. The situation here is entirely different and is akin to the situation to which Norton alluded: namely, where a defendant claims that a later sentence following a probation revocation is a "new factor."

¶ 12. As we have seen, Ramuta was arrested after a several-week robbery rampage, and then only after he tried to elude capture, injuring an officer (which the trial court noted at the sentencing hearing "almost killed her") in a high-speed and dangerous chase at the start of which two officers fired their guns. At sentencing, the trial court considered the appropriate factors: the nature of the crimes, the defendant's character, and the need to protect the public, State v. Echols, 175 Wis. 2d 653, 682, 499 N.W.2d 631, 640 (1993), and sent Ramuta to prison for, as we have seen, an initial confinement of thirty-five years.

¶ 13. The trial court recognized that all of Ramuta's crimes were "extremely aggravating in their cumulation," and had "significant impact" on the victims that would "affect the rest of their lives." The trial court also perceived that Ramuta was a person who, in "[djecision, after decision, after decision," had steered his life toward crime, and that all attempts at rehabilitation had failed. Ramuta had even committed a robbery in Douglas County, Wisconsin while he was on probation for a Minnesota robbery. The trial court did recognize, however, that there was an apparent hiatus in Ramuta's criminal record, from 1982 to 1990, when the robberies started again.

¶ 14. Ramuta was sentenced to three years in prison for the Douglas County robbery, but immediately after his parole in January of 1993 Ramuta committed several drug crimes for which he was sentenced to prison for five years. Again, Ramuta was paroled, but that parole was also revoked. As one of the victims of Ramuta's latest crime spree reflected to the writer of the presentence report when told of Ramuta's record: "Some people just don't learn."

¶ 15. During the sentencing hearing, the trial court assessed Ramuta's character and rehabilitative potential:

I can't think of a more abominable history of undesirable behavior patterns. Mr. Ramuta time and time again has had opportunities to conform his conduct to that of a law abiding citizen. Time and again he has had opportunities to know that he has difficulties in conforming his conduct. Time and again he has had opportunities to know that there are consequences for his conduct, time and again opportunities to work on his rehabilitation. None of that has been successful.

The trial court called Ramuta's history of crime "mind boggling," and concluded that he was "extremely dangerous," and had to be removed from society for a long time, noting that the "only positive [ ]" aspects of Ramuta's life that he saw were Ramuta's "G.E.D." (a high-school-graduation equivalence) and his having "admitted to the offenses and [being] cooperative with the police after he was finally apprehended."

¶ 16. The trial court recognized that Ramuta would serve his initial confinement "without parole eligibility":

[T]here now is truth [in] sentencing [so] the Court can actually protect the community for an extensive period of time and know how old Mr. Ramuta is going to be when he can finally be released from prison. Old enough that he will not be able to terrorize the community as he has done over this period of time as represented by his extensive record just in these matters alone that are before the Court, much less with his record of criminal conduct over an extensive period of time.

The trial court emphasized that "confinement is absolutely necessary to protect the public from Mr. Ra-muta."

¶ 17. Ramuta seizes upon the trial court's comment at sentencing, quoted above, that the "Court can actually protect the community for an extensive period of time and know how old Mr. Ramuta is going to be when he can finally be released from prison" as evidencing an intent that Ramuta be released from prison while still alive, and also points out that the Waukesha sentences (and also Ramuta's ill health) would make that impossible. We do not read the Milwaukee court's comments that expansively.

¶ 18. Ramuta was sentenced for the Milwaukee crimes in July of 2001. Sentencing for the Waukesha robberies was not until January of 2002. As the trial court noted in its May 3, 2002, written decision denying Ramuta's motion for sentence modification, although it did not mention the Waukesha matters during its explanation of why it was imposing thirty-five years of initial confinement, it "was apprised multiple times throughout the sentencing proceeding that the defendant had charges pending in Waukesha County." The trial court further opined in its written decision that the sentences imposed by the circuit court in Waukesha County did not "frustrate the purpose of this court's sentences, which was punishment, deterrence, and the absolute need for community protection from this type of activity." It added:

The defendant appeared before this court with fourteen prior convictions stemming from seven different counties and commencing in 1982. His record is atrocious, and the court gave considerable weight to the need to protect the community and to the defendant's inability to conform his conduct in the community. The court could easily have sentenced him to the maximum fifteen years in prison for each offense as the Waukesha county court ultimately did, but it factored his age into the weighing process and imposed less than one half of what it could have imposed. The court intended that the defendant remain in prison virtually for the remainder of his life and continue in supervision until a very old age. Consecutive sentences were imposed to emphasize that each separate crime, each of which involved a separate decision on the part of the defendant, had a separate impact on the defendant's life.

¶ 19. As can be seen from the trial court's extensive remarks, both at the sentencing hearing and in its written decision, the trial court did not, as Ramuta argues on appeal, intend to fix a specific age at which Ramuta would be released from confinement; indeed, the trial court knew that a court in Waukesha County would have another crack at protecting the community from Ramuta. That court could, in the reasoned exercise of its discretion, impose consecutive sentences for the crimes Ramuta committed in that county. See Wis. Stat. § 973.15(2)(a) (sentencing court may "impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously"). Indeed, the Waukesha court noted that although it had "no idea what's going to happen on those Milwaukee County sentences," it did not envision that the Waukesha sentences would result in a modification of the Milwaukee sentences so as to permit Ramuta to survive beyond his period of initial confinement:

I have no idea what's going to happen on those Milwaukee County sentences, whether they'll remain or if they'll be overturned or not, but I must look at what I believe to be a fair and just sentence given what you've done here and given the person that's in front of me and the need to protect the public.
And if that means that you never get out of prison, that's a decision that you have made. You have chosen cocaine as what will rule your life, and we do not need people like that in our community.

The Waukesha court then imposed consecutive sentences, with ten years of initial confinement on each of the three charges to which Ramuta plead guilty — a total initial confinement of thirty years.

¶ 20. Ramuta has not demonstrated by clear and convincing evidence that either the Waukesha sentencing was unknown or overlooked, of that the sentences imposed by the court in Waukesha frustrated the intent of the trial court's sentencing scheme under review here. The Waukesha sentences are not new factors any more than would be, as Norton pointed out, sentences later imposed following a revocation of probation. Norton, 2001 WI App 245 at ¶ 10, 248 Wis. 2d at 168, 635 N.W.2d at 659 ("revocation of probation in another case does not ordinarily present a new factor").

¶ 21. Further, Ramuta's, obesity-related health problems and his resulting shorter-than-normal life expectancy are also not new factors. See Michels, 150 Wis. 2d at 99-100, 441 N.W.2d at 280-281 (defendant's health and its post-sentence worsening not new factors). Ramuta not only knew about his condition when he appeared before the trial court in Milwaukee, but, contrary to his contention, the trial court's sentencing comments do not envision either its expectation or desire that Ramuta would actually survive his confinement; the trial court merely wanted to assure, as it explained in its written decision denying Ramuta's motion for postconviction relief, that Ramuta, if released, would no longer be able to terrorize the community:

The court was fully aware that the defendant would be age 76 at the end of initial confinement and age 90 at the end of extended supervision. The court specifically intended the defendant to be too old to terrorize the community before he would ever be released, and it specifically noted that previous long periods of confinement were ineffective to provide deterrence.

(Trial court's references to the sentencing transcript omitted.) Ramuta's obesity is not a "new factor."

B. Sentencing Discretion.

¶ 22. Ramuta complains that the cumulative terms of initial confinement — thirty-five years, until he turns seventy-six — are excessive. He claims that the trial court did not adequately explain why the sentences for all but one of his crimes should be, to use Ramuta's word, "stacked." We disagree.

¶ 23. As noted, sentencing is in the trial court's discretion. The burden on a defendant to show an erroneous exercise of discretion is heavy; the trial court's sentence is presumptively reasonable. State v. Gallion, 2002 WI App 265, ¶¶ 26-27, 258 Wis. 2d 473, 492-493, 654 N.W.2d 446, 455-456 ("Sentencing courts are 'presumed to have acted reasonably, and the defendant can only rebut the presumption by showing an unreasonable or unjustifiable basis for the sentence in the record.'") (quoted source omitted). See also Echols, 175 Wis. 2d at 682, 499 N.W.2d at 640 ("This court is reluctant to interfere with a trial court's sentence because the trial court has a great advantage in considering the relevant factors and the demeanor of the defendant."). As we have seen, the trial court considered and explained at great length why it was sentencing Ramuta to thirty-five years of initial confinement.

¶ 24. Ramuta contends that given his age and health, the thirty-five years amounts to, in effect, a life sentence. That may be true. But it was certainly within the trial court's discretion to see that as essential to the public's protection. As noted, the legislature has specifically permitted trial courts to "stack" sentences by authorizing courts to "impose as many sentences as there are convictions." Wis. Stat. § 973.15(2)(a). "[W]hether to impose consecutive, as opposed to concurrent, sentences is, like all other sentencing decisions, committed to the trial court's discretion." State v. Johnson, 178 Wis. 2d 42, 52, 503 N.W.2d 575, 578 (Ct. App. 1993).

¶ 25. Although we recognize that trial courts should impose " 'the minimum amount of custody'" consistent with the appropriate sentencing factors, State v. Hall, 2002 WI App 108, ¶ 8, 255 Wis. 2d 662, 671, 648 N.W.2d 41, 45 (quoted source omitted), "minimum" does not mean "exiguously minimal," that is, insufficient to accomplish the goals of the criminal justice system — each sentence must navigate the fine line between what is clearly too much time behind bars and what may not be enough. Without an elaborate system of sentencing grids, like there is in the federal system, no appellate-court-imposed tuner can ever modulate with exacting precision the exercise of sentencing discretion. See Gallion, 2002. WI App 265 at ¶ 9, 258 Wis. 2d at 481-482, 654 N.W.2d at 450. The trial court here, unlike the trial court in Hall, 2002 WI App 108 at ¶ 12, 255 Wis. 2d at 674, 648 N.W.2d at 46, explained its rationale at great length and with full and careful exposition: it put "on the record the relevant and material factors" that informed its decision; it did not rely on any improper factors; and it did not give "too much weight" to "one factor [in] the face of other contravening considerations." Id., 2002 WI App 108 at ¶ 9, 255 Wis. 2d at 671-672, 648 N.W.2d at 45 (internal quotation marks omitted). It also recognized specifically that it was sentencing Ramuta under the truth-in-sentencing law, where the thirty-five years, with de minimis exceptions not material here, meant that Ra-muta would spend at least thirty-five years in prison, provided he lived that long.

¶ 26. The trial court did not erroneously exercise its sentencing discretion. Further, in light of all the reasons given by the trial court as to why it believed Ramuta's sentence was necessary, we cannot say that thirty-five years of initial confinement is beyond the pale of what a civilized community would view as reasonable. See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461 (1975).

By the Court. — Judgment and order affirmed.

       The trial court included in this number the five Waukesha County robberies, for which Ramuta had not yet been sentenced as of July of 2002.

       Under Wis. Stat. § 973.195, effective February 1, 2003, a prisoner may, after he or she serves either eighty-five percent or seventy-five percent of his or her sentence, petition the circuit court for an adjustment of that sentence.

       Ramuta also argues that the truth-in-sentencing law requires heightened appellate scrutiny over trial court sentencing decisions. He also, however, recognizes that this argument was considered and rejected in State v. Gallion, 2002 WI App 265, ¶¶ 5-14, 258 Wis. 2d 473, 479-484, 654 N.W.2d 446, 449-451. On February 19, 2003, the supreme court granted review in Gallion. Although this was not mentioned by Gallion, 2001 Wis. Act 109, § 1135, as sent to the governor, would have added the following to the end of Wis. Stat. § 973.017(10):
      In any appeal from a court's sentencing decision, the appellate court may reverse the sentencing decision if it determines that the sentencing court erroneously exercised its discretion in making the sentencing decision or there is not substantial evidence in the record to support the sentencing decision.
      The governor, however, partially vetoed the proposed § 973.017(10) to delete that sentence. He explained in his veto message:
      I am partially vetoing this provision because it would give the appellate court broader authority over trial court decisions. Appellate courts currently refrain from interference with trial court discretion in imposing sentences. The trial court had the opportunity to observe the witnesses, victims and the defendant, placing the trial court in the best position to pronounce an appropriate sentence. Such a dramatic shift in the standard of review should be undertaken only after thorough review by authorities in appellate law and practice.
      We agree.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    State of Wisconsin ex rel. Dillard Earl Kelley, Sr., Petitioner-Appellant, v. State of Wisconsin, Respondent-Respondent.
    Court of Appeals

      No. 02-1495.

      Submitted on a motion October 18, 2002.

      Decided March 4, 2003.

    2003 WI App 81
    (Also reported in 661 N.W.2d 854.)

      On behalf of the petitioner-appellant, the cause was submitted on the memoranda oí Dillard Earl Kelley, Sr.

    On behalf of the respondent-respondent, the cause was submitted on the memorandum of Michael R. Klos and James M. Freimuth, assistant attorneys general.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.
   PER CURIAM.

¶ 1. Dillard Earl Kelley, Sr., a prisoner proceeding pro se, has appealed from a March 4, 2002 order dismissing his petition for writ of habeas corpus and from an April 12, 2002 order denying his motion for reconsideration. The State has moved to dismiss the appeal. Kelley argues that his notice of appeal was timely filed under the "prison mailbox tolling rule" adopted in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, and was properly addressed to "the clerk of the trial court" under Wis. Stat. Rule 809.10(1)(a) (1999-2000). We agree with Kelley and therefore deny the State's motion to dismiss.

¶ 2. Kelley's notice of appeal was filed in the Milwaukee County Circuit Court Clerk's Office on June 5, 2002, more than ninety days after entry of the order dismissing his petition. Accordingly, this court issued an order on September 13, 2002, directing the parties to file memoranda and affidavits, if appropriate, addressing whether the supreme court's ruling in Nichols crafting a "tolling rule" for petitions for review should be applied to a notice of appeal and whether Kelley's notice of appeal should benefit from the application of the rule. The parties filed their responses; the State's responses included a motion to dismiss the appeal for lack of jurisdiction.

¶ 3. In Nichols, the supreme court held that the time period for filing a petition for review was "tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing." Id. at ¶ 1. The supreme court explained:

The tolling rule will ensure the proper treatment of pro se prisoners who file petitions for review. When pro se prisoners seek to file petitions, their control over the filing process is circumscribed by prison rules and procedures. Pro se prisoners' choice in method of filing is no choice at all. They must rely on the "vagaries of the mail." Other petitioners may personally deliver their petitions to the clerk of court's office, even at the last possible moment. We discern no convincing reason why pro se prisoners who act more promptly and otherwise comply with filing requirements should be placed at a disadvantage.

Id. at ¶ 28.

¶ 4. A notice of appeal, like a petition for review, is a document that must be timely filed in order to grant this court jurisdiction over the case. A prisoner seeking to file a notice of appeal faces the same restrictions on method of filing as one filing a petition for review.

¶ 5. Kelley's response contends that the "prison mailbox tolling rule" should apply because he is a pro se prisoner seeking appellate review of a case challenging his custody. The State concurs with Kelley's position, relying on State ex rel. Tyler v. Bett, 2002 WI App 234, ¶¶ 10-15, 257 Wis. 2d 606, 652 N.W.2d 800, which, in part, summarizes the context in which the tolling rule has been applied. The summary shows that the court of appeals has applied the prison mailbox tolling rule to the forty-five-day period for filing a petition for certio-rari review in circuit court and to various ancillary requirements concerning filing fees and trust account documentation. See State ex rel. Shimkus v. Sondalle, 2000 WI App 238, ¶¶ 13-14, 239 Wis. 2d 327, 620 N.W.2d 409; State ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶ 17, 238 Wis. 2d 393, 617 N.W.2d 201; State ex rel. Locklear v. Schwarz, 2001 WI App 74, ¶ 28, 242 Wis. 2d 327, 629 N.W.2d 30; and State ex rel. Walker v. McCaughtry, 2001 WI App 110, ¶ 16, 244 Wis. 2d 177, 629 N.W.2d 17.

¶ 6. While logic suggests that the prison mailbox tolling rule should apply to Kelley's filing of a notice of appeal in this case, that rule is conditioned upon the prisoner meeting certain conditions. The requirements to "address the petition properly, or otherwise comply with filing requirements." Nichols, 2001 WI 119 at ¶ 27. As the State's response correctly points out, a pro se prisoner's submission of an incorrectly or improperly addressed petition or notice of appeal "would not trigger application of the tolling rule." Tyler, 2002 WI App 234 at ¶ 13.

¶ 7. The facts surrounding the filing of Kelley's notice of appeal in this case are undisputed. A final order denying Kelley's habeas petition was filed in Milwaukee County Circuit Court on March 4, 2002. Kelley had ninety days, or until June 3, 2002, in which to file his notice of appeal or submit the notice of appeal to the proper prison authorities for mailing.

¶ 8. Kelley submitted an affidavit to this court indicating that his notice of appeal was mailed from prison on May 31, 2002. He also attached a copy of a U.S. Postal Service certified mail receipt indicating a mailing on May 31, 2002, to "Circuit Court Branch 42, Milwaukee Courthouse, Milwaukee, Wis. 53233." The State of Wisconsin submitted an affidavit of the Milwaukee County deputy clerk indicating that Kelley's envelope is no longer available. The State's own office file indicates it received a notice of appeal in an envelope postmarked May 31, 2002. The document was stamped as received by the Attorney General's office on June 3, 2002.

¶ 9. The affidavits and exhibits show, as the State concedes, that Kelley delivered his notice of appeal to prison authorities for mailing before expiration of the ninety-day deadline and that it was, in fact, mailed before the deadline expired. The question presented, therefore, is whether Kelley's affidavit and exhibit show that his notice of appeal was properly - or correctly addressed. Where the question on appeal involves interpretation and application of a procedural statute to undisputed facts, it presents a question of law we review without deference to the conclusions of the trial court. See Dairyland Fuels, Inc. v. State, 2000 WI App 129, ¶ 6, 237 Wis. 2d 467, 614 N.W.2d 829.

¶ 10. Wisconsin Stat. Rule 809.10(l)(a) requires that a notice of appeal shall be filed with "the clerk of the trial court." We do not read Wis. Stat. Rule 809.10(1)(a) in a vacuum, but rather consider it together with other statutes on the same subject to determine its plain and clear meaning. Dairyland Fuels, 2000 WI App 129 at ¶ 7.

¶ 11. In Wisconsin, trial courts are circuit courts of "general jurisdiction" with the "power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings." Wis. Stat. § 753.03. Wisconsin Stat. §§ 753.016(1) and (2) provide that in Milwaukee County each branch of the circuit court shall have a deputy clerk provided by the clerk of the circuit court. Reading these statutes in pari materia, we conclude that in Milwaukee County "the clerk of the trial court" contemplated by Wis. Stat. Rule 809.10(l)(a) necessarily encompasses the deputy clerk assigned to the specific branch of the circuit court as well as deputy clerks performing duties within the office of the clerk of circuit court.

¶ 12. In view of this specific statutory scheme governing the location of deputy clerks in each branch of the trial court of Milwaukee County, we conclude that Kelley properly addressed his notice of appeal "to the clerk of the trial court" within the meaning of Wis. Stat. Rule 809.10(l)(a) by specifying its delivery to "Circuit Court Branch 42, Milwaukee Courthouse, Milwaukee, WI 53233." Because Kelley's envelope was properly addressed and timely placed in the prison mail prior to the expiration of the ninety-day time limit following the entry of the circuit court's order on appeal, we hold that the appeal was timely filed within the meaning of Nichols and this court has jurisdiction of it. Accordingly, the State's motion to dismiss the appeal is denied.

By the Court. — Motion denied.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       WISCONSIN Stat. § 753.016 provides as follows:
      753.016 Judicial circuit, for Milwaukee County. (1) This section applies only in the judicial circuit for Milwaukee County.
      (2) Court room; offices. The county board shall provide suitable court rooms and offices, the sheriff shall provide the necessary deputy sheriffs as attending officers under s. 59.27(3) and the clerk of the circuit court shall provide a sufficient number of deputy clerks for all the judges and branches of the court.


author: DEININGER, J. DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Gary M. B., Defendant-Appellant.

    Court of Appeals

      No. 01-3393-CR.

      Submitted on briefs August 9, 2002.
    Decided March 6, 2003.

    2003 WI App 72
    (Also reported in 661 N.W.2d 435.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of T. Christopher Kelly of Kelly & Habermehl, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Dykman and Deininger, JJ.

       Petition to review granted.

       We have previously observed that Wisconsin's rule on the use of prior conviction evidence for impeachment purposes can result in what is, essentially, judicially sanctioned perjury, in that if some but not all of a witness's convictions are deemed admissible for impeachment purposes, the witness's proper response to the question, " '[H]ow many times [have you been convicted of a crime]?'" is actually false. See State v. Fritz, 212 Wis. 2d 284, 295-96, 569 N.W.2d 48 (Ct. App. 1997); see also 7 Daniel D. Blinka, Wisconsin PRactice: Evidence § 609.1, at 420 (2d ed. 2001).

   DEININGER, J.

¶ 1. A jury found Gary B. guilty of three counts of first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (2001-02). He appeals, claiming the trial court erred by permitting three, twenty-five-year-old convictions to be used to impeach his credibility instead of limiting the number of admissible convictions to his two most recent ones. We agree that the trial court did not engage in a proper exercise of discretion when it ruled that the State could utilize all five convictions for impeachment purposes, but we conclude that any error in this regard was harmless. Accordingly, we affirm the appealed judgment of conviction.

BACKGROUND

¶ 2. Gary's stepdaughter testified at trial that when she was between the ages of nine and twelve, he sexually assaulted her two to three times per week at the family's home in the village of Potosi. According to the girl, who was fifteen at the time of trial, Gary touched her vagina on top of or underneath her clothing and she, at his request, touched his penis either on top of or underneath his clothing. The girl further testified that she described Gary's behavior to her mother after the first assault, but her mother did not believe her. The girl also testified that she occasionally locked herself in the bathroom in order to prevent the assaults, and that if she asked Gary to stop the assaults, he would tell her that they both "would get into trouble" and that she "wouldn't be able to see [her] mom again."

¶ 3. The girl's mother died of a heart attack when the girl was twelve, and she went to live with various out-of-state relatives, ultimately settling with her biological father and his girlfriend in Iowa. Several months after moving to Iowa, she described Gary's behavior to her father's girlfriend, who in turn contacted the Iowa Department of Health and Human services. The department arranged for the girl to enter counseling and subsequently contacted the Village of Potosi Police Department. A police officer interviewed the girl twice and took two written statements.

¶ 4. The State charged Gary with three counts of first-degree sexual assault of a child, to which he pled not guilty. Prior to trial, Gary filed a motion in limine requesting "[t]hat a hearing be held as to the number of convictions . .. that would be used as impeachment. . . as to the defendant." He had a total of five previous convictions: a 1973 conviction from the State of Maine for "uttering or insufficient funds"; a 1975 conviction from the State of Maine for disorderly conduct; a 1977 conviction from the State of Maine for assault; and two 1991 convictions from the State of Iowa for domestic abuse.

¶ 5. At the hearing on his motion, Gary did not object to the use of his two 1991 convictions for impeachment purposes. He did object, however, to the use of all five convictions, arguing that the court should not allow the introduction of "the convictions in the 1970's since it has been. . . quite some time since those had occurred" and because they do not "go towards truthfulness." The State's one-sentence response was that "[t]he consistent series of [crimes in] '73, '75, and '77, twice in '91, make it significant." The court ruled as follows:

The law generally in Wisconsin doesn't follow the federal law. There is no exclusion for convictions more than 10 years old. Some of these are 27 years, 25 years, 23 years. But to the extent that there is I guess a presumption in the statute and the statute allows for prior convictions to be brought in because it does say something about the person's credibility, I will allow it.

¶ 6. At trial, Gary's counsel elicited the following during Gary's direct examination:

Q Well, I want to go off track a little bit. Have you ever been convicted of a crime?
A Yes, I have.
Q How many times?

A Five times.

The State made no mention of Gary's prior convictions during its cross-examination of him, but it referred to them once during its closing rebuttal argument:

First of all, you have to look in terms of everybody's credibility, including that of the defendant. You can take into consideration his interest, who has the ultimate interest to gain by a finding of not guilty. He does. He has the absolute ultimate greater interest. Because of that you can take into consideration the fact that [Gary] has had five prior convictions. Use it only in terms of whether or not he is credible, not in terms of whether something else happened. It goes toward his credibility.

Later in its argument, the State also said that, although Gary "said that it didn't happen," the jury should "look at his prior record and look at his interest in the outcome of this case . . . ."

¶ 7. Following closing arguments, the judge instructed the jury as follows:

Evidence has been received that the defendant.. . has been convicted of crimes. This evidence was received solely because it bears upon the credibility of a defendant as a witness. It must not be used for any other purpose and particularly you should bear in mind that a criminal conviction at some previous time is not proof of guilt of the offense now charged.

See Wis JI — Criminal 327.

¶ 8. After approximately three hours of deliberation, the jury reported to the judge that it was unable to reach a unanimous decision. The court, over Gary's objection, read Wis JI — Criminal 520 to the jury, an instruction which encourages jurors to try to reach a unanimous verdict if possible. After twenty more minutes of deliberation, the jury returned a guilty verdict on all three counts. The court entered a judgment of conviction and sentenced Gary to twelve years imprisonment with consecutive probation. Gary appeals the judgment.

ANALYSIS

¶ 9. Gary argues that the trial court erred by failing to weigh the danger of unfair prejudice resulting from introduction of evidence of his prior convictions against its probative value as required by Wis. Stat. § 906.09:

(1) GENERAL rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. The party cross-examining the witness is not concluded by the witness's answer.
(2) EXCLUSION. Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Id. (emphasis added). He contends that his three convictions for relatively minor offenses some twenty-five years ago were only remotely probative of his credibility at trial, and that he was unfairly prejudiced by their admission because the case boiled down to a credibility contest between him and his stepdaughter.

¶ 10. Before addressing the merits of Gary's claim of error, we take up the State's contention that Gary waived any objection to the trial court's admission of his prior convictions by preemptively testifying to them on direct examination. The State bases its argument on Ohler v. United States, 529 U.S. 753 (2000). The United States Supreme Court held in Ohler that "a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error." Id. at 760. The Court noted that "both the Government and the defendant in a criminal trial must make choices as the trial progresses." Id. at 757. The Court concluded that if the defendant "choose[s] ... to introduce the [prior] conviction on direct examination and remove the sting," "there is nothing 'unfair'. . . about putting [the defendant] to [his] choice." Id. at 758-59.

¶ 11. As Gary correctly notes, however, we are not bound by the Ohler decision because the Supreme Court's holding did not rest on an interpretation of U.S. Constitutional or other "federal law" that we must apply in this case. Rather, the Court in Ohler enunciated a rule of administration applicable to the federal courts based on what it deemed to be a "well-established commonsense principle." Id. at 756. Holdings of the United States Supreme Court are binding on this court only when they address questions of federal law which govern the dispute before us. See State v. King, 205 Wis. 2d 81, 93, 555 N.W.2d 189 (Ct. App. 1996). The question of whether Gary waived the right to challenge in this court the trial court's ruling on the number of convictions admissible for impeachment purposes is not a question of federal law. We are therefore free to apply our own notion of "commonsense principles" in determining whether to find waiver in a defendant's preemptive introduction of conviction evidence in response to a court's pre-trial denial of a motion to exclude it.

¶ 12. Indeed, we have already addressed the issue, reaching a conclusion contrary to that of the Supreme Court in Ohler. We concluded in Vanlue v. State, 87 Wis. 2d 455, 275 N.W.2d 115 (Ct. App. 1978), rev'd on other grounds, 96 Wis. 2d 81, 291 N.W.2d 467 (1980), that a defendant who unsuccessfully objects to the admission of prior conviction evidence does not waive the objection by preemptively testifying about the convictions on direct examination. Id. at 462. We reasoned that when a trial court decides to admit prior conviction testimony over a defendant's objection, the defendant is left with "no choice but to offer the evidence himself' so as "to lessen the prejudicial impact the evidence would have on the jury." Id. Under such circumstances, we concluded that the defendant's introduction of the prior conviction evidence is a forced, defensive use of the evidence, which does not constitute a waiver of the defendant's previous objection to the admissibility of the evidence for purposes of an appeal. Id.

¶ 13. Our conclusion on the issue at hand in Vanlue has not been overruled, withdrawn, or modified and we are bound to follow it. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Accordingly, we conclude that by introducing the number of his prior convictions on direct examination Gary did not waive his right to claim error in the admission of the three oldest convictions.

¶ 14. The State suggests, however, that the Ohler decision is controlling because we "cited with approval" the "general principle[s]" of Ohler in State v. Frank, 2002 WI App 31, ¶¶ 13-14, 250 Wis. 2d 95, 640 N.W.2d 198, review denied, 2002 WI 121, 257 Wis. 2d 117, 653 N.W.2d 890 (Wis. Sep. 3, 2002) (No. 01-1252-CR). We disagree. Frank involved very different circumstances than those present here and in Vanlue. The defendant in Frank entered into a Wallerman stipulation, whereby he stipulated to the intent element of a sexual assault charge in order to avoid the introduction of "other acts" evidence to which he had unsuccessfully objected. See Frank, 250 Wis. 2d 95, ¶¶ 3, 6. After he was convicted, the defendant appealed the trial court's ruling admitting the other acts evidence. We concluded that the defendant had waived his right to appeal the trial court's ruling by choosing to enter into the Waller-man stipulation. Id., ¶¶ 13-14.

¶ 15. In support of our conclusion, we quoted a passage from Ohler which included the Court's statement that " 'there is nothing 'unfair'... about putting [the defendant] to [his] choice.'" Id., ¶ 13 (quoting Ohler, 529 U.S. at 759). We noted earlier in our opinion that, generally, a trial court's ruling to admit evidence can constitute "prejudicial error" only if the evidence "actually is admitted against the party objecting to it." Id., ¶ 9. The defendant in Frank precluded that from happening by opting to enter into the Wallerman stipulation, and we cited Ohler for the proposition that it was not "unfair" for a defendant to be put to such a choice. Id., ¶ 14.

¶ 16. Our conclusion in Frank was plainly premised on the fact that the defendant had obtained the very result he desired — preventing the jury from hearing of his prior acts — and he could not claim prejudicial error from something that did not happen. See id., ¶ 5 ("We conclude that other acts evidence must be introduced at trial before a criminal defendant can argue reversible error."). Here, unlike in Frank, Gary did not prevent the jury from hearing the disputed conviction evidence, and we conclude that, under Vanlue, his preemptive introduction of it did not constitute a waiver. It is one thing for a defendant to completely eliminate the potentially harmful impact of unsuccessfully objected to evidence by taking alternative steps to prevent its introduction, and quite another to merely soften the blow by beating the State to its punch.

¶ 17. In short, we are not persuaded that either Ohler or Frank requires us to abandon our conclusion in Vanlue regarding the absence of waiver when a defendant responds to an adverse ruling by preemptively introducing conviction evidence which the defendant unsuccessfully sought to exclude.

¶ 18. The State's attempts to distinguish Vanlue are similarly unpersuasive. The State points out that in Vanlue, the nature of the defendant's prior convictions was used to show that the defendant possessed the requisite intent for the charged crime, while here the fact and number of Gary's prior convictions were intended solely to attack his credibility. Our holding in Vanlue, however, did not turn on the State's intended purpose in using the prior conviction evidence. Rather, we premised our conclusion on the principle that a pre-trial ruling permitting the introduction of prior conviction evidence effectively forces the defendant to introduce the evidence preemptively, and the defendant's introduction of the evidence should not therefore constitute a waiver of his or her prior objection to its admissibility. See Vanlue, 87 Wis. 2d at 461-62. That principle is as valid here as it was in Vanlue.

¶ 19. The State also attempts to distinguish this case from Vanlue by asserting that the defendant in Vanlue "preserved the claim for appeal by making a record in the trial court and receiving assurances from the trial court that the defendant had not waived any rights" whereas "[t]his did not occur in the present case." The flaw in this attempted distinction is that the State cites the supreme court's Vanlue decision, not ours, for the fact that the defendant received "assurances from the trial court that [he] had not waived any rights." See Vanlue, 96 Wis. 2d at 86. That fact is nowhere to be found in our decision, and hence cannot be said to have been a basis for the result we reached. (The supreme court did not address the waiver issue in its Vanlue decision. See footnote 4.)

¶ 20. Finally, the State posits that, had Gary's counsel "ask[ed] him only if he had ever been convicted of a criminal offense," the prosecutor might have chosen not to elicit the number of Gary's convictions during cross-examination. Thus, in the State's view, Gary's "preemptive admission" of the number of his convictions apprised the jury of a fact it might never have otherwise learned, rendering the harm, from the court's pre-trial ruling too speculative to be considered on appeal. See Frank, 250 Wis. 2d 95, ¶ 15 (noting that the State might not have introduced the disputed other acts evidence even absent the Wallerman stipulation, and consequently, "[s]uch speculative harm is not sufficient to warrant review of the trial court's ruling"). We disagree that the concept of "speculative harm" should be applied to the present facts.

¶ 21. At the hearing on Gary's motion, the State asked the court to admit evidence of all five convictions, arguing that "[t]he consistent series of [crimes in] '73, '75, and '77, twice in '91, make it significant." Once the court ruled that all five convictions were admissible for impeachment purposes, it was reasonable for Gary to assume that the State would elicit the number of his convictions on cross-examination. See Vanlue, 87 Wis. 2d at 462 ("When the defendant's objection was overruled, the evidence was going to be placed before the jury by the State."). Gary most certainly would not have mentioned his convictions at all had the trial court not allowed their admission. See Ohler, 529 U.S. at 761 (Souter, J., dissenting) ("[D]efense lawyers do not set out to impeach their own witnesses, much less their clients.").

¶ 22. We therefore conclude, as we did in Vanlue, that "it made no difference who placed the [prior conviction] evidence before the jury" because the error, if any, "was made by the trial court when the motion was granted over the defendant's objection." See Vanlue, 87 Wis. 2d at 462. The point again is that, here, unlike in Frank, the jury actually heard the allegedly prejudicial facts, and Gary should not be penalized for acting reasonably in response to the court's ruling. Cf. State v. Pitsch, 124 Wis. 2d 628, 631, 369 N.W.2d 711 (1985) ("Defense counsel apparently followed the usual trial strategy of raising the issue of defendant's prior convictions on the premise that this approach is less damaging than if the prosecutor raises the issue first." (emphasis added)).

¶ 23. We conclude that Gary made a sufficient record to preserve for appeal his objection to the use of his three oldest convictions for impeachment purposes. "In order to preserve the right to appeal on a question of admissibility of evidence, a defendant must apprise the trial court of the specific grounds upon which the objection is based." State v. Tutlewski, 231 Wis. 2d 379, 384, 605 N.W.2d 561 (Ct. App. 1999). Gary did so, objecting to the three earliest convictions as being stale and irrelevant. We therefore turn to the substance of Gary's claim: that the trial court erred in ruling Gary's three earliest convictions admissible for impeachment purposes.

¶ 24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶ 9.) The statute reflects the presumption that "a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted." State v. Kruzycki, 192 Wis. 2d 509, 524, 531 N.W.2d 429 (Ct. App. 1995). The decision whether to admit prior conviction evidence for impeachment purposes under § 906.09 lies within the trial court's discretion. Id. at 525. We will uphold a trial court's discretionary decision if it correctly applied accepted legal standards to the facts of record and used a rational process to reach a reasonable conclusion, putting aside "whether we would have made the same ruling." Id.

¶ 25. The trial court allowed all five of Gary's convictions to be admitted based solely on its understanding that there is "a presumption in the statute . . . [that] . . . allows for prior convictions to be brought in because [they] do[ ] say something about the person's credibility." The court's statement that evidence of prior convictions is presumptively relevant to the issue of a witness's credibility is a correct statement of law. See id. at 524. The presumption, however, is an insufficient basis for admitting evidence of every one of a witness's prior convictions for impeachment purposes. If it were, Wis. Stat. § 906.09 would contain only the "general rule" that "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible." Section 906.09(1).

¶ 26. Wisconsin Stat. § 906.09 does not end with the "general rule," however. Subsection (2) requires that a court also consider whether conviction evidence should be excluded because "its probative value is substantially outweighed by the danger of unfair prejudice." As the supreme court has explained:

Whether a prior conviction involves dishonesty is, of course, a relevant consideration to admissibility. As the Judicial Council Committee's Note emphasizes:
a judge should consider whether from the lapse of time since the conviction, the rehabilitation or pardon of the person convicted, the gravity of the crime, the involvement of dishonesty or false statement in the crime .. . the probative value of the evidence of the crime is substantially outweighed by the danger of undue prejudice.

State v. Kuntz, 160 Wis. 2d 722, 752, 467 N.W.2d 531 (1991) (quoting Judicial Council Committee's Note, 59 Wis. 2d at R181).

¶ 27. Because the trial court did not weigh the probative value of the three oldest convictions against the danger of unfair prejudice after Gary objected to their admission, we conclude that it did not engage in a proper exercise of discretion. See, e.g., State v. Smith, 203 Wis. 2d 288, 295-96, 553 N.W.2d 824 (Ct. App. 1996). Had it done so, the court might have concluded that Gary's three twenty-five-year-old convictions for relatively minor offenses were not sufficiently probative of his credibility to merit mention at trial. Although we may independently review the record to determine whether the proper legal standard applied to the facts of record support the trial court's ruling, we decline to do so here. Because there were no evidentiary proceedings (and only very brief argument) on the issue in the trial court, the record provides no basis for us to conclude that, had the court applied the correct legal standard, it would have reached the same result.

¶ 28. We therefore proceed to consider whether any error in admitting evidence of the oldest convictions was nonetheless harmless. See id. at 300 ("Not all errors require reversal."). The State asserts that if the trial court erred in admitting all five of Gary's convictions instead of only his two most recent ones, the error was harmless. We agree. An error is harmless if it is " 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" State v. Harvey, 2002 WI 93, ¶ 46, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). We concluded in State v. Moore, 2002 WI App 245, 257 Wis. 2d 670, 653 N.W.2d 276, that despite the supreme court's use of different language to express the test,

[tjhere is nothing in Harvey to suggest that this language constitutes a substantive change in Wisconsin's harmless error test. The court's prior articulation of the test was frequently summarized as follows: "whether there is a reasonable possibility that the error contributed to the conviction. A reasonable possibility is a possibility sufficient to undermine our confidence in the conviction." State v. Williams, 2002 WI 58, ¶ 50, 253 Wis. 2d 99, 644 N.W.2d 919 (citations omitted).

Id., ¶ 16.

¶ 29. The question before us, therefore, is whether there is a reasonable possibility that Gary's testifying to five prior convictions instead of only two contributed to his conviction. We are satisfied that it did not — our confidence in the outcome of the trial is not undermined by any error relating to the admission of Gary's three oldest convictions for impeachment purposes.

¶ 30. Gary did not challenge the admissibility of his two 1991 convictions for impeachment purposes. The jury would therefore have been informed that he had two criminal convictions, and accordingly, jurors would have had reason to question his credibility on the basis of his past criminal conduct. Although each additional conviction of which the jury learned may have added incrementally to its suspicion of Gary's credibility, "the question is one of degree[:] .... 'this [was] not a case of one conviction versus eleven... or none versus some.'" State v. Carnemolla, 229 Wis. 2d 648, 655, 600 N.W.2d 236 (Ct. App. 1999) (citation omitted). Rather, this appeal involves the difference between two convictions and five convictions, a difference that we conclude was too slight to have contributed to the jury's verdict. See State v. Bowie, 92 Wis. 2d 192, 204-06, 284 N.W.2d 613 (1979) (concluding that the defendant's admission to four convictions when he had only one was harmless error).

¶ 31. As the supreme court observed in Bowie, the standard instruction (and the one given in this case) "does not direct the jury to give the number of convictions special consideration." Id. at 205. It is the fact of past criminal conduct, not the number of occasions of it, that the jury is instructed to consider for credibility purposes. Indeed, both the supreme court and this court have recently concluded that where a jury is informed of a witness's criminal past, the precise number of the witness's convictions is unlikely to be outcome determinative.

¶ 32. The supreme court determined in State v. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, that because the jury knew that certain State witnesses were incarcerated for their participation in the crimes involving the defendant, and they testified at trial "wearing jail or prison clothes," defense counsel's failure to impeach these witnesses with their exact number of prior convictions did not prejudice the defendant. Id., ¶ 44. "While the exact number of convictions might have incrementally weakened the credibility of the witnesses, this decrease is not enough to establish a reasonable probability that the jury would have reached a different verdict." Id.

¶ 33. We reached a similar conclusion in State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, review denied, 2003 WI 16, 259 Wis. 2d 103, 657 N.W.2d 708 (Wis. Jan. 14, 2003) (No. 02-0192-CR), rejecting the defendant's attempts to distinguish Traw-itzki:

Trawitzki was not about numbers or how the numbers came to be that way; it was about whether the jury had an adequate basis to question the credibility of the witnesses such that a failure to impeach with the exact number of convictions would likely not have affected the outcome of the case. See Trawitzki, 2001 WI 77 at ¶ 44. While we do recognize that the number of convictions a witness has is relevant to the jury's assessment of a witness's credibility, we are not convinced that the result of Tkacz's trial would have been different had the jury known the exact number of [a State witnesses convictions. Our confidence in the outcome of the trial is not undermined by Tkacz's counsel's failure to impeach [the witness] with her additional convictions.

Id., ¶ 24.

¶ 34. We recognize that in both Trawitzki and Tkacz, the credibility of state witnesses was at issue, not that of a defendant, and that the number of the witnesses' convictions were understated rather than overstated. Nonetheless, the discussion in these cases supports our conclusion that once a jury is apprised of a witness's past criminal conduct, evidence of the exact number of the witness's prior convictions will rarely be outcome determinative. We also acknowledge that the issue addressed in Trawitzki and Tkacz was not harmless error but prejudice in the context of ineffective assistance of counsel claims. As the supreme court has noted, however, despite differences in terminology and which party bears the burden of proof, the test for harmless error is "essentially consistent with the test for prejudice in an ineffective assistance" claim. Harvey, 254 Wis. 2d 442, ¶ 41 (citing State v. Dyess, 124 Wis. 2d 525, 544, 370 N.W.2d 222 (1985)).

¶ 35. Our conclusion might be different in this case if the State had made repeated references to Gary's five convictions, or had it hammered away at the point during closing arguments. That was not the case, however. As we have noted, the State made no reference whatsoever to Gary's convictions during the evidentiary portion of the trial, nor even in its initial closing argument to the jury. The State's single reference to the fact that Gary had five previous convictions came during its rebuttal argument (see ¶ 6), only after defense counsel had gone to considerable lengths in her argument to raise questions regarding the credibility of the stepdaughter's testimony. The State, moreover, coupled its brief reference with an immediate caution that the jury should use this information "only in terms of whether or not he is credible, not in terms of whether something else happened."

¶ 36. To this minimal use by the State of the conviction evidence, we add the fact of the court's cautionary instruction (see ¶ 7), which further minimized the potential for unfairly prejudicial use of the evidence by the jury. See State v. Anderson, 230 Wis. 2d 121, 132, 600 N.W.2d 913 (Ct. App. 1999) ("Since we presume that jurors follow the court's instructions, a cautioning instruction is normally sufficient to cure any adverse effect attendant with the admission of other acts evidence.") (citation omitted). Moreover, as we have noted, the court's instruction did not focus the jury's attention on the number of Gary's convictions but only on the fact of his past criminal conduct, of which it was destined to learn in any event.

¶ 37. Finally, we have reviewed the trial record and conclude that it contains ample evidence of Gary's guilt. See, e.g., Dyess, 124 Wis. 2d at 545 (a reviewing court should consider whether the conviction is "strongly supported by evidence untainted by error"). Gary's stepdaughter testified to the circumstances of the assaults, including their frequency, content and locations; her attempts to stop them; and Gary's efforts to discourage her from telling others about the assaults. The record also shows that she reported Gary's conduct to a number of third-persons, including her mother initially, and later, her father's girlfriend, social services personnel, and a Potosi police officer.

¶ 38. Gary, on the other hand, denied that he had engaged in the acts of which his stepdaughter accused him. He attempted to discredit the stepdaughter's testimony by noting various inconsistencies among her trial testimony, her preliminary hearing testimony and statements she made to police regarding details of the sexual assaults. Gary also pointed out that the girl's allegations of his sexual misconduct were inconsistent with (1) letters she wrote to Gary after her mother's death in which she stated that she wanted to return to Wisconsin to live with him, and (2) the failure of other individuals to discern or suspect a pattern of sexual abuse, in particular a social worker who did a placement study and assisted Gary's family in dealing with the behavioral problems of Gary's son.

¶ 39. We acknowledge that the outcome of the trial, as is true of many sexual assault prosecutions, hinged on whether the jury would believe the stepdaughter's testimony or Gary's denials. In other words, this was a "she said, he said" case. We also acknowledge that, given this fact, anything that tended to undermine Gary's credibility in the eyes of the jury would have some corresponding tendency to bolster the credibility of the girl's accusations against him. Notwithstanding the foregoing, however, the fact that the jury learned that Gary had five instead of two prior criminal convictions, did nothing to directly bolster the victim's testimony, and neither did it deprive the jury of any information that would have directly and adversely reflected on her credibility.

¶ 40. In short, the jury heard and was thus able to evaluate the inconsistencies in the stepdaughter's statements, together with all of the other reasons Gary was able to muster why jurors should disbelieve the girl's testimony. The jury's verdict shows, however, that jurors, who were presumably rational, found her testimony credible. We simply cannot conclude that had Gary answered "two" instead of "five" when his counsel asked him how many times he had been convicted of a crime, rational jurors would have come to a different verdict. The State's limited use of the prior conviction evidence, the court's cautionary instruction concerning that evidence, and the significant damage to Gary's credibility that would have stemmed from his acknowl-edgement of two criminal convictions, all lead us to conclude that any error in this case did not contribute to the verdict and was thus harmless. See Harvey, 254 Wis. 2d 442, ¶ 48.

CONCLUSION

¶ 41. For the reasons discussed above, we affirm the appealed judgment.

By the Court. — Judgment affirmed.

DYKMAN, J.

¶ 42. {dissenting). Evidence that a witness has been convicted of a crime is strong medicine. Especially when a complainant testifies, "The defendant did it," and the defendant testifies, "No, I didn't," and there are no other witnesses who saw the crime alleged. With only "You did it," and "No, I didn't," a jury naturally casts about for reasons to believe one witness or the other. Evidence that the complainant or the defendant has been convicted of a crime is often the only difference between those witnesses, and it therefore can tip the scale one way or the other. That is the reason the supreme court adopted Wis. Stat. § 906.09 in 1973. The Judicial Council Committee's Note on § 906.09 reads:

[T]here is apparent a growing uneasiness that impeachment [by evidence of conviction of crime] not only casts doubt upon [a defendant's] credibility, "but also may result in casting such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is an habitual lawbreaker who should be punished and confined for the general good of the community."

(Citation omitted.)

¶ 43. The committee continued: "The most significant feature of the rule is the requirement that the evidence of conviction be excluded if the judge determines that its probative value is outweighed by the danger of unfair prejudice."

¶ 44. Wisconsin Stat. § 906.09 (2001-02) attempts to prevent the improper use of prior conviction evidence by requiring that a trial court, prior to the admission of conviction evidence, hear the relevant facts pertaining to the convictions, and exercise discretion as to whether a jury should hear the evidence or not. The Judicial Council Committee's Note explains the factors a trial court might consider:

The Rule has been drafted with the view that a judge should consider whether from the lapse of time since the conviction, the rehabilitation or pardon of the person convicted, the gravity of the crime, the involvement of dishonesty or false statement in the crime, the elements noted in Luck v. United States [348 F.2d 763 (1965)], and Gordon v. United States, 127 U.S. App. D.C. 343, 383 F.2d 936 (1967), the probative value of the evidence of crime is substantially outweighed by the danger of undue prejudice.

¶ 45. The majority correctly concludes that the trial court erroneously exercised its discretion because it used an incorrect standard when addressing Gary B.'s motion in limine to exclude evidence of his prior convictions. But it is what the majority next concludes that concerns me. "Nonetheless, the discussion in these cases supports our conclusion that once a jury is apprised of a witness's past criminal conduct, evidence of the exact number of the witness's prior convictions will rarely be outcome determinative." Majority at ¶ 34. The majority has thus concluded that improper admission of the numbers of prior convictions is ipso facto harmless.

¶ 46. This cannot be correct. Under the majority's theory, a defendant who was eight times convicted of speeding, contrary to Wis. Stat. § 346.57(4) (1965), and once of disorderly conduct, contrary to Wis. Stat. § 947.01, could not successfully complain on appeal that the State improperly introduced evidence of the eight convictions, because even if the evidence was improperly admitted, the admission was ipso facto harmless. Human beings don't behave that way, and juries are comprised of human beings. To say that it doesn't matter whether a defendant answers "once," "nine times," or "57 times" does not comport with the way ordinary people think.

¶ 47. It is no answer to say that pursuant to Wis. Stat. § 906.09(3), evidence of conviction cannot be admitted until a judge first makes a determination whether the evidence should be excluded. That is the rule, but trials are busy places for counsel and trial judges alike, and rules are not always followed. Once an appellate court holds that any error in applying a statute is ipso facto harmless, the significance of the statute is substantially reduced.

¶ 48. I would treat this case as we did in Gyrion v. Bauer, 132 Wis. 2d 434, 393 N.W.2d 107 (Ct. App. 1986). There, after concluding that evidence of the defendant's criminal record was improperly admitted, we said:

While the improper admission of evidence of a prior conviction is not ipso facto prejudicial, we cannot conclude in this case that this evidence did not taint the jury's verdict. The evidence regarding the accident was conflicting and, in the absence of this prejudicial testimony, the jury may well have chosen to believe Gyrion's version of the accident. Because of the admission of clearly prejudicial evidence, the judgment is reversed and the cause remanded for a new trial.

Id. at 439 (citations omitted).

¶ 49. While the error in Gyrion was different from the error here, it is Gyrion's analysis that is important. We cannot tell what Gary B.'s jury would have done had it not heard evidence of three of Gary B.'s five convictions. We can only pretend to know. The three convictions were between twenty-three and twenty-seven years old, and were for writing bad checks, disorderly conduct and assault. Gary B. was fined and put on probation for these crimes. He spent no time in jail. The relevance of crimes of this nature and this old cannot outweigh the danger of unfair prejudice in admitting them. The jury was not told of the nature of Gary B.'s old crimes, and indeed could not be told of their nature. Voith v. Buser, 83 Wis. 2d 540, 545-46, 266 N.W.2d 304 (1978). There was significant evidence from which a jury could conclude that the sexual assaults did not occur, and there was also significant evidence from which a jury could conclude that they did. The credibility of the defendant and of the complainant was critical. I cannot conclude that there is "no reasonable possibility" that the error contributed to Gary B.'s conviction. See State v. Smith, 203 Wis. 2d 288, 300, 553 N.W.2d 824 (Ct. App. 1996). Accordingly, I respectfully dissent.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Gary does not challenge on appeal the giving of this instruction.

       Waiver rules applied by appellate courts are "rule[s] of administration," not of jurisdiction or of the court's power. See, e.g., State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983).

       The supreme court reversed our conclusion in Vanlue that the trial court had erroneously exercised its discretion in admitting evidence of the nature of the defendant's prior convictions for purposes of proving his intent. See Vanlue v. State, 96 Wis. 2d 81, 83, 291 N.W.2d 467 (1980) ("The court of appeals held that the trial court committed reversible error in admitting such evidence and reversed the judgment of conviction. We reach the opposite conclusion."). The court did not address our discussion of the waiver issue. See id. at 92-93 (Abrahamson, J., dissenting).

        State v. Wallerman, 203 Wis. 2d 158, 167-68, 552 N.W.2d 128 (Ct. App. 1996), overruled on other grounds by State v. Veach, 2002 WI 110, 255 Wis. 2d 390, 648 N.W.2d 447.

        See State v. Pittman, 174 Wis. 2d 255, 268-69, 496 N.W.2d 74 (1993) (If "the trial court's exercise of discretion demonstrates consideration of improper facts or a mistaken view of the law, the reviewing court need not reverse if it can conclude ab initio that facts of record applied to the proper legal standard support the trial court's conclusion."); but see Barrera v. State, 99 Wis. 2d 269, 282, 298 N.W.2d 820 (1980) (The "court of appeals made its own conclusion that the probative value of this evidence would be outweighed by its inflammatory nature. In so doing, the appellate court usurped the function of the trial court. We caution the appellate court against taking on the role of the trier of fact."); Lueck's Home Improvement, Inc. v. Seal Tite Nat'l, Inc., 142 Wis. 2d 843, 850, 419 N.W.2d 340 (Ct. App. 1987) ('We may not exercise the discretion vested in the trial court.").

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The majority does not tell us what factors must be present in the rare case in which the wrong number of convictions is outcome determinative. The usual legal result of applying the adjective "rare" to an outcome is to assure that the outcome never occurs.


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. La Rae J. Schell, Defendant-Appellant.
    Court of Appeals

      No. 02-1394.

      Submitted on briefs February 13, 2003.

    Decided March 11, 2003.

    2003 WI App 78
    (Also reported in 661 N.W.2d 503.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Gregory A. Parker of Kachin-sky, Petit & Parker, LLC of Neenah.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of John M. Daniels, assistant district attorney of Appleton.
    A nonparty brief was filed by Joseph P. Guidote, Jr., corporate counsel of Appleton, on behalf of Outagamie County Sheriff, Bradley G. Gehring.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Originally assigned as a one-judge appeal, this case was reassigned to a three-judge panel on February 21, 2003. See Wis. Stat. Rule 809.41. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

   CANE, C.J.

¶ 1. La Rae Schell appeals a judgment precluding her placement on home monitoring as a probation condition. After Schell was given a jail term as a condition of her probation, the sheriff released her on home monitoring. When the circuit court learned of her release, it conducted a hearing and amended the judgment to preclude Schell's placement on home monitoring, saying it never intended for Schell to be eligible for the program.

¶ 2. The sole issue on appeal is whether a circuit court possesses the power to prohibit the sheriff from ordering home monitoring for a probationer ordered to serve jail time as a probation condition. Because the court was without the authority to preclude Schell's placement on home monitoring, we reverse that part of the amended judgment.

BACKGROUND

¶ 3. In December 2001, Schell was convicted of three counts of encouraging a probation violation and one count of negligently allowing escape. The court withheld sentence and placed Schell on three years' probation. As a condition of probation, the court gave Schell a total of 100 days in jail with Huber privileges, ten for the escape charge and ninety for the encouraging probation violation charges.

¶ 4. During the sentencing hearing, Schell requested home monitoring because she was a former jail employee and was concerned for her safety. The court did not specifically preclude Schell's placement on home monitoring, only saying "I note that although an argument was made about safety, I don't believe there is a safety issue on the female Huber section. I have never heard of that before. I am sure that the jail staff will be professional in the treatment of the defendant."

¶ 5. After Schell reported to begin her time in jail, the sheriff determined Schell was appropriate for home monitoring and placed her on Outagamie County's new Global Positioning System program. Shortly thereafter, Schell's ex-husband's wife complained to the court that Schell was on home monitoring. The court then ordered Schell off the program, saying it never intended to allow Schell the option of home monitoring as part of her probation. The court granted Schell credit for the time served and stayed imposition until she could retain counsel. At a later hearing where Schell was represented, the court reaffirmed its judgment, concluding it had the authority to prohibit home monitoring because it was an implied power of its authority to order monitoring under Wis. Stat. § 973.03(4). Schell informed the court of her intent to appeal, and the court stayed the remaining jail time pending the appeal.

DISCUSSION

¶ 6. Schell raises two challenges to the court's decision. First, she argues the court violated the separation of powers doctrine when it modified her sentence to prohibit home detention. She contends that once a court passes sentence, it is up to the executive branch to execute that sentence. Because the sheriff has statutory authority to place her in home detention, she argues the court could not change its sentence after it learned she was in the program. Second, she argues the court erred by modifying her sentence because no new factor existed. The State responds to both arguments, claiming the court was merely clarifying its sentence.

¶ 7. The parties somewhat misframe the issue. Schell was given probation and her jail time was a probation condition. Probation and jail time as one of its conditions are generally not sentences. State v. Fearing, 2000 WI App 229, ¶ 6, 239 Wis. 2d 105, 619 N.W.2d 115. The parties' confusion may partly be explained by the trial court's reliance on Wis. Stat. § 973.03(4) to determine it had the power to prohibit home detention. Section 973.03 addresses county jail sentences. Probation, however, is governed by Wis. Stat. § 973.09. Thus, our analysis must focus on any conflict between § 973.09 and Wis. Stat. § 302.425.

¶ 8. Further, Schell frames the issue as whether the court may modify its judgment after turning her over to serve her jail time solely because the court learned the sheriff had placed her on home detention. She relies on State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999). There, our supreme court, in upholding the process of administrative probation revocation against a separation of powers challenge, noted that after a court imposes probation, the adversary system has terminated and the administrative process of the executive branch, directed to the correctional and rehabilitative aspects of probation, is substituted in its place. Id. at 650. If we were to resolve the issue as presented, we would be required to weigh this general proposition against the trial court's broad power to modify the terms and conditions of probation prior to its expiration. Wis. Stat. § 973.09(3)(a).

¶ 9. Instead, we choose to frame the issue differently; namely, whether a trial court possesses the power to prohibit the possibility of home monitoring for a probationer ordered to serve jail time as a probation condition. In other words, we must determine whether the trial court violated the separation of powers doctrine when it prohibited the sheriff from placing Schell on home monitoring. We reframe the issue for two reasons. First, the trial court explained it intended to prevent Schell's placement on home monitoring as an original probation condition and that it was clarifying that condition at the second hearing. Second, addressing this issue will allow us to give guidance to courts, sheriffs departments, criminal defendants and prosecutors as home monitoring increasingly becomes an option.

¶ 10. Whether the court's order violated the separation of powers doctrine is a constitutional question we review independently. See Horn, 226 Wis. 2d at 642. We must first determine the scope of the court's and the sheriffs authority under Wis. Stat. § 973.09 and Wis. Stat. § 302.425. Statutory interpretation is a question of law we review independently. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998).

¶ 11. Wisconsin Stat. § 302.425(2) gives the sheriff the authority to place in a home monitoring program "any person confined in jail who has been arrested for, charged with, convicted of or sentenced for a crime." In addition, the sheriff may transfer any person in the home monitoring program to the county jail. Id. Whether a sheriff may place on home monitoring a probationer ordered to serve jail time was left unresolved in State v. Eastman, 220 Wis. 2d 330, 339, 582 N.W.2d 749 (Ct. App. 1998). There, we determined a court could not order home monitoring instead of jail when it is required to order jail as a probation condition under Wis. Stat. § 973.09(1)(d). Id. at 338. Our decision focused on the court's authority to order home monitoring, and we declined to address the sheriffs power to place persons on home monitoring because the issue was not presented. Id. at 339.

¶ 12. We determine the plain language of Wis. Stat. § 302.425 allows the sheriff to place persons on home monitoring when they are given jail time as a probation condition. Section 302.425(2) allows the sheriff to place on home monitoring "any person confined in jail who has been . . . convicted of... a crime." Schell, and any other person ordered to serve jail time as a probation condition, falls within the statute's language.

¶ 13. Trial courts are generally allowed to impose probation as an alternative to sentencing a person convicted of a crime. See Wis. Stat. § 973.09; Fearing, 2000 WI App 229 at ¶ 6. Section 973.09 gives trial courts broad power over the terms and conditions of probation, allowing the court to set any terms "which appear to be reasonable and appropriate" and to modify these terms and conditions "for cause and by order." Wis. Stat. § 973.09(1)(a), (3)(a). The court may order a probationer to serve time in jail as a probation condition. Wis. Stat. § 973.09(4). The court may also order a probationer placed on home monitoring, unless that person is required to serve a jail term as a probation condition under § 973.09(1)(d). See Eastman, 220 Wis. 2d at 338. The theory of the probation statute is to rehabilitate the defendant and protect society without placing the defendant in prison. See State v. Hays, 173 Wis. 2d 439, 445, 496 N.W.2d 645 (Ct. App. 1992). Also, "inherent within the probation statute is the court's continued power to effectuate the dual purposes of probation, namely, rehabilitating the defendant and protecting society, through the court's authority to modify or extend probationary terms." State v. Sepulveda, 119 Wis. 2d 546, 554, 350 N.W.2d 96 (1984).

¶ 14. We now turn to whether the court's amended judgment violated the separation of powers doctrine. This doctrine, while not explicitly set forth in the Wisconsin Constitution, is implicit in the division of governmental powers among the judicial, legislative and executive branches. State ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis. 2d 1, 13, 531 N.W.2d 32 (1995). The constitutional powers of each branch fall into two categories: exclusive and shared powers. Id. at 13-14. No branch may intrude on the exclusive powers of another. Id. at 13. Shared powers lie at the intersections of these exclusive core constitutional powers and are not confined to any one branch. Horn, 226 Wis. 2d at 643. The branches may exercise power within these intersections, but may not unduly burden or substantially interfere with another branch. Friedrich, 192 Wis. 2d at 14.

¶ 15. Probation is within the shared powers of all three branches of government and each branch plays a role. Horn, 226 Wis. 2d at 648. The legislature has constitutional authority to offer probation as an alternative to sentencing, the judiciary has authority to impose probation and set its terms and conditions, and the executive branch has the authority to administer probation. Id. at 646. Here, the legislature has specifically authorized sheriffs, members of the executive branch, to release persons in their custody on home monitoring. The legislature has also authorized the judiciary to impose reasonable and appropriate probation conditions. We must determine, then, whether the court's preclusion of Schell's placement on home monitoring substantially interferes with the sheriffs authority to place persons in his or her custody on home monitoring. We conclude it does.

¶ 16. Whether a circuit court sentences a defendant to prison or imposes probation, "the adversary system has terminated and the administrative process, vested in the executive branch of the government, directed to the correctional and rehabilitative processes of the parole and probation system has been substituted in its place." Id. at 650. Part of this administrative process is the sheriffs authority to manage the county jail. See, e.g., Wis. Stat. § 59.27(1) (sheriff has duty to take charge of persons sent to county jail). Wis. Stat. § 302.425 is part of this authority. By precluding the sheriff from releasing Schell on home monitoring, the trial court substantially interfered with the sheriffs power.

¶ 17. In Skow v. Goodrich, 162 Wis. 2d 448, 451, 469 N.W.2d 888 (Ct. App. 1991), we upheld the constitutionality of a Department of Corrections program releasing prisoners to relieve overcrowding. The program allowed the department to release prisoners using a procedure other than mandatory release or discretionary parole. Id. at 450. Rejecting a separation of powers challenge to the regulation, we concluded the department was not interfering with the trial court's sentencing authority. Id. at 452. We noted the program was similar to the ordinary probation and parole system and said the program does nothing more than "regulate the manner in which a defendant serves his or her sentence," adding the "regulation of the timing and method of release from prison to parole is well within the department's powers." Id. at 451-52.

¶ 18. Similarly, Wis. Stat. § 302.425 allows the sheriff to regulate the manner in which persons serve time in county jails. Although it could be argued that the court required Schell to actually serve her jail time in jail and the sheriffs release unconstitutionally usurps the court's authority, we disagree. The corrections program in Skow allowed the department to shorten confinement time to less than the court's sentence. Id. at 451. There, the department's actions would directly undermine the sentencing court's authority, but did not violate the separation of powers doctrine. Here, the legislature has authorized sheriffs to release persons confined in county jails on home monitoring. Arguably, this undermines the court's authority to require, among other things, that a probationer's jail time actually be served in jail. It does not, however, violate the separation of powers doctrine.

¶ 19. Finally, public policy considerations support our conclusion. The decision to place a person on home monitoring is no doubt informed by the particular safety, budgetary and space constraints of each sheriffs office and county jail. The sheriff, perhaps more than any other person, is in the best position to undertake these analyses. The legislature has determined that the judiciary is best situated to determine whether and how to place a person on probation. It is not similarly well suited to oversee the various decisions attendant to the execution of a county jail term. The legislature has left county jail oversight to the sheriff, and the trial court's decision to prevent home monitoring when jail time is ordered as a probation condition interferes with those responsibilities.

¶ 20. Therefore, we reverse that part of the amended judgment prohibiting the sheriff from exercising his/her discretion to place Schell on the home monitoring program.

By the Court. — Judgment reversed in part.

       Wisconsin Stat. § 973.09 reads in relevant part:
      Probation. (1) (a) Except as provided in par. (c) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes an increased term of probation, as authorized under sub. (2) (a) 2. or (b) 2., it shall place its reasons for doing so on the record.
      (d) If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under par. (a) if the court requires, as a condition of probation, that the person be confined under sub. (4) for at least that mandatory or presumptive minimum period ....
      (3) (a) Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.
      (4) (a) The court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court prescribes, but not to exceed one year. The court may grant the privilege of leaving the county jail, Huber facility, work camp, or tribal jail during the hours or periods of employment or other activity under s. 303.08 (1) (a) to (e) while confined under this subsection.

       Wisconsin Stat. § 302.425 reads in relevant part:
      (2) Sheriff's or superintendent's general authority. Subject to the limitations under sub. (3), a county sheriff or a superintendent of a house of correction may place in the home detention program any person confined in jail who has been arrested for, charged with, convicted of or sentenced for a crime. The sheriff or superintendent may transfer any prisoner in the home detention program to the jail.
      (3) Placement op a prisoner in the program. If a prisoner described under sub. (2) and the department agree, the sheriff or superintendent may place the prisoner in the home detention program and provide that the prisoner be detained at the prisoner's place of residence or other place designated by the sheriff or superintendent and be monitored by an active electronic monitoring system. The sheriff or superintendent shall establish reasonable terms of detention and ensure that the prisoner is provided a written statement of those terms, including a description of the detention monitoringprocedures and requirements and of any applicable liability issues. The terms may include a requirement that the prisoner pay the county a daily fee to cover the county costs associated with monitoring him or her. The county may obtain payment under this subsection or s. 302.372, but may not collect for the same expenses twice.

       We invited the attorney general to file a brief in this matter because of the constitutional issue it presented. The attorney general declined our invitation.