Ardonis Greer v. Wayne J. Wiedenhoeft , 353 Wis. 2d 307 ( 2014 )

2014 WI 19
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2188
COMPLETE TITLE: State of Wisconsin ex rel. Ardonis Greer,
Petitioner-Respondent-Petitioner,
v.
Wayne J. Wiedenhoeft, Administrator, Division of
Hearings
and Appeals,
Respondent-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 344 Wis. 2d 639, 825 N.W.2d 497
(Ct. App. 2012 – Published)
PDC No.: 2012 WI App 122
OPINION FILED: April 17, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 22, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Charles H. Constantine
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-respondent-petitioner, there were briefs
by Jennifer M. Severino and Servino Law Offices LLC, Racine, and
oral argument by Jennifer M. Severino.
For the respondent-appellant, the cause was argued by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
2014 WI 19
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2188
(L.C. No. 2011CV952)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Ardonis Greer,
Petitioner-Respondent-Petitioner, FILED
v.
APR 17, 2014
Wayne J. Wiedenhoeft, Administrator, Division
of Hearings and Appeals, Diane M. Fremgen
Clerk of Supreme Court
Respondent-Appellant.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
published decision of the court of appeals, State ex rel. Greer
v. Schwarz, 2012 WI App 122, 344 Wis. 2d 639, 825 N.W.2d 497,
that reversed the decision of the Racine County Circuit Court,1
which had reversed a decision of the Division of Hearing and
Appeals affirming the Wisconsin Department of Corrections'
("DOC") revocation of Ardonis Greer's ("Greer") probation.
¶2 This case presents three issues for our review.
First, we are asked to determine whether the issuance of an
1
The Honorable Charles H. Constantine presided.
No. 2011AP2188
erroneous discharge certificate deprived the DOC of jurisdiction
to revoke Greer's probation, despite a validly imposed sentence
to the contrary. Second, we are asked to determine whether the
DOC, in revoking Greer's probation, violated Greer's procedural
or substantive due process rights. Finally, we are asked to
determine whether the circuit court, sitting in certiorari, was
empowered to equitably estop the DOC from revoking Greer's
probation.
¶3 Greer argues that the issuance of the discharge
certificate was a "significant legal moment" that deprived the
DOC of jurisdiction to revoke his probation. Greer also argues
that, in revoking his probation, the DOC violated both his
substantive and procedural due process rights. Finally, Greer
argues that the DOC should be equitably estopped from revoking
his probation.
¶4 The State argues that the DOC retained jurisdiction
over Greer, despite the erroneous issuance of the discharge
certificate. The State further argues that Greer's due process
rights have not been violated. Finally, the State argues that
equitable estoppel is not available in a certiorari action, and
that even if it were available, Greer is not entitled to
equitable relief.
¶5 We conclude that the DOC retained jurisdiction over
Greer despite the erroneous issuance of a discharge certificate.
We further conclude that Greer's due process rights were not
violated, and that equitable estoppel is not available in the
2
No. 2011AP2188
context of certiorari review. We therefore affirm the court of
appeals.
I. FACTUAL BACKGROUND
¶6 On September 29, 2004, the State filed a criminal
complaint2 charging Greer with one count of possession of THC
with intent to deliver while armed as a repeater, contrary to
Wis. Stat. §§ 961.41(1m)(h)2, 961.48(1)(b), and 939.63(1)(c)
(2003-04), one count of maintaining a drug trafficking place
while armed as a repeater, contrary to Wis. Stat. §§ 961.42(1),
961.48(1)(b), and 939.63(1)(c) (2003-04), and one count of
possession of a firearm by a felon, contrary to Wis. Stat.
§ 941.29(2) (2003-04).
¶7 On January 25, 2005, Greer pled guilty to possession
with intent to deliver THC ("Count 1"), and possession of a
firearm by a felon ("Count 3"). The charge of maintaining a
drug trafficking place was dismissed, but read in for sentencing
purposes. The court ordered a presentence investigation report.
¶8 On March 14, 2005, Greer was sentenced to three years
of imprisonment on Count 1, comprised of 14 months of initial
confinement to be followed by 22 months of extended supervision.
On Count 3, Greer was sentenced to six years of imprisonment,
comprised of three years of initial confinement to be followed
by three years of extended supervision, but the sentence was
2
While basic information regarding the charges Greer faced
in Racine County Case No. 2004CF1184 is a part of this record,
the facts supporting those charges are not. The facts of
Greer's initial conviction are thus not part of our review.
3
No. 2011AP2188
stayed and Greer was instead ordered to serve three years of
probation consecutive to Count 1. Greer was personally present,
and represented by counsel, at both the plea hearing and the
sentencing hearing.3
¶9 On September 28, 2007, Greer completed his sentence on
Count 1 and began serving his period of probation. Greer's
supervising agent, however, erroneously informed him that he
would be discharged from supervision after September 28.
Subsequently, Greer was erroneously issued a discharge
certificate4 dated October 3, 2007, which stated:
You were sentenced to Wisconsin State Prisons.
The department having determined that you have
satisfied said sentence, it is ordered that effective
September 28, 2007, you are discharged absolutely.
. . . .
Restoration of civil rights for felony
convictions:
This certifies that the following civil rights
are restored to you:
1. The right to vote.
2. The obligation for jury duty.
3
While the transcript of the plea hearing and sentencing
hearing are not a part of this record, Greer has conceded that
he was present and represented at the hearings.
4
The DOC issued Greer two discharge certificates, one
discharging him with respect to Count 1 only, and the other
discharging him absolutely. Given that Greer had reached the
end of his sentence on Count 1, it follows that the discharge
certificate for Count 1 was properly issued. Our review
therefore concerns only the absolute discharge certificate.
4
No. 2011AP2188
The following civil rights are not restored to
you:
1. Firearms may not be used or possessed unless
a pardon, which does not restrict possession of
firearms, is received from the governor.
2. Public office can not be held unless a pardon
is obtained from the governor.
In fact, Greer's consecutive probation was not set to end until
September 28, 2010, three years later.
¶10 On November 5, 2009, Greer was allegedly involved in
an argument with his then-girlfriend Veronica Wilkerson
("Wilkerson"). During the course of that argument, Wilkerson's
nephew, Shawn Griffin ("Griffin"), entered the bedroom where the
two were arguing and told Greer to get away from Wilkerson or he
would call his father and the police. Greer then displayed what
appeared to be a silver handgun and implied that he would shoot
Griffin's father and Wilkerson if Griffin made the calls.
Police later recovered an airsoft pistol from the apartment.
Greer subsequently admitted to holding the airsoft pistol while
obscuring the orange tip in order to frighten Griffin.
¶11 On November 6, 2009, the State filed a criminal
complaint against Greer, charging him with one count of felony
intimidation of a witness using a dangerous weapon as a
repeater, contrary to Wis. Stat. §§ 940.43(3), 939.50(3)(g),
939.63(1)(b), and 939.62(1)(b) (2009-10),5 a class G felony; one
count of second-degree reckless endangerment as a repeater,
5
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
5
No. 2011AP2188
contrary to Wis. Stat. §§ 941.30(2), 939.50(3)(g), and
939.62(1)(b), a class G felony; and one count of disorderly
conduct as an act of domestic abuse using a dangerous weapon as
a repeater, contrary to Wis. Stat. §§ 947.01, 939.51(3)(b),
939.63(1)(a), 973.055(1), and 939.62(1)(a), a class B
misdemeanor.
¶12 On June 25, 2010, Greer pled no contest to
intimidating a witness, contrary to Wis. Stat. § 940.43(3). The
court found him guilty and ordered a presentence investigation
report. In exchange for his plea, the State dismissed the other
charges and penalty enhancers. While preparing the presentence
investigation, the DOC reviewed Greer's file and discovered that
Greer was still purportedly serving the probation term from his
2004 conviction. On September 2, 2010, police took Greer into
custody on a DOC hold.
¶13 On September 8, 2010, DOC Agent Leah Zeni ("Zeni")
interviewed Greer. In a written statement, Greer admitted that
he had not reported during his consecutive probation, that he
had threatened Griffin, and that he had violated the speed limit
and consumed alcohol. Greer wrote that he did not realize that
he was still on probation.
II. PROCEDURAL POSTURE
¶14 On September 16, 2010, the DOC initiated revocation
proceedings against Greer, alleging he had violated the terms of
his probation by failing to report for supervision, threatening
Griffin, possessing a firearm, speeding, and consuming alcohol.
Greer's revocation hearing was set for November 15, 2010.
6
No. 2011AP2188
¶15 On November 8, 2010, Greer filed a motion objecting to
the jurisdiction of the DOC. In his motion, Greer argued that
the issuance of the discharge certificate deprived the DOC of
jurisdiction to revoke him. Relying on Wis. Stat. § 304.072(3)6
and State ex rel. Rodriguez v. DHSS, 133 Wis. 2d 47, 393
N.W.2d 105 (Ct. App. 1986), Greer reasoned that the DOC has
jurisdiction only prior to the expiration of a probationer's
term of supervision, and that because Greer had been discharged,
his term of supervision had ended. Alternatively, Greer argued
that he had been deprived of adequate notice as to the case
under which the DOC was seeking revocation, because paperwork
related to his revocation inconsistently appended the letters
"A" and "B" to the case number.7
¶16 On November 15, 2010, Greer received a revocation
hearing before an administrative law judge ("ALJ"). At the
hearing, the DOC presented testimony from Griffin in support of
revocation. Griffin testified that during the argument between
6
Wisconsin Stat. § 304.072(3) provides:
Except as provided in s. 973.09(3)(b), the
department preserves jurisdiction over a probationer,
parolee or person on extended supervision if it
commences an investigation, issues a violation report
or issues an apprehension request concerning an
alleged violation prior to the expiration of the
probationer's, parolee's or person's term of
supervision.
7
It is undisputed that these lettering notations resulted
from the DOC creating a new case number under which to hold
Greer after discovering he was still on probation on
September 1, 2010.
7
No. 2011AP2188
Wilkerson and Greer, he entered Wilkerson's bedroom and stated,
"I'm gonna tell the police," and "I'm gonna tell my dad."
Griffin testified that Greer responded, "I don't care." Griffin
stated that Greer then retrieved a gun and said "this is what I
got for your dad" while cocking the weapon. Griffin then stated
"I'm gonna tell the police," to which Greer responded, "I would
shoot your auntie and this is what I got for your dad" while
once again cocking the weapon. Griffin further testified that
he was sure that the gun was real.
¶17 Greer also testified at the hearing in opposition to
revocation. Greer stated that, while he was physically present
at his March 14, 2005 sentencing hearing, he nonetheless
believed that his probation was completed because he had been
discharged through the issuance of the discharge certificate.
Greer testified that he did not have "any acknowledgment of a
consecutive or a concurrent" at the sentencing hearing, stating
"[t]hose things are not definite to me." He further admitted
that he had threatened Griffin, but testified that he had used
an "aerosol gun" and not a real pistol.
¶18 On November 23, 2010, the ALJ issued his decision and
ordered Greer's probation revoked.8 The ALJ rejected Greer's
jurisdictional arguments, relying on Rodriguez and State v.
Stefanovic, 215 Wis. 2d 310, 572 N.W.2d 140 (Ct. App. 1997).
The ALJ concluded that "[n]either an Agent nor clerk entering
8
Greer's criminal conviction and written admissions served
as proof of the conduct alleged in the notice of revocation.
8
No. 2011AP2188
information into a computer can void or nullify a valid court
order." The ALJ also rejected Greer's argument regarding
adequate notice, stating "Mr. Greer[,] as all defendants in this
state[,] was present at the time he was sentenced and would have
directly heard the court sentencing him to prison and also to a
consecutive three year period of probation."
¶19 As to the allegations supporting revocation, the ALJ
determined that the DOC had proven that Greer had threatened
Griffin, and had proven that Greer consumed alcohol. While the
ALJ concluded that there was insufficient evidence to support
the allegation that Greer possessed a real handgun, Greer's
admitted use of the airsoft pistol to threaten Griffin
constituted an aggravating factor as to that allegation. Having
considered the alternatives, the ALJ concluded that revocation
was necessary:
I find revocation necessary to avoid undue
depreciation of the seriousness of the proven
violations and to protect the community from further
criminal conduct by Mr. Greer. Mr. Greer had engaged
in serious new felony conduct. He aggravated that
criminal conduct by deliberately leading his victim to
believe that he was in danger of being shot. He needs
to be held to account for that behavior and the
community needs protection from it. Mr. Greer
proposes that his probationary term be tolled back to
the beginning and he be continued on probation. I
find that proposal an inadequate response to his
serious new criminal behavior. I find no other
alternative to revocation an appropriate response to
his conduct.
¶20 On December 8, 2010, Greer filed an appeal from the
ALJ's decision with the Division of Hearings and Appeals
("Division"). Greer once again asserted that the DOC lacked
9
No. 2011AP2188
jurisdiction to revoke his probation. Greer argued that the ALJ
erred when he equated Greer's circumstances with that of the
defendant in Rodriguez. Greer pointed out that in Rodriguez,
the defendant never received a discharge certificate.
Alternatively, Greer argued that the DOC lacked jurisdiction
because it had not provided him adequate notice of his
revocation. Greer further objected to what he characterized as
ex parte communication between the DOC and the ALJ prior to his
hearing. In addition to challenging the DOC's jurisdiction,
Greer also argued that his due process rights were violated
because the DOC failed to maintain accurate records, and that
the DOC acted arbitrarily, capriciously, oppressively,
unreasonably, and contrary to law.
¶21 On December 22, 2010, the Division sustained the ALJ's
decision and revoked Greer's probation. The Division concluded
that the erroneous issuance of a discharge certificate does not
"deprive [the DOC] of jurisdiction, nor does it relieve the
offender of liability for misconduct, particularly criminal
offenses." The Division found that the judgment of conviction
"unambiguously decreed that Greer was to serve his probation
term consecutive to the prison sentence." The Division noted
that "[a]s a practical matter, Greer would have been in court at
sentencing and therefore knew, or should have known, that he was
required to serve a consecutive probation term." Citing
Rodriguez, the Division further concluded that Greer "cannot
seriously contend that a probationer can violate the criminal
laws of this state without affecting his or her probationary
10
No. 2011AP2188
status." The Division also determined that the communication
between the DOC and the ALJ prior to the hearing was not
improper, and that the ALJ's findings at the hearing supported
revocation as an appropriate consequence of Greer's serious new
criminal offense.
¶22 On February 4, 2011, Greer filed a petition for a writ
of certiorari in the Racine County Circuit Court, seeking review
of the Division's determination. On February 9, 2011, the court
issued the writ, agreeing to review the DOC's decision to revoke
Greer's probation.
¶23 Before the circuit court, Greer once again argued that
the DOC lacked jurisdiction to revoke his probation. Greer
renewed his argument that the DOC lost jurisdiction when it
issued the discharge certificate. Greer also continued to argue
that his right to due process was violated because the DOC had
negligently failed to maintain accurate records. Finally, Greer
argued that the DOC, the ALJ, and the Division acted
arbitrarily, capriciously, oppressively, unreasonably, contrary
to law, and contrary to the evidence of the record.
¶24 The State argued that the DOC and the Division did not
lose jurisdiction over Greer when the DOC issued the discharge
certificate, and that Greer failed to establish that the
decision to revoke his probation was arbitrary, capricious,
oppressive, unreasonable, or contrary to law. With respect to
jurisdiction, the State argued that "[a] clerical error does not
override [a] judge's authority" to impose probation in addition
to a prison sentence, and neither should such an error "relieve
11
No. 2011AP2188
[an] offender for misconduct, particularly criminal offenses."
The State further argued that, with respect to the DOC's alleged
"arbitrary or capricious" conduct, Greer failed to establish
that the actions of the DOC or the Division were arbitrary or
capricious.
¶25 On June 23, 2011, the circuit court reversed the
decision of the Division. The court concluded that, despite the
issuance of the discharge certificate, the DOC continued to
possess jurisdiction over Greer, and that neither the DOC nor
the Division had acted arbitrarily or capriciously in revoking
him. The court further determined that the evidence supported
Greer's revocation. The circuit court nonetheless concluded
that the DOC was equitably estopped from revoking Greer's
probation. The court stated "that revocation of probation under
circumstances as unique as found here would violate the basic
principles of decency and fairness." The court concluded that
"the DOC's issuance of the discharge certificate was legally
significant and estopped it from seeking revocation."
¶26 On July 25, 2011, the State moved the court to
reconsider its decision. The State argued that the court's
decision to reverse Greer's probation revocation on equitable
grounds was contrary to Town of Delafield v. Winkelman, 2004 WI
17, 269 Wis. 2d 109, 675 N.W.2d 470, which held that traditional
certiorari review did not include consideration of equitable
arguments.
¶27 Greer opposed the motion for reconsideration. Greer
argued that, because one of the prongs of certiorari review is
12
No. 2011AP2188
whether the agency acted "according to law," the review
implicated concepts of due process, decency, and fairness.
Greer argued that the circuit court's decision to apply
equitable principles was appropriate.
¶28 On August 2, 2011, the circuit court denied the
State's motion for reconsideration. The court concluded that
the State interpreted Winkelman too broadly, and that the
language in Winkelman which purports to limit the court's
equitable power in a certiorari action is dicta.
¶29 On September 16, 2011, the State filed its notice of
appeal.
¶30 Before the court of appeals, the State argued that the
DOC retained jurisdiction to revoke Greer, the DOC did not
violate Greer's due process rights, the DOC and the Division
acted according to law, and the decision to revoke Greer was not
arbitrary, oppressive or unreasonable because the evidence in
the record supported revocation. The State further contended
that the circuit court lacked the power to grant equitable
relief in a certiorari review.
¶31 Greer argued that the DOC was deprived of jurisdiction
because of the discharge certificate. Greer also claimed that
the DOC violated his due process rights when it revoked him
despite failing to properly maintain its records and afford him
adequate notice. Greer further argued that equitable estoppel
was an available remedy in a certiorari action such as Greer's.
Finally, Greer contended that the decision to revoke him was
13
No. 2011AP2188
oppressive and unreasonable, and was unsupported by the
evidence.
¶32 On October 10, 2012, the court of appeals reversed the
decision of the circuit court. Greer, 344 Wis. 2d 639, ¶1. The
court of appeals concluded that the erroneous issuance of a
discharge certificate did not deprive the DOC of jurisdiction to
revoke Greer's probation because his court-ordered term of
probation had not expired. Id., ¶20. The court further
concluded, relying on Winkelman, that equitable relief was not
available in a certiorari action. Id., ¶22. The court of
appeals analyzed the circuit court's conclusions regarding
"basic principles of decency and fairness" and considered those
concerns already to be a part of the due process analysis. Id.,
¶23. The court of appeals, however, concluded that Greer's due
process rights had not been violated. Id. The court of appeals
concluded that, because Greer was physically present at his
sentencing hearing, he could not reasonably believe that his
probation was complete, and therefore, his due process rights
were not violated. Id., ¶¶24-25. The court of appeals also
concluded that, even though documents related to Greer's
revocation referenced "A" and "B" case numbers, this did not
deprive Greer of adequate notice, and therefore did not
constitute a due process violation. Id., ¶¶27-29. Finally, the
14
No. 2011AP2188
court of appeals concluded that the Division's decision to
revoke Greer was supported by the evidence.9 Id., ¶32.
¶33 Greer petitioned this court for review, which we
granted on June 12, 2013.
III. STANDARD OF REVIEW
¶34 On certiorari review of a probation revocation, this
court "review[s] the division's decision, not that of the trial
court." State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717,
566 N.W.2d 173 (Ct. App. 1997), aff'd, 219 Wis. 2d 615, 579
N.W.2d 698 (1998).
¶35 Certiorari review of a probation revocation order is
limited to four inquiries:
(1) whether the [Division] acted within the bounds of
its jurisdiction; (2) whether it acted according to
law; (3) whether its action was arbitrary, oppressive,
or unreasonable and represented its will, not its
judgment; and (4) whether the evidence was sufficient
that the [Division] might reasonably make the
determination that it did.
State ex rel. Tate v. Schwarz, 2002 WI 127, ¶15, 257 Wis. 2d 40,
654 N.W.2d 438 (quoting Warren, 219 Wis. 2d at 628-29); see also
Van Ermen v. DHSS, 84 Wis. 2d 57, 63, 267 N.W.2d 17 (1978).
¶36 Whether the Division kept within its jurisdiction and
acted according to law are questions that we review de novo,
without deference to the conclusions of the Division, the
9
Greer has not argued before this court that the evidence
against him was insufficient to support revocation. As a
result, we assume Greer has conceded that the court of appeals'
decision was correct in its determination on this point.
15
No. 2011AP2188
circuit court, or the court of appeals. Tate, 257 Wis. 2d 40,
¶16; Warren, 219 Wis. 2d at 629.
¶37 "When a court on certiorari considers whether the
evidence is such that the [Division] might reasonably have made
the order or determination in question, the court is not called
upon to weigh the evidence; . . . ." Van Ermen, 84 Wis. 2d at
64. The inquiry is limited to "whether there is substantial
evidence to support the [Division's] decision. It is the
province of the [Division] to weigh the evidence in a revocation
case. A certiorari court may not substitute its view of the
evidence for that of the [Division]." Id. (citation omitted).
IV. ANALYSIS
¶38 This case presents three issues for our review.
First, we are asked to determine whether the DOC was deprived of
jurisdiction when it erroneously issued a discharge certificate
contrary to a validly imposed sentence. Second, we are asked to
determine whether the DOC violated Greer's procedural or
substantive due process rights when it failed to accurately
maintain its records. Finally, we are asked to determine
whether the circuit court, sitting in certiorari, possessed the
power to equitably estop the DOC from revoking Greer's
probation.
A. Jurisdiction
¶39 "[P]robation is a privilege extended to a convict by
the grace of the state. It is not a right." State v.
Simonetto, 2000 WI App 17, ¶9, 232 Wis. 2d 315, 606 N.W.2d 275
(citation omitted); see also Garski v. State, 75 Wis. 2d 62, 248
16
No. 2011AP2188
N.W.2d 425 (1977). In Wisconsin, the terms of probation are
governed by statute, see Wis. Stat. § 973.09, and the statute
details the circumstances under which a probationer is to be
issued a discharge certificate:
When the period of probation for a probationer
has expired, the probationer shall be discharged from
probation and the department shall do all of the
following:
(a) If the probationer was placed on probation
for a felony, issue the probationer one of the
following:
1. A certificate of discharge from probation for
the felony for which he or she was placed on probation
if, at the time of discharge, the probationer is on
probation or parole for another felony.
2. A certificate of final discharge if, at the
time of discharge, the probationer is not on probation
or parole for another felony. A certificate of final
discharge under this subdivision shall list the civil
rights which have been restored to the probationer and
the civil rights which have not been restored to the
probationer.
Wis. Stat. § 973.09(5). The probation statute provides that a
certificate of final discharge shall be issued when the "period
of probation . . . has expired." Thus, the jurisdiction of the
DOC to supervise the probationer must also extend until the
"period of probation . . . has expired."
¶40 Consistent with Wis. Stat. § 973.09(5), the DOC's own
administrative rules also provide that a probationer "shall be
discharged upon the issuance of a discharge certificate by the
secretary at the expiration of the term noted on the court
order." Wis. Admin. Code § DOC 328.17(2).
17
No. 2011AP2188
¶41 Pursuant to the statute and administrative code, the
DOC possesses jurisdiction over a probationer until the end of
the court-imposed term of probation. It is undisputed that
Greer was ordered to serve three years of probation, consecutive
to his sentence on Count 1. The court imposed a probation term
which should have ended on September 28, 2010. Thus, the DOC
should have possessed jurisdiction over Greer until
September 28, 2010. Even though the DOC issued a discharge
certificate to Greer on October 3, 2007, the DOC initiated
revocation proceedings against Greer on September 16, 2010.
Absent the issuance of the discharge certificate, there is no
question that the DOC would have had jurisdiction to initiate
revocation proceedings against Greer. We conclude that the
clear language of the statute and the code trump Greer's
argument that the DOC lost jurisdiction to initiate revocation
proceedings when it erroneously issued a discharge certificate
to Greer.
¶42 Greer argues that the erroneous issuance of the
discharge certificate was a "significant legal moment" that
deprived the DOC of jurisdiction to revoke his probation. Greer
relies principally upon two court of appeals' decisions to
support this argument. See Stefanovic, 215 Wis. 2d 310;
Rodriguez, 133 Wis. 2d 47. Neither decision, however, stands
for the proposition that an erroneously issued discharge
certificate can defeat a valid sentence imposed by a circuit
court.
18
No. 2011AP2188
¶43 In Rodriguez the defendant, Alejandro Rodriguez
("Rodriguez"), was convicted of child abuse and battery in 1981.
133 Wis. 2d at 49. Rodriguez's sentence was stayed, and he was
ordered to serve a two-year probation term consecutive to a
prison term he faced for a prior conviction. Id. In March of
1985, Rodriguez's probation and parole agent erroneously
informed him he would be discharged from supervision on April 6,
1985, at the end of his sentence for the prior conviction. Id.
On April 30, 1985, Rodriguez committed an assault. On May 20,
1985, Rodriguez's agent notified him that the department
considered him to still be on probation. Id. at 49-50.
¶44 The Department of Health and Social Services
("Department") commenced revocation proceedings against
Rodriguez. Id. at 50. Rodriguez argued that he had been
discharged from supervision at the time of the assault. Id.
The hearing examiner determined that, because the circuit court
had informed Rodriguez at his sentencing that he would be
serving a two-year period of probation following the completion
of his prison term, Rodriguez knew he was on probation and could
not plausibly claim otherwise. Id.
¶45 On certiorari review, the circuit court reversed. Id.
at 51. It concluded that the agent's erroneous statement had
the effect of discharging the defendant from probation, and thus
deprived the Department of jurisdiction to revoke him. Id. The
court concluded that the Department was precluded from revoking
the defendant's probation for conduct occurring while he was
effectively discharged. Id.
19
No. 2011AP2188
¶46 The court of appeals reversed, concluding that "[o]nce
custody is transferred to the department, discharge from
probation or parole under the release of the department occurs
only 'upon the issuance of a discharge certificate . . . at the
expiration of the term noted on the court order.'" Id.
(citation omitted). The court further concluded that "[b]ecause
no discharge certificate was produced for the child abuse and
battery conviction, the department still had jurisdiction even
given the agent's erroneous statement." Id. The court of
appeals also noted that the "judgment of conviction
unambiguously decreed that probation be served consecutive to
the prison sentences," and the defendant had been "turned over
to the custody of the department for purposes of serving both
the prison sentence and the probationary term." Id. (emphasis
in original).
¶47 Similarly, in the case at issue, it is equally clear
that the DOC retained jurisdiction over Greer. The judgment of
conviction imposed a prison sentence and a consecutive probation
term. Greer was placed in the custody of the DOC for the
purpose of serving both. Although in this case a discharge
certificate was issued, it was not issued "at the expiration of
the term noted on the court order" and was therefore legally
invalid. Like the agent's erroneous statement in Rodriguez, the
erroneously issued discharge certificate did not have the effect
of discharging Greer from probation.
¶48 In Stefanovic, the defendant, Paulan Stefanovic
("Stefanovic"), was convicted of carrying a concealed weapon,
20
No. 2011AP2188
contrary to Wis. Stat. § 941.23 (1995-96), on March 4, 1996.
The trial court withheld sentence and instead ordered Stefanovic
to serve a one-year term of probation. 215 Wis. 2d at 312. As
a condition of probation, the court also ordered Stefanovic to
serve 30 days in jail. Id. Stefanovic appealed her conviction,
and filed a motion for release pending appeal. The court
granted her motion and Stefanovic did not serve any of the jail
time. Id. The court did not, however, stay Stefanovic's
probation. Id. She completed her probation while her appeal
was pending, and the DOC issued a certificate of discharge. Id.
¶49 The court of appeals subsequently affirmed
Stefanovic's conviction and remanded the case to the trial
court. Id. at 312. On remand, the trial court determined that
Stefanovic should serve the jail term it had imposed as a
condition of probation. Id. at 313. The court noted that "it
had granted the stay of the jail term at Stefanovic's request
and she should not be allowed to use her right to release
pending appeal as a means to frustrate the court's sentence."
Id. Stefanovic appealed the court's decision to impose the jail
term. Id.
¶50 The court of appeals reversed. Id. at 320. The court
noted the "issuance of a discharge certificate is of significant
legal moment." Id. at 315-16. Relying on Rodriguez, the court
of appeals concluded that because "the trial court never
modified or extended Stefanovic's probationary term" and that
"[a]bsent such action, the department properly issued its
21
No. 2011AP2188
certificate of discharge to Stefanovic," the trial court lost
jurisdiction over Stefanovic. Id. at 316.
¶51 While in Stefanovic, a discharge certificate was
issued, that certificate was properly issued. This is a
critical distinction between Stefanovic and the case at issue.
Unlike the case at issue, the defendant in Stefanovic had
reached the end of her court-ordered probation term, and so the
DOC's issuance of a discharge certificate was fully compliant
with Wis. Stat. § 973.09(5) and Wis. Admin. Code § DOC
328.17(2). By contrast, Greer had not reached the end of his
court-ordered probation when the DOC issued the certificate in
this case. Thus, the discharge certificate issued to Greer
could not have the effect of discharging him from his court-
ordered probation because his court-ordered probation was not
complete.
¶52 Both Wis. Stat. § 973.09(5) and Wis. Admin. Code § DOC
328.17(2) ensure that the DOC carries out the sentence imposed
by the circuit court. Allowing a clerical error by the DOC to
preclude imposition of that sentence would be contrary to the
purposes of these provisions and would undermine the finality of
the court's judgment. Indeed, even the circuit court itself has
limited authority to modify a sentence and may do so only within
"defined parameters," and "[a] court cannot base a sentence
modification on reflection and second thoughts alone." State v.
Ninham, 2011 WI 33, ¶88, 333 Wis. 2d 335, 797 N.W.2d 451; State
v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828.
Generally, a circuit court may modify a sentence only if it
22
No. 2011AP2188
abused its discretion in imposing the sentence,10 or if a "new
factor," unknown to the trial judge at the time of sentencing,
has come to light.11 In any event, "adequate reasons" for the
modification must be made known on the record. State v.
Wuensch, 69 Wis. 2d 467, 480, 230 N.W.2d 665 (1975).
¶53 In sum, and with these limitations in mind, it is
inconceivable that a sentence, validly imposed by a circuit
court, could be undermined by a mere clerical error by an
agency. We conclude, therefore, that the DOC did possess the
jurisdiction to revoke Greer's probation, and we affirm the
court of appeals.
B. Due Process
¶54 In determining whether an agency acted "according to
law," a court sitting in certiorari considers whether the
agency's decision comports with due process. See State ex rel.
Curtis v. Litscher, 2002 WI App 172, ¶15, 256 Wis. 2d 787, 650
N.W.2d 43; State v. Goulette, 65 Wis. 2d 207, 215, 222
N.W.2d 622 (1974) (construing the phrase "acted according to
law" to encompass due process and fair play).
¶55 "The Due Process Clauses of the United States and
Wisconsin Constitutions protect both substantive and procedural
10
See, e.g., Cresci v. State, 89 Wis. 2d 495, 504, 278
N.W.2d 850 (1979) (holding that a trial court may modify a
sentence for abuse of discretion based upon its conclusion that
the sentence was unduly harsh or unconscionable).
11
See, e.g., State v. Kluck, 210 Wis. 2d 1, 7, 563
N.W.2d 468 (1997); State v. Macemon, 113 Wis. 2d 662, 668, 335
N.W.2d 402 (1983).
23
No. 2011AP2188
due process rights." State v. Laxton, 2002 WI 82, ¶10 n.8, 254
Wis. 2d 185, 647 N.W.2d 784.
¶56 Greer argues that both his substantive and procedural
due process rights were violated when his probation was revoked
after being issued a discharge certificate. Greer asserts that
his right to substantive due process was violated when the DOC
"failed to accurately maintain its records," as required by
statute and administrative rule, and revoked him after his civil
rights had been restored. Greer argues that his right to
procedural due process was violated when the DOC failed to give
adequate notice that he remained on probation and failed to give
him adequate notice of his revocation by using various case
numbers on his revocation paperwork. We reject both of these
arguments and conclude, as did the court of appeals, that
Greer's due process rights were not violated.
1. Substantive Due Process
¶57 Substantive due process provides protection from
"certain arbitrary, wrongful government actions." State v.
Schulpius, 2006 WI 1, ¶33, 287 Wis. 2d 44, 707 N.W.2d 495. "The
test to determine if the state conduct complained of violates
substantive due process is if the conduct 'shocks the
conscience . . . or interferes with rights implicit in the
concept of ordered liberty.'" Id. (quoting State v. Joseph
E.G., 2001 WI App 29, ¶13, 240 Wis. 2d 481, 623 N.W.2d 137).
¶58 "[L]iability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849
24
No. 2011AP2188
(1998). When analyzing a substantive due process claim, we
therefore consider "whether the government officer's conduct was
either a 'deliberate decision[]' . . . or reflected the
officer's 'deliberate indifference'" to the asserted liberty
interest. Schulpius, 287 Wis. 2d 44, ¶33 (citation omitted).
¶59 Greer argues that his substantive due process rights
were violated when the DOC "repeatedly fail[ed] to maintain
accurate records" of his probation status. Greer claims that
the DOC's maintenance of its records was "reckless," and that
its decision to revoke his probation on the basis of those
records was "arbitrary and capricious." Greer claims that he
suffered an unconstitutional deprivation of his liberty as a
result. Greer's argument is unpersuasive.
¶60 It is undisputed that the DOC failed to input Greer's
probation into its record system, as required by Wis. Admin.
Code § DOC 328.04(2)(n). But Greer can point to no evidence in
the record that indicates the DOC's administrative failure was
deliberate or resulted from deliberate indifference. Schulpius,
287 Wis. 2d 44, ¶33. At most, the DOC's failure to maintain
accurate records constituted negligence, and it is well
established that "negligently inflicted harm is categorically
beneath the threshold of constitutional due process." Lewis,
523 U.S at 849.
¶61 Further, the fact that Greer was revoked for new
criminal conduct hardly "shocks the conscience." Greer was
serving a court-imposed probation term pursuant to a conviction
for being a felon in possession of a firearm. During that
25
No. 2011AP2188
probation period he was convicted of committing a felony by
threatening a witness with what the witness believed was a
pistol. Revoking his probation under those circumstances, even
accounting for the erroneously issued discharge certificate, can
hardly be characterized as interference with the "rights
implicit in the concept of ordered liberty." Thus, Greer's
right to substantive due process was not violated.
2. Procedural Due Process
¶62 "Procedural due process . . . requires that even
though 'government action depriving a person of life, liberty,
or property survives substantive due process scrutiny, it must
still be implemented in a fair manner.'" Laxton, 254
Wis. 2d 185, ¶10 n.8 (quoting United States v. Salerno, 481 U.S.
739, 746 (1987)).
¶63 In the context of probation revocation, procedural due
process requires that the defendant be given: written notice of
the claimed violations of probation; disclosure to the
probationer of the evidence against him; the opportunity to be
heard in person and to present witnesses and documentary
evidence; the right to confront and cross-examine adverse
witnesses; a neutral and detached hearing body; and a written
statement by the fact finder as to the evidence relied on and
reasons for revocation. State v. Burris, 2004 WI 91, ¶24, 273
Wis. 2d 294, 682 N.W.2d 812; see also, Gagnon v. Scarpelli, 411
U.S. 778, 782, (1973); Morrissey v. Brewer, 408 U.S. 471, 489
26
No. 2011AP2188
(1972).12 In some instances the probationer is also entitled to
counsel. Gagnon, 411 U.S. at 782.
¶64 In this case, Greer received a written Notice of
Revocation from the DOC that alleged five violations of the
terms of his probation. The notice included a disclosure of the
evidence supporting those five alleged violations. Greer was
afforded the opportunity to be heard and to present evidence and
witnesses at his revocation hearing. He was represented by
counsel at that hearing and took the opportunity to cross-
examine the witnesses against him. The hearing was held before
an administrative law judge, who subsequently produced a written
statement of the evidence and reasoning that led him to conclude
that revoking Greer's probation was appropriate. Thus, all of
the requirements of procedural due process in the context of
probation revocation were met in this case.
¶65 Greer nonetheless argues that his right to procedural
due process was violated because he "did not receive proper
notification of which case the DOC was seeking revocation."
Greer bases this claim on the fact that the "Recommendation for
Administrative Action" references "Case #04CF1184B," while the
face sheet for the revocation packet lists "Case #04CF1184A,"
and the revocation hearing request and revocation summary simply
12
Morrissey v. Brewer addressed procedural due process
requirements in the context of parole revocation. 408 U.S. 471,
489 (1972). The United States Supreme Court extended the same
requirements to probation revocation in Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973).
27
No. 2011AP2188
refer to "04CF1184." We agree with the court of appeals that
this argument is a "nonstarter."
¶66 What Greer ignores is that all of the revocation
documents refer to the same Racine County Circuit Court case
number: 2004CF1184. Greer concedes that he was physically
present at the time of his sentencing on both counts in that
case. Greer has not sought resentencing or asserted that he
received ineffective assistance of counsel at either his
sentencing or his plea hearing. As a result, Greer would have
been aware that he had been convicted of two counts under that
case number. He would know that he had completed his sentence
on Count 1, leaving only Count 3 standing. Count 3 was the only
count for which he was ordered to complete probation. As a
result, Greer had adequate notice of the circumstances of his
revocation.
¶67 When Greer previously raised this notice issue at his
revocation hearing, the ALJ noted that "Mr. Greer[,] as all
defendants in this state[,] was present at the time he was
sentenced and would have directly heard the court sentencing him
to prison and also to a consecutive three year period of
probation." The Division, in deciding his administrative
appeal, explained that the judgment of conviction "unambiguously
decreed that Greer was to serve his probation term consecutive
to the prison sentence" and that "[a]s a practical matter, Greer
would have been in court at sentencing and therefore knew, or
should have known, that he was required to serve a consecutive
probation term."
28
No. 2011AP2188
¶68 Under these facts, Greer indeed received proper notice
of his revocation. As the Division noted, Greer "cannot
seriously contend that a probationer can violate the criminal
laws of this state without affecting his or her probationary
status." In the case at issue, Greer's right to procedural due
process was not violated.
C. Equitable Relief
¶69 Greer argues that the certiorari court was correct
when it equitably estopped the DOC from revoking Greer's
probation. The court of appeals disagreed, concluding that
equitable remedies were not available to a court sitting in
certiorari review. Greer, 344 Wis. 2d 639, ¶22. We affirm the
court of appeals.
¶70 We addressed the availability of equitable relief in a
certiorari action in Town of Delafield v. Winkelman, 2004 WI 17,
269 Wis. 2d 109, 675 N.W.2d 470. In Winkelman, the Town of
Delafield ("Town") zoning board required, as a condition on
granting a variance allowing remodeling work on the Winkelmans'
house, that the Winkelmans remove a rental home from their
property. Id., ¶¶4-6. The Winkelmans sought certiorari review
of the Town's decision in the circuit court. Id., ¶7. The
certiorari court upheld the decision and the Winkelmans did not
appeal. Id.
¶71 The Winkelmans subsequently failed to comply with the
condition and the Town brought a motion requesting that the
certiorari court order the Winkelmans to raze the house or allow
the Town to do so. Id., ¶8. The certiorari court granted the
29
No. 2011AP2188
Town's motion and the Winkelmans appealed. Id. The court of
appeals reversed, holding that the Town needed to obtain
jurisdiction over the Winkelmans for the enforcement action by
serving either a summons and complaint or an appropriate
original writ. Id., ¶9.
¶72 The Town then filed a complaint, requesting
forfeitures along with an order directing the Winkelmans to
remove the rental residence. Id., ¶10. The Town moved for
summary judgment, and the circuit court granted its motion.
Id., ¶¶10-11. The circuit court refused to hear the Winkelmans'
equitable argument, concluding that it did not have the
equitable power to deny injunctive relief in the context of an
enforcement action. Id., ¶11. The Winkelmans once again
appealed. Id., ¶12.
¶73 The court of appeals reversed the circuit court's
decision. Id., ¶13; Town of Delafield v. Winkelman, 2003 WI App
92, 264 Wis. 2d 264, 663 N.W.2d 324. It determined that Forest
Cnty. v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), required
consideration of the Winkelmans' equitable arguments.
Winkelman, 269 Wis. 2d 109, ¶13. Further, it rejected the
Town's assertion that the Winkelmans had already made their
equitable arguments during the initial certiorari review of the
Town's zoning decision. Id. Accordingly, the court of appeals
remanded the case so the circuit court could hear the
Winkelmans' equitable argument. Id.
¶74 This court affirmed, holding that when a governmental
body seeks injunctive relief in the circuit court, the court has
30
No. 2011AP2188
the power to consider a property owner's equitable arguments
against granting that relief. Id., ¶28.
¶75 In addressing the Town's argument that the Winkelmans
had already presented their equitable arguments before the
certiorari court, the court stated that "[t]he difficulty we
have with the Town's position is its premise that certiorari
review is a proper forum for consideration of the equities."
Id., ¶30. The court explained that "[b]y its nature, certiorari
review is limited in scope. Unless otherwise provided by
statute, the traditional standards of common-law certiorari
review apply." Id. The court further noted that it had
"discovered no precedent that allows certiorari courts to sit in
equity." Id., ¶31. The court thus concluded that the
Winkelmans had not been afforded the opportunity to present
their equitable arguments to the certiorari court. Id., ¶30.
¶76 Despite the pronouncement of this court in Winkelman,
Greer nonetheless argues that equitable estoppel is available in
a certiorari action. Greer attempts to distinguish Winkelman by
arguing that the Winkelman court was not reviewing the decision
of the certiorari court, and that equitable estoppel is not
limited to "claims brought in equity." Greer's arguments are
unpersuasive.
¶77 While Greer is correct that equitable estoppel is not
limited to "claims brought in equity," this does not mean that
31
No. 2011AP2188
equitable relief is available in a certiorari action.13 While
the powers of a court sitting in certiorari are by definition
limited, "[i]t is very difficult, if not impossible, to place a
limit on the equity power of the court, so far as its protective
feature is concerned." State ex rel. Superior v. Duluth St. Ry.
Co., 153 Wis. 650, 654, 142 N.W. 184 (1913). Such broad power
is incompatible with the limited nature of common-law certiorari
review.
¶78 Further, "[t]he basis of all equitable rules is the
principle of discretionary application." Wynhoff v. Vogt, 2000
WI App 57, ¶13, 233 Wis. 2d 673, 608 N.W.2d 400 (quoting Mulder
v. Mittelstadt, 120 Wis. 2d 103, 115, 352 N.W.2d 223 (Ct. App.
1984)); see also Ash Park, LLC v. Alexander & Bishop, Ltd.,
2010 WI 44, ¶38, 324 Wis. 2d 703, 783 N.W.2d 294. Appellate
courts "apply the erroneous exercise of discretion standard in
reviewing decisions in equity." Wynhoff, 233 Wis. 2d 673, ¶13;
see also Lueck's Home Improvement, Inc. v. Seal Tite Nat'l,
Inc., 142 Wis. 2d 843, 847, 419 N.W.2d 340 (Ct. App. 1987).
¶79 As we have stated, however, when reviewing certiorari
actions, an appellate court reviews the agency's decision, not
the decision of the certiorari court. Warren, 211 Wis. 2d at
13
"[I]t has been consistently held by this court that in
abolishing distinctions between the forms of actions the code
has not abolished the essential differences
between . . . actions for legal and those for equitable relief."
Miller v. Joannes, 262 Wis. 425, 428, 55 N.W.2d 375 (1952); see
also Columbia Cnty. v. Bylewski, 94 Wis. 2d 153, 165 n.4, 288
N.W.2d 129 (1980).
32
No. 2011AP2188
717. This standard of review accords with the circuit court
being limited to considering only:
(1) whether the [Division] acted within the bounds of
its jurisdiction; (2) whether it acted according to
law; (3) whether its action was arbitrary, oppressive,
or unreasonable and represented its will, not its
judgment; and (4) whether the evidence was sufficient
that the [Division] might reasonably make the
determination that it did.
Tate, 257 Wis. 2d 40, ¶15. These "traditional standards of
common-law certiorari review" reflect that, to the extent a case
calls for the balancing of equitable principles, it is the
agency and not the certiorari court that must exercise
discretion.
¶80 Even assuming that equitable estoppel was available in
a certiorari action, however, it is not clear that Greer would
be entitled to relief. "[T]he test for equitable estoppel
consists of four elements: (1) action or non-action, (2) on the
part of one against whom estoppel is asserted, (3) which induces
reasonable reliance thereon by the other, either in action or
non-action, and (4) which is to his or her detriment." Vill. of
Hobart v. Brown Cnty., 2005 WI 78, ¶36, 281 Wis. 2d 628, 698
N.W.2d 83 (citations omitted); Yocherer v. Farmers Ins. Exch.,
2002 WI 41, ¶25, 252 Wis. 2d 114, 643 N.W.2d 457.
¶81 Here, to the extent that Greer relied on the discharge
certificate, such reliance was unreasonable. He was present at
his sentencing, which put him on notice that he was to serve a
consecutive probation term. At a minimum this should have
33
No. 2011AP2188
caused Greer to question the issuance of a discharge certificate
fully three years before he was to have completed his probation.
¶82 Further, even if Greer could have reasonably relied on
the erroneous certificate, he was still not entitled to commit
another crime. As the Division stated in affirming the ALJ,
Greer "cannot seriously contend that a probationer can violate
the criminal laws of this state without affecting his or her
probationary status." Greer thus cannot argue that any reliance
on his part was detrimental.
¶83 The Seventh Circuit recently reached the same
conclusion in a factually similar case. Matamoros v. Grams, 706
F.3d 783 (7th Cir. 2013). While Matamoros is procedurally
distinct from the case at issue,14 its discussion of equitable
estoppel is instructive.
¶84 In Matamoros, the defendant, Jose Matamoros
("Matamoros"), was sentenced to ten years in prison, to be
followed by a three-year special parole term. Id. at 785. When
he reached the end of his prison term, Matamoros' parole officer
issued him a Notice of Discharge which explained that he was no
longer subject to supervision by the U.S. Parole Commission.
Id. at 785-86. Neither the Parole Commission nor the parole
officer realized that Matamoros was still subject to the special
parole term. Id. at 786.
14
For example, the case involved both state and federal
law, and the defendant was on parole and not probation.
Further, the Seventh Circuit declined to decide whether
equitable estoppel was available as a remedy in an action on a
writ of habeas corpus.
34
No. 2011AP2188
¶85 Matamoros subsequently participated in an armed
robbery, for which he was convicted in Wisconsin state court and
sentenced to prison. Id. Because he was on parole when he
committed the robbery, the Parole Commission issued a warrant
for Matamoros' arrest for violating the conditions of his
release. Id. The arrest warrant was later lodged as a
detainer.15 Id.
¶86 Matamoros filed a petition for a writ of habeas corpus
in federal court, arguing that the government should be estopped
from enforcing the detainer because he was issued a Notice of
Discharge informing him that he was no longer subject to the
Parole Commission's supervision. Id. at 789. The district
court rejected this argument, concluding that Matamoros could
not satisfy all the elements of estoppel. Id. Matamoros
appealed.
¶87 The Seventh Circuit conceded that "the Notice of
Discharge incorrectly stated that Matamoros was no longer
subject to the Commission's supervision." Id. at 794. It held,
however, that the erroneous issuance of the Notice of Discharge
was "the result of mere negligence." Id. The court further
concluded that "[u]ltimately, Matamoros' own criminal conduct is
the basis for his continued incarceration and the detainer. We
find nothing unfair about this case that would justify the
15
"The purpose of the detainer is to make sure the U.S.
Marshal is notified when Matamoros is discharged from his state
prison sentence so he can be immediately taken into federal
custody for a revocation of parole hearing." Matamoros v.
Grams, 706 F.3d 783, 788 (7th Cir. 2013).
35
No. 2011AP2188
extreme remedy of applying the doctrine of equitable estoppel
against the government." Id.
¶88 Similarly in this case, the basis for Greer's
probation revocation was his own criminal conduct. Under such
circumstances it is difficult to find that the equities favor
his release.
¶89 In sum, we conclude that a circuit court sitting in
certiorari cannot properly entertain equitable arguments. As a
result, the DOC cannot be equitably estopped from revoking
Greer's probation.
V. CONCLUSION
¶90 We conclude that the DOC retained jurisdiction over
Greer despite the erroneous issuance of a discharge certificate.
We further conclude that Greer's due process rights were not
violated, and that equitable estoppel is not available in the
context of certiorari review. We therefore affirm the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
36
No. 2011AP2188.awb
¶91 ANN WALSH BRADLEY, J. (dissenting). The majority
opinion devotes only two paragraphs to what is the main focus of
Greer's argument: he was denied due process because he did not
have notice that he was on probation. Majority op., ¶¶67-68.
The bulk of its analysis frames the due process issue as
focusing instead on the Department of Correction's ("DOC")
failure to accurately maintain records. Id., ¶¶38, 56, 63-66.
It downplays the fact that the DOC informed Greer on several
occasions that his probation was complete, and suggests that
Greer received due process because he was present at his
sentencing hearing. Id., ¶67.
¶92 Ultimately, the majority determines that because Greer
"knew or should have known" that he had not completed his
probation term, "Greer's right to procedural due process was not
violated." Id., ¶¶67, 68. It asserts that his presence at the
sentencing hearing "should have caused Greer to question the
issuance of a discharge certificate." Id., ¶81.
¶93 Although presence at sentencing would normally put a
defendant on notice of the length of probation, when the DOC
makes repeated representations to a defendant that his probation
is complete, due process requires more. Because I conclude that
due process requires that Greer have adequate notice of his
probationary status, and that the multiple representations that
the DOC made to Greer indicating that his probation was complete
deprived Greer of adequate notice, I respectfully dissent.
I
1
No. 2011AP2188.awb
¶94 On March 14, 2005, Greer pled guilty to two separate
charges for which he received two separate sentences and terms
of probation. It is undisputed that the DOC failed to enter
Greer's probation for the second conviction into its system. As
a result, even though under the sentencing scheme his discharge
date should have been September 28, 2010, DOC records indicated
a discharge date of September 28, 2007.
¶95 According to DOC records, on September 11, 2007,
Greer's probation agent apparently spoke with him regarding the
discharge date of his probationary period. Her notes read:
[Greer] discharges from extended supervision on
09/28/07 and will come in to the office tomorrow to
sign a civil judgment for his unpaid court costs.
Next Appointment: [Greer] will return to the office on
09/12/07 at 4:00 to sign a civil judgment. This will
be his final appointment.
(Emphasis added.)
¶96 On September 12, 2007, Greer met with his agent to
convert any remaining fees into a civil judgment. Her notes of
that meeting indicate that she again informed him that his
discharge date was September 28, 2007:
[Greer] reported to the office and signed his civil
judgment. He was told that a letter will be sent to
the courts and he will still be required to pay off
his financial obligations but to the clerk of courts
and some will be taken out in a tax intercept.
[Greer] was reminded that even though this agent will
no longer be seeing him he is still technically on
supervision until midnight on September 28, 2007.
(Emphasis added.)
¶97 Greer contacted his agent again on September 28, 2007,
to confirm the date of his discharge. In response to his
2
No. 2011AP2188.awb
request for confirmation, the agent's notes reflect that she
again verified that his probation ended that very day at
midnight:
[Greer] called this agent and wanted to verify that
his supervision was done today. He was again told
that technically he was still on until midnight but
his paperwork had been signed off on and he did not
need to see this agent. He was told that when a copy
of his discharge letter is received a copy will be
mailed to his house so that he can have one for his
records. [Greer] thanked this agent for working with
him and was wished luck for his future endeavors.
(Emphasis added.)
¶98 Greer received a Discharge Certificate on October 3,
2007, relating to his first conviction. It informed Greer that
"[t]he department having determined that you have satisfied said
judgment, it is ordered that effective September 28, 2007, you
are discharged from said judgment only."
¶99 The same day, Greer received an absolute Discharge
Certificate on DOC letterhead, signed by the Secretary of the
DOC. It informed Greer that "effective September 28, 2007, you
are discharged absolutely."
DISCHARGE CERTIFICATE
ARDONIS F. GREER, #348377-A
You were sentenced to Wisconsin State Prisons.
The department having determined that you have
satisfied said sentence, it is ordered that effective
September 28, 2007, you are discharged absolutely.
This discharge does not forgive your current
(tentative) balance of unpaid supervision fees, in the
amount of $210.00. This amount is subject to
supervision fees for your last month of supervision
and any outstanding payments. The balance is
3
No. 2011AP2188.awb
(tentative) as a result of delayed supervision fee
charges still to be posted.
Failure to pay the full amount due may result in the
taking of future Wisconsin income tax refunds or
lottery winnings.
Restoration of civil rights for felony convictions:
This certifies that the following civil rights are
restored to you:
1. The right to vote.
2. The obligation for jury duty.
(Emphasis added.)
¶100 Greer pled guilty to intimidating a witness on June
25, 2010. While conducting a presentence investigation for that
conviction, the DOC noticed the error in its records.
Subsequently, it revoked Greer's probation due to his new
conviction.
¶101 Based on the DOC's statements that his probation was
complete on September 28, 2007, Greer asserts that his due
process rights were violated when the DOC revoked his probation
after that date. He further contends that his due process
rights were violated because the DOC used inconsistent numbers
on his revocation paperwork.
II
¶102 Both the United States Constitution and the Wisconsin
Constitution guarantee the right to due process. U.S. Const.
amend. XIV, § 1; Wis. Const. Art. I, § 8. As the majority
notes, procedural due process requires government action
depriving a person of life, liberty, or property to "be
implemented in a fair manner." Majority op., ¶62 (quoting State
4
No. 2011AP2188.awb
v. Laxton, 2002 WI 82, ¶10 n.8, 254 Wis. 2d 185, 647 N.W.2d
784).
¶103 Central to procedural due process is notice. Fairness
requires that an individual have warning of what acts may lead
to a loss of liberty. United States v. Dane, 570 F.2d 840, 843
(9th Cir. 1977). As this court has previously explained:
Because we assume that [persons are] free to steer
between lawful and unlawful conduct, we insist that
laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so
that he [or she] may act accordingly. Such notice is
a basic requirement of due process.
Green v. State Elections Bd., 2007 WI 45, ¶20, 300 Wis. 2d 164,
732 N.W.2d 750 (quoting Elections Bd. v. Wisconsin Manufacturers
& Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999)).
¶104 Due process rights apply not only to criminal
prosecutions, but also to probation revocations. Gagnon v.
Scarpelli, 411 U.S. 778, 781-82 (1973). Accordingly,
probationers must be notified of the conditions of their
probation before violations of such conditions can be used as
grounds for revocation. G.G.D. v. State, 97 Wis. 2d 1, 7-8, 292
N.W.2d 853 (1980) (concluding that there is a "fundamental due
process right to adequate notice of the conditions upon which
the revocation of probation may be premised."); United States v.
Ashland, Inc., 356 F.3d 871, 874 (8th Cir. 2004) ("due process
. . . includes a right to have terms and conditions of
probation that are sufficiently clear to inform it of what
conduct will result in an infraction of probation"); United
5
No. 2011AP2188.awb
States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987) ("due
process requires that the probationer receive actual notice").
¶105 This court has previously recognized that "the
sufficiency of notice of [probation] conditions [is] crucial to
the basic fairness of the system." G.G.D., 97 Wis. 2d at 9.
Logically, this notice requirement encompasses the length of
probation, as well as the fact that an individual is on
probation in the first place.
¶106 The facts in this case demonstrate that Greer did not
have adequate notice that he was on probation. Greer met with
his supervising agent on September 11, 2007, and was advised of
a discharge date of September 28, 2007. He met again with the
agent the next day to convert any remaining fees into a civil
judgment and she again told Greer he would be discharged on
September 28, 2007. When he called his supervising agent on
September 28, 2007, she confirmed that his probation would be
complete at midnight. Greer then received an absolute Discharge
Certificate stating it was effective September 28, 2007.
¶107 The majority downplays these facts which underlie
Greer's procedural due process arguments. It suggests that
Greer should have questioned his discharge date because he was
present at his sentencing hearing which occurred over five years
prior to the revocation. Majority op., ¶81. The majority
ignores, however, that is exactly what Greer did.
¶108 On September 28, 2007, Greer called his probation
agent and asked the agent to verify the discharge date. His
agent confirmed that the date was accurate. The majority does
6
No. 2011AP2188.awb
not indicate what else Greer should have done after being
repeatedly advised, both verbally and in writing, that the
discharge date was September 28, 2007. What more would the
majority expect that Greer do to uncover the fact that he was
still on probation and that the absolute Discharge Certificate
was erroneously issued?
¶109 Despite the fact that Greer was told several times
that he was discharged, the majority states that Greer "knew or
should have known" that he was still on probation. Majority
op., ¶67. However, the DOC is the agency charged with
administering probation matters. Wis. Stat. § 301.03(3). Its
rules require probation agents to maintain complete and accurate
records for each offender. Wis. Admin. Code § DOC 328.04(2)(j).
It was the DOC and its agent that informed Greer his probation
had been completed. Where the agency charged with keeping
probation records informed Greer not once, but multiple times
that he had completed his probation, it appears fictitious to
state that Greer "knew or should have known" that his probation
was not complete. Majority op., ¶67. Contrary to the
majority's assertion, it was not unreasonable for Greer to
believe what he was repeatedly told by the DOC.
¶110 As a consequence of the DOC's representations, Greer
was unaware that he still had to comply with the conditions of
his probation. These included a ban on alcohol, a ban on
voting, and required periodic reporting to his probation agent.
Greer violated each of these conditions while he thought his
probation was over. Notably, one of the initial grounds given
7
No. 2011AP2188.awb
for Greer's revocation was his admitted consumption of alcohol,
an action he would not have known was prohibited.
¶111 The other ground for Greer's violation was his new
conviction. The conviction was a result of a plea bargain Greer
agreed to, unaware that it could have consequences beyond the
bargained-for sentence. We cannot know how Greer would have
behaved had he been aware that he was still on probation.
Admittedly, Greer should be punished for his new criminal
behavior. Greer was convicted for his new offense and received
a separate sentence for it. The question is not whether he
should be accountable for his new criminal conduct. Rather, the
question is did he have notice that his actions could lead to a
revocation of probation.
¶112 "[T]he cardinal and ultimate test of the presence or
absence of due process of law in any administrative proceeding
is the presence or absence of the 'rudiments of fair play long
known to our law." State ex rel. Madison Airport Co. v.
Wrabetz, 231 Wis. 147, 153, 285 N.W. 504 (1939). Fairness
requires that Greer have notice of his probationary status.
¶113 I conclude that the multiple representations that the
DOC made to Greer indicating that his probation was complete
deprived Greer of adequate notice of his probationary status.
Such notice is required to comport with due process.
Accordingly, I respectfully dissent.
¶114 I am authorized to state that CHIEF JUSTICE SHIRLEY S.
ABRAHAMSON joins this dissent.
8
No. 2011AP2188.awb
9
No. 2011AP2188.awb
1