David Aumann v. State of Wisconsin DOC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 16, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP102 Cir. Ct. No. 2019CV701

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN EX REL. DAVID AUMANN,

PETITIONER-APPELLANT,

V.

STATE OF WISCONSIN DEPARTMENT OF CORRECTIONS,

RESPONDENT-RESPONDENT.

APPEAL from orders of the circuit court for Winnebago County:
BARBARA H. KEY, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP102

¶1 PER CURIAM. David Aumann appeals pro se from an order of the
circuit court converting his petition for writ of habeas corpus into a petition for
writ of certiorari and remanding the case to the program review committee (PRC)
to consider Aumann’s request for sentence modification under WIS. STAT.
§ 302.113(9g). Aumann also appeals from an order denying his motion for
reconsideration. Aumann’s ultimate argument is that the circuit court should have
remanded his petition for sentence modification to the sentencing court. For the
reasons that follow, we affirm.

¶2 An inmate, such as Aumann, who is serving a bifurcated sentence
for a crime other than a Class B felony and who is at least sixty years of age and
has served at least ten years of the initial confinement portion of his bifurcated
sentence “may submit a petition to the [PRC] at the correctional institution in
which the inmate is confined” requesting a modification of his sentence. WIS.
STAT. § 302.113(9g)(b)2., (c). The statutory role of the PRC is to review the
petition and make a determination as to whether “the public interest would be
served by a modification.” Sec. 302.113(9g)(d). If the PRC determines that the
public interest would be served by a modification, the Department of Corrections
(DOC) “shall then refer” the petition to the sentencing court and “request the court
to conduct a hearing on the petition.” Sec. 302.113(9g)(cm). If, however, the
PRC determines that the public interest would not be served by a modification, the
PRC “shall deny the inmate’s petition.” Id. The statute does not explicitly
provide a method by which an inmate may challenge the PRC’s initial review. See
id.

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¶3 Aumann was convicted in 2009 and sentenced in Milwaukee County
Circuit Court on three felony counts for prison terms of ten, ten, and six years to
be served consecutively.1 Pursuant to WIS. STAT. § 302.113(9g)(b)2., Aumann
petitioned the PRC for sentence modification in early 2018.2 The PRC denied
Aumann’s request, finding that he was not eligible to file a petition as the DOC
held the opinion that he “must serve 10 years on each sentence to be modified.
Sentences of 10 years or less are not statutory eligible.”

¶4 Aumann responded by filing a petition for writ of habeas corpus in
Milwaukee County Circuit Court (where he was sentenced) challenging the
DOC’s eligibility determination. The Milwaukee County Circuit Court initially
granted the habeas petition and ordered the DOC to release Aumann to extended
supervision. The court reasoned that the DOC’s interpretation of WIS. STAT.
§ 302.113(9g) was “unreasonable” pursuant to § 302.113(4), which provides in
pertinent part: “All consecutive sentences imposed … shall be computed as one
continuous sentence.” See also State v. Harris, 2011 WI App 130, ¶9, 337
Wis. 2d 222, 805 N.W.2d 386.

¶5 The DOC moved Milwaukee County Circuit Court to quash its writ
on jurisdictional, substantive, and procedural grounds. For purposes of this
appeal, we summarize the DOC’s argument as being that WIS. STAT.
§ 302.113(9g)(cm)-(d) statutorily requires the “public interest” determination to be
initially made by the PRC, and only if the PRC finds that modification would be in

1
Aumann also had other sentences for prison terms of six years each, but those were
“concurrent” sentences and have been completed and are not at issue in this matter.
2
The State does not contest that Aumann has served more than ten years of confinement
time on his three convictions at issue.

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the public interest, does the petition then proceed to the sentencing court. See
§ 302.113(9g)(d).3 The DOC also moved the Milwaukee County Circuit Court to
change the venue of Aumann’s habeas petition to Winnebago County Circuit
Court, as habeas petitions are to be heard in the circuit court of the county where
the inmate is detained. The Milwaukee County Circuit Court agreed with the
DOC, quashed its earlier order, and transferred venue to Winnebago County.

¶6 The Winnebago County Circuit Court, following argument,
converted Aumann’s habeas petition into a petition for writ of certiorari. The
court agreed with Aumann that the DOC needs to calculate Aumann’s consecutive
sentences as a single consecutive sentence, and it remanded Aumann’s
modification request to the PRC at the Oshkosh Correctional Institution with the
recognition that Aumann is eligible for sentence modification consideration.
Aumann filed a motion for reconsideration, which the circuit court denied.
Aumann appeals.

¶7 As noted above, Aumann complains on appeal that the circuit court
should have sent his petition to the sentencing court given the court’s ruling that
the DOC erred in its eligibility interpretation of WIS. STAT. § 302.113(9g).
Having related the procedural history, we conclude it is unnecessary to examine
legal machinations that occurred in the circuit court on Aumann’s petition for
modification. What we do conclude is that the circuit court’s end result was and is
correct: Aumann is eligible for sentence modification consideration and the PRC
is the statutory body that must review his petition for sentence modification prior

3
The inmate, the district attorney, and “any victim of the inmate’s crime has the right to
be present at the hearing [before the sentencing court] and to provide a statement concerning the
modification of the inmate’s bifurcated sentence.” WIS. STAT. § 302.113(9g)(d), (g).

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to the matter being referred to the sentencing court. See § 302.113(9g)(c), (cm).
We also affirm the circuit court’s legal conclusion that Aumann’s consecutive
sentences are a single, continuous sentence and that Aumann has served more than
ten years of that single continuous sentence. See § 302.113(4); Harris, 337
Wis. 2d 222, ¶9.

¶8 It is the PRC’s statutory responsibility to make the initial
determination as to whether the public interest would be served by modifying
Aumann’s remaining confinement time to his extended supervision time prior to
the issue being referred to the sentencing court. See WIS. STAT. § 302.113(9g)(c),
(cm). Referral to the sentencing court is dependent upon the PRC determining that
sentence modification is in the public interest. Sec. 302.113(9g)(cm). That
determination has not yet been made; therefore, the proper recourse is, as the
circuit court ordered, a remand of this matter to the PRC to make that
determination.

¶9 The tortured process that this matter took was caused by Aumann
challenging the DOC’s eligibility determination as a habeas petition rather than a
certiorari petition. While the statute does not explicitly provide a method by
which an inmate may challenge the PRC’s initial review, see WIS. STAT.
§ 302.113(9g)(cm), if the PRC on remand determines that the public interest
would not be served by a sentence modification, Aumann’s recourse is by way of
certiorari, see WIS. STAT. § 801.50(5) (contemplating “an action for certiorari to
review … a denial by a program review committee under [§] 302.113(9g) of a
petition for modification of a bifurcated sentence” (emphasis added)); State ex rel.
Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185 N.W.2d 306 (1971) (“It is well
established in this state that where there are no statutory provisions for judicial
review, the action of a board or commission may be reviewed by way of

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No. 2020AP102

certiorari.”). If the PRC determines that the public interest is served by a
modification, then Aumann’s petition is referred to the sentencing court in
Milwaukee County for the purposes of scheduling and holding a hearing on
Aumann’s petition. See § 302.113(9g)(cm), (d). Both Aumann and the state have
the right to appeal a sentencing court’s determination on a petition for sentence
modification. See § 302.113(9g)(h).

¶10 In conclusion, we affirm the remand to the PRC for an initial
determination of Aumann’s petition. We further direct that as Aumann’s petition
was filed in early 2018, and has yet to be heard, Aumann may supplement his
petition with any additional, pertinent information that developed since he filed it.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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