Wisconsin Legislature: 2016-11-08 Senate Journal

DOC recommends denial of this claim. DOC points to the fact that neither the outgoing WCI nor incoming RGCI property inventory sheets note any damage to the fan, which suggests it was damaged after receipt by the claimant at RGCI. DOC also notes there is no sign of damage to the box in which the fan was transported, which might have indicated rough handling during transport. DOC states that inmates are encouraged to thoroughly inspect their property upon receipt before leaving the property room and that the claimant failed to do so. DOC believes the claimant has presented no evidence that DOC staff was negligent in the handling of his property and recommends the claim be denied.

The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.

12. Antonio D. Manns of Waupun, Wisconsin, claims $220.00 for the value of a television allegedly lost by DOC. The claimant is an inmate at Waupun Correctional Institution (WCI). He states that he used to own a 13” Zenith TV. He alleges that in December 2012, he was released from segregation and that his Zenith TV was missing when his property was returned to him. He also alleges that a DOC officer gave the claimant a 13” RCA TV to replace the lost Zenith. He states that DOC engraved his name and ID number on the RCA. In November 2015, the claimant was sent to segregation and a new property inventory list was completed. WCI staff confiscated the RCA because it was not listed in the computer as the claimant’s property. The claimant states that he explained to WCI staff how he had been given the RCA by a former employee, however, DOC told him that the proper forms had not been completed, therefore the RCA was contraband. The claimant filed a complaint but it was denied. The claimant states that DOC destroyed the RCA before he could pursue his appeal and thereby denied him the opportunity to show that his name and ID were properly engraved on the TV, which only DOC staff has the ability to do. The claimant states that it is not his fault that the officer who gave him the RCA failed to fill out the required paperwork and he does not feel he should be penalized for the officer’s mistake. The claimant notes that the officer no longer works at WCI and is therefore not available as a witness. The claimant disputes DOC’s assertion that he somehow altered his original property inventory form. He notes that inmates sign the form right in front of the property officer and that inmates are only given a copy of the form, not the original. The claimant requests reimbursement for the value of a new television. He also requests reimbursement for the coaxial cable and headphones which were used with the TV, since DOC confiscated those items when they took the RCA television.

DOC recommends denial of this claim. DOC states that the claimant was released from segregation in September of 2012 and that the property inventory form filled out at the time show that the claimant received his Zenith television. DOC notes that if the television had been lost, an incident report would have been filed and there is no incident report on record. DOC also notes that, had the claimant been given a replacement television, another form would have been completed, showing why he was given the TV and recording the serial number. DOC states that the claimant could have disposed of his Zenith through inappropriate channels and acquired the RCA by the same means. DOC notes that on the property form showing an RCA television, “RCA” is written in a different handwriting than that used on the rest of the form. DOC therefore believes the claimant altered the property form. Finally, DOC notes that there is no record of headphones or a coaxial cable being confiscated from the claimant. DOC does not believe the claimant has submitted evidence of any negligence on the part of DOC staff and recommends denial of the claim.

The Board concludes:

That the following identified claimants are denied:

Monroe & Weisbrod

Donna Cvetan

Thomas Hetzel

Renee Miller

DeAndre Johnson

Ize;oa Z. Golatt

Mark Brown

Antonio D. Manna

That decision of the following claims are deferred to a later date:

Ronald Fouts

Bill Ross

That payment of the amounts below to the identified claimants from the following statutory appropriations is justified under § 775.05, Stats:

George & Sharon $2,000.00 § 20.395 (5)(cq), Stats.

Thuecks

Dated at Madison, Wisconsin this 1st day of November, 2016.

COREY FINKELMEYER

Chair, Representative of the Attorney General

CHRISTOPHER N. GREEN

Secretary, Representative of the Secretary of Administration

KATIE E. IGNATOWSKI

Representative of the Governor

LUTHER OLSEN

Senate Finance Committee

MARY CZAJA

Assembly Finance Committee

_____________

STATE OF WISCONSIN CLAIMS BOARD

CLAIM OF: MAURICE J. CORBINE

CLAIM NO. 2015-047-CONV

Decision

The Claims Board considered this matter on March 16, 2016. Claimant, Maurice J. Corbine, did not request a hearing. The Claims Board reviewed the written materials submitted by Corbine. The Sawyer County District Attorney’s Office declined to submit a written response to this claim.

Background

This is a claim for Innocent Convict Compensation pursuant to § 775.05, Wis. Stats. The claim relates to Corbine’s 2011 conviction for Operating While Intoxicated (5th) and Operating While Revoked (2nd). Corbine states he is innocent of this crime. He requests $90,000 for the three years he spent in prison.

Claimant’s Facts and Argument

Corbine states that on September 28, 2007, he was a passenger in a truck driven by his cousin, Rodney. He states that Sawyer County/Lac Courte Oreilles Tribal Police Officer, Twyla Dailey, pulled in behind the truck approximately 10-15 seconds after Rodney parked it in the parking lot of a local tavern. Officer Dailey arrested Corbine for OWI. Officer Dailey’s report stated that she followed the truck into the parking lot because she had observed it speeding and that she pulled in immediately after the truck. Officer Dailey also reported that she observed Corbine exit the driver’s side door, walk around the front of the truck and up to the passenger side door. Corbine alleges that he had already exited the vehicle and was approaching the tavern when Officer Daily arrived and that he had walked back to the passenger side of the truck because he did not have a driver’s license.

Corbine alleges that both he and Rodney told Officer Dailey that Rodney had been driving the truck, not Corbine, who admits that he was intoxicated at the time. Corbine states that Officer Dailey informed him that her in-car camera was recording the incident. Officer Dailey transported Corbine to the Sawyer County Jail, where he saw her insert a DVD into the booking room recording equipment. Corbine states that Dailey again told him the interview was being recorded. Corbine alleges that during the entirety of his interaction with Officer Dailey, both in the parking lot and at the jail, he repeatedly told her that he was not the driver of the vehicle but she persisted in arresting him. Corbine believes that Officer Dailey targeted him personally because she is corrupt.

Prior to his trial, Corbine’s attorney requested copies of the in-car and booking room videos from the night of the arrest, however, the Sawyer County District Attorney’s Office did not produce the videos, claiming that they could not find them. Corbine was convicted in 2011 and sentenced to 3 years in prison and 3 years supervision.

In 2013, Corbine appealed his conviction based on ineffective assistance of counsel because his trial attorney (Hoffman) had failed to adequately investigate the failure of Sawyer County to produce the jailhouse video recording. The court of appeals remanded to the trial court for a Machner hearing. After the Machner hearing, the trial court ruled that Hoffman had adopted a reasonable strategy by not pursuing the video recording because it would have shown Corbine intoxicated and behaving aggressively and that the recording would likely not have changed the outcome of the trial. Corbine appealed the trial court’s ruling.

On February 10, 2015, the court of appeals reversed his conviction. Corbine was released on that same day, having completed serving his sentence. The court pointed to Hoffman’s testimony at the Machner hearing that he had relied on a description of what was on the jailhouse video based on a conversation he had with an unknown individual at Sawyer County. The court found: “Hoffman acknowledged he did not know the identity of the person who had allegedly viewed the video and therefore had no basis on which to determine whether that person was reliable…Further, Hoffman testified that his belief that the video portrayed Corbine in a poor light was based upon his review of the police report—not from something the unidentified person may have said. Finally, Hoffman testified he took no further steps to locate the DVD after he was told it was missing, and he never considered further action such as filing a motion.” In addition, the court also found that Hoffman was deficient by failing to ask Corbine at trial whether he denied being the driver, which would have been “highly relevant to the credibility of the defense theory.”

Corbine states that the DVD recording which Sawyer County failed to provide would have supported his defense that he was not the driver and that he had repeatedly denied being the driver during his interactions with Officer Dailey. Corbine believes the Sawyer County District Attorney intentionally withheld the DVD, which would have proven his innocence.

DA’s Response and Argument

The Sawyer County District Attorney’s Office (DA) recommends denial of this claim. The DA points to the sworn testimony of Officer Dailey that she never lost sight of the vehicle and was therefore clearly able to identify the claimant as the driver when he stepped out of the car. The DA notes that the jury heard the sworn testimony of Officer Dailey, the claimant, and Rodney Corbine, and apparently found Officer Dailey’s testimony more credible.

The DA also notes that the claimant has presented no evidence to support his allegations that Officer Dailey targeted him personally and lied under oath. In order to find in favor of the claimant, the board would have to completely ignore Officer Dailey’s report and sworn testimony, without any evidence to justify doing so.

The DA states that the claimant has also failed to provide any proof of evidence tampering on the part of Officer Dailey or the DA. Although the claimant alleges there was a dash cam video, there is no reference to such a video in the Officer’s report. In addition, his allegation that the DA somehow orchestrated the disappearance of the jail house tape is without merit. In fact, the DA believes the state would have benefited from use of the tape at trial, because it would have shown the claimant’s level of intoxication and aggressive behavior at the time of his arrest. The DA notes that, while the tape may have supported the claimant’s allegation that he told Officer Dailey he was not the driver, it would not have proven that he was not the driver.

Finally, the DA disputes the claimant’s assertion that the DA did not pursue a second trial because it could not prove its case. The DA notes that there were good public policy reasons not to retry the claimant—the costs simply outweighed the benefits. The claimant had already served the maximum sentence, so no additional jail time could be ordered. In addition, regardless of a second trial, the claimant’s next OWI conviction would be a felony. There was simply no benefit to the state that justified the cost of a second trial.

The DA believes that the claimant has not presented clear and convincing evidence that he was not the driver of the vehicle and that his claim should therefore be denied.

Discussion and Conclusion

Under the standards of Wis. Stat. § 775.05(3), the Claims Board must determine whether or not the evidence is clear and convincing that the petitioner was innocent of the crime for which he was imprisoned.

The primary evidence provided by Corbine in support of his petition was that the court of appeals reversed his conviction due to ineffective assistance of counsel. However, based on long-standing precedent, the Claims Board does not automatically equate such a reversal with innocence. A claimant like Corbine must prove his innocence by clear and convincing evidence, whereas in order to obtain a reversal based on ineffective assistance of counsel he only had to make a showing that there was a reasonable probability that the trial result would have been different if he had had more effective counsel. These are two very distinct standards with different burdens of proof and cannot be conflated. Therefore, the reversal, standing alone, does not mean that a claimant has proven his innocence by clear and convincing evidence.

Aside from the reversal noted above, Corbine cites the missing jailhouse video tape as evidence to substantiate that he was innocent of the charges. While it is true that the tape may have supported Corbine’s allegation that he told Officer Dailey he was not the driver, Corbine presented no evidence that the tape would have proven that he was not the driver.

Based on the above, and after reviewing all of the written submissions, the Board concludes and finds that the evidence is not clear and convincing that Corbine was innocent of the 2011 conviction for Operating While Intoxicated (5th) and Operating While Revoked (2nd) for which he was imprisoned.