(2) Right to representation.
An inmate who is eligible to petition for modification of the sentence under this section has a right to be represented by counsel in proceedings under this section. An inmate or the department on the inmate's behalf, may apply to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (jm)
, Stats., before or after the filing of the petition.
An inmate who files a petition for release under this section shall include all of the following in support of his or her petition:
Affidavits of 2 physicians, as defined under s. 448.01 (5)
, Stats., who practice in this state, setting forth the inmate's diagnosis, medical condition, including physical or mental limitations or disabilities, treatment, and prognosis if the inmate is alleging that he or she has an extraordinary health condition. One of the affidavits shall be from the inmate's current attending physician.
A signed authorization on a form specified by the commission, authorizing the release of a copy of the petition and supporting documentation to the sentencing court, the district attorney, and victims of the inmate's crime for purposes of reviewing and processing the petition.
Upon receipt of a petition from an inmate, the commission shall review the petition to determine if the inmate is eligible for consideration under sub. (1)
. If the inmate meets one of the criteria for review, the commission shall schedule the petition for hearing to determine whether the public interest would be served by a modification of the inmate's sentence under s. 302.1135
, Stats. The commission may seek additional information regarding the factual bases of the inmate's petition for sentence modification under this section, including additional medical information.
The commission shall notify in writing 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, of the date, time and location of the hearing. The commission will notify victims through the department's office of victim services. The notice of hearing shall be sent to the last-known address of the inmate's victim, postmarked at least 10 days before the date of the hearing.
In advance of the hearing the commission may request from the agent or social worker additional information, including the inmate's release plan. The commission may request the department to provide information concerning the inmate's status regarding civil commitment under ch. 980, Stats.
, and community notice under ss. 301.45
, and 301.47
The commissioner conducting the hearing shall review the inmate's social service and legal files prior to the hearing.
The commission shall permit the inmate, the attorney representing the inmate, if applicable, the district attorney, and any victims of the inmate's crime to attend the hearing and give a written or oral statement regarding the inmate's petition for sentence modification, specifically addressing the issue of whether the public interest would be served by the modification. During the hearing the commission may request additional information. The hearing may be held in person, by telephone, videoconferencing or other virtual communication means at the discretion of the commission.
Information about the address of a victim will not be released or disclosed.
The inmate has the burden of proving by the greater weight of the credible evidence that a modification of the sentence under this section would serve the public interest.
The hearing shall be recorded. A transcript shall be prepared only upon an order of the court which has jurisdiction over a petition for judicial review of the decision.
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, a recommendation to approve or deny the petition, and the justification for the recommendation.
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.
The chairperson shall issue a decision on the petition based on the report and documents submitted by the commissioner.
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 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.
If the petition is denied, the inmate may not file another petition within one year of the date of the denial.
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.
An inmate may seek review of the decision to deny the petition for modification only by common law writ of certiorari.
The state may appeal the decision to grant the petition to circuit court.
PAC 1.08 History
: emerg. r. and recr. eff. 12-31-09; CR 09-119
: cr. Register November 2010 No. 659
, eff. 12-1-10; corrections in (4) (c) made under s. 13.92 (4) (b) 7.
, Stats., Register November 2010 No. 659
PAC 1.09 Presumptive mandatory release review. PAC 1.09(1)(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.
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.
An inmate may waive appearance at the interview, which will result in the commissioner issuing a decision based on available information.
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.
The inmate shall have access at the correctional institution where the inmate is confined to the documentary information considered by the commissioner, except information determined to be confidential may not be disclosed.
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.
The commissioner's decision shall be based on information available, including file material and any other relevant information.
Presumptive mandatory release may be denied for protection of the public or due to refusal by the inmate to participate in counseling or treatment deemed necessary.
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.
An inmate may be held until his or her maximum discharge date.
If the commissioner does not deny PMR, the inmate shall be released to parole supervision.
The interview shall be recorded. A transcript shall be prepared only upon an order of the court which has jurisdiction over a petition for judicial review of the decision.
PAC 1.09 History
: emerg. r. and recr. eff. 12-31-09; CR 09-119
: cr. Register November 2010 No. 659
, eff. 12-1-10.