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• STATE BOOKER v. SCHWARZ
Court of Appeals of Wisconsin.
STATE BOOKER v. SCHWARZ
STATE of Wisconsin ex rel. Raymond BOOKER, Petitioner-Appellant, v. David SCHWARZ, Respondent-Respondent.
03-0217. No.
-- February 10, 2004
Before WEDEMEYER, P.J., FINE and SCHUDSON, JJ.
On behalf of the petitioner-appellant, the cause was submitted on the briefs of John A. Pray, Mary Prosser and Byron Lichstein of the Frank J. There was oral RemingtonCenter, University of Wisconsin Law School, Madison. argument by Byron Lichstein.On behalf of the respondent-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General and There was oral argument by Christopher G. Wren, Assistant Attorney General. Christopher G. Wren.
Raymond Booker appeals from a circuit court order denying his petition for writ of certiorari, wherein he requested reversal of the refusal of the Division of Hearings and Appeals to reopen his revocation proceedings based on newly Booker claims the Division acted unreasonably and outside discovered evidence. the law in denying his motion, which requested either a new probation revocation hearing or an evidentiary hearing to determine whether newly discovered evidence He asks this court to reverse the entitled him to a new revocation hearing. Division's order and remand for an evidentiary hearing on his motion to address his claim that newly discovered evidence justifies re-opening the revocation Because Booker's post-revocation motion contained sufficient proceedings. facts to entitle him to an evidentiary hearing on his newly discovered evidence claim, we reverse the order and remand this matter to the Division for such evidentiary hearing.
BACKGROUND I.
¶ 2 On July 14, 1993, Booker was convicted of burglary and sentenced to a Booker was placed on six years' ten-year prison term, which was stayed. After three years on probation, the Division recommended that probation. The revocation recommendation was based on an Booker's probation be revoked. Booker was walking on a sidewalk incident which occurred on August 12, 1996. Adams near his house when a vehicle being driven by Dennis Adams approached. stopped the vehicle near Booker and Booker recognized a passenger, Myles Marshall exited the vehicle and Booker and Marshall walked along the Marshall. They discussed a 1989 incident, wherein Marshall pointed an sidewalk talking. Booker believed the gun was real air gun in Booker's face and pumped it twice. and Marshall told Booker the only reason Booker was alive was because the gun jammed.
As Marshall reached for the ¶ 3 The two men returned to the Adams vehicle. The exact nature of the hit was disputed. door handle, Booker hit him. Booker claimed he pushed him because he thought Marshall was reaching for a Marshall stated that Booker punched him three times, once shotgun to kill him. in the chest, once in the stomach and once to his wrist, breaking it in three Marshall denied that he was reaching for a gun; he maintained that he places. asked Adams to “hand me that thing,” referring to a bar that locks the steering wheel.
¶ 4 At the revocation hearing, Booker and Marshall testified as to their own Booker stated he was acting solely in self-defense. version of events. The administrative law judge (ALJ) Marshall described Booker as the aggressor. found Marshall to be credible and found that Booker's claim of self-defense was On November 12, 1996, Booker's probation was revoked for not credible. violating rule # 1 of his probation,1 and he began serving the ten-year burglary Booker appealed to the sentence.
Mr. Marshall's fracture in the right hand, by the description in the evidence, appears to have been a fracture of the neck of the right fifth This, in my opinion, could not possibly be caused by a blow from metacarpal. Almost invariably, such a fracture is caused by the an assailant's elbow. patient hitting an opponent, or a firm object such as a wall, with the clenched Indeed, this fracture is usually referred to as a “boxer's fi[s>t. fracture”.
․
It is my opinion, to a reasonable degree of medical certainty, that Mr. Marshall sustained these fractures after he had left the scene of the It is further my opinion that neither of these confrontation with Mr. Booker. fractures could have been sustained by his diving through a car window and landing on the front seat of a car, nor would the patient have been able to land on the front seat of a car, bracing himself with a fractured wrist of this type.
Additionally, I have reviewed the initial x-rays of Mr. Marshall's left wrist and confirm that the fracture is as described by Dr. Locher and could not have been caused by a karate chop.
¶ 6 The second piece of newly discovered evidence was Marshall's testimony, at the criminal battery trial in January 1997, that when he asked Adams to “hand During the revocation me that thing,” Marshall was referring to a pistol. proceedings in October 1996, Marshall denied referring to a gun, but rather, indicated he was describing a bar for locking the steering wheel.
¶ 7 Thus, based on these two items of newly discovered evidence, Booker requested a new revocation hearing or, alternately, an evidentiary hearing. Booker did not provide any reason for the four-year delay between discovering The Division denied the motion, the new evidence and filing of his motion. citing three reasons:
There is no provision in the Wisconsin Administrative Code or other legal (1) authority for re-opening revocation hearings.
The administrator was “not convinced” that the proffered evidence would (2) likely result in a “different outcome” insofar as Booker's self-defense claim was “fully considered” at the revocation hearing and Booker started the confrontation by punching Marshall in the abdomen.
The proffered medical evidence is not “newly discovered” since Booker (3) “could have raised this issue years ago.”
¶ 8 Booker appealed the Division's order by way of certiorari review to the In his appeal, Booker offered an explanation for the time circuit court. delay-that his criminal attorney (who defended the battery charge) failed to file the motion challenging the revocation proceedings and that his subsequent attorney was delayed because of constraints related to transferring records from the criminal attorney to the legal assistance program that was handling his The circuit court denied Booker's petition in a written decision, ruling case. The circuit court found that Booker was that the motion was not timely filed. negligent in failing to discover the medical evidence earlier or in failing to Booker now appeals from that order. bring the motion earlier.
DISCUSSION II.
¶ 9 Booker asks this court to reverse the Division's May 17, 2002 decision refusing to conduct an evidentiary hearing to consider whether newly discovered evidence entitled him to a new revocation hearing.
¶ 10 We review the decision of the agency, not that of the circuit court. State ex rel. Warren v. Schwarz, 211 Wis.2d 710, 717, 566 N.W.2d 173 Our review is (Ct.App.1997), aff'd, 219 Wis.2d 615, 579 N.W.2d 698 (1998). limited to determining whether: (1) the Division stayed within its jurisdiction; (2) it acted according to law; (3) its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) the evidence was such that it might reasonably make the decision that it did. State ex rel. Tate v. Schwarz, 2002 WI 127, ¶ 15, 257 Wis.2d 40, 654 N.W.2d 438.
¶ 11 The issue of whether a probationer has a right to re-open a revocation It is hearing based on newly discovered evidence is one of first impression. undisputed that there are no administrative code provisions providing for such a Booker, however, argues by analogy to criminal proceedings, based on right. State v. Bembenek, 140 Wis.2d 248, 409 N.W.2d 432 (Ct.App.1987), that due process requires that such a process be permitted.
¶ 12 In Bembenek, this court held that due process may require granting a new trial on the basis of newly discovered evidence even after the statutory time Id. at 252, 409 N.W.2d period for bringing post-verdict motions has passed. 974.06, which provides a Our ruling, however, was based on Wis. Stat. § 432. Booker criminal defendant the statutory vehicle to proceed with such a claim. 974.06 upon which acknowledges that there is no code provision equivalent to § He to base his newly discovered evidence claim in the revocation arena. argues, nonetheless, that the constitutional right to due process survives Schwarz, as representative of the independent of any other legal authority. Division, points out significant differences between a criminal defendant's rights in this regard and a probationer's rights at a revocation hearing, which is a ci Further, he argues that vil matter governed by administrative rules. even if we assume that the Bembenek due-process considerations for granting a new trial based on newly discovered evidence also apply to the decision whether to grant a new probation-revocation hearing, Booker failed to satisfy the The five-prong test provides the five-prong test set forth in Bembenek. requirements a defendant must satisfy in order to be granted a new trial on the basis of newly discovered evidence:
The evidence must have come to the moving party's knowledge after a (1) trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.
Schwarz argues that while Bembenek, 140 Wis.2d at 252, 409 N.W.2d 432. Booker's evidence satisfies the first and fourth criteria, it fails to satisfy Booker replies that there is sufficient evidence the second, third and fifth. in the record to establish that he can satisfy each of the Bembenek factors.
¶ 13 “[T>he law generally prefers that controversies once decided on their State ex rel. Flowers v. DHSS, 81 Wis.2d 376, 393, merits remain in repose.” Nevertheless, our system of justice would have little 260 N.W.2d 727 (1978). meaning if it failed to provide a procedure for individuals who have substantial Due process is the quintessential credible evidence to prove their innocence. foundation upon which fairness and justice rest, not only at the time of trial, 974.06, Bembenek, together with Wis. Stat. § but at all stages of proceedings. provide that avenue in the criminal area, as long as certain requirements are We have not been presented with any legitimate reason as to why a satisfied. similar procedure to ensure due process of law should not also apply to an individual in Booker's situation, considering the personal liberty interest at In fact, Schwarz concedes that “ [t>he concepts of due process and fair stake. State ex rel. Leroy v. DHSS, 110 play apply to parole revocation hearings.” Wis.2d 291, 295, 329 N.W.2d 229 (Ct.App.1982).
¶ 14 Therefore, we hold that the determination of whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall In so holding, be governed by procedures analogous to those in criminal cases. we set forth the following standards and requirements to govern these types of cases.
¶ 15 If a movant wishes to have an evidentiary hearing on a newly discovered If the claim evidence claim, he or she may not rely on conclusory allegations. is conclusory in nature, or if the record conclusively shows that the movant is not entitled to relief, the Division may deny the motion without an evidentiary See State v. Bentley, 201 Wis.2d 303, 309-11, 313-18, 548 N.W.2d 50 hearing. To obtain an evidentiary hearing on the newly discovered evidence (1996). claim, the movant must allege with specificity the Bembenek factors in the See Bentley, 201 Wis.2d at 313-18, 548 N.W.2d 50. post-revocation motion. Whether the motion sufficiently alleges facts which, if true, would entitle the movant to relief is a question of law to be reviewed independently by this If the Division refuses to hold a See id. at 310, 548 N.W.2d 50. court. hearing based on its findings that the record as a whole conclusively demonstrates that the movant is not entitled to relief, this court's review is limited to whether the Division erroneously exercised its discretion in making Id. at 318, 548 N.W.2d 50. this determination.
¶ 16 Applying this test to the facts at hand, we conclude that Booker's First, Schwarz post-revocation motion satisfied the requisite factors. concedes that the first and fourth factors of the Bembenek test were satisfied-that is, the evidence presented is new and it is not cumulative. Accordingly, our analysis focuses on the second, third, and fifth factors.
¶ 17 The second factor requires that the moving party must not have been Booker contends that he was negligent in seeking to discover the new evidence. not negligent in discovering the evidence because “proof of Marshall's lies was In support of his not in existence at the time of the revocation hearing.” allegation, Booker sets forth in detail Marshall's testimony at the revocation hearing as opposed to the testimony he offered during the criminal battery Booker also presents the report of Dr. Keane, which directly trial. There was some dispute as contradicts Marshall's revocation hearing testimony. to whether Booker was negligent in discovering this information because It was Marshall's injury existed at the time of the revocation hearing. unclear, however, from the record as to whether Marshall's medical records were Regardless, this dispute does not defeat Booker's available for review. Rather, this is the type of information entitlement to an evidentiary hearing. that will be fleshed out and resolved during the evidentiary hearing.
¶ 18 The third factor requires that the evidence must be material to the Booker contends that the newly discovered evidence is material because issue. He alleges in his his revocation was based entirely on Marshall's credibility. post-revocation motion that “[t>his new evidence demonstrates that Marshall's testimony was not true, that Booker did not break Marshall's hand, and that Booker did indeed have good reason to believe Marshall was going for a gun.” Booker states that the ALJ found “the testimony of Marshall credible and reliable, and found incredible the self-defense claim asserted by Booker.” Schwarz Therefore, he argues that the newly discovered evidence is material. contends that the new evidence is not material because Marshall's wrist fracture Instead, Schwarz maintains, the was not the heart of the revocation case. revocation was based on the sole fact that Booker struck Marshall and therefore Again, this is a matter that will be violated one of his probation conditions. The respondent will present facts resolved during the evidentiary hearing. See State ex rel. Thompson relative to this issue and Booker will present his. v. Riveland, 109 Wis.2d 580, 586, 326 N.W.2d 768 (1982) (“A claim of self-defense is available to all persons in society whether on probation or not.”).
¶ 19 The fifth factor requires that it must be reasonably probable that a In support of this factor, different result would be reached at a new trial. Booker alleges that if the ALJ had the newly discovered evidence presented during the revocation hearing, he would not have found Marshall to be credible and would have found Dr. Keane's opinion as substantial corroboration for his As a result, Booker argues that with this (Booker's) claim of self-defense. new evidence, there is a reasonable probability that the ALJ would reach a different conclusion.
¶ 20 Among other things, Booker attached to his post-revocation motion a variety of exhibits, including Dr. Keane's report, excerpts of Marshall's testimony, documents showing the proceeding in the criminal battery trial, including the decision vacating the conviction based on the newly discovered Booker's motion, together with the attached evidence, and the ALJ's decision. exhibits, satisfies the Bentley standards by setting forth, with specificity, Therefore, we conclude that facts which, if true, would entitle him to relief. the Division erred by refusing to grant him an evidentiary hearing. Accordingly, we reverse the order and remand the matter to the Division with directions to conduct an evidentiary hearing on Booker's claim of newly discovered evidence.2
Order reversed and cause remanded with directions.
FOOTNOTES
1Rule # 1 of . Booker's probation states: “You shall avoid all conduct which is in violation of federal or state statute, municipal or county ordinances or which is not in the best interest of the public welfare or your rehabilitation.”
2This case also . presented an issue as to whether Booker's post-revocation motion was timely or We agree with untimely and therefore barred by the doctrine of laches. Booker's interpretation that the Bembenek factor addresses solely the amount of State v. Bembenek, 140 Wis.2d time the movant took to discover the evidence. This time period may be considered in 248, 252, 409 N.W.2d 432 (Ct.App.1987). determining whether Booker was negligent in seeking to discover the evidence and consequently will factor into the Division's decision as to whether the Bembenek factors are satisfied.The Bembenek case, however, does not address the time it took the movant to seek redress after discovering the evidence; i.e., the time This between the discovery of the new evidence and the filing of the motion. time period is relevant to the issue of laches-an equitable doctrine that may bar an action if three requirements are met: (1) Booker unreasonably delayed in filing the motion; (2) Schwarz lacked knowledge that Booker would assert the Sawyer v. Midelfort, 227 right; and (3) Schwarz is prejudiced by the delay. The party asserting that laches Wis.2d 124, 159, 595 N.W.2d 423 (1999). If any of the elements is not proven, applies must prove all three elements. the doctrine of laches will not bar the action.Here, the pertinent time period involves: the date on which the new evidence was discovered, March 5, 1998; the date of Dr. Keane's opinion letter, also March 5, 1998, and the date the post-revocation motion was filed, April 23, 2002.Booker offers what may be a reasonable explanation for the delay:Booker stated that he sought legal help from the University of Wisconsin's LAIP project on July 3, 1998-several months LAIP then contacted Booker's attorney after he obtained Dr. Keane's letter. who was representing him in postconviction proceedings on his criminal Booker claimed that Attorney Klein had told him that conviction, Cord Klein. he planned on filing a Writ of Habeas Corpus with regard to Booker's revocation, Booker alleged that he then recontacted but Klein never did take such action. LAIP, which experienced great difficulties in getting the relevant records from These were finally procured in April, 2001, after which time Attorney Klein. law students worked on the motion that was finally submitted on April 23, 2002.Whether the doctrine of laches defeats Booker's motion may also be considered at the evidentiary hearing.
https://caselaw.findlaw.com/wi-court-of-appeals/1354872.html
https://www.wisbar.org/res/capp/2004p/03-0217.pdf
2004 WI App 50
NOTICE
COURT OF APPEALS
DECISION
DATED AND FILED
February 10, 2004
Cornelia G. Clark
Clerk of Court of Appeals
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 03-0217 Cir. Ct. No. 02CV006408
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN EX REL.
RAYMOND BOOKER,
PETITIONER-APPELLANT,
V.
DAVID SCHWARZ,
RESPONDENT-RESPONDENT.
APPEAL from an order of the circuit court for Milwaukee County:
TIMOTHY G. DUGAN, Judge. Reversed and cause remanded with directions.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
¶1 WEDEMEYER, P.J. Raymond Booker appeals from a circuit court
order denying his petition for writ of certiorari, wherein he requested reversal of
the refusal of the Division of Hearings and Appeals to reopen his revocation
No. 03-0217
2
proceedings based on newly discovered evidence. Booker claims the Division
acted unreasonably and outside the law in denying his motion, which requested
either a new probation revocation hearing or an evidentiary hearing to determine
whether newly discovered evidence entitled him to a new revocation hearing. He
asks this court to reverse the Division’s order and remand for an evidentiary
hearing on his motion to address his claim that newly discovered evidence justifies
re-opening the revocation proceedings. Because Booker’s post-revocation motion
contained sufficient facts to entitle him to an evidentiary hearing on his newly
discovered evidence claim, we reverse the order and remand this matter to the
Division for such evidentiary hearing.
I. BACKGROUND
¶2 On July 14, 1993, Booker was convicted of burglary and sentenced
to a ten-year prison term, which was stayed. Booker was placed on six years’
probation. After three years on probation, the Division recommended that
Booker’s probation be revoked. The revocation recommendation was based on an
incident which occurred on August 12, 1996. Booker was walking on a sidewalk
near his house when a vehicle being driven by Dennis Adams approached. Adams
stopped the vehicle near Booker and Booker recognized a passenger, Myles
Marshall. Marshall exited the vehicle and Booker and Marshall walked along the
sidewalk talking. They discussed a 1989 incident, wherein Marshall pointed an air
gun in Booker’s face and pumped it twice. Booker believed the gun was real and
Marshall told Booker the only reason Booker was alive was because the gun
jammed.
¶3 The two men returned to the Adams vehicle. As Marshall reached
for the door handle, Booker hit him. The exact nature of the hit was disputed.
No. 03-0217
3
Booker claimed he pushed him because he thought Marshall was reaching for a
shotgun to kill him. Marshall stated that Booker punched him three times, once in
the chest, once in the stomach and once to his wrist, breaking it in three places.
Marshall denied that he was reaching for a gun; he maintained that he asked
Adams to “hand me that thing,” referring to a bar that locks the steering wheel.
¶4 At the revocation hearing, Booker and Marshall testified as to their
own version of events. Booker stated he was acting solely in self-defense.
Marshall described Booker as the aggressor. The administrative law judge (ALJ)
found Marshall to be credible and found that Booker’s claim of self-defense was
not credible. On November 12, 1996, Booker’s probation was revoked for
violating rule #1 of his probation,1 and he began serving the ten-year burglary
sentence. Booker appealed to the Division, which affirmed the ALJ’s revocation
decision.
¶5 On April 23, 2002, Booker filed a motion with the Division seeking
to vacate the revocation or, in the alternative, an evidentiary hearing to determine
whether newly discovered evidence entitled him to a new revocation hearing. The
newly discovered evidence related to the substantial battery charge, which had
been filed against him as a result of the physical encounter with Marshall. Booker
had been convicted of substantial battery as a result of Marshall’s injuries;
however, in postconviction proceedings, the conviction was vacated as a result of
newly discovered evidence. The evidence consisted of the medical opinion from
orthopedic surgeon Dr. Sean Keane, who stated in a March 5, 1998 letter:
1 Rule #1 of Booker’s probation states: “You shall avoid all conduct which is in
violation of federal or state statute, municipal or county ordinances or which is not in the best
interest of the public welfare or your rehabilitation.”
No. 03-0217
4
In summary, Mr. Myles Marshall testified that his fracture
at the left wrist was caused by a karate chop administered
by Mr. Raymond Booker. He also testified that his fracture
at the right fifth knuckle was caused by a blow from Mr.
Booker’s elbow.
Mr. Marshall’s left wrist fracture has been described by the
examining radiologist, Dr. C. Locher. He describes a
comminuted Colles-type fracture at the left wrist. This
fracture, in my opinion, could not have been caused by a
karate chop. It would most likely have been caused by a
fall on the outstretched left hand.
Mr. Marshall’s fracture in the right hand, by the description
in the evidence, appears to have been a fracture of the neck
of the right fifth metacarpal. This, in my opinion, could not
possibly be caused by a blow from an assailant’s elbow.
Almost invariably, such a fracture is caused by the patient
hitting an opponent, or a firm object such as a wall, with
the clenched fi[s>t. Indeed, this fracture is usually referred
to as a “boxer’s fracture”.
….
It is my opinion, to a reasonable degree of medical
certainty, that Mr. Marshall sustained these fractures after
he had left the scene of the confrontation with Mr. Booker.
It is further my opinion that neither of these fractures could
have been sustained by his diving through a car window
and landing on the front seat of a car, nor would the patient
have been able to land on the front seat of a car, bracing
himself with a fractured wrist of this type.
Additionally, I have reviewed the initial x-rays of Mr.
Marshall’s left wrist and confirm that the fracture is as
described by Dr. Locher and could not have been caused by
a karate chop.
¶6 The second piece of newly discovered evidence was Marshall’s
testimony, at the criminal battery trial in January 1997, that when he asked Adams
to “hand me that thing,” Marshall was referring to a pistol. During the revocation
proceedings in October 1996, Marshall denied referring to a gun, but rather,
indicated he was describing a bar for locking the steering wheel.
No. 03-0217
5
¶7 Thus, based on these two items of newly discovered evidence,
Booker requested a new revocation hearing or, alternately, an evidentiary hearing.
Booker did not provide any reason for the four-year delay between discovering the
new evidence and filing of his motion. The Division denied the motion, citing
three reasons:
(1) There is no provision in the Wisconsin Administrative
Code or other legal authority for re-opening revocation
hearings.
(2) The administrator was “not convinced” that the
proffered evidence would likely result in a “different
outcome” insofar as Booker’s self-defense claim was
“fully considered” at the revocation hearing and
Booker started the confrontation by punching Marshall
in the abdomen.
(3) The proffered medical evidence is not “newly
discovered” since Booker “could have raised this issue
years ago.”
¶8 Booker appealed the Division’s order by way of certiorari review to
the circuit court. In his appeal, Booker offered an explanation for the time delay—
that his criminal attorney (who defended the battery charge) failed to file the
motion challenging the revocation proceedings and that his subsequent attorney
was delayed because of constraints related to transferring records from the
criminal attorney to the legal assistance program that was handling his case. The
circuit court denied Booker’s petition in a written decision, ruling that the motion
was not timely filed. The circuit court found that Booker was negligent in failing
to discover the medical evidence earlier or in failing to bring the motion earlier.
Booker now appeals from that order.
II. DISCUSSION
No. 03-0217
6
¶9 Booker asks this court to reverse the Division’s May 17, 2002
decision refusing to conduct an evidentiary hearing to consider whether newly
discovered evidence entitled him to a new revocation hearing.
¶10 We review the decision of the agency, not that of the circuit 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). Our review is
limited to determining whether: (1) the Division stayed within its jurisdiction;
(2) it acted according to law; (3) its action was arbitrary, oppressive or
unreasonable and represented its will, not its judgment; and (4) the evidence was
such that it might reasonably make the decision that it did. State ex rel. Tate v.
Schwarz, 2002 WI 127, ¶15, 257 Wis. 2d 40, 654 N.W.2d 438.
¶11 The issue of whether a probationer has a right to re-open a
revocation hearing based on newly discovered evidence is one of first impression.
It is undisputed that there are no administrative code provisions providing for such
a right. Booker, however, argues by analogy to criminal proceedings, based on
State v. Bembenek, 140 Wis. 2d 248, 409 N.W.2d 432 (Ct. App. 1987), that due
process requires that such a process be permitted.
¶12 In Bembenek, this court held that due process may require granting a
new trial on the basis of newly discovered evidence even after the statutory time
period for bringing post-verdict motions has passed. Id. at 252. Our ruling,
however, was based on WIS. STAT. § 974.06, which provides a criminal defendant
the statutory vehicle to proceed with such a claim. Booker acknowledges that
there is no code provision equivalent to § 974.06 upon which to base his newly
discovered evidence claim in the revocation arena. He argues, nonetheless, that
the constitutional right to due process survives independent of any other legal
No. 03-0217
7
authority. Schwarz, as representative of the Division, points out significant
differences between a criminal defendant’s rights in this regard and a
probationer’s rights at a revocation hearing, which is a civil matter governed by
administrative rules. Further, he argues that even if we assume that the Bembenek
due-process considerations for granting a new trial based on newly discovered
evidence also apply to the decision whether to grant a new probation-revocation
hearing, Booker failed to satisfy the five-prong test set forth in Bembenek. The
five-prong test provides the requirements a defendant must satisfy in order to be
granted a new trial on the basis of newly discovered evidence:
(1) The evidence must have come to the moving party’s
knowledge after a trial; (2) the moving party must not have
been negligent in seeking to discover it; (3) the evidence
must be material to the issue; (4) the testimony must not be
merely cumulative to the testimony which was introduced
at trial; and (5) it must be reasonably probable that a
different result would be reached on a new trial.
Bembenek, 140 Wis. 2d at 252. Schwarz argues that while Booker’s evidence
satisfies the first and fourth criteria, it fails to satisfy the second, third and fifth.
Booker replies that there is sufficient evidence in the record to establish that he
can satisfy each of the Bembenek factors.
¶13 “[T>he law generally prefers that controversies once decided on their
merits remain in repose.” State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 393,
260 N.W.2d 727 (1978). Nevertheless, our system of justice would have little
meaning if it failed to provide a procedure for individuals who have substantial
credible evidence to prove their innocence. Due process is the quintessential
foundation upon which fairness and justice rest, not only at the time of trial, but at
all stages of proceedings. Bembenek, together with WIS. STAT. § 974.06, provide
that avenue in the criminal area, as long as certain requirements are satisfied. We
No. 03-0217
8
have not been presented with any legitimate reason as to why a similar procedure
to ensure due process of law should not also apply to an individual in Booker’s
situation, considering the personal liberty interest at stake. In fact, Schwarz
concedes that “[t>he concepts of due process and fair play apply to parole
revocation hearings.” State ex rel. Leroy v. DHSS, 110 Wis. 2d 291, 295, 329
N.W.2d 229 (Ct. App. 1982).
¶14 Therefore, we hold that the determination of whether a claim that
newly discovered evidence entitles a probation revokee to an evidentiary hearing
to determine whether a new probation revocation hearing should be conducted
shall be governed by procedures analogous to those in criminal cases. In so
holding, we set forth the following standards and requirements to govern these
types of cases.
¶15 If a movant wishes to have an evidentiary hearing on a newly
discovered evidence claim, he or she may not rely on conclusory allegations. If
the claim is conclusory in nature, or if the record conclusively shows that the
movant is not entitled to relief, the Division may deny the motion without an
evidentiary hearing. See State v. Bentley, 201 Wis. 2d 303, 309-11, 313-18, 548
N.W.2d 50 (1996). To obtain an evidentiary hearing on the newly discovered
evidence claim, the movant must allege with specificity the Bembenek factors in
the post-revocation motion. See Bentley, 201 Wis. 2d at 313-18. Whether the
motion sufficiently alleges facts which, if true, would entitle the movant to relief is
a question of law to be reviewed independently by this court. See id. at 310. If the
Division refuses to hold a hearing based on its findings that the record as a whole
conclusively demonstrates that the movant is not entitled to relief, this court’s
review is limited to whether the Division erroneously exercised its discretion in
making this determination. Id. at 318.
No. 03-0217
9
¶16 Applying this test to the facts at hand, we conclude that Booker’s
post-revocation motion satisfied the requisite factors. First, Schwarz concedes that
the first and fourth factors of the Bembenek test were satisfied—that is, the
evidence presented is new and it is not cumulative. Accordingly, our analysis
focuses on the second, third, and fifth factors.
¶17 The second factor requires that the moving party must not have been
negligent in seeking to discover the new evidence. Booker contends that he was
not negligent in discovering the evidence because “proof of Marshall’s lies was
not in existence at the time of the revocation hearing.” In support of his
allegation, Booker sets forth in detail Marshall’s testimony at the revocation
hearing as opposed to the testimony he offered during the criminal battery trial.
Booker also presents the report of Dr. Keane, which directly contradicts
Marshall’s revocation hearing testimony. There was some dispute as to whether
Booker was negligent in discovering this information because Marshall’s injury
existed at the time of the revocation hearing. It was unclear, however, from the
record as to whether Marshall’s medical records were available for review.
Regardless, this dispute does not defeat Booker’s entitlement to an evidentiary
hearing. Rather, this is the type of information that will be fleshed out and
resolved during the evidentiary hearing.
¶18 The third factor requires that the evidence must be material to the
issue. Booker contends that the newly discovered evidence is material because his
revocation was based entirely on Marshall’s credibility. He alleges in his postrevocation
motion that “[t>his new evidence demonstrates that Marshall’s
testimony was not true, that Booker did not break Marshall’s hand, and that
Booker did indeed have good reason to believe Marshall was going for a gun.”
Booker states that the ALJ found “the testimony of Marshall credible and reliable,
No. 03-0217
10
and found incredible the self-defense claim asserted by Booker.” Therefore, he
argues that the newly discovered evidence is material. Schwarz contends that the
new evidence is not material because Marshall’s wrist fracture was not the heart of
the revocation case. Instead, Schwarz maintains, the revocation was based on the
sole fact that Booker struck Marshall and therefore violated one of his probation
conditions. Again, this is a matter that will be resolved during the evidentiary
hearing. The respondent will present facts relative to this issue and Booker will
present his. See State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 586, 326
N.W.2d 768 (1982) (“A claim of self-defense is available to all persons in society
whether on probation or not.”).
¶19 The fifth factor requires that it must be reasonably probable that a
different result would be reached at a new trial. In support of this factor, Booker
alleges that if the ALJ had the newly discovered evidence presented during the
revocation hearing, he would not have found Marshall to be credible and would
have found Dr. Keane’s opinion as substantial corroboration for his (Booker’s)
claim of self-defense. As a result, Booker argues that with this new evidence,
there is a reasonable probability that the ALJ would reach a different conclusion.
¶20 Among other things, Booker attached to his post-revocation motion
a variety of exhibits, including Dr. Keane’s report, excerpts of Marshall’s
testimony, documents showing the proceeding in the criminal battery trial,
including the decision vacating the conviction based on the newly discovered
evidence, and the ALJ’s decision. Booker’s motion, together with the attached
exhibits, satisfies the Bentley standards by setting forth, with specificity, facts
which, if true, would entitle him to relief. Therefore, we conclude that the
Division erred by refusing to grant him an evidentiary hearing. Accordingly, we
No. 03-0217
11
reverse the order and remand the matter to the Division with directions to conduct
an evidentiary hearing on Booker’s claim of newly discovered evidence.2
2 This case also presented an issue as to whether Booker’s post-revocation motion was
timely or untimely and therefore barred by the doctrine of laches. We agree with Booker’s
interpretation that the Bembenek factor addresses solely the amount of time the movant took to
discover the evidence. State v. Bembenek, 140 Wis. 2d 248, 252, 409 N.W.2d 432 (Ct. App.
1987). This time period may be considered in determining whether Booker was negligent in
seeking to discover the evidence and consequently will factor into the Division’s decision as to
whether the Bembenek factors are satisfied.
The Bembenek case, however, does not address the time it took the movant to seek
redress after discovering the evidence; i.e., the time between the discovery of the new evidence
and the filing of the motion. This time period is relevant to the issue of laches—an equitable
doctrine that may bar an action if three requirements are met: (1) Booker unreasonably delayed
in filing the motion; (2) Schwarz lacked knowledge that Booker would assert the right; and
(3) Schwarz is prejudiced by the delay. Sawyer v. Midelfort, 227 Wis. 2d 124, 159, 595 N.W.2d
423 (1999). The party asserting that laches applies must prove all three elements. If any of the
elements is not proven, the doctrine of laches will not bar the action.
Here, the pertinent time period involves: the date on which the new evidence was
discovered, March 5, 1998; the date of Dr. Keane’s opinion letter, also March 5, 1998, and the
date the post-revocation motion was filed, April 23, 2002.
Booker offers what may be a reasonable explanation for the delay:
Booker stated that he sought legal help from the University of
Wisconsin’s LAIP project on July 3, 1998—several months after
he obtained Dr. Keane’s letter. LAIP then contacted Booker’s
attorney who was representing him in postconviction
proceedings on his criminal conviction, Cord Klein. Booker
claimed that Attorney Klein had told him that he planned on
filing a Writ of Habeas Corpus with regard to Booker’s
revocation, but Klein never did take such action. Booker alleged
that he then recontacted LAIP, which experienced great
difficulties in getting the relevant records from Attorney Klein.
These were finally procured in April, 2001, after which time law
students worked on the motion that was finally submitted on
April 23, 2002.
Whether the doctrine of laches defeats Booker’s motion may also be considered at the
evidentiary hearing.
No. 03-0217
12
By the Court.—Order reversed and cause remanded with directions.
Recommended for publication in the official reports. | | â´Â: ¿¿ [13 ¡.Â. 53 8:10] ( IP A:58.8.240.202 X: ) |  |
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Monday, 19 August, 2002, 19:10 GMT 20:10 UK
Punch 'broke bone in footballer's hand'
The three footballers deny the charges against them
A professional footballer hit a nightclub bouncer so hard he broke a bone in his hand, a court heard.
Chelsea star John Terry, 21, suffered a "boxer's fracture" to his right hand after hitting Trevor Thirlwall, 28, the jury was told.
Mr Terry's hand was examined by Chelsea medical officer Dr Neil Fraser the day after the player is accused of attacking Mr Thirlwall at The Wellington private members' club in central London.
It is alleged Mr Terry, his Chelsea team mate Jody Morris, 23, and Wimbledon player Des Byrne, 21, became violent after being thrown out of the club on 4 January.
John would possibly have been chosen as a squad member for England's World Cup campaign in Japan
Graeme Le Saux
Dr Fraser told Middlesex Guildhall Crown Court in London: "The injury suggested he had broken that bone having put some degree of force through it.
"He had an X-ray and saw a specialist and it was confirmed he had a fracture.
"In the medical textbooks it's referred to as a boxer's fracture."
Mr Terry says he punched Mr Thirlwall in self defence but denied hitting him in the face with a bottle.
Character witnesses
He claims the fight started when Mr Thirlwall and his brother attacked Mr Byrne.
Mr Morris, who is 5ft 5ins tall, told the court he had been talking to Mr Thirlwall and another doorman, Shaun Brice, when the fighting broke out.
He said: "Even before anything spilled out onto the pavement I wasn't about to do anything, the size of me compared to them, I wouldn't be able to do anything".
He denied swearing at club manageress Sasha Keegan, prompting her to eject them from the club.
Racial abuse claim
The court was also told that the three footballers lied about a racist comment allegedly directed at one of them.
Mr Terry, Mr Morris and Mr Byrne had previously told Middlesex Guildhall Crown Court that bouncer Trevor Thirwell had racially abused Mr Byrne, who is Irish.
Summing up for the prosecution, Jeremy Donne said the players had not mentioned the alleged abuse to the police when they were questioned about the incident at the Wellington Club on 4 January.
Speaking about the alleged racist comment, Mr Donne said it was false and none of the footballers had mentioned it in their police interviews after the incident.
He said the three players had later made up the racist taunt between them to try to cover the fact that Byrne had launched an unprovoked attack.
Mr Donne said: "He could hardly be held back. He completely lost control."
'Gentle disposition'
The court also heard from character witnesses for two of the footballers.
Graeme Le Saux, Mr Terry's club captain, said he believed that if it was not for the court proceedings "John would possibly have been chosen as a squad member for England's World Cup campaign in Japan".
He added that he had seen Mr Terry in a "social context" in which he "behaves politely and I consider him to be of a gentle disposition".
Robbie Earle, who has been helping with pre-season training at Wimbledon, appeared for Mr Byrne saying he had "never had a problem" with him.
Mr Terry denies wounding with intent to cause grievous bodily harm and possessing a bottle as an offensive weapon.
Mr Byrne denies possessing a bottle as an offensive weapon and all three players deny affray.
The trial was adjourned until Tuesday. | | â´Â: ÈÒÅäÁèàª×èÍ¡çµÔ´¤Ø¡ÍÂÙè´Õ [13 ¡.Â. 53 8:14] ( IP A:58.8.240.202 X: ) | |
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