Roberto M. Hinojosa v. Kevin A. Carr

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.
April 1, 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. 2019AP2287 Cir. Ct. No. 2019CV3036

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

ROBERTO M. HINOJOSA,

PETITIONER-APPELLANT,

V.

KEVIN A. CARR AND JOHN TATE-CHAIRMAN,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Nashold, 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. 2019AP2287

¶1 PER CURIAM. Roberto Hinojosa appeals an order denying his
mandamus petition. He argues that he is entitled to mandatory release on parole
under statutes in effect in 1983. We disagree, and therefore we affirm.

¶2 Hinojosa’s petition alleges that he is serving a life sentence for a
first-degree murder committed in November 1983. The petition sought an order
directing the respondents to follow the statutes in effect at the time of his crime
and release him from prison. The circuit court dismissed the petition.

¶3 On appeal, Hinojosa seeks sanctions against the circuit court,
arguing that the circuit court erred by dismissing his petition within several days
after it was filed. The court did so under WIS. STAT. § 802.05(4) (2019-20),1
which requires the court to review initial pleadings filed by persons who meet the
statutory definition of “prisoner” referred to in that section. The statute allows the
court to dismiss the action if the court determines that the petition is frivolous,
which it did in this case. The timing of that decision is not a basis for us to grant
relief.

¶4 As to the substance of Hinojosa’s petition, he argues that, under the
statutes that were in effect when he committed the crime, he was entitled to
mandatory release on parole many years ago. His argument relies on the
following two provisions, which were in effect then:

Except as provided in sub. (1m), the department may parole
an inmate of the Wisconsin state prisons … when he or she
has served 20 years of a life term less the deduction earned
for good conduct as provided in s. 53.11.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP2287

WIS. STAT. § 57.06(1) (1981-82), as amended by 1983 Wis. Act 64, § 1.
An inmate or parolee having served the term for which he
or she has been sentenced for a crime committed after
May 27, 1951, less good time earned under this chapter and
not forfeited as provided in this section, shall be released
on parole … until the expiration of the maximum term for
which he or she was sentenced without deduction of such
good time, or until discharged from parole by the
department, whichever is sooner.

WIS. STAT. § 53.11(7)(a) (1981-82).

¶5 Hinojosa appears to be arguing that the second provision entitles him
to mandatory release on parole based on the twenty-year calculation described in
the first provision. However, that is not a correct interpretation.

¶6 The first provision relates to discretionary parole that the department
“may” grant to an inmate. It does not provide for mandatory release of any
inmate.

¶7 The second provision relates to mandatory parole that the
department “shall” grant to an inmate. However, that statute does not contain any
provision granting mandatory release to inmates serving life terms. Instead, it
applies to an inmate who has “served the term for which he or she has been
sentenced.” This phrase does not apply to inmates serving life terms because they
cannot be described as having “served” their terms until they are no longer alive.
An inmate serving a life term has served his or her sentence only at death.

¶8 This conclusion is consistent with our observation about these
statutes forty years ago, that “lifers, unlike other inmates, have no date when
release becomes mandatory. For a lifer, the good conduct deductions merely
advance the date on which he may be paroled, such parole being at the discretion

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No. 2019AP2287

of the department.” Parker v. Percy, 105 Wis. 2d 486, 491, 314 N.W.2d 166 (Ct.
App. 1981).

¶9 Hinojosa also argues that the department is impermissibly applying
an ex post facto punishment by relying on statutes that became effective after the
date of his crime to deprive him of mandatory release. However, all of these
arguments rely on the assumption that Hinojosa was entitled to mandatory release
before those statutes became effective. As we have explained, that assumption is
incorrect. Therefore, we do not discuss these later provisions further.

¶10 Finally, Hinojosa may be arguing that the parole commission, in
denying him discretionary parole, has improperly used a statutory standard that
includes his institutional conduct. As explained by the respondents, judicial
review of specific decisions to deny parole is by certiorari petition. Here,
Hinojosa filed a mandamus petition, and as a result the parole commission record
was not sent to the circuit court for review. There is no record on which we can
conduct a certiorari review of this issue.

By the Court.—Order affirmed.

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

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