Wisconsin Legislature: hist38205

STATE OF WISCONSIN

Senate Journal

One-Hundred and Second Regular Session

MONDAY, June 15, 2015

The Chief Clerk makes the following entries under the above date.

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Chief Clerk's Entries

Amendments Offered

hist38205Senate Amendment 1 to Senate Bill 158 offered by Senator Petrowski.

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Petitions and Communications

State of Wisconsin

Claims Board

June 5, 2015

Enclosed is the report of the State Claims Board covering the claims heard on May 11, 2015.Those claims approved for payment pursuant to the provisions of s.16.007 and 775.05 Stats., have been paid directly by the Board.

This report is for the information of the Legislature, The Board would appreciate your acceptance and publication of it in the Journal to inform the members of the Legislature.

Sincerely,

GREGORY D. MURRAY

Secretary

STATE OF WISCONSIN CLAIMS BOARD

The State of Wisconsin Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on May 11, 2015, upon the following claims:

Claimant Agency Amount

James P. LaVenture Revenue $4,154.36

James P. LaVenture Revenue $4,057.32

James P. LaVenture Revenue $6,081.69

Willie Gavin Innocent Convict $48,703.50

Compensation

The following claims were decided without hearings:

Claimant Agency Amount

Shana Zuhlke Transportation $687.53

Myron E. Edwards Corrections $449.26

Darrell Otis Corrections $359.38

Ralph H. Jurgens, III Corrections $12.76

David Czapiewski Corrections $84.73

10. Tony C. Franklin, Jr. Corrections $32.50

With respect to the claims, the Board finds:

1. James P. LaVenture of Frederic, Wisconsin claims $4,154.36 for reimbursement of monies taken through DOR wage assessments for payment of an estimated assessment for 2003 income taxes. The claimant admits he is at fault for failing to file his 2003 tax return in a timely fashion, however, he believes an overpayment of over $4,000 for the taxes actually due is excessive, even when penalties and late fees are assessed. The claimant states that he was in regular contact with a DOR employee, who assured him that any excess money taken through wage certification would be refunded by DOR and/or applied to outstanding federal taxes. The claimant states that because of this assurance, he did not believe he needed to appeal the assessment. The claimant filed his 2003 return in December 2013, with no taxes due. The claimant believes it is unjust for DOR to keep any monies in excess of actual taxes due, plus any appropriate penalties.

DOR recommends denial of this claim. The estimated tax assessment for failure to file 2003 income taxes was issued on 9/18/07 and the actual return was filed on 12/10/13. DOR states that on 1/30/08, the claimant called DOR to inform the collection agent that he was working on preparing his tax returns for 2003 and other outstanding years. DOR states that the claimant contacted DOR a number of times over the next four years but never followed through to resolve the estimated assessment. DOR notes that it sent over 30 notices to the claimant regarding his multiple years of late tax filings. DOR began certification of the claimant’s wages in February 2012. The certification ended in December 2013 when the claimant filed the outstanding return. DOR points to § 71.75(5), Wis. Stats., which prohibits DOR from refunding the overpayment on the original assessment because no refund was claimed within the prescribed two-year period.

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 with the state should assume and pay based on equitable principles. [Member Olsen dissenting.]

2. James P. LaVenture of Frederic, Wisconsin claims $4,057.32 for reimbursement of monies taken through DOR wage assessments for payment of an estimated assessment for 2004 income taxes. The claimant admits he is at fault for failing to file his 2004 tax return in a timely fashion, however, he believes an overpayment of over $4,000 for the taxes actually due is excessive, even when penalties and late fees are assessed. The claimant states that he was in regular contact with a DOR employee, who assured him that any excess money taken through wage certification would be refunded by DOR and/or applied to outstanding federal taxes. The claimant states that because of this assurance, he did not believe he needed to appeal the assessment. The claimant filed his 2004 return in December 2013, with no taxes due. The claimant believes it is unjust for DOR to keep any monies in excess of actual taxes due, plus any appropriate penalties.

DOR recommends denial of this claim. The estimated tax assessment for failure to file 2004 income taxes was issued on 1/10/08 and the actual return was filed on 12/10/13. DOR states that on 1/30/08, the claimant called DOR to inform the collection agent that he was working on preparing his tax returns for 2004 and other outstanding years. DOR states that the claimant contacted DOR a number of times over the next four years but never followed through to resolve the estimated assessment. DOR notes that it sent over 30 notices to the claimant regarding his multiple years of late tax filings. DOR began certification of the claimant’s wages in February 2012. The certification ended in December 2013 when the claimant filed the outstanding return. DOR points to § 71.75(5), Wis. Stats., which prohibits DOR from refunding the overpayment on the original assessment because no refund was claimed within the prescribed two-year period.

3. James P. LaVenture of Frederic, Wisconsin claims $6,081.69 for reimbursement of monies taken through DOR wage assessments for payment of estimated assessments for 2005 and 2006 income taxes. The claimant admits he is at fault for failing to file 2005 and 2006 tax returns in a timely fashion, however, he believes an overpayment of over $6,000 for the taxes actually due is excessive, even when penalties and late fees are assessed. The claimant states that he was in regular contact with a DOR employee, who assured him that any excess money taken through wage certification would be refunded by DOR and/or applied to outstanding federal taxes. The claimant states that because of this assurance, he did not believe he needed to appeal the assessments. The claimant filed his 2005 and 2006 returns in December 2013 with no taxes due for either year. The claimant believes it is unjust for DOR to keep any monies in excess of actual taxes due, plus any appropriate penalties.

DOR recommends denial of this claim. The estimated tax assessments for failure to file 2005 and 2006 income taxes were issued on 5/30/08 and the actual returns were filed on 12/10/13. DOR states that on 1/30/08, the claimant called DOR to inform the collection agent that he was working on preparing his tax returns for 2005, 2006, and other outstanding years. DOR states that the claimant contacted DOR a number of times over the next four years but never followed through to resolve the estimated assessments. DOR notes that it sent over 30 notices to the claimant regarding his multiple years of late tax filings. DOR began certification of the claimant’s wages in February 2012. The certification ended in December 2013 when the claimant filed the outstanding returns. DOR points to § 71.75(5), Wis. Stats., which prohibits DOR from refunding the overpayment on the original assessments because no refund was claimed within the prescribed two-year period.

4. Willie Gavin of Riverdale, Illinois claims $48,703.50 for innocent convict compensation related to his 1997 conviction for sexual assault. In April 1997 the claimant was charged with multiple counts of sexual assault of a child during 1993-1995. The claimant had no prior record as an adult or a juvenile. The alleged victim was the claimant’s stepdaughter (S.H.) and her testimony was the only evidence against him. At the preliminary hearing the claimant pled “not guilty.” The claimant states that he had a conversation with his minister, who expressed concern that the claimant would not receive a fair trial. The claimant states that he changed his plea to “no contest” because of this conversation. The claimant states that he has a learning disability and lacks the ability to read and write well. He does not recall ever discussing the possibility of entering an Alford plea with his attorney. Despite entering a “no contest” plea, he continued to maintain his innocence including during the plea hearing, his sentencing hearing, and throughout his incarceration. In November 1997 the claimant was sentenced to eight years in prison and 15 years of probation. The claimant served five years and three month in prison and was released in July 2002.

The claimant states that in 2001, when S.H. was 15 years old, she confessed to her minister that the sexual assault allegations were false. At her minister’s instruction, S.H. made a written statement that the assaults never happened. She gave this written statement to her minister. S.H. stated that sometime during 2001-2004, she also told her aunts, a cousin, and her grandmother that the allegations against the claimant were false. S.H. stated that at the time she gave the false statements to the police, she felt pressured to say that something sexual had happened between the claimant and herself. S.H stated that her foster mother had questioned her extensively and that the more she was questioned, the more she felt pressured to make the allegations, even though she originally told her foster mother that nothing had happened. S.H. stated that she later confessed to her falsehoods because she felt badly about the claimant going to prison because of her false statements.

After his release, the claimant contacted a number of attorneys seeking representation. He states that it took several years to find his current attorney, who contacted S.H. and discovered that she had recanted her testimony. In January 2013, the claimant’s attorney filed a motion to withdraw the claimant’s no contest plea and obtain a new trial. S.H. testified at the motion hearing, recanting her testimony and explaining why she had lied. The court found S.H.’s testimony credible, granted the claimant’s motion to withdraw the no contest plea, and remanded the case for a new trial. In February 2014, the State dismissed the charges against the claimant.

The claimant takes issue with the State’s position that a no contest plea represents an admission of guilt. (See State v. Block and Williams v. Milwaukee.) The claimant has maintained his innocence during this entire process and only changed his plea because he felt he would not get a fair trial.

The claimant states that, although the ADA responding to this claim alleges that S.H.’s recantation was not credible, the trial court judge found her testimony to be very credible. The claimant notes that S.H. would have no reason to fabricate this recantation many years later, especially because she ran the risk of being prosecuted for perjury. Finally, the clamant points to the fact that the State dropped all charges against him.

The claimant requests reimbursement in the maximum amount of $25,000. He also requests payment of $18,286.50 attorneys’ fees for post-conviction representation, including this claim. Finally, the claimant requests $,5417 for supervision and court fees related to his conviction.

The Kenosha County District Attorney’s Office recommends denial of this claim. The DA believes the claimant contributed to his own conviction and has failed to provide clear and convincing evidence of his innocence.

The DA does not believe that S.H.’s recantation is credible. S.H. was 11 years old when she testified at the claimant’s preliminary hearing and her testimony at that time was consistent with the original report of the assaults. The DA also finds it unbelievable that S.H. allegedly recanted her testimony to four adults between 2001 and 2004 but that none of those individuals ever took any action or contacted the authorities. The DA notes that the family members to whom S.H. allegedly recanted are related to the claimant’s and therefore would have had some interest in seeing him freed if he had been unjustly convicted. (S.H.’s minister died in 2010.) The DA also points to the fact that, despite S.H.’s assertion that she felt guilty for making false allegations, there is no evidence she ever reached out to the police, probation, the DA’s Office, or any other court official to remedy the claimant’s allegedly unjust imprisonment.

The DA believes the letter allegedly provided by S.H. to her minister was fabricated. The DA notes that this man was also Mr. Gavin’s minister and it is therefore unlikely that he would not have come forward on the claimant’s behalf as soon as he received such a letter.

The DA also believes the claimant’s assertion of innocence is not credible. The claimant alleges he contacted law firms for assistance, however, there is no evidence he made any effort to do so through his probation agent or via pro se letters. Finally, and most importantly, the DA believes the claimant contributed to his own conviction by entering a no contest plea. The DA states that the claimant’s allegation that no contest pleas are an assertion of innocence is incorrect. The DA points to Lee v. Wisconsin State Board of Dental Examiners which states that a no contest plea “constitutes an implied confession of guilt for the purposes of the case to support a judgment of conviction and in that respect is equivalent to a plea of guilty.” The DA notes that maintaining an assertion of innocence while entering a no contest plea is accomplished by way of an Alford plea. The claimant did not enter an Alford plea.

The DA believes the claimant has not met his burden to show clear and convincing evidence that he was innocent of the crime for which he was convicted and that he contributed to his own conviction and is therefore ineligible to receive compensation pursuant to § 775.05, Wis. Stats.

Based on the written and testimonial evidence in this case, the Board concludes Mr. Gavin should be awarded compensation for five years and three months wrongful imprisonment. The Board notes the facts of this case establish clearly and convincingly that Mr. Gavin was innocent of the crime for which he was imprisoned. Those unique facts and circumstances are based upon the following findings:

The only evidence linking Mr. Gavin to the crime was the testimony of S.H when she was 11 years old, and which S.H., fully recanted as an adult. There was no physical evidence produced at the time of the conviction or at the hearing to substantiate the original conviction. There was no credible reason for the recantation other than the fact that Mr. Gavin was innocent of the crime. In the official court record, Judge Milisauskas found S.H.’s recantation to be credible and that it constituted newly discovered evidence. Significantly, Judge Milisauskas specifically found that Mr. Gavin “was not negligent in seeking this evidence because he continued to maintain his innocence.” Moreover, Judge Milisauskas found that the recanted testimony constituted a “manifest injustice” warranting the withdrawal of the no contest plea. Following withdrawal of the plea the case was dismissed.

In addition, the Board finds that Mr. Gavin did not by his actions or failure to act contribute to bring about his conviction. The Board historically has ruled that the entry of a “no contest” plea by a defendant constitutes substantial evidence that the defendant’s own actions contributed to the conviction. We do not in this ruling seek to change this historic past practice, and absent unique and compelling circumstances the Board intends to continue this practice going forward. However, the specific facts of this case demonstrate that Mr. Gavin’s entry of a no contest plea at the time of his conviction was a legal error and therefor the Board cannot find that Mr. Gavin contributed to his own conviction. The unique facts supporting such a finding include: the fact that the defendant sought a withdrawal of his plea following his incarceration; the fact that he met the high legal standard to merit withdrawal in such circumstances; the fact that Judge Milisauskas expressly found that Mr. Gavin “continued to maintain his innocence”; and the fact that the claimant’s educational level significantly contributed to his misunderstanding the difference between a no contest plea and an Alford plea at the time of original conviction.

The Board concludes that equitable principles justify an award in the amount of $25,000 to compensate Mr. Gavin for his five years and three months wrongful imprisonment. In addition, the Board concludes that the compensation should include $18,286.50 for Mr. Gavin’s post-conviction legal fees and $5,417 for supervision and court fees related to the original conviction. The Board further concludes, under authority of § 16.007(6m), Stats., that the total award of $48,703.50 should be made from the Claims Board appropriation § 20.505(4)(d), Stats.

5. Shana Zuhlke of Beaver Dam, Wisconsin claims $687.53 for vehicle damage and lost wages. On 11/24/14, the claimant’s son (Jacob Zuhlke) was driving her vehicle on Hwy. 16/60 (aka W. James St.) near Columbus, WI. Mr. Zuhlke exited a parking lot on Hwy. 16/60. intending on proceeding to the Hwy. 151 on-ramp. As he crossed Hwy. 16/60, the driver’s side front and rear tires hit a pothole located near the ditch that divides the east/west traffic lanes. Mr. Zuhlke estimates his maximum speed was around 15 mph, since he had just exited the parking lot. Upon impacting the pothole, the left rear tire was immediately flattened. Mr. Zuhlke pulled the vehicle to a safe location and called AAA. While waiting for assistance, the left front tire also flattened. The claimant had to replace both tires and rims on the driver’s side of the vehicle. The claimant requests reimbursement for the tires and rims in the amount of $603.53. The claimant also requests $84 reimbursement for her son’s lost night of wages/tips. Mr. Zuhlke was scheduled to work that night but was not able to do so because the vehicle was not drivable.

DOT recommends denial of this claim. DOT states that the State is liable for damages only in situations where it can be shown that its employees acted in a negligent manner. The claimant has provided no evidence of negligence on the part of any employee of the State. DOT notes that the area where this incident took place is on the border of Columbia and Dodge Counties. DOT has a contract with Columbia/Dodge County for maintenance of State and Interstate roads within the county. Therefore, DOT believes it is the responsibility of the Columbia/Dodge County Highway Department to investigate and address any claim for damage allegedly due to improper road maintenance.

6. Myron E. Edwards of Waupun, Wisconsin claims $449.26 for refund of monies seized from his inmate account for obligations allegedly discharged by a 2012 bankruptcy. The claimant states that he filed for Chapter 7 Bankruptcy in December 2011, and listed two DOC obligations on his Schedule E-Creditors Holding Unsecured Priority Claims (a $53,449.68 court debt and a $5,000 release fund debt). The claimant states that DOC was notified on 1/1/12 that they had until 3/30/12 to object to discharge of these debts but that DOC failed to do so. The claimant believes DOC did not file an objection because they do not take prisoner litigation seriously. The Bankruptcy Court granted a Discharge of Debtor Order on 4/13/12. The claimant alleges that because DOC failed to contest discharge of these two debts, that they were barred from further collection of those debts by the 2013 Discharge Order. The claimant states that despite this Order, DOC continued to deduct monies from his inmate account for payment of these two debts. The claimant disputes DOC’s use of 11 USC § 523 (a)(19)(B)(ii) as a defense of their actions. The claimant believes that this code defines non-dischargeable debts as only those debts resulting from a violation of securities laws, and therefore does not apply to his debts. The claimant believes DOC’s continued deductions from his inmate account for these debts are illegal. As of the dated this claim was filed (8/24/14), DOC had deducted $449.26 towards these allegedly discharged debts. The claimant requests reimbursement of this amount, plus any additional amounts DOC deducts from 8/24/14 to the date this claim is decided by the Board.

DOC recommends denial of this claim. DOC states that the two obligations referenced in this claim were not discharged as a matter of law. DOC points to the 2012 Discharge Order submitted by the claimant, which clearly notified him that some debts cannot be discharged, including “most fines, penalties, forfeitures [and] criminal restitution obligations.” DOC also cites 11 USC § 523 (a)(19)(B)(iii), which states that a discharge under section 727 will not eliminate debt that results from any court or administrative order for any damages, fine, penalty, citation, restitutionary payment, disgorgement payment, attorney fee, cost, or other payment owed by the debtor. DOC states that the Bankruptcy Court did not discharge the claimant’s court-ordered obligations because they are presumed non-dischargeable as a matter of law. DOC believes it has acted legally in continuing to deduct money from the claimant’s inmate account for payment of these debts and recommends this claim be denied.