State v. Vincent Durrey Haynes

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.
March 9, 2023
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 Nos.
2021AP2058-CR Cir. Ct. Nos. 2017CF682
2019CF749
2021AP2059-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

VINCENT DURREY HAYNES,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for Rock
County: BARBARA W. McCRORY, Judge. Affirmed.

Before Blanchard, P.J., 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).
Nos. 2021AP2058-CR
2021AP2059-CR

¶1 PER CURIAM. Vincent Durrey Haynes appeals judgments of
conviction and an order denying his postconviction motion.1 Haynes argues that
his constitutional and statutory rights were violated when the circuit court granted
the State’s motion to vacate a hold-open agreement at a hearing in Haynes’
absence. Haynes also argues that the State failed to present sufficient evidence to
establish that Haynes breached the hold-open agreement. Finally, Haynes argues
that the hold-open agreement was unconscionable and therefore unenforceable.
For the reasons set forth below, we reject these contentions. We affirm.

Background

¶2 The State charged Haynes with multiple felony and misdemeanor
counts based on the burglary of a car dealership in Beloit in 2016. In February
2019, Haynes entered into a hold-open agreement with the State, which provided
that Haynes would enter a guilty plea to one felony and several misdemeanor
counts. The agreement also provided that, if Haynes complied with its conditions
during a three-year probation term, including not having any new arrests “based
on probable cause,” the parties would jointly move to dismiss the felony count.
Haynes agreed that, if he had a new arrest “based on probable cause,” he would
not oppose the State’s motion to enter judgment on the felony.

¶3 In August 2019, the State moved to vacate the agreement because
Haynes had been arrested in Illinois and charged with one felony count of
unlawful possession of a stolen vehicle. At a hearing on the State’s motion,

1
These appeals were consolidated for briefing and disposition by a December 22, 2021
order pursuant to WIS. STAT. RULE 809.10(3) (2021-22). All references to the Wisconsin Statutes
are to the 2021-22 version unless otherwise noted.

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defense counsel argued that the circuit court should wait to see whether an Illinois
indictment would issue on the new charge before deciding the State’s motion. The
State argued that the complaint from Illinois, which included a probable cause
statement, was sufficient to support its motion. The court granted Haynes’ request
to hold the motion in abeyance pending a judicial determination as to probable
cause for an indictment.

¶4 In December 2019, the State filed an amended motion to revoke the
hold-open agreement. The amended motion asserted that Haynes had been
indicted for a burglary offense in Illinois that occurred in May 2019. The State
attached the bill of indictment to the amended motion.

¶5 In January 2020, the circuit court held a motion hearing. Defense
counsel appeared on Haynes’ behalf, but Haynes did not personally appear.
Defense counsel informed the court that Haynes was in custody in Illinois on the
burglary charge that was the subject of the bill of indictment. Defense counsel did
not voice any opposition to revoking the hold-open agreement. The court granted
the State’s motion. Haynes was convicted of the felony based on his guilty plea,
and sentenced to two years of initial confinement and five years of extended
supervision.

¶6 Haynes filed a postconviction motion challenging the revocation of
the hold-open agreement. Haynes argued that he had a statutory and constitutional
right to appear at the January 2020 motion hearing. Haynes argued that, in any
event, the hold-open agreement was unconscionable and therefore unenforceable.

¶7 The circuit court denied the motion. It determined that the January
2020 hearing was not evidentiary and that Haynes’ presence was not required for a

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fair and just hearing. The court also determined that the hold-open agreement was
not unconscionable. Haynes appeals.

Standard of Review

¶8 Whether a defendant had a constitutional or statutory right to be
present during a hearing is a question of law that we review de novo. See State v.
Alexander, 2013 WI 70, ¶18, 349 Wis. 2d 327, 833 N.W.2d 126. We
independently interpret the terms of an agreement between the State and a
defendant, see State v. Kaczmarski, 2009 WI App 117, ¶10, 320 Wis. 2d 811, 772
N.W.2d 702, and we also review de novo whether the facts establish a breach of
an agreement, see Steele v. Pacesetter Motor Cars, Inc., 2003 WI App 242, ¶10,
267 Wis. 2d 873, 672 N.W.2d 141. On review of a claim that a contract is
unconscionable, we accept a circuit court’s factual findings unless they are clearly
erroneous, but independently review whether those facts establish that the contract
is unconscionable. See Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53,
¶25, 290 Wis. 2d 514, 714 N.W.2d 155.

Discussion

¶9 Haynes argues that he had a statutory right to be present at the
January 2020 hearing because it was an evidentiary hearing. See WIS. STAT.
§ 971.04(1)(d) (providing that “the defendant shall be present … [a]t any
evidentiary hearing”). Specifically, Haynes contends that the January 2020
hearing on the State’s motion to revoke was evidentiary because, by the plain
terms of the hold-open agreement, the State was required to prove at that hearing
that Haynes had been arrested “based on probable cause.” Haynes contends that,
to meet that burden, the State was required to offer testimony by the arresting
officer.

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¶10 Haynes also contends that his due process rights were violated
because a fair and just determination of whether to revoke the hold-open
agreement was not possible in his absence. See Leroux v. State, 58 Wis. 2d 671,
689-90, 207 N.W.2d 589 (1973) (holding that “the presence of defendant is
constitutionally required only to the extent a fair and just hearing would be
thwarted by his absence”). He contends that a fair and just hearing could not be
held in his absence because he would have been able to offer his own testimony or
assist his counsel in cross-examination to challenge the State’s evidence at the
hearing.

¶11 The State responds that the January 2020 hearing was not an
evidentiary hearing because no facts were in dispute. See State v. Velez, 224
Wis. 2d 1, 12, 589 N.W.2d 9 (1999) (“‘An evidentiary hearing is necessary only if
the party requesting the hearing raises a significant, disputed factual issue.’”
(quoted source omitted)). It asserts that, at the November 2019 hearing on the
State’s initial motion to revoke the agreement, defense counsel took the position
that a bill of indictment would be sufficient to establish probable cause for an
arrest based on a new crime. The State points out that the circuit court continued
the hearing based on defense counsel’s position, and that the State then filed an
amended motion, attaching a bill of indictment establishing probable cause that
Haynes had committed a different felony in Illinois. The State asserts that,
following the November 2019 hearing, there was no dispute between the parties
that the bill of indictment would establish a violation of the hold-open agreement,
and thus the January 2020 hearing was not evidentiary in nature.

¶12 Haynes replies that, at the November 2019 hearing, defense counsel
did not take the position that an indictment would establish probable cause for an
arrest. Rather, Haynes contends, his counsel specifically asserted that there

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needed to be a judicial determination of whether there was probable cause to arrest
Haynes. He argues that such a judicial determination would have had to be either:
(1) a judicially issued warrant to arrest; or (2) an evidentiary hearing at which the
State presented evidence establishing probable cause to arrest. He argues that his
counsel did not concede at the November 2019 hearing that the existence of a
judicial charging document would be sufficient proof that he had been arrested
“based on probable cause.”

¶13 We disagree with Haynes’ reading of defense counsel’s statements at
the November 2019 hearing. Contrary to Haynes’ assertions, defense counsel
requested a continuance limited to the purpose of determining whether an
indictment had issued in Illinois, and did not argue that any other evidence would
be necessary to establish a violation of the hold-open agreement.

¶14 At the November 2019 hearing, defense counsel explained his need
for more time to respond to the State’s motion as follows: “[F]or some reason the
state of Illinois keeps carrying the case over without actually giving him any sort
of bill of indictment and arraigning him and saying there’s probable cause for this
felony.” The State then argued that the probable cause portion of the complaint
established a violation of the hold-open agreement. It also noted that the records
in Illinois indicated that the case was continuing despite the fact that there had not
yet been a judicial determination of probable cause to support an indictment.
Defense counsel agreed with the State’s assessment, and noted that it appeared
that the case was “continuing on without, so far as I can tell, any judicial
determination of probable cause,” and that it was therefore still possible that the
case would be dismissed. Defense counsel said: “It’s just at the court’s discretion
whether we want to call the criminal complaint sufficient or wait and see if there’s
a judicial determination down in Illinois.”

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¶15 The circuit court noted at the November 2019 hearing that the hold-
open agreement provided that Haynes was not to have “any new arrests based on
probable cause.” In response, the State argued that “clearly there’s been an arrest
based on probable cause.” Defense counsel responded:

Clearly there’s been an arrest. So that’s really the question
is at what point do we want to call something [a]
determination of probable cause? I mean, every police
officer who has ever arrested somebody has believed he
had probable cause to do so and many of them were
accurate. The vast majority of them were accurate and
sometimes they were not. So is the fact that he was
arrested per se probable cause? Or should there be some
form of judicial determination? And I personally would
argue for the latter and we don’t currently have that.

The court then said that it would “err[] on the side of caution” and hold the State’s
motion to revoke in abeyance “to see if there has been a judicial determination of
probable cause” in Illinois, since that was not yet reflected in what the State had
already filed.

¶16 In context, then, it is clear that defense counsel’s statements as to a
“judicial determination” of probable cause referenced whether an indictment
issued in Illinois. We believe this is clear for the following reasons. Defense
counsel said at the outset that counsel’s need for more time on the State’s motion
was specifically tied to the delay in a judicial determination of probable cause for
an indictment. Counsel took the position that the circuit court had the following
options: (1) determine that the criminal complaint was sufficient to establish
probable cause to arrest; or (2) “wait and see if there’s a judicial determination
down in Illinois.” When defense counsel argued that there should be “some form
of judicial determination” to establish probable cause, and that such a
determination did not “currently” exist, counsel was plainly referencing the bill of
indictment.

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¶17 Accordingly, we conclude that the only issue remaining in dispute
between the parties as to the State’s motion following the November 2019 hearing
was whether an indictment would issue, establishing a probable cause
determination. The State then filed a motion to revoke the hold-open agreement
based on a bill of indictment determination of probable cause that Haynes had
committed another felony in May 2019. Because Haynes did not assert that any
facts were in dispute, the circuit court did not hold an evidentiary hearing and
Haynes’ presence was not required for a fair and just hearing. 2 We therefore
conclude that Haynes’ statutory and constitutional rights were not violated based
on his absence from that hearing.3

¶18 Next, Haynes argues that the indictment was insufficient to establish
that he violated the hold-open agreement. He reiterates that, by its plain terms, the
hold-open agreement required specifically that he not have a new arrest “based on
probable cause.” He points out that the hold-open agreement says nothing of new
charges. Thus, Haynes contends, the indictment from Illinois—which was proof
of a judicial determination of probable cause supporting a new felony charge—did
not prove that Hayne had been arrested “based on probable cause.”

2
Haynes argues that he is not required to detail what testimony he would have provided
at the January 2020 hearing to establish that his presence was required for a fair and just hearing.
Rather, he contends, the question is whether, as a matter of law, the circuit court could hold a fair
and just hearing on the issue of whether an arresting officer had probable cause to arrest without
the personal presence of the defendant. However, as we have explained, the record establishes
that Haynes never placed in dispute the issue of whether he was arrested “based on probable
cause,” so long as the indictment was returned. Because no facts were placed in dispute, the court
did not hold an evidentiary hearing as to probable cause to arrest, and Haynes does not explain
why his testimony was required on an undisputed issue.
3
We therefore do not reach the parties’ arguments as to whether, if Haynes’ statutory
and constitutional rights were violated, the error was harmless.

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¶19 The State responds that it presented sufficient evidence to support
revocation of the hold-open agreement.4 It contends that the criminal complaint it
submitted along with its original motion established that Haynes was arrested in
July 2019 and that there was probable cause for the arrest. It then asserts that its
“follow-up with the bill of indictment from the second Illinois case removed any
doubt over whether Haynes had violated the agreement.”

¶20 We conclude that the evidence in the circuit court was sufficient to
support revocation of the hold-open agreement. First, Haynes does not dispute
that the criminal complaint submitted with the State’s original motion established
that Haynes was arrested “based on probable cause” in July 2019. We conclude
that those undisputed facts in the record, alone, are sufficient to establish that
Haynes violated the hold-open agreement.5 Second, at the November 2019
hearing, Haynes plainly limited his opposition to the State’s motion to a request
that the State’s motion be held in abeyance to provide Haynes the opportunity to
argue against the motion if Illinois failed to issue a bill of indictment. That is,

4
The State also argues that Haynes’ argument that the State failed to present sufficient
evidence to support revoking the hold-open agreement was not preserved for appeal. In reply,
Haynes disagrees, arguing that he may raise sufficiency of the evidence for the first time on
appeal under WIS. STAT. § 974.02. We decline to resolve this dispute, however, because we
conclude that, in any event, the evidence was sufficient.
5
We note that the circuit court did not rely on the criminal complaint submitted with the
State’s original motion to determine that Haynes had breached the hold-open agreement.
However, we independently review whether the facts of a case establish a breach of an
agreement. See Tang v. C.A.R.S. Prot. Plus, Inc., 2007 WI App 134, ¶46, 301 Wis. 2d 752, 734
N.W.2d 169. Moreover, the State argues on appeal that the criminal complaint in the Illinois case
was sufficient evidence to establish that Haynes had been arrested “based on probable cause,” and
Haynes does not refute that argument in his reply brief. See Auric v. Continental Cas. Co., 111
Wis. 2d 507, 515-16, 331 N.W.2d 325 (1983) (respondent may argue for affirmance, and this
court may affirm, based on grounds not relied on by the circuit court); United Coop. v. Frontier
FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (failure to refute a
proposition asserted in a response brief may be taken as a concession).

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Haynes requested at the November 2019 hearing that the court hold in abeyance
the State’s motion—which was supported by a criminal complaint setting forth
that Haynes had been arrested based on evidence rising to the level of probable
cause—that rested on his position that a bill of indictment was necessary to
establish that Haynes had violated the hold-open agreement. This court need not
consider his contrary argument on appeal that the subsequently issued bill of
indictment was insufficient to establish that Haynes had, indeed, violated the
agreement. See State v. Magnuson, 220 Wis. 2d 468, 471, 583 N.W.2d 843 (Ct.
App. 1998) (under doctrine of judicial estoppel, “‘[i]t is contrary to fundamental
principles of justice and orderly procedure to permit a party to assume a certain
position in the course of litigation which may be advantageous, and then after the
court maintains that position, argue on appeal that the action was error’” (quoted
source omitted)).

¶21 Finally, Haynes argues that the hold-open agreement was
unconscionable and therefore unenforceable. See Wisconsin Auto Title Loans,
Inc., 290 Wis. 2d 514, ¶¶29, 32 (contract provision is unenforceable if it is both
procedurally and substantively unconscionable, that is, there was “the absence of
meaningful choice on the part of one of the parties, together with contract terms
that are unreasonably favorable to the other party”). Haynes argues that the
provision of the agreement that allowed the State to move to revoke the agreement
because of a new arrest “based on probable cause” is unconscionable because it
favors the State by allowing the State to unilaterally withdraw the agreement
without any showing that the defendant has done anything wrong. In support,
Haynes argues that an officer may have probable cause to arrest even if the
defendant has done nothing wrong because “[t]he concept of probable cause exists
solely in the mind of the arresting officer.” Haynes also argues that the agreement

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is unconscionable because it prohibits the defendant from objecting to the State’s
motion.

¶22 The State responds that Haynes has pointed to no facts that would
support an argument that there was no real “meeting of the minds” between
Haynes and the State when they entered the agreement. See id., ¶34. It points out
that Haynes was represented by counsel when he entered the agreement and made
a personal statement that he understood it. It argues that the agreement did not
favor the State, pointing to the benefit Haynes would have received by having a
felony count dismissed if he had complied with the agreement. It also argues that
Haynes has not established unconscionability by suggesting hypothetical scenarios
under which Haynes could have been arrested despite doing nothing wrong, and
also disputes that Haynes was not allowed to oppose the State’s motion.

¶23 We conclude that Haynes has failed to establish that the hold-open
agreement was unconscionable. First, we reject both of the premises underlying
Haynes’ argument as to substantive unconscionability: that probable cause exists
only in the arresting officer’s mind, and that Haynes had no means to object to the
State’s motion to withdraw the agreement. As to probable cause, probable cause
to arrest is not a subjective determination by an arresting officer. Rather, probable
cause to arrest exists if the objective facts known to the officer at the time of the
arrest would lead a reasonable police officer to believe that the defendant
probably committed a crime.6 See State v. Sykes, 2005 WI 48, ¶18, 279 Wis. 2d
742, 695 N.W.2d 277. As to Haynes’ ability to object to the State’s motion,

6
Notably, the agreement does not allow revocation based on an arrest, but rather an
“arrest based on probable cause.”

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Haynes has not explained why he believes his right to object was limited. It
appears that this argument is tied to the provision that, if Haynes was arrested
“based on probable cause,” Haynes would not oppose the State’s motion to enter
judgment on the felony. However, as the State points out, Haynes successfully
argued at the November 2019 hearing that the circuit court should not grant the
State’s motion until a bill of indictment issued, and Haynes has not explained why
he could not have at that time raised any other objection he had to the motion.
Second, we agree with the State that Haynes has failed to develop any argument
that the agreement was procedurally unconscionable, and we reject Haynes’
argument on that basis.7 See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992).

¶24 In sum, we conclude that Haynes’ rights were not violated by his
absence from the January 2020 hearing; that the evidence was sufficient to support
the circuit court’s decision to revoke the hold-open agreement; and that the
agreement was not unconscionable. We affirm.

By the Court.—Judgments and order affirmed.

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

7
Because Haynes has failed to refute any of the State’s arguments that Haynes failed to
establish that the agreement was unconscionable, we also take this argument as conceded. See
United Coop., 304 Wis. 2d 750, ¶39.

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