State v. Benny E. Burgos

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.
June 3, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP1497-CR Cir. Ct. No. 2014CF4879

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BENNY E. BURGOS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
PAUL R. VAN GRUNSVEN, Judge. Reversed and cause remanded with
directions.

Before Donald, P.J., Geenen, and Colón, JJ.
No. 2024AP1497-CR

¶1 COLÓN, J. Benny E. Burgos appeals from an order of the circuit
court denying his motion requesting his release to extended supervision after his
completion of the Wisconsin Substance Abuse Program (SAP).1 On appeal,
Burgos argues that we have jurisdiction over his appeal despite two prior orders of
the circuit court issued in response to letters from the Department of Corrections
(DOC) notifying the circuit court of Burgos’s successful completion of SAP.
Burgos additionally argues that, should we conclude that we have jurisdiction, the
circuit court erroneously denied his motion requesting his release to extended
supervision. For the reasons set forth below, we agree. Therefore, we reverse the
circuit court’s order, and we remand with directions to enter an order consistent
with this opinion.

BACKGROUND

¶2 In 2015, Burgos pled guilty to a charge of conspiracy to commit
possession with intent to deliver heroin as a second or subsequent offense and an
additional charge of possessing a firearm as a felon, and he was sentenced to
prison the following year in April 2016. As part of Burgos’s original sentence
imposed in April 2016, the circuit court made Burgos eligible for participation in
SAP. Thus, during Burgos’s term of initial confinement, Burgos enrolled in SAP.

¶3 In September 2020, Burgos successfully completed the program, and
he was released to extended supervision. However, his extended supervision was

1
SAP was formerly known as the Earned Release Program (ERP). Effective August 3,
2011, the legislature renamed the program. See 2011 Wis. Act 38, § 19; WIS. STAT. § 991.11
(2023-24). The program is identified by both names in the current version of the Wisconsin
Statutes. See WIS. STAT. §§ 302.05, 973.01(3g). We refer to the program as SAP. All references
to the Wisconsin Statutes are to the 2023-24 version.

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subsequently revoked, and he returned to prison in June 2022. At the time that
Burgos returned to prison, the Division of Hearings and Appeals (DHA) ordered
Burgos to a period of reconfinement of 5 years, 3 months, and 17 days. As a result
of a change in DOC policy allowing inmates to participate in SAP more than once,
Burgos re-enrolled in SAP, and he completed the program for a second time in
December 2023.

¶4 By letter dated December 29, 2023, DOC notified the circuit court of
Burgos’s successful completion of SAP for the second time. DOC requested that
Burgos be released and the remainder of Burgos’s sentence be converted to
extended supervision. See WIS. STAT. § 302.05(3)(c). Citing to WIS. STAT.
§ 302.113(9)(b), the circuit court found that Burgos was required to serve the
entire period of reconfinement ordered by DHA following the revocation of
Burgos’s extended supervision, and therefore, the circuit court denied Burgos’s
release to extended supervision.

¶5 DOC subsequently asked the circuit court to reconsider its decision
by letter dated January 8, 2024. In the letter, DOC informed the circuit court of
the change in DOC policy that allowed inmates, such as Burgos, to enroll in SAP
more than once. DOC did not address the circuit court’s statutory basis for
denying DOC’s original request.

¶6 In an order dated January 26, 2024, the circuit court again denied
Burgos’s release to extended supervision, and the circuit court again found that the
plain meaning of WIS. STAT. § 302.113(9)(b) required that Burgos serve the entire
period of reconfinement ordered by DHA. In its order, the circuit court also noted

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No. 2024AP1497-CR

that DOC’s letter “was not served on the parties and does not address the court’s
reasons for declining the proposed orders for release.”2 In fact, the circuit court
appears to have entered the DOC’s letter into the record on January 26, 2024, at
the time that the circuit court issued its order.

¶7 Several months later, on June 26, 2024, Burgos, through counsel,
filed his own motion—titled Motion to Reconsider and Reverse Order—
requesting his release to extended supervision based on his successful completion
of SAP. In support of his motion, Burgos cited the circuit court’s intention to
make Burgos eligible for SAP in the sentence imposed for the criminal charges in
the case that led to the revocation of Burgos’s extended supervision in this case.
In fact, Burgos contended that the circuit court in that case “specified that Burgos
was to be released on extended supervision 30 days after the [circuit court] was
notified of successful completion of the program, and the time left on initial
confinement shall be transferred to extended supervision time.” Burgos also cited
to the change in DOC policy since the passage of WIS. STAT. § 302.113(9)(b) to
allow inmates to enroll in programs such as SAP more than once. Thus, Burgos
argued that he was entitled to release to extended supervision.

¶8 On July 2, 2024, the circuit court denied Burgos’s motion. In its
written order, the circuit court found that WIS. STAT. § 302.113(9)(b) required it to
deny Burgos’s request because § 302.113(9)(b) required that Burgos serve the
entire period of reconfinement ordered by DHA. The circuit court acknowledged

2
In fact, Burgos asserts in his briefing that he was not aware of DOC’s letters to the
circuit court until his wife saw them on Wisconsin’s Consolidated Court Automation Programs
(CCAP), which is a website that contains information entered by court staff of which this court
may take judicial notice. See Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346
Wis. 2d 635, 829 N.W.2d 522. Burgos asserts that he obtained counsel around that time.

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No. 2024AP1497-CR

DOC’s policy change expanding SAP eligibility and allowing inmates, such as
Burgos, to re-enroll in SAP, but the circuit court found that it was bound to follow
the laws of the state as opposed to DOC’s recent policy change. On July 26, 2024,
Burgos filed a notice of appeal of the circuit court’s order denying his motion.

¶9 We subsequently ordered the parties on October 4, 2024, to brief the
issue of jurisdiction over Burgos’s appeal of the circuit court’s July 2, 2024 order
denying Burgos’s motion, given the two prior orders of the circuit court in
response to the DOC’s letters notifying the circuit court of Burgos’s successful
completion of SAP and requesting Burgos’s release to extended supervision. We
stated, “The procedural history is unique because the January 2024 litigation was
initiated by the DOC, rather than Burgos. In addition, it is not clear when and how
Burgos was notified about that litigation and whether that should affect this court’s
analysis.”

DISCUSSION

¶10 Burgos’s appeal raises two main issues for our consideration. First,
Burgos argues that this court has jurisdiction over his appeal because the circuit
court’s July 2, 2024 order denying his motion for his release is appealable despite
two prior circuit court orders in response to DOC’s letters requesting Burgos’s
release. Second, should we conclude that we have jurisdiction over Burgos’s
appeal, Burgos argues that the circuit court erred when it denied his motion
requesting his release to extended supervision following his successful completion
of SAP.

¶11 We conclude that we have jurisdiction over Burgos’s appeal of the
circuit court’s July 2, 2024 order, and we further conclude that the circuit court

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No. 2024AP1497-CR

erroneously denied Burgos’s motion requesting release to extended supervision
following his successful completion of SAP.

I. Jurisdiction Over Burgos’s Appeal

¶12 We first address whether this court has jurisdiction over Burgos’s
appeal of the circuit court’s July 2, 2024 order, despite two prior circuit court
orders in response to two letters from the DOC requesting Burgos’s release to
extended supervision. Whether we have jurisdiction over Burgos’s appeal is a
question of law that we review de novo. State v. Edwards, 2003 WI 68, ¶7, 262
Wis. 2d 448, 665 N.W.2d 136.

¶13 As noted, the issue of jurisdiction arises because, prior to Burgos’s
motion and corresponding circuit court order, the DOC filed two letters with the
circuit court notifying the circuit court of Burgos’s successful completion of SAP
and requesting Burgos’s release and the circuit court entered two orders denying
Burgos’s release. As a result of the prior DOC letters and circuit court orders,
Burgos’s motion and corresponding circuit court order on the topic of his release
raise the same issue as the letters from the DOC and Burgos’s motion asks the
circuit court to reconsider its prior decisions issued in response to the DOC’s
letters. Thus, the State argues that the circuit court’s July 2, 2024 order is not
appealable because it fails to raise a new issue.

¶14 “An order denying a motion to reconsider an earlier order is not
necessarily appealable.” Harris v. Reivitz, 142 Wis. 2d 82, 86, 417 N.W.2d 50
(Ct. App. 1987). “No right of appeal exists from an order denying a motion to
reconsider which presents the same issues as those determined in the order or
judgment sought to be reconsidered.” Silverton Enters., Inc. v. General Cas. Co.
of Wis., 143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988). “In other words,

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No. 2024AP1497-CR

an ‘order is not appealable where … the only issues raised by the motion were
disposed of by the original judgment or order.’” Edwards, 262 Wis. 2d 448, ¶8
(alteration in original) (quoting Ver Hagen v. Gibbons, 55 Wis. 2d 21, 25, 197
N.W.2d 752 (1972)). If an order is not appealable, “we lack appellate jurisdiction
and must dismiss the appeal for that reason.” Harris, 142 Wis. 2d at 87. Whether
Burgos’s motion raised a new issue is a question of law that we review de novo.
Edwards, 262 Wis. 2d 448, ¶7.

¶15 The State argues that we lack jurisdiction over Burgos’s appeal
because Burgos’s motion for his release raised the same issue as the two letters
from DOC requesting his release, namely that Burgos should be released to
extended supervision because Burgos successfully completed SAP. Thus, the
State argues that this is a simple application of the “new issues” test and the circuit
court’s July 2, 2024 order denying Burgos’s motion asking the circuit court to
reconsider his release due to successful completion of SAP is not appealable
because it does not raise a new issue from that raised by the DOC in its letters.3

¶16 We disagree. While an order issued in response to a motion for
reconsideration is generally not appealable unless it raises a new issue, Burgos did
not have notice or an opportunity to weigh in on the first two circuit court orders
denying his release to extended supervision. What constitutes a new issue cannot
be interpreted so narrowly that it would preclude an actual party to the case from
seeking review when the circuit court’s prior orders denied the defendant’s release

3
We note that the State’s argument is limited to the timeliness of Burgos’s appeal as it
relates to any deadline to appeal the circuit court’s orders denying the DOC’s requests. The State
does not argue that Burgos’s appeal is untimely should the circuit court’s July 2, 2024 order be
appealable.

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No. 2024AP1497-CR

after an ex parte communication from a non-party and without the benefit of any
argument from the parties. See Harris, 142 Wis. 2d at 88-89 (“The new issues test
should be liberally applied” and the “new issues test is consistent with the policy
favoring reconsideration.”). We, therefore, cannot impute to the parties the
rationale in DOC’s letters or the subsequent result obtained without the benefit of
argument by the parties and, in the absence of such process, cannot say that the
circuit court disposed of—or intended to dispose of—any argument Burgos (or the
State) could make regarding his eligibility for release. The relevant consideration
must be the arguments that the parties raised and litigated.

¶17 As the circuit court noted in its second written decision, DOC’s
notifications for Burgos’s release were not filed with the circuit court and were not
provided to the parties at the time that they were made. Rather, DOC’s requests
should be treated simply as letters from a non-party notifying the circuit court of
Burgos’s status and eligibility for early release. In fact, as Burgos asserts, he was
not aware of DOC’s requests at the time they were made, and he was made aware
of DOC’s requests after the fact by reviewing information on CCAP.

¶18 Nevertheless, the State argues that whether an order denying a
motion for reconsideration is appealable does not hinge on who filed the original
motion that prompted the circuit court’s order and that Burgos offers no authority
that would support making a distinction between the DOC’s non-party letters to
the circuit court and Burgos’s motion. However, in the cases provided by the
State, the appealability of the order resulting from the motion for reconsideration
involved only parties to the action. See, e.g., Edwards, 262 Wis. 2d 448, ¶¶3-4;
Harris, 142 Wis. 2d at 84-86. In other words, none of the cases present the
situation here where a non-party to the case obtained an order from the circuit
court without the input of the actual parties, followed by a motion from an actual

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No. 2024AP1497-CR

party to the case on the same issue. Thus, we are not persuaded that the prior
cases applying the new issues test require a conclusion that we lack jurisdiction
over Burgos’s appeal of the circuit court’s July 2, 2024 order.

¶19 Having concluded that the circuit court’s July 2, 2024 order denying
Burgos’s motion is appealable and, therefore, we have jurisdiction over Burgos’s
appeal, we turn to the issue of whether the circuit court erroneously denied
Burgos’s motion for his release following the successful completion of SAP.4

II. Whether the circuit court erroneously denied Burgos’s motion

¶20 On appeal, Burgos argues that the circuit court erroneously denied
his motion requesting his release from prison to extended supervision following
his successful completion of SAP, and the State also concedes that the circuit court
erroneously denied Burgos’s motion. Thus, acknowledging the State’s concession
on appeal, we conclude that the circuit court erroneously denied Burgos’s motion
for reconsideration, and we explain why we agree with Burgos and the State that
the circuit court erroneously denied Burgos’s release following his successful
completion of SAP. See State v. Carter, 2010 WI 77, ¶50, 327 Wis. 2d 1, 785
N.W.2d 516 (noting that we are not “obligated to accept a party’s concession of
law” and “[t]his court, not the parties, decides questions of law”).

4
We note that Burgos references a delay on the part of his counsel to file his motion
requesting his release. To the extent that Burgos raises any claim for ineffective assistance of
counsel, we consider his claim undeveloped, and we do not address it. State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). However, we also note that Burgos’s
right to effective assistance of counsel does not extend to a proceeding of this nature.
Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987); Evitts v. Lucey, 469 U.S. 387, 396 n.7
(1985).

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No. 2024AP1497-CR

¶21 Whether the circuit court erroneously denied Burgos’s request for
release presents a question of statutory interpretation. “The interpretation of a
statute is a question of law that we review de novo.” E-Z Roll Off, LLC v. County
of Oneida, 2011 WI 71, ¶16, 335 Wis. 2d 720, 800 N.W.2d 421. “[S]tatutory
interpretation ‘begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation
omitted). We give statutory language “its common, ordinary, and accepted
meaning.” Id.

¶22 To be eligible to participate in SAP, an inmate must meet two
criteria: (1) the inmate is incarcerated for a crime other than the ones listed in the
statute, and (2) the inmate is serving a bifurcated sentence imposed under WIS.
STAT. § 973.01 and the sentencing court decided that the inmate was eligible to
participate in SAP. WIS. STAT. § 302.05(3)(a). When an inmate enrolls in and
successfully completes SAP, DOC is required to notify the circuit court of the
inmate’s successful completion. Sec. 302.05(3)(c)1. Then, within 30 days of
DOC’s notice, the circuit court “shall reduce the term of confinement in prison
portion of the inmate’s bifurcated sentence in a manner that provides for the
release of the inmate to extended supervision” and “lengthen the term of extended
supervision imposed so that the total length of the bifurcated sentence originally
imposed does not change.” Sec. 302.05(3)(c)2.a.-b. This is mandatory with one
exception established in State v. Gramza, 2020 WI App 81, 395 Wis. 2d 215, 952
N.W.2d 836, for mandatory minimums imposed for terms of initial confinement.

¶23 Despite this statutory language mandating conversion of an inmate’s
sentence following successful completion of SAP, the circuit court found that it
could not convert Burgos’s sentence based on WIS. STAT. § 302.113(9)(b), which

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No. 2024AP1497-CR

states, “A person who is returned to prison after revocation of extended
supervision shall be incarcerated for the entire period of time specified by the
order under [§ 302.113(9)(am)].” While this statute appears to require Burgos to
serve his entire period of reconfinement ordered by DHA, we must interpret this
statute in context and harmony with WIS. STAT. § 302.05(3)(c), and in so doing,
we conclude that § 302.05(3)(c), as the more specific statute, controls the outcome
in this case and mandates Burgos’s release to extended supervision following his
successful completion of SAP. See Gramza, 395 Wis. 2d 215, ¶18 (“When two
statutes conflict, a court is to harmonize them … [by] scrutinizing both statutes
and construing each in a manner that serves its purpose.” (alterations in original;
citation omitted)).

¶24 WISCONSIN STAT. § 302.113 applies to release to extended
supervision generally for all felony offenders not serving life sentences, while
WIS. STAT. § 302.05 applies to a smaller subset of inmates eligible for SAP.
“Generally speaking, the rule of statutory construction that a more specific statute
controls over a more general statute applies where two or more statutes on the
same subject conflict.” Adams Outdoor Advert., L.P. v. County of Dane, 2012
WI App 28, ¶22, 340 Wis. 2d 175, 811 N.W.2d 421. In this case, both statutes
apply to Burgos’s case because he is both a felony offender returned to prison after
his extended supervision was revoked and he is an inmate that DOC determined
successfully completed SAP. However, § 302.05 being the more specific statute
controls.

¶25 Furthermore, the legislature provided two requirements for SAP
eligibility. The first requirement excludes certain inmates based on the criminal
offense, and the second requirement states that an inmate must be serving a
bifurcated sentence for which the circuit court made the inmate eligible for SAP at

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No. 2024AP1497-CR

the time of sentencing. WIS. STAT. § 302.05(3)(a). Importantly, the legislature did
not exclude inmates that were reincarcerated following a revocation of their
extended supervision from participation in SAP. Thus, we follow the legislature’s
policy choice that does not exclude inmates such as Burgos from participating in
SAP upon reincarceration. See Flynn v. DOA, 216 Wis. 2d 521, 529, 576 N.W.2d
245 (1998) (“Our form of government provides for one legislature, not two. It is
for the legislature to make policy choices[.]”).

¶26 Turning to the application in this case, we conclude that the circuit
court erroneously denied Burgos’s release. Burgos met the statutory requirements
for SAP, and he was, therefore, re-enrolled in SAP when he was reincarcerated.
Then, when he successfully completed SAP, DOC and Burgos notified the circuit
court of his successful completion of SAP and requested his release from prison to
extended supervision. Upon receipt of that notification, the statutory language is
clear that the circuit court shall convert the remainder of the sentence to extended
supervision. WIS. STAT. § 302.05(3)(c)2.a.-b. Thus, upon receipt of those
notifications, the circuit court should have converted Burgos’s sentence and
Burgos should have been released to extended supervision, and we conclude that
the circuit court erred when it failed to abide by the clear statutory mandate to
convert Burgos’s sentence and order his release.

CONCLUSION

¶27 Accordingly, we reverse the circuit court’s order, and we remand
with directions to enter an order consistent with this opinion.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

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