Daniel C. Buck v. Brian Hayes

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.
January 21, 2021
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. 2020AP297 Cir. Ct. No. 2019CV91

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN EX REL. DANIEL C. BUCK,

PETITIONER-APPELLANT,

V.

BRIAN HAYES ADMINISTRATOR OF THE DIVISION OF HEARINGS AND
APPEALS, WISCONSIN DEPARTMENT OF ADMINISTRATION,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Jefferson County:
WILLIAM F. HUE, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.

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. 2020AP297

¶1 PER CURIAM. Daniel C. Buck appeals a circuit court order that
affirmed the decision by the Division of Hearings and Appeals within the state
Department of Administration to revoke Buck’s probation and dismissed this
certiorari action. Buck argues that his due process rights were violated during the
revocation proceedings. He also contends that the Division’s decision was arbitrary,
capricious, and unreasonable in rejecting an available and appropriate Alternative
To Revocation (ATR). For the reasons set forth in this opinion, we reject these
contentions. We affirm.

¶2 In February 2015, Buck was convicted of incest with a child. In
March 2015, the circuit court withheld sentence and placed Buck on probation for
ten years. In September 2016, Buck admitted to violating the rules of his probation
and received a formal ATR.

¶3 In August 2017, a search of Buck’s home resulted in the discovery of
substances, electronic devices, and sex items. Buck admitted that he had bought
what he believed were drugs with the intent to sell them; used marijuana; consumed
alcohol; and had sexual contact with N.H.

¶4 In October 2017, the Department of Corrections (DOC) initiated
revocation proceedings, alleging eighteen rule violations by Buck. DOC asserted
that Buck violated his rules of supervision by: (1) possessing photographs of
minors; (2) fleeing from his agent; (3) lying to his agent; (4) having contact with
N.H.; (5) consuming alcohol; and (6) and (7) consuming what he believed to be
drugs. It also asserted in allegations (8), (9), and (10) that Buck possessed with the
intent to sell what he believed to be drugs; in allegations (11) and (12) that he
possessed drugs; and, in allegations (13) through (18), that Buck had contact with
N.H.; had sexual intercourse without his agent’s consent; possessed sexual items;

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possessed pornography; was terminated from sex offender treatment; and failed his
ATR. Prior to the revocation hearing, Buck submitted a proposed ATR prepared by
an addiction counselor, recommending that Buck engage in substance abuse
treatment.

¶5 The revocation hearing was held before an Administrative Law Judge
(ALJ) in November 2018. At the conclusion of the hearing, the ALJ ordered Buck’s
probation revoked. The ALJ found that the DOC had proven all of its allegations
against Buck except for allegation (1), possessing images of minors. The ALJ also
found that no alternative to revocation was appropriate. Buck pursued an
administrative appeal, and the administrator sustained the revocation. Buck then
filed this certiorari action in the circuit court.

¶6 In a thorough and well-reasoned decision, the circuit court affirmed
the revocation and dismissed this action. The court agreed with Buck that the ALJ
erred by admitting State Crime Laboratory test results of the substances seized from
Buck’s home. It found that the test results were inadmissible hearsay that did not
fall within any hearsay exception. The court also found, however, that the only
allegations that relied on the test results were allegations (11) and (12), possession
of drugs. The court found that the Division properly revoked Buck’s probation
based on the remaining violations. Buck appeals.

¶7 On certiorari review of a probation revocation decision, we apply the
same standard as the circuit court, and we review the Division’s decision, not the
circuit court’s. See State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶34, 353
Wis. 2d 307, 845 N.W.2d 373. Our review is limited to whether: (1) the Division
kept within its jurisdiction; (2) the Division acted according to law; (3) the decision
was arbitrary, oppressive, or unreasonable and represented the Division’s will and

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not its judgment; and (4) the evidence was such that the decision in question might
reasonably be made. See State ex rel. Tate v. Schwarz, 2002 WI 127, ¶15, 257
Wis. 2d 40, 654 N.W.2d 438.

¶8 Buck argues that the State Crime Laboratory test results were
inadmissible hearsay and that the ALJ therefore erred by admitting them. See State
v. Williams, 2002 WI 58, ¶¶38-49, 253 Wis. 2d 99, 644 N.W.2d 919 (concluding
that State Crime Laboratory test results did not fall within business records
exception to hearsay). Buck contends that, in addition to being a procedural error,
the admission of the test results without testimony by the analyst who performed the
tests violated Buck’s constitutional right to confrontation. See State v. Nieves, 2017
WI 69, ¶18, 376 Wis. 2d 300, 897 N.W.2d 363 (“Both the Sixth Amendment to the
United States Constitution and the Wisconsin Constitution guarantee a criminal
defendant the right to confront witnesses who testify against the defendant at trial.”).
He argues that he was entitled to minimum procedural safeguards during revocation
proceedings, which he asserts include the right to confrontation. Buck contends
that, without the test results, there was less evidence to support allegations (8)
through (10), that he possessed drugs with the intent to sell them. He argues that,
without the test results, the only evidence presented to support those allegations was
Buck’s statements to his agent that he possessed what he believed were drugs with
the intent to sell them. And, he contends, there was no evidence to support
allegations (11) and (12), possession of drugs.

¶9 The Division responds that any error in admitting the State Crime
Laboratory test results was harmless because there is no reasonable possibility that
the test results contributed to the outcome. See State ex rel. Simpson v. Schwarz,
2002 WI App 7, ¶16, 250 Wis. 2d 214, 640 N.W.2d 527 (circuit court error,
including constitutional error, is generally subject to a harmless error analysis; error

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is harmless if there is no reasonable possibility that the error contributed to the
outcome). It contends that the test results were irrelevant to allegations (8) through
(10), the only drug violations at issue in this appeal.1 It contends that, because
allegations (8) through (10) were that Buck possessed what he believed to be drugs
with intent to sell them, the Division’s findings that Buck committed those
violations did not depend on whether or not the substances were, in fact, drugs.

¶10 We agree with the Division that any error in admitting the State Crime
Laboratory test results at the revocation hearing was harmless.2 See id. As the
Division points out, the only drug allegations at issue, allegations (8) through (10),
did not depend on evidence as to whether or not the substances were, in fact, drugs.
Rather, those allegations were that Buck possessed what he believed were drugs.
Thus, the test results for the substances were unnecessary for the Division to find
that Buck committed those violations. As Buck appears to recognize, Buck’s
admission that he possessed what he believed were drugs with the intent to sell them
was sufficient evidence of those violations.3 Accordingly, there is no reasonable

1
The Division does not dispute that the State Crime Laboratory test rests should not have
been admitted into evidence and that, without the test results, the evidence was insufficient to prove
allegations (11) and (12), possession of drugs.
2
Because we conclude that any error in admitting the test results was harmless, we do not
reach the parties’ dispute as to whether a constitutional violation occurred.
3
In reply, Buck asserts that the rule of corroboration should apply to revocation
proceedings and, apparently, takes the position that Buck’s admission to his agent was not
corroborated. See Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962) (in a criminal trial,
“there must be some corroboration of the confession in order to support a conviction”). This
argument was raised for the first time in the reply brief, and we therefore do not consider it. See
Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶30 n.6, 305 Wis. 2d 658, 741 N.W.2d 256 (“‘It is
a well-established rule that we do not consider arguments raised for the first time in a reply brief.’”
(quoted source omitted)). Moreover, Buck’s argument that the corroboration rule should apply to
revocation proceedings, and his implication that it was not met in this case, is insufficiently
developed, and we also reject it on that basis. See State v. McMorris, 2007 WI App 231, ¶30, 306
Wis. 2d 79, 742 N.W.2d 322 (we may decline to consider arguments that are insufficiently
developed).

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possibility that the erroneous admission of the State Crime Laboratory test results
contributed to the Division’s determinations as to allegations (8), (9), and (10).

¶11 Next, Buck argues that his due process rights were violated when the
Division and the DOC denied Buck’s requests to allow him to have independent
testing and forensic analysis conducted on the substances and electronic devices
seized from Buck’s home. Buck argues that he had a due process right to disclosure
of the evidence against him prior to the revocation hearing. See Greer, 353 Wis. 2d
307, ¶63 (one of the due process rights afforded probationers during revocation
proceedings is “disclosure to the probationer of the evidence against him [or her]”).
From that premise, Buck contends that disclosure of evidence prior to the revocation
hearing is meaningless if a probationer is not afforded the opportunity to
independently test evidence that is material to the revocation proceedings. Buck
also contends that a due process violation should be recognized by balancing Buck’s
substantial personal interest in independent testing of the government’s evidence
against him with the low risk and cost to the government in allowing the testing. In
support, Buck cites the due process analysis set forth in Mathews v. Eldridge, 424
U.S. 319, 335 (1976) (to determine what process is due, courts consider: the private
interest at stake, the risk of erroneous deprivation of that interest and the probable
value of additional safeguards, and the government’s interest and burdens that the
additional procedural requirements would entail).

¶12 The Division argues, again, that any error in denying Buck’s requests
to independently test evidence was harmless because it did not affect the body of
evidence supporting revocation. See Simpson, 250 Wis. 2d 214, ¶16. It contends
that only one violation is necessary to support revocation, see State ex rel. Warren
v. Schwarz, 211 Wis. 2d 710, 724, 566 N.W.2d 173 (Ct. App. 1997) (“Violation of
a condition is both a necessary and a sufficient ground for the revocation of

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probation.” (quoted source omitted)), and points out that Buck did not contest eight
of the violations alleged by the DOC and that several additional violations were
found based on other evidence at the hearing. It contends that revocation was
warranted absent the three drug violations and single pornography violation related
to the evidence that Buck sought to independently test.

¶13 We agree with the Division that any error in denying Buck’s requests
to allow independent tests of the evidence against him was harmless.4 See id. As
to Buck’s request to independently test the substances seized from his home, we
have already concluded that whether or not those substances were drugs was
irrelevant to the only drug allegations at issue on appeal. Thus, there is no
reasonable possibility that independent testing of the substances would have
changed the determination that Buck committed those violations. As to Buck’s
request to conduct an independent forensic analysis of the electronic devices seized
from his home, we agree with the Division that there is no reasonable possibility
that an independent analysis would have altered the outcome. Only one violation,
possession of pornography, was found against Buck based on the evidence from the
electronic devices. Buck admitted eight violations, and has not challenged three
additional violations found by the Division that were not related to the evidence he
sought to test. Accordingly, there is no reasonable possibility that the Division
would not have found a basis to revoke Buck’s probation had Buck conducted an

4
Again, because we conclude that any error in denying independent testing was harmless,
we do not reach the parties’ dispute as to whether a constitutional violation occurred.

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independent forensic analysis of the electronic devices seized from his home to seek
to challenge the single violation based on possession of pornography.5

¶14 Finally, Buck contends that the revocation of his probation was
arbitrary, capricious, and unreasonable because the Division disregarded Buck’s
proposed ATR. Buck points out that he had already spent fifteen months in custody
awaiting the revocation hearing, and contends that he presented the Division with a
reasonable alternative treatment proposal that recommended substance abuse
treatment rather than revocation. He contends that the time he already served,
together with his proposed alternative treatment proposal, served as a reasonable
alternative by providing a sufficient punitive sanction and treatment plan. He argues
that the Division’s decision rejecting his proposed ATR was not a reasonable
decision based on the facts. See Von Arx v. Schwartz, 185 Wis. 2d 645, 656, 517
N.W.2d 540 (Ct. App. 1994) (proper exercise of discretion in revoking probation
contemplates reasoning based on the facts of record). Buck contends that the
Division erred by failing to specifically consider all of the relevant facts, including
the time he already served in confinement and the fact that his treatment proposal

5
Buck argues in his reply brief that admission of the test results and forensic computer
evidence was not harmless because it may have affected the Division’s decision rejecting all
alternatives to revocation. Buck argues that, as a criminal sentencing may not be based on
inaccurate information, see State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1,
a revocation should not stand if it was based on inaccurate information as to a probationer’s rule
violations. He cites State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 543, 217 N.W.2d 641 (1974),
for the proposition that, to properly exercise discretion during revocation proceedings, the Division
must “know not only that some violation was committed but also … know accurately how many
and how serious the violations were.” Below, we address whether the Division properly exercised
its discretion by determining that Buck’s rule violations warranted revocation, excluding any
consideration of the State Crime Laboratory test results that the Division has not disputed were
improperly admitted and any consideration of the single violation as to possession of pornography
related to the evidence Buck sought to independently analyze. Because we conclude that the
Division properly exercised its discretion to revoke Buck’s probation based on the evidence not
challenged on appeal, we conclude that the asserted errors were harmless as to the Division’s
revocation decision.

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was prepared by an addiction counselor. See State ex rel. Plotkin v. DHSS, 63
Wis. 2d 535, 544-45, 217 N.W.2d 641 (1974) (if appropriate alternative to
revocation is presented, alternative should be considered).

¶15 The Division responds that its decision to revoke Buck’s probation
was reasonable and supported by substantial evidence. See Van Ermen v. DHSS,
84 Wis. 2d 57, 66, 267 N.W.2d 17 (1978) (revocation upheld were the evidence was
sufficient to support findings underlying revocation order, and discretion was
exercised on a rational basis). It argues that it properly considered Buck’s original
offense and his intervening conduct, and determined that revocation was necessary
to protect the public and to avoid depreciating the seriousness of the violations. It
also asserts that it properly considered Buck’s proposed ATR and explained why it
determined that another ATR, after the unsuccessful ATR imposed for probation
violations in 2016, was not appropriate.

¶16 We conclude that the Division properly exercised its discretion by
revoking Buck’s probation based on the fifteen violations that were established
independent of the evidence disputed on appeal. See Plotkin, 63 Wis. 2d at 542-43
(once violations have been established, the question of whether to revoke probation
is discretionary). The discretionary determination whether to revoke supervision
based on rule violations “involves the application of expertise by the [Division] in
making a prediction as to the ability of the individual to live in society without
committing antisocial acts.” Id. at 543. Revocation is appropriate if it is based on
a finding that it is necessary to protect the public, to afford treatment needed in a
confined setting, or to not unduly depreciate the seriousness of the violation. Id. at
544. Here, the decisions by the ALJ and administrator explained that the Division
determined revocation was necessary due to Buck’s numerous and serious rule
violations. The decisions noted that Buck’s rule violations included lying to his

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agent, sexual intercourse without agent approval, possessing sexual items,
possessing drugs with the intent to sell them, and failing his formal ATR and sex
offender treatment programming.6 They determined that those actions showed that
Buck was a high risk to reoffend and that revocation was warranted. They also
considered the seriousness of Buck’s underlying crime of incest with a child, and
his continued rule violations while engaging in sex offender treatment.

¶17 Additionally, the decisions by the ALJ and the administrator
specifically considered and rejected Buck’s proposed ATR. They explained that
Buck had already been afforded the opportunity to participate in an ATR and sex
offender programming and had been unsuccessful. They found that Buck’s
proposed alternative treatment plan of substance abuse treatment in the community
would not sufficiently protect the public and would unduly depreciate the
seriousness of the violations. They also explained that Buck’s proposed ATR was
insufficient in that it focused on Buck’s substance abuse treatment needs rather than
on his sex offender treatment needs. The decisions noted that Buck’s underlying
crime was for incest with a child and that Buck committed numerous violations of
sex offender rules. They found that Buck’s treatment needs could best be met in
confinement and that revocation was necessary as a sanction and to impress upon
Buck the need to comply with his rules of supervision. While Buck contends that
the Division should have found that Buck’s fifteen months in confinement was a
sufficient sanction and that his proposed ATR was reasonable, he has not established
that the Division was required to make those findings. Von Arx, 185 Wis. 2d at 655
(in a challenge to a revocation decision, “the probationer bears the burden of proving

6
While the Division also cited Buck’s possession of other substances and pornography in
its decisions, we conclude that the Division’s decision was a proper exercise of discretion without
considering those facts.

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that the decision was arbitrary and capricious”). Because the Division relied on the
facts in the record and applied the proper legal standard to reach a reasonable
decision, it properly exercised its discretion. See id. at 656 (discretionary decision
properly reached if it “contemplates a reasoning process based on the facts of record
‘and a conclusion based on a logical rationale founded upon proper legal standards’”
(quoted source omitted)). “An agency’s decision is not arbitrary and capricious and
represents its judgment if it represents a proper exercise of discretion.” Id.

CONCLUSION

¶18 For the reasons stated, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-2018).

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