(5) Decision. (a) Upon conclusion of the hearing, the commissioner conducting shall prepare a report for submission to the chairperson. The report shall contain a summary of the information provided at the hearing, including relevant documents, and a recommendation and the justification for the recommendation to approve or deny the petition.
(b) The commission may defer making a decision or hold a decision in abeyance in order to receive additional relevant information, including medical information. If additional information is received, the commission shall reconvene the hearing. Notice will be given to individuals who were present at the initial hearing. The hearing may be held in person, by telephone, videoconferencing or other virtual communication means at the discretion of the commission.
(c) The chairperson shall issue a decision on the petition based on the report and documents submitted by the commissioner.
1. If the petition is approved, the chairperson shall modify the sentence by establishing a new release date and give notice to the department. The department shall release shall release the inmate to extended supervision within 30 days after the date on which the commission modified the sentence. The modification shall reduce the term of confinement in the prison portion of the inmate's sentence and lengthen the term of extended supervision imposed so that the total length of the sentence originally imposed does not change.
2. If the petition is denied, the inmate may not file another petition within one year of the date of the denial.
3. The commission shall provide notice of its decision in writing to the inmate, the district attorney, any victims of the inmate's crime, the attorney representing the inmate, if applicable, the agent of record, the institution social worker, and the institution record office staff
(6)
Appeal. (a) An inmate may seek review of the decision to deny the petition for modification only by common law writ of certiorari.
(b) The state may appeal the decision to grant the petition to circuit court.
PAC 1.09 Presumptive mandatory release review. (1) For an inmate who is subject to PMR and who has been deferred to the mandatory release date of the PMR offense or has waived consideration but is approaching the mandatory release date, a commissioner shall conduct a review two months prior to the mandatory release date.
(2) The institution responsible for scheduling release consideration shall give the inmate at least a 15-day written notice of the interview. When notification is not timely, the 15 day requirement may be waived by the inmate. If the inmate does not waive, consideration will be postponed until notice can be given.
(a) An inmate may waive appearance at the interview, which will result in the commissioner issuing a decision based on available information.
(b) If an inmate is unavailable for the interview, a commissioner may issue a decision based on available information or may re-schedule an interview if time allows.
(3) The inmate shall have access to the documentary information considered by the commissioner, except information determined to be confidential may not be disclosed. An inmate shall have access to records at the correctional institution where the inmate is confined.
(4) During the PMR interview, the inmate shall be afforded the opportunity to provide relevant information for the commissioner's consideration including the opportunity to comment on perceived errors of material fact in the record.
(5) The commissioner's decision shall be based on information available, including file material and any other relevant information.
(a) Presumptive mandatory release may be denied due to refusal by the inmate to participate in counseling or treatment deemed necessary or for protection of the public.
(b) If a commissioner denies PMR release, the commission shall schedule a subsequent review to consider whether circumstances have changed and the inmate meets the criteria for release.
(c) An inmate may be held until his or her maximum discharge date.
(d) If the commissioner does not deny presumptive mandatory release, the inmate shall be released to parole supervision.
(6) The interview shall be recorded. A transcript shall be prepared only upon an order of the Court which has granted a petition for judicial review of the decision.
Agency Contact Person
Kathryn R. Anderson, Chief Legal Counsel
Department of Corrections
3099 East Washington Avenue, P.O. Box 7925
Madison, WI 53707-7925
Phone: (608) 240-5049; FAX (608) 240-3306
Notice of Hearing
Hearings and Appeals
NOTICE IS HEREBY GIVEN that pursuant to s.
301.035 (5), Stats., the Division of Hearings and Appeals will hold a public hearing to consider proposed changes to the Division's rules of practice and procedures in Chapter
HA 2, Wis. Adm. Code, relating to hearings before the Division.
Hearing Information
Date and Time Location
January 26, 2010 5005 University Avenue
at 1:30 p.m. Suite 210
Madison, Wisconsin
The public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact the Division of Hearings and Appeals by telephone: 608-266-7668; or by email: DHAmail@ wisconsin.gov.
Submission of Written Comments
Written comments in lieu of public hearing testimony may be submitted which must be received no later than the hearing date and should be addressed to Diane Norman, Assistant Administrator for the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705.
Copies of Proposed Rule and Fiscal Estimate
A copy of the full text of the proposed rule revisions and fiscal estimate may be obtained from:
Diane E. Norman, Assistant Administrator, Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705; Phone: 608-266-7667; email:
DHAmail@wisconsin.gov.
Analysis Prepared by the Division of Hearings and Appeals
Statutes interpreted
Statutory authority
Section
301.035 (5), Stat., gives the division authority to promulgate its rules of procedure. This chapter applies to corrections hearings under ss.
302.11 (7),
973.10,
975.10 (2) and ch.
304, Stats. The procedural rules of general application contained in this chapter also apply to youth aftercare revocation proceedings in any situation not specifically dealt with in ch.
DOC 393.
Explanation of agency authority
If a person on probation supervision violates a condition or rule of probation, s.
973.10(2), Stats. allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking probation. If a person on parole or extended supervision violates a condition or rule of parole or extended supervision, ch.
304, Stats., allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking parole or extended supervision. If a juvenile violates a condition or rule of aftercare status, s.
938.357(5), Stat., allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking the aftercare status of a juvenile. The division's rules govern procedures in these hearings.
Related statute or rule
Plain language analysis
Section by section details of this rule order are outlined as follows:
Section 1: HA 2.03 is amended to allow documents to be issued or filed by electronic means as well as personally or by United States mail, inter-departmental mail or facsimile transmission. This amendment is to acknowledge the current technology for sending documents and reflects the current procedure of the division.
Section 2: HA 2.04 is amended to allow the secretary of the department of corrections, or any person authorized by the secretary to act in his or her stead, to issue a subpoena to require the attendance of witnesses, on behalf of the department of corrections, in any community supervision revocation proceeding. The secretary is authorized by s.
301.045, Stats. to issue subpoenas in corrections matters. This amendment also allows that a department of corrections agent, who is representing the department of corrections at the revocation hearing, to issue subpoenas as has been the regular practice for revocation hearings. Although the division reserves the right to issue subpoenas directly, the agents are in a better position to issue the necessary subpoenas and the division's responsibility should be limited to cases where the division is asked to modify or cancel a subpoena.
Section 3: HA 2.05(1) is amended to delete unnecessary statutory references. This section is also amended to require that reference to any witness statements that will be part of the Department of Correction's evidence shall be included in the notice of the hearing to the offender. This section is also amended to add the word “potential" to the list of evidence and witnesses to reflect that the department may not actually bring this evidence or call these witnesses when the hearing takes place.
Section 4: HA 2.05 (3) is amended to allow the client to attend the hearing by electronic means. The next section explains the authority for this change in more detail. This section is also amended to delete the unnecessary reference to the administrative appeal which is addressed in HA 2.05(8).
Section 5: HA 2.05 (6) is amended to allow a revocation hearing to take place by video conferencing or by telephone. The ability to conduct revocation hearings by videoconference or telephone is the practice of the division at this time. This allows the hearings to be done in a timely manner when the number of hearing requests continue to increase, while the number of administrative law judges does not. Videoconference or telephone hearings satisfy the due process required for revocation hearings. In
Morrissey v. Brewer, the United States Supreme Court held that the minimum requirements of due process in relation to a community supervision revocation hearing must include the opportunity to be heard in
person and the right to confront and cross-examine adverse witnesses.
408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). While
Morrissey specifically provided for the right to “confront and cross-examine adverse witnesses" absent a showing of good cause,
408 U.S. at 489, 92 S.Ct. 2593, the Supreme Court clarified in
Gagnon that it “did not in
Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence,"
411 U.S. at 782 n. 5, 93 S.Ct. 1756. Given that the Supreme Court held that these types of statements can substitute for live testimony in some cases, it is not “objectively unreasonable" to conclude that it would have approved of videoconferencing. While videoconferencing was not available in the early 1970s, and thus was not contemplated by the Supreme Court in
Morrissey, it provides a person on community supervision with the right to observe and respond to the testimony of his accuser. Videoconferencing also provides the right to cross examine at the hearing. Moreover, if the parties agree or if there are no factual issues regarding the violations alleged by the department, the person on community supervision will be afforded the required due process by appearing by telephone.
Section 6: HA 2.05 (7) is amended to delete unnecessary statutory and administrative rule references. HA 2.05 (7) (f) 3. is amended to replace the term “parole" with the more inclusive term “community supervision."
Section 7: HA 2.06 (7) (h) is amended to replace the term “hearing" with the term “close of the record" which allows for situations where the record is held open for a specified period of time after the hearing.
Section 8: HA 2.05 (8) (b) is amended to allow for an administrative appeal to be dismissed if the opposing party does not receive a timely copy of the appeal which is necessary to allow both parties to participate in an administrative appeal.
Section 9: The title to HA 2.06 is amended to add the term reconfinement to reflect that the division now has the authority to order reconfinement in extended supervision cases under section
302.113 (9) and
302.114 (9), Stats.
Section 10: HA 2.06 (1) is amended to delete unnecessary statutory references. HA 2.06 (1) is further amended to add the term reconfinement to this section to reflect that the division now has the authority to order reconfinement in extended supervision cases under section
302.113 (9) and
302.114(9), Stats.
Section 11: HA 2.06 (2), (3), (4) and (5) are amended to allow this type of hearing to take place by video conferencing or by telephone. These hearings or normally conducted by telephone. There is no factual dispute in these hearings regarding the alleged violations of community supervision. The only issue in these hearings is the length of incarceration to be determined by the administrative law judge.
Section 12: HA 2.06 (6) (c) is amended to delete unnecessary and outdated statutory references.
Section 13: HA 2.06 (6) (d) is amended to replace the term “hearing" with the term “close of the record" which allows more time for situations where the record is held open for a specific period of time after the hearing.
Section 14: HA 2.06 (7) is amended to delete the requirement for a synopsis which is not required by statute and not the practice of the division. A digital recording of all revocation hearings is available for review when necessary.
Section 15: HA 2.07 is amended to delete the reference to the amount charged per page for transcripts. This amount is outdated and not the correct amount charged by the division. The amount charged is determined by the administrator for the division and can be found in the public notice for access to records and on the internet at
http://dha.state.wi.us/home/ RecordsPolicy.htm.
Comparison with federal regulations
There are no federal regulations governing practice and procedure before the division. While there are procedures for federal parole revocation hearings before the federal parole commission, they are not comparable to the hearings conducted by the division.
Comparison with rules in adjacent states
There are no comparable state regulations governing hearings for revocation of a person's community supervision by the department of corrections.
Summary of factual data and analytical methodologies
The division has not collected any data nor adopted a methodology in connection with its development of these proposed rule changes. The proposed changes generally are intended to clarify the rules, bring the rules into conformity with applicable practice and update the rules to reflect changes in technology.
Analysis and supporting documentation used to determine effect on small business
The division has not collected any data in connection with its determination of the impact of these proposed rule changes on small business or in preparation of an economic impact report.
Small Business Impact
This proposed rule does not have a significant effect on small business.
Fiscal Estimate
The division has already substantially reduced travel expenditures by conducting hearings by videoconference or telephone conference that would have been necessary if an administrative law judge were required to travel in person to each revocation hearing location.
Agency Contact Person
Diane E. Norman, Assistant Administrator
Division of Hearings and Appeals
5005 University Avenue, Suite 201
Madison, WI 53705
Phone: 608-266-7667
Notice of Hearings
Natural Resources
Environmental Protection — General, Chs.
NR 100—
