author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Elizabeth Mata, Defendant-Appellant.
    Court of Appeals

      No. 00-2791-CR.

      Submitted on briefs April 20, 2001. —
    Decided June 6, 2001.

    2001 WI App 184
    (Also reported in 632 N.W.2d 872.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles D. Larson of Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of William C. Wolford, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, Anderson and Snyder, JJ.

       Petition to review denied 8-27-01.

   ANDERSON, J.

¶ 1. Elizabeth Mata appeals from a judgment of conviction for the crime of forgery contrary to Wis. Stat. § 943.38(l)(a) (1993-94) and from an order denying her motion for postconviction relief. On appeal, Mata argues that the trial court accepted her plea without a factual basis, claiming that the underlying facts of her case do not constitute the crime of forgery. In addition, Mata argues that her ten-year prison sentence is unduly harsh. We do not find Mata's arguments to be persuasive; we affirm the trial court's judgment of conviction and its order denying Mata's motion for postconviction relief.

Facts

¶ 2. At her postconviction motion hearing on September 11, 2000, Mata testified that she moved to Wisconsin from Texas in 1990 to get away from an abusive husband. While in Wisconsin, Mata claimed that she used the name and identity of her sister in order to hide her whereabouts from her husband. Mata obtained false identification, rented an apartment, opened a bank account and wrote checks under her sister's name. Eventually, Mata began using alcohol and drugs. Over the next six to eight years, Mata assumed several different aliases. When she assumed an alias, she would represent herself and live her life under the assumed name. It became her pattern to write bad checks under an alias until she or the bank would close her account. She would then assume a new identity and open a new account. Mata testified that it was not her intention to write bad checks when she opened the first two accounts under aliases. However, Mata also testified that she planned to write bad checks the third time she opened an account under an alias.

¶ 3. Apparently Mata attempted to repay some of the bad checks, but did not repay all of them before being arrested and charged in Illinois, Racine County, Wisconsin and eventually Walworth County, Wisconsin. On January 27, 1997, the Walworth County District Attorney filed the criminal complaint that is the basis of this appeal charging Mata with thirty-seven counts of forgery, contrary to Wis. Stat. § 943.38(l)(a). Each count was based on an individual check that Mata had written and which was returned for insufficient funds. On February 24, 1997, Mata waived the preliminary hearing.

¶ 4. On June 3, 1999, Mata pled guilty to thirty-seven counts of forgery pursuant to a plea agreement under which the State agreed to cap its sentencing recommendation at ten years. The trial court determined that Mata had freely and voluntarily tendered her pleas:

THE COURT: All right. I believe that the defendant has freely, voluntarily tendered her plea. With respect to a factual basis ... what was the pattern the defendant was going through here?
[ASSISTANT DISTRICT ATTORNEY]: According to the confession she made to the police on January 6 of 1997, she was obtaining false Social Security cards, ID cards and licenses in other names, all of which are listed on the criminal complaint. She would then open up bank accounts in those false names, obtain checks and then cash them around the area. And in the criminal complaint are listed out all 37 checks, their numbers, how much they were written for, in what name, and the location of where they were written.
THE COURT: Why is this a felony and why not just had checks as a misdemeanor?
[ASSISTANT DISTRICT ATTORNEY]: Because [Mata] never — it's not an issue of worthless checks, it's an issue of she never intended — she intended to defraud. She opened up checking accounts in fictitious names. It's not like these were like, for example, a person going by both her maiden name and her married name. These were fictitious names. She fraudulently obtained identification, fraudulently opened up accounts having no intention of ever probably being caught or having any money in those accounts to cover all of the checks she was writing. Therefore, it's with intent to defraud, and with the fictitious names and everything, it's falsely creating legal rights and obligations.
THE COURT: These occurred in '96. Has Ms. Mata been absent from the country?
[ASSISTANT DISTRICT ATTORNEY]: It was originally filed, as you stated, in I think February of '97. She failed to appear in July of '97. Next time we heard of her she was in custody in McHenry County, Illinois. That was December of'98. We did a detainer, and it looks like the first time she appeared here again was April of '99.
THE COURT: So she's been absent from the state either because she was incarcerated or just gone then.
[ASSISTANT DISTRICT ATTORNEY]: Right.
THE COURT: What's the source of all these read-ins? Same pattern?
[ASSISTANT DISTRICT ATTORNEY]: Same pattern. (Emphasis added.)

The trial court then found that a factual basis existed for Mata's pleas:

THE COURT: Ms. Karls [Mata's Attorney], do you believe there's a factual basis for these charges?
MS. KARLS: Yes, Your Honor.
THE COURT: Ms. Mata, do you understand what the District Attorney has said? You apparently opened a checking account, obtained checks, then wrote the checks using false ID and pocketing the money. Forgery. Do you understand that?
[MATA]: Yes.
THE COURT: Forgery is committed by a person who, first, deals with bank checks such as these are, legal rights and obligations are created by them, then you make them or altering a check or the endorsement so as to appear to have been made by another person with authority. You used different names and never intended to put any money in that account. Hence, that element.
And, finally, with intent to defraud. You had no intention that they be paid, as I understand it. Do you understand that?
[MATA]: Yes.
THE COURT: I believe there's a factual basis for the 37 counts, find the defendant guilty, enter judgments of conviction. (Emphasis added.)

Finally, the court addressed the 187 read-in counts:

THE COURT: [Ms. Mata do you understand that] the 187 checks that you wrote follow the same pattern as the checks that you're charged with on the 37. Do you understand that?
[MATA]: Yeah.
THE COURT: I believe there's a factual basis for the charge, I believe the defendant understands the facts and the charges and the elements, find the defendant guilty, enter a judgment of conviction on the 37 counts. We'll treat the balance of the charges as read-ins at the final hearing.
THE COURT: Again these read-ins are to be treated as read-ins for all purposes including jeopardy, penalty and restitution as I understand it. Any objection to those three purposes, Ms. Karls?
MS. KARLS: No, Your Honor.

¶ 5. On July 29, 1999, the trial court sentenced Mata to ten years in the Wisconsin state prison system on count one. The court withheld sentence on the remaining counts, placing Mata on probation for twenty years. On May 15, 2000, Mata filed a motion for postconviction relief, it stated that there was not a factual basis for her guilty pleas, that she had had ineffective assistance of counsel, and that she should be granted a sentence modification. Mata later abandoned the ineffective assistance of counsel claim.

¶ 6. On September 11, 2000, after hearing testimony and argument on the plea withdrawal and sentence modification issues, the trial court denied Mata's motion. Mata now appeals the judgment of conviction and order denying postconviction relief. The heart of Mata's argument on appeal is that she assumed each of the "false" names to replace her own identity and, therefore, none of the acts underlying the charges purported to be the act of anyone but herself. She argues that issuing worthless checks "appears to be the real conduct the State seeks to punish." She contends that the trial court’s factual findings did not constitute forgery, the crime to which she pled.

¶ 7. Secondly, Mata argues that her sentence is unduly harsh because she was overcharged and that the nature of the conduct to be punished amounted to the issuance of worthless checks, not forgery. She claims that the trial court did not properly weigh the sentencing factors and, as a result, the sentence of ten years in prison was "not a logical conclusion a reasonable judge would reach, and therefore was an erroneous exercise of discretion."

Law

¶ 8. Wisconsin Stat. § 943.38(l)(a) states:

Forgery, (lj Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class C felony:
(a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights ....

Analysis

¶ 9. First, we address Mata's challenge to the factual basis for her pleas. We will only reverse a trial court's determination that there was a sufficient factual basis for accepting a plea if that finding was clearly erroneous. State v. West, 214 Wis. 2d 468, 474-75, 571 N.W.2d 196 (Ct. App. 1997). Here, the trial court's finding of a factual basis for accepting Mata's pleas was not clearly erroneous. In fact, the trial court carefully and properly made its finding. In so doing, the trial court explained:

Forgery is committed by a person who, first, deals with bank checks such as these are, legal rights and obligations are created by them, then you [alter] a check or the endorsement so as to appear to have been made by another person with authority. You used different names and never intended to put any money in that account. Hence, that element. And, finally, with intent to defraud. You had no intention that they be paid ....
I believe there's a factual basis for the 37 counts, find the defendant guilty, [and] enter judgments of conviction.

¶ 10. Mata argues that the trial court was erroneous in finding a factual basis for her forgery pleas because she contends that her conduct did not rise to the level of forgery. Mata claims that her use of aliases when opening her various bank accounts and her issuance of checks from these accounts under the various aliases did not violate the forgery statute because they were not "purporting to be that of another" under the statute. Mata goes into a lengthy discussion about whether to apply the broad or narrow definitions of this element of forgery and points to the different rules (broad and narrow) that have emerged from other jurisdictions. Mata's discussion on this point is academic because we recently addressed this very issue in State v. Czarnecki, 2000 WI App 155, 237 Wis. 2d 794, 615 N.W2d 672, review denied, 237 Wis. 2d 260, 618 N.W.2d 750 (Wis. Aug. 29, 2000) (No. 99-1985-CR).

¶ 11. In Czarnecki, the defendant sold stolen goods to small drugstores under the business name of Dougan Brothers, and he falsely represented himself to be Scot Dougan. Id. at ¶¶ 2-3. He obtained checks in the name of that alias and then endorsed the checks under that alias. Id. He argued that there was nothing false about the endorsements because the check writers knew him under his abas and intended him to cash the checks. Id. at ¶ 7. We disagreed. We held that if the use of an alias was part of a fraudulent scheme, the "purporting to be that of another" element of the statute was satisfied. Id. at ¶ 11.

¶ 12. The same is true here. Although Mata claimed an innocent reason for the use of her aliases (i.e., fear of her husband), the fact remains that she also used the aliases as a means of financially benefiting from issuing checks she knew could not be covered because the account they were drawn from had insufficient funds. And she did this time and again. She pled to 37 counts of forgery; 187 counts were read in. Each and every count was based on a fraudulently issued check signed under an alias. Mata's conduct involved more than the crime of issuing worthless checks — she passed herself off under an alias as part of a fraudulent scheme to obtain money via the issuance of checks from an account she knew to have insufficient funds. That is the crux of forgery. Mata pled to forgery and the trial court, based on its finding of a factual basis, properly accepted Mata's forgery pleas.

¶ 13. We now consider Mata's claim that the sentencing court misused its discretion in refusing to modify her sentence. We review a trial court's conclusion that a sentence it imposed was not unduly harsh and unconscionable under an erroneous exercise of discretion standard. State v. Giebel, 198 Wis. 2d 207, 220, 541 N.W.2d 815 (Ct. App. 1995). In conducting this review, we acknowledge that there is a strong public policy against any interference with the sentencing discretion of the court and there is an equally strong presumption that the sentencing court acted reasonably. State v. Perez, 170 Wis. 2d 130, 142, 487 N.W.2d 630 (Ct. App. 1992). The burden is on the defendant to show some unreasonable or unjustified basis for the sentence imposed. Id.

¶ 14. Mata does not carry her burden of showing that the basis for the sentence imposed was unreasonable or unjustified. Instead, Mata simply renews her argument that there was not a factual basis for her pleas and therefore she should have been punished for the crime of issuing worthless checks and not forgery. We have established that the trial court made a proper finding of a factual basis for Mata's pleas to thirty-seven counts of forgery. Mata's exposure for each count was ten years. The trial court sentenced Mata to ten years in prison on count one and withheld sentence on the remaining thirty-six counts, placing Mata on probation for twenty years. We cannot say that the trial court's imposition of ten years is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Peters, 192 Wis. 2d 674, 698, 534 N.W.2d 867 (Ct. App. 1995). We therefore affirm the sentence.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1993-94 version unless otherwise noted.

       In the context of a negotiated plea, a trial court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 645-46, 579 N.W.2d 698 (1998). However, we do not believe it necessary to turn to this rule here because the trial court did go to some length to determine whether there was a factual basis for Mata's negotiated plea.


source: Caselaw Access Project

author: DYKMAN, PJ.

license: Public Domain

text:
    In re the Commitment of Deryl B. Beyer: State of Wisconsin, Petitioner-Respondent, v. Deryl B. Beyer, Respondent-Appellant.

    Court of Appeals

      No. 00-0036.

      Submitted on briefs December 13, 2000. —
    Decided June 7, 2001.

    2001 WI App 167
    (Also reported in 633 N.W.2d 627.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jack E. Schairer, assis- ' tant state public defender of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
    Before Dykman, PJ., Vergeront and Lundsten, JJ.

       Petition to review filed.

   DYKMAN, PJ.

¶ 1. Deryl B. Beyer appeals from a judgment committing him to a secure mental health facility after a jury found that he was a sexually violent person. He argues that, because his probable cause hearing was held after the statutory seventy-two-hour time limit, the trial court lost competence to proceed and the petition for his commitment should have been dismissed. We disagree and conclude that, because the seventy-two-hour time limit is directory, the court did not lose competence.

¶ 2. Beyer also argues that at trial, the State failed to prove an element essential to a Wis. Stat. ch. 980 commitment: that the petition was filed within ninety days of his discharge or release. Beyer further argues that double jeopardy prohibitions bar any retrial. The supreme court and this court have recently addressed these issues in State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94 (Thiel I), and State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321 (Thiel II). In light of those decisions, we conclude that Beyer should receive an evidentiary hearing or trial limited to evidence relating to the ninety-day element. We therefore reverse and remand for that limited purpose.

I. Background

¶ 3. Beyer was convicted of first-degree sexual assault in 1981 and sentenced to twenty years in prison. As his release date approached, the State petitioned for his commitment as a sexually violent person under Wis. Stat. ch. 980. Pursuant to Wis. Stat. § 980.04 (1995-96), the trial court ordered that Beyer continue to be detained for purposes of the petition and that a probable cause hearing be held within seventy-two hours.

¶ 4. On the day the hearing was scheduled, October 12, 1998, Beyer filed a request for judicial substitution at approximately 5:00 p.m. A new judge was assigned to the case on October 22, 1998, but the probable cause hearing was not held until December 14, 1998.

¶ 5. After the hearing, the trial court found probable cause to believe that Beyer was a sexually violent person as defined in Wis. Stat. ch. 980, and the case proceeded to a jury trial pursuant to Wis. Stat. § 980.05. The jury found Beyer to be a sexually violent person, and the trial court entered a judgment ordering him committed to a secure mental health facility. Beyer appeals.

II. Analysis

A. Wis. Stat. § 980.04(2) Seventy-two-hour Time Limit

¶ 6. Beyer argues that the trial court lost competence to proceed once the seventy-two-hour time limit in Wis. Stat. § 980.04(2) had passed. The State argues that the trial court was competent to rule on Beyer's petition because the seventy-two-hour time limit is directory rather than mandatory. We agree with the State.

¶ 7. "Whether a statute is mandatory or directory is a matter of statutory construction and, as such, is a question of law which we review without deference to the trial court." Combined Investigative Servs., Inc. v. Scottsdale Ins. Co., 165 Wis. 2d 262, 273, 477 N.W.2d 82 (Ct. App. 1991). Only when a statutory time limit is mandatory does the circuit court generally lose competence to proceed if that time limit is not met. See Schoenwald v. M.C., 146 Wis. 2d 377, 391-92, 432 N.W.2d 588 (Ct. App. 1988); cf. State v. Kywanda F., 200 Wis. 2d 26, 34, 546 N.W.2d 440 (1996).

¶ 8. Wisconsin Stat. § 980.04(2) explains that if the subject of a Wis. Stat. ch. 980 petition is in custody, "the court shall hold the probable cause hearing within 72 hours after the petition is filed . . . ." (Emphasis added.) In deciding the question of whether a given statute's use of the word "shall" is mandatory or directory, we consider the objectives sought to be accomplished by the statute, the statute's history, the consequences that would flow from the alternative interpretations, and whether a penalty is imposed by its violation. State v. Perry, 181 Wis. 2d 43, 53-54, 510 N.W.2d 722 (Ct. App. 1993).

¶ 9. First, we note that the legislature has not indicated any penalty for the State's failure to comply with the seventy-two-hour time limit in Wis. Stat. § 980.04(2). Next we turn to the object and history of the statute. The purpose of a probable cause hearing under § 980.04(2) is to protect sex offenders from being confined improperly for unreasonably long periods of time where the State has no support for its allegations. State v. Brissette, 230 Wis. 2d 82, 88, 601 N.W.2d 678 (Ct. App. 1999). However, the purpose of the probable cause hearing must be viewed in light of the overall objectives of Wis. Stat. ch. 980.

¶ 10. The principal purposes behind Wis. Stat. ch. 980 are (1) the treatment of convicted sex offenders who are at a high risk to reoffend, and (2) the protection of the public from such offenders. State v. Carpenter, 197 Wis. 2d 252, 271, 541 N.W.2d 105 (1995); State v. Post, 197 Wis. 2d 279, 302, 541 N.W.2d 115 (1995). Were we to conclude that the seventy-two-hour time limit in Wis. Stat. § 980.04(2) is mandatory, the consequences would undermine these objectives.

¶ 11. Under Wis. Stat. § 980.02(2), the State has only one ninety-day window of opportunity to petition for commitment. See Brissette, 230 Wis. 2d at 85; see also State v. Thomas, 2000 WI App 162, ¶ 13, 238 Wis. 2d 216, 617 N.W.2d 230. If the circuit court were to lose competence whenever the seventy-two-hour time limit is not met, in many cases the subjects of Wis. Stat. ch. 980 petitions could avoid that ninety-day window by making last-minute requests for judicial substitution. This would be a particularly likely scenario where the state has not filed a petition early in the ninety-day time window. Many offenders who are otherwise proper candidates for ch. 980 commitment would avoid treatment and remain a danger to the public simply by requesting a judicial substitution. The legislature could not have intended this result, and we therefore conclude that the seventy-two-hour limit in Wis. Stat. § 980.04(2) is directory.

¶ 12. Beyer directs us to case law discussing Wis. Stat. ch. 51 civil commitments and Wis. Stat. ch. 48 termination of parental rights proceedings. He argues that because courts have in some instances construed time limits in ch. 51 and ch. 48 as mandatory, we should do so here. Even to the extent that Beyer is correct in his assertions with regard to ch. 51 and ch. 48 cases, those cases are not necessarily applicable to the question before us. If a petition to commit an individual under ch. 51 is untimely, presumably another petition may be brought at a later date. The same can be said for a petition to terminate parental rights. That is not the situation with petitions to commit sex offenders under Wis. Stat. ch. 980, where the State has only one window of opportunity to file. The consequences that flow from a mandatory time limit under ch. 980 are therefore much different from those that flow from such limits under ch. 51 or ch. 48.

¶ 13. Our conclusion that the seventy-two-hour time limit is directory does not mean that trial courts may ignore the time limit, nor does it mean that extending the time limit indefinitely is a matter purely within the trial court's discretion.

¶ 14. In considering the hearing required upon parole revocation, we have previously concluded that where statutory time limits were directory, it is the right to due process that prevents indefinite detention. See State ex rel. Jones v. Division of Hearings and Appeals, 195 Wis. 2d 669, 674, 536 N.W.2d 213 (Ct. App. 1995). In Jones, we held that when a fifty-day time limit for a hearing had passed, due process required that the subject of revocation have a hearing "within a reasonable time." Id. at 672, 674. We now apply the Jones rationale here and conclude it is the individual's due process rights that prevent the State from indefinitely delaying the probable cause hearing under Wis. Stat. ch. 980 when the subject of the petition is in custody awaiting the hearing and has made a request for judicial substitution.

¶ 15. We also conclude that the delay in Beyer's case was reasonable within the Due Process Clause. In Jones, the defendant was held only four days past the statutory time limit, but that time limit was already fifty days. Jones, 195 Wis. 2d at 674. Thus, Beyer was not subject to detention for a period of time significantly different from the defendant in Jones.

¶ 16. We caution that the length of delay that we have deemed permissible in Beyer's case will not necessarily be reasonable in all Wis. Stat. ch. 980 cases. Beyer's situation is extraordinary in that he made his request for judicial substitution at the last minute. The trial court found that "the substitution request was filed at approximately 5:00 p.m. on the 12th day of October, 1998, after normal business hours ...."

B. Retroactive Application of Thiel I

¶ 17. Beyer's remaining arguments involve the proper application of Thiel I. In Thiel I, the supreme court held that in a Wis. Stat. ch. 980 commitment trial, the State must prove beyond a reasonable doubt that when it filed its commitment petition, the subject of the petition was within ninety days of release or discharge from a sentence imposed for a sexually violent offense. Thiel I, 2000 WI 67 at ¶ 1, ¶ 26. This holding was based on the court's interpretation of Wis. Stat. §§ 980.02(2) and 980.05(3)(a). See Thiel I, 2000 WI 67 at ¶ 21.

¶ 18. Beyer argues that Thiel I is retroactive and applicable to his case. He further argues that the State failed to meet its burden of proof on the ninety-day element, and that the judgment committing him must therefore be reversed. Finally, Beyer argues that the double jeopardy clauses of the state and federal constitutions preclude a retrial.

¶ 19. We have addressed all of these arguments in Thiel II, 2001 WI App 52, and we have since applied Thiel II in State v. Denman, 2001 WI App 96, ¶¶ 14-16, 243 Wis. 2d 14, 626 N.W.2d 296. We briefly review the relevant portions of those decisions and apply them here.

¶ 20. In Thiel II, 2001 WI App 52 at ¶ 19, we concluded that Thiel I would, in some cases, apply retroactively. We explained that Thiel I applies to "all cases on direct appeal that have not been finalized as of the date of the release of Thiel [7], June 23, 2000," provided that one of two conditions is met:

[A] challenge to the sufficiency of the evidence specifically citing to the failure of the State to prove beyond a reasonable doubt that the individual was within ninety days of release must have been made in the trial court. In the alternative, a challenge to the sufficiency of the evidence or lack of evidence — the State's failure to prove beyond a reasonable doubt — that the individual was within ninety days of release must have been prominently raised in a direct appeal.

Thiel II, 2001 WI App 52 at ¶ 19. Because Beyer has brought this direct appeal from the judgment committing him and has clearly raised the ninety-day issue in his appellate briefs, he is entitled to the benefit of Thiel I.

¶ 21. In Thiel II, we also concluded that a reversal with a remand to the trial court, limited to providing the State the opportunity to present evidence regarding the ninety-day element, would not. violate double jeopardy prohibitions. Thiel II, 2001 WI App 52 at ¶ 30; see also Denman, 2001 WI App 96 at ¶ 15.

¶ 22. In Denman, another Wis. Stat. ch. 980 case where the defendant argued on appeal that the State did not prove the ninety-day element beyond a reasonable doubt, we again applied Thiel I retroactively and remanded for an evidentiary hearing according to Thiel II. Denman, 2001 WI App 96 at ¶¶ 14-16.

¶ 23. Together, Thiel II and Denman suggest that a remand is usually the proper course for this court when faced with Wis. Stat. ch. 980 cases presenting a Thiel I retroactivity issue, but the State argues that there is sufficient evidence in the record before us to conclude beyond a reasonable doubt that Beyer was within ninety days of release when the petition was filed. We have reviewed the evidence to which the State refers, and we acknowledge that Beyer's case may not present the same degree of factual inconsistency as Thiel I. But we are not a fact-finding court, and Beyer and the State dispute a date that is crucial to an analysis of whether the State satisfied the ninety-day element. We therefore remand rather than attempt to decide whether the State has met its burden. On remand, the trial court will be able to conduct a trial or evidentiary hearing at which the State may attempt to prove beyond a reasonable doubt that it filed the commitment petition within ninety days of Beyer's release. See Thiel II, 2001 WI App 52 at ¶¶ 31-32.

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

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted. Wisoonsin Stat. § 980.04 states in relevant part:
      (1) Upon the filing of a petition under s. 980.02, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition.... A detention order under this subsection remains in effect until the person is discharged after a trial under s. 980.05 or until the effective date of a commitment order under s. 980.06, whichever is applicable.

        (2) Whenever a petition is filed under s. 980.02, the court shall hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person. If the person named in the petition is in custody, the court shall hold the probable cause hearing within 72 hours after the petition is filed, excluding Saturdays, Sundays and legal holidays. If the person named in the petition is not in custody, the court shall hold the probable cause hearing within a reasonable time after the filing of the petition.

       The parties refer to both competence and jurisdiction in their briefs. Subject matter jurisdiction and competence are terms that have been used and defined inconsistently by courts and commentators across the country. Kett v. Community Credit Plan, Inc., 228 Wis. 2d 1, 13 n.12, 596 N.W.2d 786 (1999). The supreme court has stated that no circuit court is without subject matter jurisdiction, and that a circuit court's inability to adjudicate the specific case before it because of a failure to comply with a statutory requirement is more properly termed a loss of competence. See id. We therefore refer to competence rather than jurisdiction. As the supreme court has noted, the critical focus is not on the terminology, but on the effect of noncompliance with a statutory requirement. See id.

       In State v. Brown, 215 Wis. 2d 716, 726-27, 573 N.W.2d 884 (Ct. App. 1997), we concluded that, despite the presence of strict time limits under Wis. Stat. ch. 980, the statutory right to judicial substitution applies in ch. 980 proceedings.

       Beyer refers us to case law in which we have discussed whether there is "good cause" for a delay and insists that this is the appropriate standard. He cites to State v. April O., 2000 WI App 70, 233 Wis. 2d 663, 607 N.W.2d 927, and State v. Joshua M.W., 179 Wis. 2d 335, 507 N.W.2d 141 (Ct. App. 1993). However, April O. and Joshua M.W. are Wis. Stat. ch. 48 cases that involved a specific statutory section allowing for the continuance of proceedings for good cause and for the tolling of time limits for "[a]ny period of delay caused by the disqualification of a judge." April O., 2000 WI App 70 at ¶ 5, ¶ 8; Joshua M.W., 179 Wis. 2d at 341; see also Wis. Stat. § 48.315. Therefore, we do not view April O. and Joshua M.W. as helpful.

       WISCONSIN Stat. § 980.02(2) states, in part:
      A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:
      (ag) The person is within 90 days of discharge or release, on parole or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense ...
      WISCONSIN Stat. § 980.05(3)(a) states:
      At a trial on a petition under this chapter, the petitioner has the burden of proving the allegations in the petition beyond a reasonable doubt.

       Our decision in Thiel II disposes of the State's argument that, by approving the standard jury instruction and by failing to challenge the sufficiency of the evidence in the trial court, Beyer waived his right to challenge the State's failure to prove the ninety-day element.

       In Thiel II, our discussion was limited to the Double Jeopardy Clause of the United States Constitution, whereas Beyer invokes the double jeopardy provisions of the Wisconsin Constitution as well. However, our supreme court has explained that the Double Jeopardy Clauses of the federal and state constitutions are the same in scope and purpose, and Wisconsin courts accept decisions of the United States Supreme Court as controlling the double jeopardy provisions of both constitutions. State v. Anderson, 219 Wis. 2d 739, 746 n.7, 580 N.W.2d 329 (1998).


text:
    No. 99-CV-208
    No. 99-CV-209
    No. 99-CV-210
    No. 99-CV-211
    Randal Bidstrup, Plaintiff-Respondent, v. Wisconsin Department of Health and Family Services, Defendant-Appellant.  Myrtle Covin, Plaintiff-Respondent, v. Wisconsin Department of Health and Family Services, Defendant-Appellant.†† Jan Hendrickson, Plaintiff-Respondent, v. Wisconsin Department of Health and Family Services, Defendant-Appellant. Ellen Hrbek, Plaintiff-Respondent, v. Wisconsin Department of Health and Family Services, Defendant-Appellant.
      Mark Johnson, Plaintiff-Respondent, v. Wisconsin Department of Health and Family Services, Defendant-Appellant. Brian Vipond, Plaintiff-Respondent, v. Wisconsin Department of Health and Family Services, Defendant-Appellant. Raymond Waller, Plaintiff-Respondent, v. Wisconsin Department of Health and Family Services, Defendant-Appellant. Laura Wisniewski, Plaintiff-Respondent, v. Wisconsin Department of Health and Family Services, Defendant-Appellant.

    No. 99-CV-212
    No. 99-CV-213
    No. 99-CV-214
    No. 99-CV-215
    Court of Appeals

      No. 00-1607.

      Submitted on briefs November 7, 2000. —
    Decided June 7, 2001.

      2001 WI App 171
    (Also reported in 632 N.W.2d 866.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Bruce A. Olsen, assistant attorney general.
    On behalf of the plaintiffs-respondent, the cause was submitted on the brief of Gregory P. Seibold of Murphy & Desmond, S.C., Madison.
    Before Dykman, PJ., Vergeront and Roggensack, JJ.

       Petition to review filed.

       Petition to cross-review filed.

       Petition to review denied 9-19-01.

       Petition to cross-review denied 9-19-01.

   DYKMAN, PJ.

¶ 1. The Department of Health and Family Services (DHFS) appeals from an order directing it to grant Medical Assistance benefits to the eight Respondents, after some of the Respondents prevailed in a related federal suit. DHFS argues that the Respondents' claims for these benefits are barred by a number of statutory and common law rules. The Respondents counter that they should be allowed to maintain their claims because they did not receive proper notice of their appeal rights in an initial termination. We agree that the Respondents received improper notice. However, we conclude that the issue of defective notice became moot with regard to five of the eight Respondents who challenged the termination despite DHFS's initial failure to notify them of appeal rights. With respect to those five Respondents, we also conclude that they cannot now make claims relying on constitutional arguments that they should have raised in circuit court when they first challenged their terminations. We therefore affirm in part and reverse in part.

I. Background

¶ 2. The Respondents, Randal Bidstrup and seven others, are severely disabled residents of a Jefferson County institution, Bethesda Lutheran Homes. During various periods of time, they received Medical Assistance based on their status as Supplemental Security Income (SSI) recipients.

¶ 3. Between February 26, 1993, and June 21, 1996, all of the Respondents were individually notified in writing that they were about to lose Medical Assistance because their eligibility for SSI had ended. The notices explained:

The Social Security Administration recently notified you that you will no longer be eligible for [SSI]... . This action was taken because you became eligible for or you received an increase in Title II Disabled Adult Child Benefits.
Because your eligibility for SSI has ended, you will no longer be automatically eligible for Medical Assistance. You may be eligible for Medical Assistance if you apply at your county social service or human service agency. You will continue to receive your Medical Assistance card for three more months ....

Nothing in these notices explained to the Respondents that they had a right to a hearing, nor did the notices contain a time limit for filing a hearing request.

¶ 4. Respondents Myrtle Covin, Jan Hendrickson, and Mark Johnson did not reapply for Medical Assistance as the notice suggested.

¶ 5. Respondents Randal Bidstrup, Raymond Waller, Laura Wisniewski, Ellen Hrbek, and Brian Vipond completed applications for Medical Assistance. DHFS denied their applications, determining that they were not eligible for Medical Assistance because they were not Wisconsin residents. DHFS indicated its decision to each of the five Respondents in a "negative notice," which explained: "If you do not agree with the decision, you can request a fair hearing. Please see the other side of this notice for fair hearing information as well as information about your rights and responsibilities."

¶ 6. Only Bidstrup, Waller, and Wisniewski requested hearings to contest the denial of benefits. By January 30, 1995, all three received a DHFS decision affirming its earlier determination that they were ineligible for Medical Assistance as non-Wisconsin residents.

¶ 7. In September 1995, Bidstrup, Hrbek, and Wisniewski, together with Bethesda Lutheran and other plaintiffs, filed suit in federal court. Proceeding under 42 U.S.C. § 1983, they challenged the constitutionality of the state laws and federal regulations that impose state residency as a precondition to admission to facilities like Bethesda Lutheran and access to Medical Assistance. Bethesda Lutheran Homes & Servs., Inc. v. Leean, 122 F.3d 443, 444, 447 (7th Cir. 1997) (Bethesda I). The Seventh Circuit Court of Appeals struck down the statutes and regulations, concluding that they violated the federal constitutional right to travel. Id. at 450.

¶ 8. The Seventh Circuit remanded for the district court to enter proper relief, noting that under Eleventh Amendment sovereign immunity, federal courts were barred from ordering damages against state officials acting in their official capacity. See Bethesda I, 122 F.3d at 444, 450. On remand, the district court granted injunctive relief. See Bethesda Lutheran Homes & Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) (Bethesda II).

¶ 9. After Bethesda I, DHFS certified the Respondents as eligible for Medical Assistance as of August 21, 1997, the date of the Seventh Circuit's decision. The Respondents requested a hearing on this certification, asking that they be determined eligible for additional benefits, starting from the dates of their original terminations.

¶ 10. A hearing examiner issued a proposed decision for each Respondent. DHFS, through the Division of Hearings and Appeals, adopted the hearing examiner's findings of fact and concluded that the Respondents were not entitled to additional benefits. DHFS reached its conclusion by analyzing the Respondents' claims under Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971), in which the United States Supreme Court discussed the test for determining whether new law should be applied retroactively. DHFS determined that, under Chevron, the Respondents were entitled only to "prospective" relief after Bethesda I.

¶ 11. The Respondents petitioned the circuit court for review under Wis. Stat. § 227.52 (1997-98). The circuit court applied Chevron as well, but concluded that the Respondents were entitled to additional "retroactive" benefits. The circuit court reversed DHFS's decision and remanded for orders or other administrative action consistent with the court's decision. DHFS appeals.

II. Analysis

¶ 12. This case requires that we interpret and apply the administrative code, a question of law that we review de novo. See Gorchals v. DHFS, 224 Wis. 2d 541, 545, 591 N.W.2d 615 (Ct. App. 1999).

¶ 13. As an initial matter, we address whether the first notices the Respondents received were required to contain an explanation of appeal rights. DHFS argues that the notices did not constitute agency action, im: plying that they were not required to contain an explanation of hearing or appeal rights. We disagree.

¶ 14. DHFS contends that, upon receipt of the notices, the Respondents were merely subject to a "redetermination" and a "termination notice [was] not required." We construe the notices as terminations. At the very least, they were notices of DHFS's intent to terminate within the meaning of Wis. Admin. Code § HFS 103.09(4) (Nov. 2000). The notices unambiguously explained that the Respondents were about to lose their Medical Assistance if they did not reapply: "Because your eligibility for SSI has ended, you will no longer be automatically eligible for Medical Assistance. You may be eligible for Medical Assistance if you apply at your county social service or human service agency." (Emphasis added.)

¶ 15. Because the notices were terminations, DHFS was required to advise the Respondents of their rights to appeal under Wis. Admin. Code § HFS 103.09(4). Notice upon termination or proposed termination is a basic requirement of procedural due process. See Stern v. DHFS, 212 Wis. 2d 393, 400, 569 N.W.2d 79 (Ct. App. 1997). The details of what constitutes adequate notice are set out in § HFS 103.09(4), and an agency must follow its own rules. See Stern, 212 Wis. 2d at 400.

¶ 16. Because the notices did not provide information regarding the Respondents' rights to appeal, they were inadequate under Wis. Admin. Code § HFS 103.09(4) and inadequate to satisfy the requirements of due process.

¶ 17. When a governmental agency does not comply with its own procedural requirements, we are loathe to deny all recourse to the affected parties. See, e.g., Bergmann v. McCaughtry, 211 Wis. 2d 1, 9, 564 N.W.2d 712 (1997) (holding that "[DOCj's failure to comply with its own regulations providing a basic procedural right such as notice invalidates the proceedings conducted"); Linstrom v. Christianson, 161 Wis. 2d 635, 637, 640, 469 N.W.2d 189 (Ct. App. 1991) (holding that a six-month statute of limitations on claims against government entities is not triggered where the entity fails to provide the claimant with notice of disallowance of claim under then Wis. Stat. § 893.80(l)(b) (1989-90)).

¶ 18. The Respondents contend that normally, the running of an appeal period from an agency decision should be tolled where an affected party receives no notice of appeal rights, and we agree. Under Bergmann and Linstrom, it would be unfair to penalize Covin, Johnson, and Hendrickson for failing to exercise rights that the agency should have brought to their attention. They never received information regarding their appeal rights.

¶ 19. Because DHFS never advised Covin, Johnson, or Hendrickson of their rights to appeal, we consider their claims to be properly before us as a matter of initial review. And within the context of that initial review, we conclude that under the now-existing rule of Bethesda I, their benefits were wrongfully terminated. Accordingly, they are entitled to benefits commencing with the respective dates of their wrongful terminations, and we affirm the circuit court insofar as it ordered benefits for Covin, Johnson, and Hendrick-son.

¶ 20. This conclusion does not, however, dispose of the claims of the remaining five Respondents, and we approach their claims differently in light of Kocher v. DHSS, 152 Wis. 2d 170, 448 N.W.2d 8 (Ct. App. 1989).

¶ 21. In Kocher, 152 Wis. 2d at 173, DHSS sent a Medical Assistance recipient a notice stating that his benefits were about to be terminated. Even though the notice did not explain his right to request a hearing, he requested a hearing anyway. Id. at 173, 178-79. The recipient lost his administrative appeals, as well as his appeal to the circuit court. Id. at 175. On appeal to this court, he argued that the notice was inadequate and asked that we reverse DHSS's decision. See id. at 178. We affirmed, concluding that because the recipient had requested a hearing, the fact that the notice failed to explain his hearing rights was a moot issue. Id. at 172, 179-80.

¶ 22. Like the Medical Assistance recipient in Kocher, Hrbek, Vipond, Bidstrup, Waller, and Wis-niewski each took action despite receiving an inadequate notice. They submitted new Medical Assistance applications after receiving those notices, and DHFS affirmed its ineligibility determination. Under Kocher, the question of DHFS's failure to initially notify these five Respondents of their appeal rights is therefore moot because they did initiate an administrative appeal. However, unlike the recipient in Kocher, none of the five Respondents here completed their appeals, although they had the opportunity to do so. While it is true that DHFS may have lacked the power to decide constitutional issues, the supreme court has determined that a party must nevertheless raise these issues with the agency in order to preserve them for subsequent review. See Omernick v. DNR, 100 Wis. 2d 234, 248, 301 N.W.2d 437 (1981). We conclude that Hrbek, Vipond, Bidstrup, Waller, and Wisniewski were required to have raised their objections to the constitutionality of the Medical Assistance statutes in their initial administrative appeal. Although some of the Respondents may have raised the issue at the agency level, none of them chose to take the constitutional question to a forum where it could have been decided: the circuit court. They may not now challenge DHFS's decision denying them additional benefits based on the constitutional argument they should have made to the circuit court the first time they had the opportunity to do so. We therefore reverse the trial court's order with respect to these five Respondents.

¶ 23. No costs to either party.

By the Court. — Order affirmed in part; reversed in part.

       The record contains a stipulation containing contradictory information as to whether Johnson did or did not reapply. However, based on the parties' arguments and other documents in the record, we assume that he did not.

       42 U.S.C.S. § 1983 (2001) states in part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

       Although the district court granted injunctive relief, it denied the plaintiffs the damages they sought against Jefferson County. Bethesda Lutheran Homes & Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) (Bethesda II). Litigation continued in federal court, but the resulting federal decisions do not dispose of the issue before us here. See id.) see also Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d 853, 856 (7th Cir. 2001) (Bethesda III). The Respondents are before this court pursuing the monetary relief that the federal courts could not grant.

       DHFS certified Johnson and Covin as of September 1, 1997.

       The hearing examiner also applied Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), but reached a different conclusion than DHFS.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. WISCONSIN Stat. § 227.52 states in part:
      Administrative decisions which adversely affect the substantial interests of any person, whether by action or inaction, whether affirmative or negative in form, are subject to review as provided in this chapter, except as otherwise provided . . . ."

       As they did below, the parties make arguments under Chevron on appeal. We question whether retroactivity as discussed in Chevron provides the proper framework for analysis of this case. But in any event, we need not address the Chevron issue because we decide this case on other grounds.

       Wis. Admin. Code § HFS 103.09(4) (Nov. 2000) states:
      Timely Notice. The agency shall give the recipient timely advance notice and explanation of the agency's intention to terminate MA. This notice shall be in writing and shall he mailed to the recipient at least 10 calendar days before the effective date of the proposed action. The notice shall clearly state what action the agency intends to take and the specific regulation supporting that action, and shall explain the right to appeal the proposed action and the circumstances under which MA is continued if a fair hearing is requested.
      We note that the notices also failed to set forth a specific regulation on which the termination was based.

       The Department of Health and Family Services used to be called the Department of Health and Social Services. Stern v. DHFS, 222 Wis. 2d 521, 523 n.1, 588 N.W.2d 658 (Ct. App. 1998).