author: LUNDSTEN, J.

text:
    In the Interest of Lindsey A. F., a person Under the Age of 17: State of Wisconsin, Petitioner-Appellant, v. Lindsey A. F., Respondent-Respondent.
    Court of Appeals

      Nos. 01-0081, 01-0082.

      Oral argument January 24, 2002.

      Decided August 15, 2002.

    2002 WI App 223
    (Also reported in 653 N.W.2d 116.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of and oral argument by Michael S. Walsh, deputy district attorney for Dane County.
    On behalf of the respondent-respondent, the cause was submitted on the brief of and oral argument by Eileen A. Hirsch, assistant state public defender, Madison.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review granted 11-12-02.

   LUNDSTEN, J.

¶ 1. The State appeals two orders of the circuit court, both dismissing identical delinquency petitions against Lindsey A.F., a minor, and both referring the matter for a deferred prosecution agreement. The circuit court dismissed against the wishes of the State, relying on the authority conferred by Wis. Stat. § 938.21(7) (1999-2000). The State contends the circuit court's authority to dismiss under § 938.21(7) is dependent on the consent of a district attorney. For the following reasons, we affirm the circuit court.

BACKGROUND

¶ 2. Thirteen-year-old Lindsey A.F. sold marijuana while in a middle school. Lindsey's case was referred to an intake worker, who referred the case to the district attorney with a recommendation that the district attorney file a delinquency petition and enter into a consent decree. The district attorney filed a delinquency petition, but apparently determined a consent decree was inappropriate. Lindsey then moved, under Wis. Stat. § 938.21(7), to dismiss the petition and refer her case back to the intake worker for deferred prosecution. Over the prosecutor's objection, the circuit court granted Lindsey's motion and dismissed the petition. Lindsey then entered into a deferred prosecution agreement.

¶ 3. Thereafter, the district attorney, relying on Wis. Stat. § 938.245(6), attempted to unilaterally terminate the deferred prosecution agreement by filing a second delinquency petition containing the same charge and factual allegations as the first petition. Once more, Lindsey moved to dismiss the petition and refer the case for deferred prosecution pursuant to Wis. Stat. § 938.21(7). Once more the circuit court granted the motion. The circuit court reasoned that the district attorney did not have the authority under § 938.245(6) to terminate a deferred prosecution agreement ordered by a court pursuant to § 938.21(7). The State appeals both circuit court orders.

DISCUSSION

A. Plain Meaning of Wis. Stat. §§ 938.21(7), 938.24(5), and 938.245(6)

¶ 4. The parties' dispute centers on the proper construction of Wis. Stat. § 938.21(7) as it relates to a circuit court's authority to dismiss a juvenile petition and refer the matter for a deferred prosecution agreement. The parties agree that we must read § 938.21(7) in light of the related statutes, Wis. Stat. §§ 938.24 and 938.245.

¶ 5. The proper construction of a statute is a question of law. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). "While it is true that statutory interpretation begins with the language of the statute, it is also well established that courts must not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute." Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515. Further, "[e]ven when a statute appears unambiguous on its face, it can be rendered ambiguous by its interaction with and its relation to other statutes." State v. White, 97 Wis. 2d 193, 198, 295 N.W.2d 346 (1980). A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248. Only when statutory language is ambiguous may we examine other construction aids such as legislative history, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986).

¶ 6. In this case, the district attorney attempted to override the first dismissed order by filing a new petition. The district attorney also appealed both dismissal orders. Despite the fact that the district attorney attempted to override the first dismissal, the State's argument is not that district attorneys may override court-ordered § 938.21(7) dismissals. Rather, the State primarily argues that the circuit court acted illegally when it dismissed the petitions without the district attorney's consent.

¶ 7. The State begins with the assumption that § 938.245(6) confers on district attorneys the authority to terminate any deferred prosecution agreement. Thus, even though § 938.21(7) makes no reference to district attorney consent, the State contends that, because district attorneys have the power to terminate any deferred prosecution agreement, the only logical reading of § 938.21(7) is that it requires district attorney consent to dismiss a petition and refer for deferred prosecution. Otherwise, the State reasons, the statutes would authorize a never-ending, absurd cycle of court-ordered dismissal and district attorney re-filing whenever a circuit court and district attorney disagree on the need for an immediate delinquency petition.

¶ 8. However, we conclude that the relevant statutes unambiguously permit a circuit court to order dismissal and refer the matter for deferred prosecution without the consent of the district attorney. We also conclude that a district attorney is not authorized by § 938.245(6) to terminate such a court-ordered deferred prosecution agreement. As we explain below, a district attorney's authority under § 938.245(6) to terminate a deferred prosecution is contingent on receiving notice from an intake worker under § 938.24(5). When a court orders deferred prosecution under § 938.21(7), there is no intake worker notice under § 938.24(5) to trigger district attorney termination authority under § 938.245(6).

¶ 9. The process leading to notice to a district attorney under § 938.24(5) is spelled out in § 938.24. Under § 938.24(1), a juvenile's case is referred to an intake worker for an "inquiry" when there is information indicating the juvenile is "delinqúent, in need of protection or services or in violation of a civil law or a county, town or municipal ordinance." After an intake worker receives a referral under sub. (1), he or she has forty days to conduct the inquiry and request that a petition be filed, enter into a deferred prosecution agreement, or close the case. Wis. Stat. § 938.24(5). After choosing one of these options, the intake worker must notify the district attorney. Wis. Stat. § 938.24(3) and (5).

¶ 10. Section 938.245(6) empowers the district attorney to terminate a deferred prosecution agreement by filing a delinquency petition. However, § 938.245(6) does not contain a blanket grant of authority to terminate. Rather, this authority is tied to having received notice from the intake worker pursuant to § 938.24(5). Section 938.245(6) provides, in pertinent part:

A deferred prosecution agreement arising out of an alleged delinquent act is terminated if the district attorney files a delinquency petition within 20 days after receipt of notice of the deferred prosecution agreement under s. 938.24(5).

¶ 11. Once a petition has been filed, a juvenile may move under § 938.21(7) for a court-ordered consent decree or for dismissal and deferred prosecution. Section 938.21(7) provides:

If the judge or juvenile court commissioner determines that the best interests of the juvenile and the public are served, he or she may enter a consent decree under s. 938.32 or order the petition dismissed and refer the matter to the intake worker for deferred prosecution in accordance with s. 938.245.

¶ 12. Section 938.21(7) references § 938.245, the statute that administers deferred prosecution agreements. By directly referencing § 938.245 without mentioning § 938.24, § 938.21(7) skips over the notice requirement in § 938.24(5).

¶ 13. As explained above, when a district attorney receives notice of a deferred prosecution agreement from an intake worker pursuant to § 938.24(5), the twenty-day window during which the district attorney may terminate the deferred prosecution agreement under § 938.245(6) begins. In contrast, when a deferred prosecution agreement is ordered pursuant to § 938.21(7), there is no requirement that the intake worker notify the district attorney and, thus, nothing occurs that triggers a district attorney's authority to terminate the agreement under § 938.245(6). Therefore, we agree with the circuit court and Lindsey A.F. that a circuit court order under § 938.21(7) dismissing a petition and referring for deferred prosecution does not require district attorney consent. For the same reasons, a district attorney may not override a dismiss-and-refer order by filing a new petition with the same charges and facts.

¶ 14. In the following sections, we address additional arguments made by the State contesting our plain language reading and also address the State's claim that our construction unconstitutionally violates the separation of powers doctrine.

B. The State's Arguments Against Our "Plain Meaning" Reading of the Statutes

¶ 15. The State first contends that Wis. Stat. § 938.24(5) clearly requires notice to district attorneys, even when a deferred prosecution agreement is ordered under Wis. Stat. § 938.21(7). The State points out that § 938.24(5) says intake workers "shall" notify district attorneys of each deferred prosecution agreement, and that this subsection contains no exceptions. The State argues that if the legislature had intended to exempt deferred prosecution agreements ordered under § 938.21(7) from the notice requirement, it would have done so.

¶ 16. However, the context of "shall" in § 938.24(5) is a decision within forty days of the initial referral to the intake worker. Indeed, when discussing this point, the State argues:

In addition, the [circuit] court's reliance on the word "notice" as the "empowering" word of secs. 938.245(6) and 938.24(5) is simply misplaced. These two subsections clearly authorize the district attorney to override a determination by the intake worker that a case should be closed or should be resolved with a deferred prosecution agreement. The word "notice" is important because receipt of the "notice" begins the 20 days within which the district attorney must file a delinquency petition to override the intake worker's decision. The word simply has no other significance.

(Emphasis added.) This argument highlights our point. Section 938.24(5) authorizes district attorneys to override determinations by an intake worker. Here, the determination was made by the circuit court.

¶ 17. The State next contends that § 938.21(7) is ambiguous and asserts that it has provided a viable alternative reading of the statute. Of course, if reasonable people could disagree as to its meaning, § 938.21(7) would be ambiguous, and we would turn to extrinsic construction aids. However, the State's alternative reading is not reasonable because it renders the disputed portion of § 938.21(7) surplusage.

¶ 18. The State asserts that § 938.21(7) must be read to require district attorney consent to dismissal of a petition and referral for deferred prosecution. Without this interpretation of § 938.21(7), the State contends, a court has no authority to dismiss and refer for deferred prosecution, even when all parties agree. However, we agree with Lindsey A.F.'s assertion that § 938.21(7) is unnecessary to achieve this result.

¶ 19. Section 938.24(4) states: "If a petition has been filed, a deferred prosecution agreement may not be entered into or a case may not be closed unless the petition is withdrawn by the district attorney. . . ." Thus, § 938.24(4) authorizes the district attorney to withdraw a petition. The language "a deferred prosecution agreement may not be entered into or a case may not be closed unless" makes plain that the withdrawal of a petition under § 938.24(4) clears the way for a deferred prosecution agreement.

¶ 20. It follows that the State's reading of § 938.21(7) renders the dismiss-and-refer portion of the statute surplusage. Section 938.24(4) provides authority to accomplish withdrawal of a petition and a deferred prosecution agreement when the parties agree. "[I]t is a basic rule of statutory construction that effect is to be given to every word of a statute if possible, so that no portion of the statute is rendered superfluous." Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100 (1997).

¶ 21. The State also argues that our construction is contrary to the legislative directive that district attorneys represent the public. Wisconsin Stat. § 938.09(1) states that district attorneys "shall" represent the public interest in delinquency proceedings. The State contends that § 938.21(7) transfers some charging authority from the district attorney to the court, contrary to the legislature's express intent that the district attorney represent the public. However, the question here is not whether district attorneys, as a general proposition, are directed by the legislature to represent the public interest in juvenile proceedings, but whether the legislature intended to limit the charging discretion of district attorneys. Here, a specific statutory provision, § 938.21(7), governs the question presented, rather than the general provision relied on by the State. Kapischke v. County of Walworth, 226 Wis. 2d 320, 327, 595 N.W.2d 42 (Ct. App. 1999) (when construing statutes, specific statutes take precedence over general statutes).

C. The State Has Not Demonstrated that Our Construction Leads to Absurd Results

¶ 22. The State asserts that the construction of the statutes we have adopted above causes serious problems the legislature could not have intended. When faced with plain language, as we are here, we apply the plain language unless such application would lead to absurd or unreasonable results. Gasper v. Parbs, 2001 WI App 259, ¶ 8, 249 Wis. 2d 106, 637 N.W.2d 399. Thus, we will consider these arguments, but only in the context of determining whether they lead to absurd results.

1. Dismissal Prior to Full Inquiry

¶ 23. The State argues that the interpretation adopted above would permit courts to dismiss petitions before receiving complete intake information. This fear is real, the State contends, because Wis. Stat. § 938.21(7) is applicable to petitions filed within twenty-four hours, as required when a juvenile is in custody pursuant to § 938.21(l)(a). In these cases, an intake worker has less than twenty-four hours to investigate. In the State's view, a court could dismiss and refer under § 938.21(7) based on incomplete and possibly inaccurate information when an adequate inquiry would show that dismissal and deferred prosecution is inappropriate.

¶ 24. We agree that under our reading of § 938.21(7) dismissals based on inadequate information are possible, but conclude this possibility does not render our reading of the statute absurd. Courts often make discretionary determinations based upon incomplete information. We trust that circuit courts will typically reject dismissal motions when information is insufficient. Moreover, if a court does dismiss based on insufficient information, the district attorney is not without remedy; he or she may appeal the dismissal. Requiring district attorneys to appeal in this situation may be cumbersome, but it is by no means an absurd result.

2. Dismissal Hearings Would Cause Delays

¶ 25. The State argues that under this court's construction of § 938.21(7), floodgates will open and defense attorneys will routinely move to dismiss petitions. This, the State contends, will lead to numerous and sometimes lengthy hearings, causing undesirable delays in the juvenile justice system. The State provides three reasons supporting its belief that such motions will mushroom in number: (1) the broad standard under which these motions are reviewed, "best interests of the juvenile and the public," will encourage motions and lead to lengthy hearings; (2) multiple motions could be brought in the same case; and (3) defense attorneys, to avoid being labeled ineffective, will feel compelled to move for dismissal whenever there is a "plausible basis" for such a motion.

¶ 26. The State's prediction of widespread delay is plausible, but speculative nonetheless. It is entirely possible that defense attorneys will be judicious when moving to dismiss under § 938.21(7) so as not to irritate circuit courts or dilute § 938.21(7)'s potency by overuse. For that matter, successful motions to dismiss will often speed resolution of cases.

¶ 27. Regarding ineffective assistance of counsel, we doubt defense attorneys will feel compelled to bring constant motions to avoid ineffective assistance accusations. The burden of showing both the absence of a strategic reason for the omission and resulting prejudice will deter such claims. See State v. Johnson, 153 Wis. 2d 121, 127-28, 449 N.W.2d 845 (1990). The failure to bring a motion to dismiss under § 938.21(7) every time there is a "plausible basis" will seldom constitute ineffective assistance.

¶ 28. Moreover, even if we could confidently predict that our construction of § 938.21(7) would lead to significant delays in the processing of juvenile cases, such a result is not "absurd" as that term is used in statutory construction analysis. A number of legislative enactments add to delay in processing categories of cases. Our job is to interpret statutes, not to judge the wisdom of the legislature. See State v. Cardenas-Hernandez, 219 Wis. 2d 516, 542 n.8, 579 N.W.2d 678 (1998) ("Our task ... is not to weigh public policy but to interpret [the statute] .... In enacting [the statute], the legislature apparently concluded that public policy was best served by [its approach].").

3. No Statutory Framework for Follow-Up Oversight

¶ 29. The State argues that our construction leaves unresolved issues because, once a case has been referred back to the intake worker under § 938.21(7), there is no framework for oversight. The State notes, for example, that nothing compels a juvenile or parent to agree to a deferred prosecution agreement proposed by an intake worker after such a dismissal and there is no mechanism for returning to the circuit court. This, the State contends, will lead to situations in which a court orders a deferred prosecution agreement, but no agreement results and, from the vantage point of the district attorney and the court, the case simply disappears. The State's concern seems legitimate, but it does not constitute an absurd result.

¶ 30. Our juvenile justice system is equipped to prevent most of the mischief suggested by the State. Although the court and district attorney both lack direct statutory authority to oversee the process of creating a deferred prosecution agreement when such an agreement is ordered under § 938.21(7), there remain practical avenues for oversight. The courts have oversight authority over intake workers under Wis. Stat. §§ 938.067(9) and 938.245(9). These statutes appear to grant courts the authority to require intake workers who fail to obtain cooperation to notify the issuing court or the district attorney. Moreover, if a juvenile, a parent, or a guardian fails to cooperate, nothing prevents an intake worker from asking the district attorney to move the court for reconsideration of its dismissal order.

¶ 31. Accordingly, while we share some of the concerns expressed by the State, its arguments do not demonstrate that our reading of the statutes leads to absurd results.

D. Whether Our Construction Constitutes an Unconstitutional Infringement on the Power of District Attorneys

¶ 32. The State argues that even if our reading of Wis. Stat. § 938.21(7) is correct, the statute violates the separation-of-powers doctrine of the Wisconsin Constitution by transferring power "within the delegated province" of district attorneys to courts and intake workers. In support, the State relies on a number of cases discussing the district attorney's charging authority in criminal cases.

¶ 33. The State's argument puts the cart before the horse. The State complains that, under the circuit court's construction, the legislature has improperly infringed on the constitutionally mandated charging power of district attorneys. But the State has not established its threshold premise that juvenile charging discretion is solely "within the [constitutionally] delegated province" of district attorneys. The State provides no authority for the proposition that the Wisconsin Constitution delegates juvenile charging authority to district attorneys.

¶ 34. Statutes are "presumed to be constitutional and will not be declared unconstitutional without proof beyond a reasonable doubt." E.B. v. State, 111 Wis. 2d 175, 187, 330 N.W.2d 584 (1983). The party challenging a statute must prove it is unconstitutional. State v. Unnamed Defendant, 150 Wis. 2d 352, 365, 441 N.W.2d 696 (1989). The State has failed to meet this burden.

By the Court. — Orders affirmed.

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

       The second petition at issue here contained no new allegations. At oral argument, Lindsey A.F.'s counsel suggested that district attorneys may have the authority to file a new petition if they add new charges or factual allegations. This may be true in some situations, but the issue is not before us and we decline to address it.

       At oral argument, the State asserted that the construction adopted by the circuit court is not widely followed in Wisconsin and that a decision by this court upholding the circuit court would cause a statewide change in how circuit courts supervise juvenile charging by district attorneys. We will assume this to be true for purposes of our discussion but, for reasons that should he obvious, this assumption does not affect the result we reach.

       WISCONSIN Stat. § 938.21(7) refers to the ability of a court to dismiss a "petition," and may apply to all petitions filed under chapter 938. However, because this case arises in the context of a delinquency petition, we do not address the applicability of § 938.21(7) to other types of petitions.

       Wisconsin Stat. § 938.24(5) reads, in relevant part:
      (5) The intake worker shall request that a petition be filed, enter into a deferred prosecution agreement or close the case within 40 days or sooner of receipt of referral information .... If the case is closed or a deferred prosecution agreement is entered into, the district attorney, corporation counsel or other official under s. 938.09 shall receive written notice of such action.... Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into.

       The appellate record contains a form which is used to record deferred prosecution agreements. The form states: "The district attorney may file a delinquency petition within 20 days of receipt of this agreement. Filing a petition will cancel this agreement." This form may need to be altered to reflect our holding that district attorneys may not file new petitions with the same charges and allegations in response to court-ordered deferred prosecution agreements under Wis. Stat. § 938.21(7).

       Both in her brief and at oral argument, Lindsey A.F. argued that dismissal under § 938.21(7) gives the district attorneys notice and substitutes for the notice they would get under § 938.24(5). Lindsey A.F. argues that because a district attorney gets notice of the dismissal and referral for a deferred prosecution agreement, no additional notice is needed. We disagree. While it is true that a district attorney necessarily gets notice of a dismissal and referral under § 938.21(7), such notice is entirely different than notice under § 938.24(5). Notice under § 938.24(5) empowers the district attorney with statutory authority to override the decision made. Notice that occurs as a result of dismissal and referral under § 938.21(7) by a circuit court has no such effect.

       The parties have not briefed and we do not address whether court approval is required for a district attorney to withdraw a petition under § 938.24(4). We also note that at oral argument the State and counsel for Lindsey A.F. agreed that, regardless of the statutes, a circuit court has authority to dismiss charges in a petition when asked to do so by the district attorney. The dispute here, however, concerns the authority to both dismiss a petition and refer the matter for deferred prosecution upon a motion by the juvenile.

       We also note that the statutes provide a mechanism for returning the matter to the district attorney when a juvenile violates a deferred prosecution agreement or when a juvenile, a juvenile's parent, a guardian, or a legal custodian terminates an agreement. See Wis. Stat. § 938.245(4) and (7).

       Having concluded that the plain language of the statute defeats the State's argument that there is a district-attorney-consent requirement in § 938.21(7), and having rejected the State's absurd results arguments, we need not address the State's legislative intent arguments. However, we choose to respond to the State's assertion that our construction is at odds with legislative intent, as revealed by the legislature's response to In re Gault, 387 U.S. 1 (1967). We agree with the State that In re Gault granted due process rights to juveniles and that our legislature responded by creating an adversarial system that, in many respects, approximates the adult criminal system. However, the Court in In re Gault was concerned with the unbridled discretion held by courts over juveniles and the near total lack of procedural due process in the case before it. The Court's concern was over the power of judges to impose severe sanctions against juveniles without due process. Our construction of § 938.21(7) does nothing to undermine the due process rights of juveniles. In fact, from a juvenile's point of view, our construction provides additional due process by providing an additional check on prosecutorial discretion. Further, it should be apparent from the full discussion in this opinion that even if we viewed the relevant portions of §§ 938.21(7), 938.24, and 938.245 as ambiguous, we would nonetheless reject the State's proffered construction.

       The State relies on and discusses State v. Krueger, 224 Wis. 2d 59, 588 N.W.2d 921 (1999); State v. Annala, 168 Wis. 2d 453, 484 N.W.2d 138 (1992); State v. Braunsdorf 98 Wis. 2d 569, 297 N.W.2d 808 (1980); Thompson v. State, 61 Wis. 2d 325, 212 N.W.2d 109 (1973); and State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 166 N.W.2d 255 (1969).


source: Caselaw Access Project

license: Public Domain

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

      No. 01-1737-CR.

      Submitted on briefs February 12, 2002.

      Decided August 15, 2002.

    2002 WI App 245
    (Also reported in 653 N.W.2d 276.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne Hagopian, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Roggensack and Lundsten, JJ.
   LUNDSTEN, J.

¶ 1. Troy D. Moore was tried before a jury and convicted of delivery of a controlled substance as a second offense and possession of a controlled substance without a tax stamp. Moore asserts the trial court erroneously admitted character evidence in support of a State's witness at trial. We affirm.

BACKGROUND

¶ 2. Because Moore complains that the trial court erroneously admitted evidence during trial, we need only set forth trial arguments and evidence.

¶ 3. To avoid drug charges, John Pearson agreed to cooperate with police efforts to detect other drug dealers. Pearson testified that he agreed to make controlled buys from four individuals and to testify in court if required. In return, Pearson would face no jail time or probation. Without the deal, Pearson felt he would face a prison sentence. As part of this agreement, Pearson participated in a controlled purchase of marijuana from defendant Moore.

¶ 4. On March 11,1999, police fitted Pearson with a radio transmitter. They also searched Pearson and his van. Police then gave Pearson $1000 in pre-recorded bills and followed him to Moore's apartment building. Pearson entered the apartment building while police watched and monitored the radio transmission. Over the transmitter, officers recognized Pearson's and Moore's voices. They also heard a woman's voice, later identified as Moore's wife, Adrianne Moore.

¶ 5. While Pearson was in the apartment building, two officers observed a man coming from the back of the apartment building and saw him enter a nearby garage. Police later determined that Moore rented that garage. The man returned to the apartment building with a brown paper bag. One of the officers identified the man as Moore. Another officer testified that the man was of the same race and had the same build as Moore. While this man was outside the apartment building, police monitoring the transmitter did not hear Moore's voice.

¶ 6. Shortly after the man returned to the building from the garage, Pearson left the apartment building and gave the officers a brown paper bag similar in size, color, and texture to the bag carried by the man from the garage to the apartment building. The bag contained a pound of marijuana. Police searched Pearson and his van and did not find the pre-recorded bills. The paper bag was never examined for fingerprints.

¶ 7. Testifying about this event, Pearson said he entered the apartment building and went to Moore's apartment. Pearson said Moore took the $1000 in payment for drugs Pearson had previously acquired from Moore. Pearson said after Moore accepted the money, Moore left the apartment and returned three or four minutes later with a brown paper bag containing a brick of marijuana, which Moore, as was their custom, "fronted" to Pearson; that is, Moore gave Pearson the marijuana expecting payment later.

¶ 8. Eleven days later, police gave Pearson another $1000 in pre-recorded bills to pay for the marijuana Pearson received on March 11, and instructed Pearson to acquire additional drugs from Moore. Again police fitted Pearson with a transmitter and monitored Pearson as he entered Moore's apartment building. A police officer monitoring the transmission said there was significant static, but stated that he heard "those two talking about the fact that Mr. Moore said that he moved everything from his apartment to Janesville, and that if Mr. Pearson wanted something, that he needed to meet him in Janesville about 8:00 or 8:30 at Mercy Hospital." Pearson returned without the money and without any marijuana or other drugs.

¶ 9. Regarding this second event, Pearson testified that when he entered Moore's apartment, he gave Moore the money for the marijuana Pearson received on March 11. Pearson said Moore told him he was nervous about a drug bust that occurred at "Lear Seating" where Moore and Pearson worked, and that Moore had moved his "stuff to Janesville. Pearson testified thatj Moore told Pearson to meet Moore at a hospital in Janesville that evening.

¶ 10. A few minutes after Pearson left Moore's apartment the second time, police entered Moore's apartment and executed a search warrant. Police found the $1000 in pre-recorded bills that Pearson gave Moore a few minutes earlier, a finger scale, and a marijuana pipe. The police also searched the garage where, during the prior controlled buy, they had observed the man, identified by one officer as Moore, fetch the brown paper bag. The garage contained a car owned by Moore. Particles of marijuana were found on the front seat and hood of Moore's car.

¶ 11. Moore did not testify. However, Moore's wife, Adrianne, testified that when Pearson came to their apartment on March 11, Pearson did not exchange anything with Moore and that Moore never left the apartment while Pearson was there. Regarding the second visit, Adrianne testified that Pearson gave Moore $1000, but contended it was to repay a loan. Police monitoring the two interactions between Pearson and Moore did not hear any discussion about Moore lending Pearson $1000, but could not hear everything that was said due to static and poor equipment.

¶ 12. During opening argument at trial, Moore's attorney alleged that Pearson "faked a drug deal" and called Pearson an "admitted drug dealer and liar." Moore's attorney claimed that the defense would put on evidence showing that Pearson was "dishonest and manipulative." During direct examination, and over defense objection, the trial court permitted three police officers to testify that Pearson provided reliable information in the past resulting in the arrest of other drug dealers. One officer testified that police used Pearson "in purchasing cocaine from two individuals which we ended up arresting for that, and he had made two other controlled purchases from this individual prior to these individuals' arrest." Another officer testified, "I never learned of anything that [Pearson] has lied to me about." During closing argument, four times the prosecutor referred to the officers' testimony about Pearson's honesty and reliability.

CHARACTER EVIDENCE

¶ 13. Moore argues that the officers' testimony about Pearson's prior activities indicating reliability was inadmissible character evidence under Wis. Stat. § 906.08 (1999-2000). The State tacitly admits error by failing to respond to this argument. The State's admission is appropriate.

¶ 14. Wisconsin Stat. § 906.08(2) reads, in pertinent part:

SpeCipic instances of CONDUCT. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility,.. . may not be proved by extrinsic evidence. They may, however, subject to s. 972.11(2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.

¶ 15. This rule prohibits bolstering a witness's credibility with extrinsic evidence on a collateral matter. See State v. Rognrud, 156 Wis. 2d 783, 787, 457 N.W.2d 573 (Ct. App. 1990). Yet, in this case, the State presented extrinsic evidence solely to bolster Pearson's credibility. The officers' testimony that Pearson's assistance led to the arrest of other individuals on drug charges was extrinsic evidence offered and used to support Pearson's credibility. Thus, the trial court improperly overruled the defense objection, and we will now consider whether the error was harmless.

HARMLESS ERROR

¶ 16. Recently, in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, the supreme court adopted the formulation of the harmless error test used by the United States Supreme Court: "error is harmless if it is 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" Id. at ¶ 49 (quoting Neder v. United States, 527 U.S. 1,18 (1999)). There 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). When determining whether error is harmless, the reviewing court considers the entire record. State v. Patricia A.M., 176 Wis. 2d 542, 556-57, 500 N.W.2d 289 (1993).

¶ 17. Moore argues that the officers' testimony was prejudicial because the State's case hinged on Pearson's credibility. Moore points out that the prosecutor relied on the inadmissible character evidence four times during closing argument and that the character evidence likely carried great weight with the jury because it came from veteran police officers. Moore contends that the remainder of the State's case was flawed. Moore says the paper bag evidence is suspect because no fingerprint evidence linked him to the bag. Moore points out that only one of two officers was able to identify him as the person who obtained the paper bag from the garage. And, Moore contends the State failed to rebut the defense theory that Pearson planted the pound of marijuana somewhere in Moore's building and retrieved it as he left the building.

¶ 18. Moore's defense was farfetched. Moore's attorney argued that Pearson framed Moore by acquiring and planting a pound of marijuana in the apartment building prior to arriving at the building with the police. Moore argues on appeal that the jury might have believed that Moore thought Pearson came to Moore's apartment to repay a loan. However, this defense theory fails to explain the man matching Moore's description who went to Moore's garage and retrieved a bag that looked just like the bag of marijuana that Pearson brought to the police and the fact that Moore's voice could not be heard during the time this man was retrieving the bag from Moore's garage. It also fails to explain why police found marijuana particles covering the front seat and on the hood of Moore's car, in the same garage from which the man retrieved the paper bag. The only alternative explanation was so speculative that Moore's counsel did not even suggest it during closing argument: that Pearson recruited an accomplice matching Moore's description. However, there is absolutely no evidence that Pearson found a person who not only looked like Moore, but was also willing to risk being arrested on drug or obstruction of justice charges.

¶ 19. Moore further argues that the transmitter provided a poor recording of the events. Moore cites State v. Perez, 946 P.2d 724 (Utah Ct. App. 1997), as a case where a transmitter's poor quality led an appellate court to conclude the defendant was prejudiced. However, in Perez, the officers were only able to verify that the informant spoke with the defendant, and were unable to confirm any other details surrounding the alleged narcotics transaction. Id. at 733. In stark contrast, the police here were able to independently corroborate several aspects of Pearson's testimony.

¶ 20. The totality of the record supports our conclusion that it is clear beyond a reasonable doubt that the jury would have found Moore guilty absent the erroneous admission of character evidence.

By the Court. — Judgments affirmed.

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

       The State argues that we may affirm the admission of the character evidence on an alternative ground not relied on by the trial court. The State asserts the disputed evidence was admissible other acts evidence under Wis. Stat. § 904.04(2). We observe that the disputed evidence was offered, accepted, and argued as exactly the sort of character evidence prohibited by Wis. Stat. § 906.08. However, because we conclude the admission of the disputed evidence was harmless, we choose not to address the State's alternative ground argument further.


author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Razzie Watson, Sr., Defendant-Appellant.

    Court of Appeals

      No. 01-2674-CR.

      Submitted on briefs April 17, 2002.

    Decided August 15, 2002.

    2002 WI App 247
    (Also reported in 653 N.W.2d 520.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Dennis Schertz of Schertz Law Office, Hudson.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Dykman and Deininger, JJ.

       Petition to review denied.

   DYKMAN, J.

¶ 1. Razzie Watson appeals from a judgment convicting him of substantial battery as a repeater, and from an order denying his postconviction motion. Watson argues that his sentence enhancement as a repeater should be vacated because: (1) he never admitted nor did the State prove that he had been previously convicted of a felony, or, alternatively (2) he was not a repeater because he had not been previously "convicted" of a crime within the meaning of Wis. Stat. § 939.62(2) (1997-98) when he committed the substantial battery. We conclude that Watson admitted a prior felony conviction and that he had in fact been previously "convicted" when he committed the substantial battery. Accordingly, we affirm.

¶ 2. On May 22, 1997, the State charged Razzie Watson with substantial battery, false imprisonment, intimidation of a victim, and two counts of bail jumping. Pursuant to a plea agreement, Watson pleaded guilty to Count One of the information, substantial battery as a repeater. All other charges pending against Watson were dismissed. The circuit court convicted Watson and sentenced him to ten years in prison. Watson appeals.

¶ 3. Watson first contends that the State never proved nor did he admit that he was previously convicted of a felony or three misdemeanors, as is required by Wis. Stat. § 973.12(1) to obtain a sentence enhancement for being a repeater. Whether the State satisfied the requirements of § 973.12(1) is a question of law that we review de novo. See State v. Theriault, 187 Wis. 2d 125, 131, 522 N.W.2d 254 (Ct. App. 1994). We conclude that Watson admitted to a prior felony conviction.

¶ 4. At the plea hearing, the circuit court informed Watson, "[B]ecause you are a repeater as that term is defined in Wisconsin Statutes Section 939.62(2), the maximum term of imprisonment may be increased by not more than six years . . .." The court also asked Watson, "Do you also understand that the maximum possible penalty you are facing is a total of eleven years in prison?" and "[D]o you also understand ... that you are a repeater as that term is defined in the Wisconsin Statutes?" Watson answered, "Yes, sir" to both questions.

¶ 5. An admission from a defendant stating, "I am a repeater," without more, is insufficient to constitute an admission of a prior conviction under Wis. Stat. § 973.12(1). As the circuit court indicated in its colloquy, "repeater" and "habitual offender" are legal, not factual terms, and a defendant may not be aware of what he or she is admitting. Cf. State v. Collins, 2002 WI App 177, ¶¶ 12-13, 256 Wis. 2d 697, 649 N.W.2d 325 (holding that admission the defendant is a repeater is insufficient to show that out-of-state convictions are "comparable" to a Wisconsin "serious felony" under Wis. Stat. § 939.62(2m)). See also State v. Farr, 119 Wis. 2d 651, 659, 350 N.W.2d 640 (1984) (stating that defendant's admission "may not by statute be inferred"); State v. Zimmerman, 185 Wis. 2d 549, 557, 518 N.W.2d 303 (Ct. App. 1994) (holding that admission by defendant must make reference to the date of conviction and periods of incarceration if conviction is more than five years old).

¶ 6. However, State v. Liebnitz, 231 Wis. 2d 272, 288, 603 N.W.2d 208 (1999), directs us to consider "the totality of the record." The complaint against Watson alleges that he is a repeater and that he "pleaded guilty on May 9, 1997, to felon in possession of a firearm in case no. 96-CF-713 before Judge Montabon." This allegation includes both the nature and the date of the prior conviction and put Watson on notice that the State was seeking a repeater charge and that this charge was based, at least in part, on the felon in possession allegation. We therefore conclude that the plea hearing colloquy, in which the circuit court explained the effect of Watson's admission, together with the complaint, which alleged the nature and date of Watson's previous conviction, establishes that Watson "fully understood the nature of the repeater charge." Id. at 275.

¶ 7. We disagree with Watson that because the complaint alleges that he pleaded guilty to the felon in possession offense, rather than that he was convicted of it, the sentence enhancement cannot be sustained. The instances in which the circuit court does not accept a defendant's guilty plea and enter a judgment of conviction are exceedingly rare. In the very few instances that this might occur, we have little doubt that a defendant or the defendant's attorney would bring this to the attention of the court. Because Watson has never claimed that his guilty plea for felon in possession was not accepted, however, we conclude that the allegation that Watson pleaded guilty was sufficient to establish his conviction of the prior offense.

¶ 8. Although we conclude that Watson admitted a prior conviction for purposes of repeater enhancement, we encourage prosecutors seeking a repeater sentence enhancement to either: (1) seek an oral admission from the defendant at the plea or sentencing hearing that he or she was convicted of a particular crime on a particular date; or (2) present at the hearing a certified copy of a judgment of conviction. As we have noted before, these are the best (and simplest) ways to insure that the sentence enhancement will be sustained on appeal. See Farr, 119 Wis. 2d at 659-60; State v. Goldstein, 182 Wis. 2d 251, 261, 513 N.W.2d 631 (Ct. App. 1994); State v. Coolidge, 173 Wis. 2d 783, 795-96, 496 N.W.2d 701 (Ct. App. 1993); see also State v. Saunders, 2002 WI 107, ¶ 55, 255 Wis. 2d 589, 649 N.W.2d 263 ("strongly urg[ing] prosecutors to acquire certified copies of judgments to avoid unnecessary proof problems").

¶ 9. Watson also argues that, even if he admitted to being a repeater, he was not in fact a repeater because the judgment of conviction for the felon in possession charge was entered after he committed the present offense. The resolution of this question requires interpretation of Wis. Stat. § 939.62(2), a question of law that we review de novo. See Theriault, 187 Wis. 2d at 131.

¶ 10. Wisconsin Stat. § 939.62(2) provides in part: "The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced . . . ." According to the information, Watson committed the present offense, substantial battery, on May 20, 1997. Therefore, Watson would qualify as a repeater if he was "convicted of a felony" during the five-year period immediately preceding May 20, 1997. Watson entered a guilty plea to felon in possession of a firearm, which was accepted by the circuit court on May 9, 1997. However, because the written judgment of conviction for the felon in possession charge is dated July 23, 1997, Watson argues that he had not yet been "convicted" of a felony when he committed the substantial battery.

¶ 11. We agree with the circuit court that this issue was resolved in State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989). In Wimmer, the circuit court accepted David Wimmer's guilty plea for two counts of battery and one count of resisting arrest on August 23, 1988. Id. at 656-57. The following day, Wimmer committed another battery and was charged as a repeater. Id. at 657. Wimmer argiied that because no judgment of conviction regarding the previous crimes had been entered when he committed the subsequent battery, he had not been "convicted" within the meaning of Wrs. Stat. § 939.62(2). Id. at 656. We held: "[O]nce the court has accepted a guilty plea or verdict, the 'conviction' becomes sufficiently final to trigger the operation of the repeater statute." Id. at 664. Subsequent cases have interpreted Wimmer as broadly holding that "conviction occurs upon adjudication of guilt." State v. Smet, 186 Wis. 2d 24, 30, 519 N.W.2d 697 (Ct. App. 1994); see also State v. Trudeau, 157 Wis. 2d 51, 54, 458 N.W.2d 383 (Ct. App. 1990).

¶ 12. Watson nevertheless contends that "conviction" only means "adjudication of guilt" in the absence of a judgment of conviction. He relies on Mikrut v. State, 212 Wis. 2d 859, 569 N.W.2d 765 (Ct. App. 1997), and Goldstein, 182 Wis. 2d 251. Both Mikrut and Goldstein interpreted Wimmer as applying only when no judgment of conviction has yet been entered. Mikrut, 212 Wis. 2d at 870 ("The formal conviction, once entered, is controlling for purposes of the repeater statute."); Goldstein, 182 Wis. 2d at 258 ("However, Wimmer does not apply in a case such as this where a formal conviction has been entered."). Seizing upon this language, Watson contends that because a judgment of conviction had been entered for the felon in possession charge by the time he was sentenced for the substantial battery, the date of the judgment, not the date of the adjudication of guilt, should determine whether he could be sentenced as a repeater.

¶ 13. First, we do not view Mikrut and Goldstein as controlling because those cases were concerned only with whether a conviction fell within the five-year time limit and not with whether the defendant had been "convicted." The court in Goldstein explained:

Although Wimmer focuses on the significance of the dates of the guilt finding versus the date of [the judgment oí] conviction, the critical issue in Wimmer was not the date of the controlling event; rather, the issue was whether a finding of guilt (regardless of its date) could constitute a conviction for purposes of the repeater statute.

Goldstein, 182 Wis. 2d at 258 (emphasis omitted). Like Wimmer, and unlike Mikrut and Goldstein, the issue in the case before us is whether Watson had been "convicted" of possessing a firearm as a felon for the purpose of applying Wis. Stat. § 939.62 after he was found guilty of that crime but before the judgment of conviction was entered. In accordance with Wimmer, we conclude that he was.

¶ 14. Furthermore, accepting Watson's interpretation of Wimmer, Mikrut, and Goldstein would create an absurd result. Under Watson's view, he was a repeater when the State charged him with substantial battery (because he had been adjudged guilty but no judgment of conviction had yet been entered in the felon in possession case), but he was not a repeater when the court sentenced him for the substantial battery charge (because by then he had been sentenced and a judgment of conviction had been entered for felon in possession). This could not have been the intention of the legislature in enacting Wis. Stat. § 939.62(2) or the court in Wimmer in interpreting that statute. We therefore reject Watson's argument that he was not convicted of felon in possession until the court entered the judgment of conviction, and we conclude that Watson was properly sentenced as a repeater.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98-version unless otherwise noted.

       The State also argues in one sentence that it proved Watson's prior felony conviction for felon in possession by attaching a copy of the judgment of conviction to a motion to impeach, even though the copy was never presented at either the plea or sentencing hearing. Because we have concluded that Watson admitted a prior conviction, we do not determine whether this would be sufficient to "prove" the previous conviction under Wis. Stat. § 973.12(1).

       Possession of a firearm by a felon was a Class E felony. See Wis. Stat. § 941.29(2) (1995-96).

       Although the information also alleges that Watson is a repeater, it omits the factual details regarding the nature and date of the prior conviction. Watson, however, points to no authority that would require the facts to be in both documents. Although State v. Fields, 2001 WI App 297, ¶ 8, 249 Wis. 2d 292, 638 N.W.2d 897, holds that a defendant pleads to the information rather than the complaint, Fields does not require the information to allege specific facts if they are already in the complaint. Further, Wis. Stat. § 973.12(1) permits the repeater allegation to be included in either the complaint or the information. We conclude that so long as the two documents are not factually inconsistent with each other, the defendant is put on sufficient notice if either the complaint or the information alleges the necessary factual background.

       We acknowledge that the interpretation of Wis. Stat. § 939.62(2) in State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989), combined with the interpretation in Mikrut v. State, 212 Wis. 2d 859, 569 N.W.2d 765 (Ct. App. 1997), and State v. Goldstein, 182 Wis. 2d 251, 513 N.W.2d 631 (Ct. App. 1994), could potentially expand the five-year time limit in § 939.62(2) to more than five years. This is because under Wimmer, § 939.62(2) applies after the date of an adjudication of guilt, but under Mikrut and Goldstein, the time limit for § 939.62(2) does not expire until five years after the date of the judgment of conviction. The facts of the present case do not require that we address this potential conflict and we decline to do so here.


author: ANDERSON, J.

text:
    State of Wisconsin ex rel. Darrent Britt, Petitioner-Appellant, v. Jane Gamble and Deirdre Morgan, Respondents-Respondents.
    Court of Appeals

      No. 02-0278.

      Submitted on briefs June 20, 2002.

    Decided August 21, 2002.

    2002 WI App 238
    (Also reported in 653 N.W.2d 143.)

      On behalf of the petitioner-appellant, the cause was submitted on the brief of Darrent Britt, pro se.
    On behalf of the respondents-respondents, the cause was submitted on the brief of David E. Hoel, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 12-10-02.

   ANDERSON, J.

¶ 1. Darrent Britt appeals a final order quashing his petition for writ of habeas corpus, dismissing his action and remanding him to the custody of the Wisconsin Department of Corrections (DOC) and Warden Jane Gamble. We agree with the trial court that the Wisconsin Parole Commission's (WPC) action on Britt's parole application was discretionary and taken in the interest of the public. We further agree that Wis. Stat. § 304.06(lr) (1989-90) neither created nor conferred a due process liberty interest in parole release, and its repeal merely affects a petitioner's opportunity to take advantage of a provision for early release. Therefore, we affirm.

¶ 2. The facts are not in dispute. Britt is an inmate confined to Kettle Moraine Correctional Institution (KMCI), Plymouth, Wisconsin. He is in the custody of Warden Gamble. Deirdre Morgan is the chairperson of the WPC. Morgan has such duties as are set forth in the Wisconsin Statutes and the Wisconsin Administrative Code — in particular, Wis. Stat. §§ 15.145(1), 304.01, 304.06 and Wis. Admin. Code § PAC 1 (1999-2000).

¶ 3. Britt is in the custody of the DOC by virtue of a criminal judgment of conviction issued on September 29,1992, by the circuit court for Milwaukee county. He was sentenced on that daté to a term of imprisonment for thirty-five years (less credit for 129 days) upon a finding of guilt for the crime of felony murder. While confined to prison, Britt obtained his high school equivalency diploma (HSED).

¶ 4. On November 20, 2001, Britt filed a petition for writ of habeas corpus contending that Wis. Stat. § 304.06(lr) (1989-90), effective at the time of his crime, created a constitutionally protected liberty interest and that he was unlawfully restrained of his liberty at his initial parole consideration because the parole commission did not properly apply the standard set forth in § 304.06(lr) (1989-90) and instead improperly considered factors set forth in Wis. Admin. Code § PAC 1.06(7).

¶ 5. Wisconsin Stat. § 304.06(lr) (1989-90) provided in relevant part:

a. The parole commission shall grant release on parole, unless there are overriding considerations not to do so, to any inmate who is eligible for parole under sub. (1) and meets either of the following conditions:
2. The inmate did not have a high school diploma, a high school equivalency diploma or a certificate of general educational development at the time of his or her admission to state prison and the inmate thereafter obtained a high school equivalency diploma or a certificate of general educational development while incarcerated in state prison. (Emphasis added.)

¶ 6. Wisconsin Admin. Code § PAC 1.06(7) states:

A recommendation for parole and a grant of parole shall be made only after the inmate has:
(a) Become parole-eligible under s. 304.06, Stats., and s. PAC 1.05;
(b) Served sufficient time so that release would not depreciate the seriousness of the offense.
(c) Demonstrated satisfactory adjustment to the institution and program participation at the institution;
(d) Developed an adequate parole plan; and
(e) Reached a point at which, in the judgment of the commission, discretionary parole would not pose an unreasonable risk to the public. (Emphasis added.)

¶ 7. Wisconsin Stat. § 304.06(lr) was created by 1989 Wis. Act 31, §§ 1699 and 1700m. It became effective on January 1,1990.1989 Wis. Act 31, § 3203(23). It was then repealed effective July 9, 1996. 1995 Wis. Act 444. Britt's parole consideration took place in December 2000. Thus, although § 304.06(lr) (1989-90) was in effect at the time Britt committed his crime, it was no longer in existence by Britt's initial parole eligibility date (PED).

¶ 8. On November 26, 2001, the trial court issued a writ of habeas corpus. In response to the writ, Morgan filed a return and affidavit in which the following was established: in December 2000, Britt had his first parole consideration in conjunction with his initial PED; as a result of this December 2000 parole consideration, Britt was not released on parole; Britt's new PED was set for February 20, 2005; Britt's parole consideration involved the factors set forth in Wis. Admin. Code § PAC 1.06(7) and although Britt was found to have attained statutory eligibility for parole, to have developed an adequate parole plan, and to have satisfactory institution adjustment and program participation, the WPC also found that Britt had not served sufficient time for punishment and that release at the time would involve an unreasonable risk to the public. The WPC comments on the parole commission action form were as follows:

This is your first time in prison. You have served almost 9 years of a 35-year sentence for Felony Murder. While robbing individuals in an apartment complex, you shot and killed one of the victims. The seriousness of this will require that you serve a significant amount of time in order to address the issue of punishment. It is noted you were on probation as both a juvenile and an adult and it is unfortunate that these experiences did not deter you from further criminal behavior. Your institution adjustment has been satisfactory and it will he important to maintain this. You initially, had some difficulties and received a major ticket for use of intoxicants but this was more than a year ago so there has been improvement. You have completed CGIR received your HSED and have been involved in vocational training. You still need AODA 5B and you are frustrated that you have been unable to enter this so far. You will need to be patient regarding this and successfully complete this when the time frame is appropriate. You claim you accept responsibility for your offense but that was not readily apparent in some of your statements. You need to realize that you took someone's life and this will require the passage of much more time in order for your risk level to be sufficiently lowered and for release to be possible. Eventually long term monitoring at minimum will be required to try and accomplish this.
The length of this deferral will require the approval of the Chairman of the Parole Commission.

¶ 9. A deferral period of forty-eight months was approved. Subsequently, Morgan received a letter from Britt dated October 10, 2001, asking for a shorter deferral period and reconsideration under Wis. Stat. § 304.06(lr) (1989-90). In response, Britt was informed that his letter would be placed in his file and that the WPC would review it prior to his new PED. Wisconsin Admin. Code § PAC 1 does not provide for a formal appeal process from the parole consideration decision, only an opportunity for an inmate to comment as set out in § PAC 1.07(7).

¶ 10. Upon Morgan's examination of Britt's file, she concluded that while Britt had obtained his HSED during incarceration, on December 5, 2000, there were, and continued to be, overriding considerations not to grant him release on parole for the reasons set forth in the parole commission action form.

¶ 11. On January 4, 2002, a hearing was held before the trial court. At the conclusion of the hearing, the court determined that Britt was not illegally restrained of his liberty, that a judgment of conviction authorized his confinement, and that he was lawfully in the custody of the DOC. The court specifically noted that while Wis. Stat. § 304.06(lr) (1989-90) had created a presumption in favor of parole release where an inmate had achieved his or her HSED, that presumption had not mandated automatic release.

¶ 12. The trial court also found that failure to apply this presumption of parole release does not necessarily increase the period of a prisoner's incarceration because the WPC has broad discretion in determining whether overriding factors are present to deny parole. In addition, the court determined that the purpose of Wis. Stat. § 304.06(lr) (1989-90) was not to punish prisoners, but instead to protect the public. The court found that the WPC's action on Britt's parole application was discretionary and taken in the interest of the public. The court also stated:

The repeal of the statute in question, Section 304.06 (l)(r) [sic] merely effects [sic] the petitioner's opportunity to take advantage of a provision for early release. This is akin to completing an AODA program or similar program while institutionalized which would obviously put the petitioner in better stead with the Parole Commission.
Also, the Petitioner, the Court believes, has no due process liberty interest in the provisions of a statute which are no longer in effect. Moreover that statute ... neither created nor conferred a due process liberty interest in parole release. The petitioner may have obtained his GED while institutionalized but ostensibly there remains the overriding considerations which the Parole Commission in its discretion have found to interdict Mr. Britt's parole at this time.

¶ 13. The trial court proceeded to quash Britt's writ of habeas corpus, dismiss his action and order him remanded to the custody of the DOC and Gamble. Britt filed a motion for reconsideration, which was summarily denied by the trial court on January 23, 2002. Britt appeals.

¶ 14. The application of a statute to undisputed facts is a question of law that we review de novo. State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W.2d 13 (Ct. App. 1989). Although we decide such questions independently, we may still benefit from the trial court's analysis. Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999).

¶ 15. The refusal to grant discretionary parole is reviewable by common law certiorari. Coleman v. Percy, 96 Wis. 2d 578, 584, 292 N.W.2d 615 (1980). This is an action in common law habeas corpus, see State ex rel. Szymanski v. Gamble, 2001 WX App 118, ¶ 6, 244 Wis. 2d 272, 630 N.W.2d 570, review denied, 2001 WI 114, 246 Wis. 2d 175, 634 N.W.2d 321 (Wis. Aug. 27, 2001) (No. 00-2272), which is an equitable doctrine allowing a court to tailor a remedy applicable to the particular facts. State ex rel. Richards v. Leik, 175 Wis. 2d 446, 452, 499 N.W.2d 276 (Ct. App. 1993). Here, we must determine whether Britt is legally confined to the custody of the DOC. See Szymanski, 2001 WI App 118 at ¶ 7.

¶ 16. On appeal, Britt argues that his confinement is unlawful because the statute in effect at the time of his crime, Wis. Stat. § 304.06(lr) (1989-90), created a constitutionally protected liberty interest in parole release, that he did not receive the substantive due process rights mandated by § 304.06(lr) (1989-90), and that denying him parole under § 304.06(lr) (1989-90) violates the "ex post facto clause."

¶ 17. We address the substance of Britt's appellate arguments in order. Britt's first claim is that because he had met a condition necessary for release on parole (i.e., obtaining his HSED while incarcerated) on the date of his PED, he had a protected liberty interest in his release on parole pursuant to Wis. Stat. § 304.06(1r) (1989-90). In short, Britt concludes that because a state may create a liberty interest in release on parole by using mandatory language such as "shall," see Felce v. Fiedler, 974 F.2d 1484, 1490 (7th Cir. 1992), and because § 304.06(1r) (1989-90) used the word "shall," Wisconsin has created such an interest. We disagree.

¶ 18. First, as already noted, Wis. Stat. § 304.06(1r) (1989-90) was repealed before Britt's PED; further, the legislative history does not indicate that the presumption created by § 304.06(1r) (1989-90) should continue for inmates who were sentenced during the dates when the statute was in effect. See 1995 Wis. Act 444. Thus, we hold that Britt does not have a liberty interest derived from § 304.06(1r) (1989-90) because it was not in effect at the time of his parole consideration and was not intended by our legislature to apply to his parole consideration.

¶ 19. That determined, we nonetheless address the law of Wis. Stat. § 304.06(1r) (1989-90) and note that even when it was in effect, there was no court decision that established that § 304.06(1r) (1989-90) created a due process liberty interest in parole release. The issue was raised but not decided in State ex rel. Hansen v. Dane County Circuit Court, 181 Wis. 2d 993, 996-98, 513 N.W.2d 139 (Ct. App. 1994). Later, in State ex rel. Saenz v. Husz, 198 Wis. 2d 72, 80-81, 542 N.W.2d 462 (Ct. App. 1995), we treated the liberty interest issue as an open question because, unlike Britt, Saenz did not assert that he was denied parole without procedural due process.

¶ 20. Today, we conclude that Wis. Stat. § 304.06(1r) (1989-90) did not create a due process liberty interest in parole release even when it was in effect at the time of an inmate's parole consideration. While not directly on point, this conclusion is easily derived from our rationale in State ex rel. Gendrich v. Litscher, 2001 WI App 163, 246 Wis. 2d 814, 632 N.W.2d 878. In Gendrich, the inmate was sentenced subject to Wisconsin's presumptive mandatory parole release scheme. Id. at ¶ 8; see also Wis. Stat. § 302.11(lg). Under this scheme, a prisoner sentenced for a serious felony between April 21, 1994, and December 31, 1999, has a mandatory release date that is presumptive, but the WPC can discretionarily deny such parole release to an inmate on the subjective determination of "protection of the public." Gendrich, 2001 WI App 163 at ¶ 8; see also § 302.11(1g)(b)1.

¶ 21. Like Britt, Gendrich argued that he had a protectible liberty interest in release on parole. Gendrich, 2001 WI App 163 at ¶ 2. We held that the presumptive mandatory release scheme did not create a protectible liberty interest in release on parole because the WPC retained discretion in making the determination of whether factors existed sufficient to deny mandatory release. Id. at ¶¶ 9-10. Similarly, the WPC under Wis. Stat. § 304.06(1r) (1989-90) retained discretion in granting release on parole in its subjective determination of whether there were "overriding considerations" not to grant it. Id. As we indicated in Gendrich, 2001 WI App 163 at ¶ 1:

Gendrich is serving time for a serious felony and is subject to the presumptive mandatory release date law that grants the Commission discretion in deciding whether to release a serious felon on his or her mandatory release date. Because a discretionary act cannot create a legitimate expectation of release on the presumptive mandatory release date, we affirm the circuit court's dismissal of Gendrich's writ of certiorari. (Emphasis added.)

So, even if we were to hold that § 304.06(1r) (1989-90) applied to Britt's parole consideration (and we do not so hold), § 304.06(1r) (1989-90) did not create a pro-tectible liberty interest in parole release as Britt contends.

¶ 22. Britt's second appellate argument is that he was denied "the substantive due process rights mandated by the statute in effect when his crime was committed." His argument is that the WPC "[viewed him] under the discretionary standard set forth in sec. PAC 1.06(7), without the presumption of what the Legislature granted him under [Wis. Stat. §] 304.06(lr)" and this equates to a violation of his "constitutional rights." Again, we disagree. As already explained, Britt was not entitled to have the WPC evaluate his parole application according to a statutory standard that had been repealed and did not apply to his case. The WPC correctly relied upon the Wis. Admin. Code § PAC 1.06(7) parole factors in its discretionary authority to grant or deny parole. See Wis. Stat. § 304.06(1)(b).

¶ 23. Finally, Britt fails in his last assertion that "not giving [him] parole under [Wis. Stat. §] 304.06(1r) violated the ex post facto clause." An ex post facto law includes "any law which was passed after the commission of the offense for which the party is being tried." State v. Thiel, 188 Wis. 2d 695, 701, 524 N.W.2d 641 (1994) (citation omitted). When determining whether there was an ex post facto violation, we look to see whether the application of the new law violates one or more of the ex post facto clause's recognized protections. State v. Kurzawa, 180 Wis. 2d 502, 512, 509 N.W.2d 712 (1994). Specifically, we determine whether the application of the new law: (1) criminalizes conduct that was innocent when committed, (2) increases the penalty for conduct after its commission, or (3) removes a defense that was available at the time the act was committed. Id. at 512-13.

¶ 24. Only the second consideration is at issue here: whether the WPC's application of Wis. Admin. Code § PAC 1.06(7), along with its adherence to the legislative intent that the HSED presumption no longer apply to any prisoner, increased the penalty for Britt's conduct after its commission. Britt's thirty-five year term of incarceration was not extended; thus, the penalty for his conduct was not increased after its commission. A violation of the ex post facto clause does not lie.

¶ 25. We agree with the trial court that Britt is legally confined to the custody of the DOC.

By the Court. — Order affirmed.

       All Wisconsin statute and administrative code references are to the 1999-2000 version unless otherwise noted.

       Inmates with Wisconsin sentences are committed to the legal custody of the DOC. Evers v. Sullivan, 2000 WI App 144, ¶¶ 12-14, 237 Wis. 2d 759, 615 N.W.2d 680, review denied, 2000 WI 121, 239 Wis. 2d 312, 619 N.W.2d 94 (Wis. Oct. 17,2000) (No. 00-0127).

       Wisconsin Admin. Code § PAC 1.07(7) provides:
      The inmate shall be afforded an opportunity to comment on the decision following the commissioner's explanation of the decision, orally if an interview has been provided, or in writing if an interview has not heen provided.

       Review by statutory certiorari has different characteristics than review by common law certiorari because the former is of right and the latter is discretionary. Coleman v. Percy, 96 Wis. 2d 578, 584 n.5, 292 N.W.2d 615 (1980).

       Because Britt does not clarify, we assume that his assertion of an ex post facto violation is made under article I, § 12 of the Wisconsin Constitution which states: "No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption or blood or forfeiture of estate."

       An ex post facto law also includes a law which "inflicts a greater punishment than the law annexed to the crime at the time it was committed ... or which alters the situation of the accused to his disadvantage." State v. Thiel, 188 Wis. 2d 695, 701, 524 N.W.2d 641 (1994) (emphasis and citation omitted).


author: NETTESHEIM, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Casey J. Schneck, Defendant-Appellant.
    Court of Appeals

      No. 02-0513-FT.

      Submitted on briefs July 23, 2002.

    Decided August 21, 2002.

    2002 WI App 239
    (Also reported in 652 N.W.2d 434.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark A. Phillips of Law Offices of Mark A. Phillips, S.C. of Brookfield.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kevin M. Osborne assistant district attorney of Waukesha.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   NETTESHEIM, PJ.

¶ 1. Casey J. Schneck challenges the trial court's ruling that the summary judgment procedure set out in Wis. Stat. § 802.08 (1999-2000) is not permitted in a traffic forfeiture prosecution under Wis. Stat. ch. 345. We affirm the trial court's ruling.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts and procedural history of this case are brief and undisputed. Schneck was issued a uniform traffic citation for knowingly transporting alcohol in a motor vehicle as an underage person pursuant to Wis. Stat. § 346.93(1). The matter was prosecuted as a forfeiture action in the circuit court pursuant to Wis. Stat. ch. 345. Schneck pled not guilty and then filed a motion for summary judgment. The State challenged Schneck's attempt to use summary judgment. Following a hearing, the trial court issued a written decision holding that summary judgment was not available in a prosecution under ch. 345.

¶ 3. Schneck filed a petition for leave to appeal the trial court's nonfinal order. We previously granted the petition.

DISCUSSION

¶ 4. Schneck rests his case squarely on the language of Wis. Stat. § 801.01(2) which states, in part:

Scope. Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule.

¶ 5. Schneck's argument is simple and straightforward. He correctly observes that forfeiture actions gire civil actions. State v. Peterson, 104 Wis. 2d 616, 622 n.7, 312 N.W.2d 784 (1981). He also correctly observes that Wis. Stat. ch. 345 does not expressly bar summary judgment or recite a different procedure. From this, Schneck concludes that Wis. Stat. § 801.01(2) provides the green light for a summary judgment motion in a ch. 345 forfeiture prosecution.

¶ 6. In further support, Schneck points to State v. Brown, 215 Wis. 2d 716, 724, 573 N.W.2d 884 (Ct. App. 1997), where the court of appeals held that the right of judicial substitution existed in a Wis. Stat. ch. 980 commitment proceeding because the commitment statutes are silent on the matter of substitution and therefore did not provide a "different procedure" under Wis. Stat. § 801.01(2). The Brown court cited analogous rulings in State v. Jody A.E., 171 Wis. 2d 327, 491 N.W.2d 136 (Ct. App. 1992), and Hoberg v. Berth, 157 Wis. 2d 717, 460 N.W.2d 436 (Ct. App. 1990), where the court of appeals ruled that § 801.01(2) permitted join-der in a paternity proceeding (Jody A.E.) and discovery in a probate proceeding {Hoberg).

¶ 7. We have no quarrel with Schneck's analysis as far as it goes. However, it does not go far enough. Other case law establishes that the test for the application of the civil rules of procedure is not only whether the statutes governing the instant proceeding are silent on the matter or otherwise set out a different procedure, but also whether the instant proceeding can be reconciled with the rules of civil procedure. This was the approach taken by the trial court when it concluded that a Wis. Stat. ch. 345 forfeiture prosecution could not be reconciled with the summary judgment procedure set out in Wis. Stat. § 802.08. We agree.

¶ 8. We begin with the well-recognized and often stated methodology of summary judgment, recently repeated in Servais v. Kraft Foods, Inc., 2001 WI App 165, ¶ 5, 246 Wis. 2d 920, 631 N.W.2d 629, aff'd, 2002 WI 42, 252 Wis. 2d 145, 643 N.W.2d 92. We first examine the complaint to determine whether it states a claim and then review the answer to determine whether it joins a material issue of fact or law. If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute that entitle the opposing party to a trial. Id.

¶ 9. The summary judgment statute, Wis. Stat. § 802.08(1), contemplates a summons and complaint: "[a] party may, within 8 months of the filing of a summons and complaint or within the time set in a scheduling order under s. 802.10, move for summary judgment. . . ." Pursuant to Wis. Stat. § 801.09, a summons must contain, among other things, "A direction to the defendant... to serve upon plaintiffs attorney... an answer to the complaint." Pursuant to Wis. Stat. § 802.06(2), every defense in law or fact (except improper venue) must be asserted in a responsive pleading. With these pleadings in place, a party may then bring a motion for summary judgment. Armed with these pleadings, particularly the defendant's answer, the trial court can then perform the threshold steps of summary judgment methodology— determine whether the plaintiffs complaint states a claim and, if so, whether the defendant's answer has joined material issues of fact or law. Servais, 2001 WI App 165 at ¶ 5.

¶ 10. We now compare this methodology with the procedure in a Wis. Stat. ch. 345 forfeiture proceeding. Wisconsin Stat. § 345.11 authorizes the uniform traffic citation and recites what it must contain. The citation "shall be deemed adequate process to give the appropriate court jurisdiction over the person" pursuant to § 345.11(5) and it "shall stand as a complaint" pursuant to Wis. Stat. § 345.40. However, there is nothing in ch. 345 that requires or contemplates the kind of responsive pleading that would enable a trial court to determine if a material issue of fact or law has been joined. Instead, ch. 345 envisions only the following responses to a uniform traffic citation: a plea of guilty, no contest or not guilty pursuant to § 345.40; and a motion to dismiss based on "[d]efenses which could be taken by pleas in abatement, in bar, demurrers and motion to quash" pursuant to Wis. Stat. § 345.41. In short, a trial court cannot perform even the rudimentary initial steps of summary judgment methodology because the responses contemplated by these statutes are not the equivalent of an answer in a conventional civil action.

¶ 11. In State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992), the defendant sought pretrial dismissal of a criminal charge by summary judgment. He relied on Wis. Stat. § 972.11(1) which provides, similar to Wis. Stat. § 801.01(2), that the rules of civil procedure apply in criminal proceedings unless the context of the criminal code requires a different construction. Hyndman, 170 Wis. 2d at 204-05. The court of appeals rejected the attempted use of summary judgment. The court said, "The context of sec. 802.08(1) manifestly requires that it not be applied to criminal actions. The words 'summons[,] . . . scheduling order[,] . . . claim, counterclaim, cross-claim or 3rd party claim are foreign to criminal pleadings and procedure and are solely within the domain of civil law." Hyndman, 170 Wis. 2d at 206. Although the instant case is a civil case, we make the same observation. In describing a uniform traffic citation, Wis. Stat. ch. 345 does not use the term "summons." Similarly, the chapter does not contemplate or use the terms "scheduling order, claim, counterclaim, cross-claim or 3rd party claim." Just as these terms are foreign to criminal proceedings so also are they foreign to ch. 345 prosecutions.

¶ 12. Hyndman supports our ruling on a further basis. The Hyndman court also said, "A plea of 'not guilty' creates material issues of fact for the trier of fact to decide. Summary judgment lies only when no material issues of fact exist and a party, as a matter of law, is entitled to judgment." Hyndman, 170 Wis. 2d at 205. In the instant case, Schneck pled not guilty. Just as the not guilty plea in Hyndman created material issues of fact for trial, Wis. Stat. § 345.40 echoes the same theme. The statute says, in part, "A plea of not guilty shall put all matters in such case at issue." Although Hyndman is a criminal case whereas this is a forfeiture case, § 345.40 commands the same result as in Hynd-man.

¶ 13. We also note that Brown, the very case on which Schneck relies, debunks his contention that the silence of Wis. Stat. ch. 345 on the topic of summary judgment means that summary judgment is allowed. There, the amicus curiae argued that the substitution of judge provisions were "incompatible" with a Wis. Stat. ch. 980 commitment proceeding. Brown, 215 Wis. 2d at 724. The court of appeals rejected that argument saying that "mere alleged incompatibility" was not enough. Id. at 725. Instead, the court required "explicit or implicit prescription by the statute of a 'different procedure."' Id. As our comparative analysis has already demonstrated, a ch. 345 forfeiture action does not accommodate summary judgment procedure because it does not allow for the kind of responsive pleading envisioned by Wis. Stat. § 802.08. At a minimum, ch. 345 implicitly rejects the notion of summary judgment.

¶ 14. The supreme court has also recognized that mere silence regarding a rule of civil procedure does not automatically mean that the procedure is permitted. In David S. v. Laura S., 179 Wis. 2d 114, 143-44, 507 N.W.2d 94 (1993), the court held that although Wis. Stat. ch. 48 did not prescribe a different procedure for intervention, the intervention statute nonetheless did not apply because it was not "consistent with the purposes and policies underlying the statutory proceedings set forth in ch. 48 which limit the persons who must be notified of the proceedings." Later, the court of appeals construed David S. as requiring a court "to look not only for distinct differences in procedure, but also to whether the procedures established in the different chapters are consistent." State v. Tammy F., 196 Wis. 2d 981, 986, 539 N.W.2d 475 (Ct. App. 1995). Again, our comparative analysis of a Wis. Stat. ch. 345 procedure versus summary judgment procedure reveals that the two procedures are not only different but are inherently inconsistent. In short, summary judgment is unworkable in a ch. 345 forfeiture action.

¶ 15. Finally, we take note that although Wis. Stat. ch. 345 forfeiture proceedings are civil proceedings, Peterson, 104 Wis. 2d at 622 n.7, such proceedings also have certain aspects of criminal proceedings, see Village of Menomonee Falls v. Kunz, 126 Wis. 2d 143, 147, 376 N.W.2d 359 (Ct. App. 1985). The supreme court has noted many of the similarities in procedure between a forfeiture action and a criminal action, and the court has cautioned that "it is an oversimplification to treat forfeiture actions as purely civil in nature." City of Milwaukee v. Wuky, 26 Wis. 2d 555, 562, 133 N.W.2d 356 (1965). We properly bear that caution in mind, recognizing that if we agreed with Schneck, then prosecutors could also use summary judgment as a sword against defendants in ch. 345 forfeiture prosecutions. Although the State resists the effort in this case, we daresay that most prosecutors would delight at the prospect of having summary judgment as a tool for obtaining convictions in forfeiture cases.

CONCLUSION

¶ 16. Summary judgment procedure is inconsistent with, and unworkable in, a Wis. Stat. ch. 345 forfeiture proceeding. We uphold the trial court's rejection of Schneck's summary judgment motion. We remand for further proceedings.

By the Court. — Order affirmed and cause remanded.

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

       Wisconsin Stat. § 802.06(2) also permits certain defenses to be raised by motion at the option of the pleader.

       We echoed these same concerns by dicta in our opinion in State ex rel. Schaeve v. Van Lare, 125 Wis. 2d 40, 44 n.3, 370 N.W.2d 271 (Ct. App. 1985).


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Roland A. Smart, Defendant-Appellant.

    Court of Appeals

      No. 02-0569-CR.

      Submitted on briefs July 8, 2002.

    Decided August 27, 2002.

    2002 WI App 240
    (Also reported in 652 N.W.2d 429.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Donald T. Lang, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Catharine D. White, assistant district attorney of Shawano.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review filed.

       Originally assigned as a one-judge appeal, this case was reassigned to a three-judge panel on August 16, 2002. See Wis. Stat. Rule 809.41. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

   CANE, C.J.

¶ 1. Roland Smart appeals a judgment of conviction for operating while intoxicated, third offense, contrary to Wis. Stat. § 346.63(l)(a), and operating while intoxicated with a prohibited blood alcohol content, third offense, contrary to § 346.63(l)(b). He also appeals an order denying postconviction relief. Smart contends Wisconsin's drunk driving sentencing scheme, by allowing each judicial district to establish presumptive guidelines, violates due process and equal protection because it allows for different sentences of similarly situated offenders based solely on the jurisdiction where they were convicted. He also argues the court violated due process and equal protection by refusing to reduce his sentence in light of a reduction in the local guidelines after he committed the offense. Smart contends other courts subject to the local guidelines applied the lower sentence recommendation to persons arrested for drunk driving before the reduction. Neither the sentencing guidelines nor the court's application of them violate Smart's due process or equal protection rights. Therefore, we affirm the circuit court's judgment and order.

BACKGROUND

¶ 2. In June 2001, the Shawano County district attorney charged Smart with operating a motor vehicle while under the influence of an intoxicant, third offense and operating while intoxicated with a prohibited blood alcohol content, third offense. Smart pled no contest to both charges in September 2001 and the circuit court found him guilty. The court sentenced Smart to ten months -in jail and imposed $1,910 in fines and costs. Smart's jail sentence was the length recommended by the sentencing guidelines in effect in the Ninth Judicial District at the time of his offense. In August 2001, the chief judge of the district reduced the guideline for Smart's offense to 120 days in jail. This had also been the recommended penalty before January 2001.

¶ 3. Smart filed a motion for postconviction relief arguing the guidelines violated his due process and equal protection rights. He argued the general scheme allowing each judicial district to establish sentencing guidelines for drunk driving was improper because it allowed similarly situated offenders across the state to receive different sentences based solely on the venue of their conviction. He also argued his sentence violated his rights because other counties within the district were sentencing offenders who had been convicted during the increased guidelines period using the lower guidelines. The circuit court denied Smart's motion and he appeals.

DISCUSSION

¶ 4. Pursuant to Wis. Stat. § 346.65(2m), the Ninth Judicial District has adopted sentencing guidelines for persons convicted of driving while intoxicated. This statute authorizes the chief judge in each judicial district to adopt these guidelines, which are to consider any aggravating and mitigating factors. As noted, the ninth district's jail time guideline for Smart's offense is 120 days, except between January 2001 and August 2001, when it was ten months. Had he been convicted of the same crime in other judicial districts, Smart would have likely received a much shorter jail term. In the tenth district, the guideline is 110 days; in the eighth, seventy-five days; and in the fourth, forty-five days. Smart argues this disparity violates his equal protection and substantive due process rights.

I. Equal protection

¶ 5. Smart first argues the sentencing guidelines violate his right to equal protection under the United States and Wisconsin Constitutions. He suggests we should subject the guidelines to a strict scrutiny analysis because they implicate a fundamental liberty interest. We disagree. It is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions. See Chapman v. United States, 500 U.S. 453, 464-65 (1991). If a fundamental right is not implicated, the issue is whether there is arbitrary discrimination in the statute and whether there is a rational basis that justifies the difference in rights afforded. State v. Joseph E.G., 2001 WI App 29, ¶ 8, 240 Wis. 2d 481, 623 N.W.2d 137. A statute that creates a classification that is rationally related to a valid legislative objective does not violate equal protection guarantees. Id.

¶ 6. The statute creates different classes of people. It makes persons convicted of driving while under the influence in one judicial district subject to potentially different sentencing standards from those in other districts. While the statute itself does not mention a rationale, Smart suggests sentencing guidelines generally function to reduce sentencing disparity among persons who commit similar offenses, and we agree. See State v. Speer, 176 Wis. 2d 1101, 1124, 501 N.W.2d 429 (1993).

¶ 7. Smart argues the guideline scheme does not bear a rational relationship to the objective of reducing disparity and actually increases it by allowing each judicial district to develop their own standards. While we agree the statute may not be the best way to reduce drunk driving sentencing disparity, a rational basis inquiry does not require perfection. Our only question is whether the statute bears some relationship to advancing that goal. It does. By mandating the creation of guidelines within judicial districts, the statute attempts to reduce sentencing disparity within those districts. While statewide guidelines would perhaps be more equitable, there is no requirement the legislature choose the wisest or most effective means of reducing disparity. See Stanhope v. Brown County, 90 Wis. 2d 823, 843, 280 N.W.2d 711 (1979).

¶ 8. Smart also contends our supreme court's decision in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141, and the United States Supreme Court's decision in Bush v. Gore, 531 U.S. 98 (2000), both require us to find an equal protection violation. In Nankin, the supreme court determined a statute that offered fewer options for residents in larger counties to challenge their property tax assessments violated equal protection. Nankin, 2001 WI 92 at ¶ 46. The statute limited property owners in the state's larger counties to certiorari review of their assessment in circuit court while property owners in smaller counties were allowed to seek de novo review. Id. at ¶ 6. The supreme court determined this distinction was without a rational basis. Id. at ¶ 46. Although Shorewood argued judicial economy and efficiency justified the distinction, the court rejected both of these arguments. Id. at ¶ 38.

¶ 9. Nankin is distinguishable. The statute at issue in Nankin created disparity in treatment of property owners based solely on the population of the county in which they lived. See Nankin, 2001 WI 92 at ¶ 13. In contrast, the statute here is remedial. It serves to decrease disparity by creating presumptive sentences for driving while under the influence within judicial districts. See Wis. Stat. § 346.65(2m).

¶ 10. Nor does Bush suggest the sentencing scheme violates equal protection. In Bush, the Supreme Court prevented a proposed recount of presidential ballots because of the possibility of different standards being used by the entities recounting the ballots across the state. Bush, 531 U.S. at 110. Again, the statute here seeks to redress disparate treatment, whereas the Supreme Court was concerned the proposed recount would create unequal treatment of voters. We also note the right to vote for president of the United States, once conferred by a state, is a fundamental right. Id. at 104. Although it is unclear from the decision, the Florida recount proposal was arguably subjected to greater scrutiny than the rational basis analysis required here. See id. at 104-05. Application of the Bush case does not suggest the sentencing scheme violates equal protection.

II. Due process

¶ 11. Smart next argues the sentencing scheme violates his substantive due process rights. Substantive due process protects people from state conduct that "shocks the conscience... or interferes with rights implicit in the concept of ordered liberty." Joseph E.G., 2001 WI App 29 at ¶ 13 (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). Unless it infringes on a "fundamental right," a statute will generally survive a substantive due process challenge if it is rationally related to a legitimate government interest. State v. McManus, 152 Wis. 2d 113, 131, 447 N.W.2d 654 (1989).

¶ 12. In the context of criminal sentencing, arguments based on due process and equal protection are essentially duplicative. Chapman, 500 U.S. at 465. As noted, the right to be free from an arbitrary sentence after conviction is not a fundamental right. Id. at 464-65. Further, we have already determined a rational basis exists for the sentencing guidelines. The guidelines do not violate Smart's substantive due process rights.

III. DISPARATE SENTENCES WITHIN THE NINTH DISTRICT

¶ 13. Finally, Smart argues the trial court's sentence and its subsequent refusal to modify it violates his equal protection and due process rights because other counties within the ninth district sentenced persons who were arrested for operating while under the influence between January and August of 2001 using the 120-day guideline. At the outset, we note the only evidence in the record of these reduced sentences occurring is a few brief comments by the circuit court. Assuming this disparate sentencing occurred, it is well established in Wisconsin that mere disparity in the sentences received by persons committing similar crimes does not estáblish a denial of due process. State v. Macemon, 113 Wis. 2d 662, 669, 335 N.W.2d 402 (1983). Further, it is inappropriate for a sentencing court to change an imposed sentence unless new factors are made known. Id. at 668. Sentencing is a discretionary act and will be upheld if there is evidence in the record the court in fact exercised its discretion. Id. at 667.

¶ 14. The circuit court did not violate Smart's due process and equal protection rights when it refused to modify his sentence. In Macemon, our supreme court determined the implementation of voluntary felony sentencing guidelines was not a new factor for a court to consider in modifying a defendant's sentence. Id. at 669. Similarly, we do not believe the modification in the ninth district's guideline was a new factor for the trial court to consider regarding Smart's motion to modify his sentence.

¶ 15. Nor can we say the court erroneously exercised its discretion in sentencing Smart. The court sentenced Smart under the guidelines in effect when he committed his offense. While other counties within the district may have given shorter sentences to others convicted during the same period, it was within their discretion to do so. The guidelines are not mandatory, and a court may disregard them if it so chooses. Here, the court noted Smart's prior drunk driving convictions and his high blood alcohol content at the time of arrest and chose to sentence him according to the applicable guidelines. The record shows Smart's sentence resulted from a proper exercise of the court's discretion.

By the Court. — Judgment and order affirmed.