State v. Denise A. Bilton

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.
July 9, 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. 2023AP1527-CR Cir. Ct. No. 2017CF1719

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DENISE A. BILTON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
PAUL F. REILLY, Reserve Judge. Affirmed.

Before Gundrum, P.J., Neubauer, and Lazar, 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. 2023AP1527-CR

¶1 PER CURIAM. Denise A. Bilton appeals from an order of the circuit
court denying her motion for reconsideration. The motion requested that the court
reconsider its sua sponte decision to amend her judgment of conviction to remove
eligibility for the Substance Abuse Program (SAP). Bilton contends that the oral
pronouncement of her sentence was ambiguous as to her SAP eligibility and that the
doctrine of laches barred the court from rescinding her eligibility.

¶2 We conclude the circuit court appropriately exercised its discretion
when denying Bilton’s motion for reconsideration. The sentencing court’s oral
pronouncement, which governs the imposition of the sentence, unambiguously
foreclosed Bilton from participating in the SAP. We also conclude that Bilton has
failed as a matter of law to demonstrate that the doctrine of laches requires her to
remain SAP eligible. Accordingly, we affirm.

BACKGROUND

¶3 Bilton pled guilty or no contest to four counts of identity theft. The
circuit court ordered a presentence investigation report (PSI), and the PSI author
checked boxes indicating Bilton’s statutory eligibility for both the SAP and the
Challenge Incarceration Program (CIP). The court stated the following regarding
Bilton’s eligibility at the sentencing hearing:

THE COURT: All right. Thank you. [Counsel], anything
we need to clarify?

[Bilton’s counsel]: Just eligibility for programs.

THE COURT: I think she is too old for Challenge
Incarceration. Correct?

[Bilton’s counsel]: I think so.

THE COURT: I don’t know that I really heard any issues
of substance abuse. Well it says that she would be eligible.
I thought she wouldn’t be. It says yes.

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No. 2023AP1527-CR

So let’s do this. I don’t want, if she would be eligible, I
don’t want to foreclose her from that. So if she is eligible,
then she could have the benefit of Challenge Incarceration
Program. But I am not going to order the Substance Abuse
Program because I haven’t heard any issue with substance
abuse.

Anything else, [Counsel]?

[Bilton’s counsel]: No, thank you.

¶4 Three days after sentencing, the circuit court entered a judgment of
conviction. The judgment correctly identified that Bilton was ineligible for CIP
(due to her age) but designated Bilton as SAP eligible.

¶5 Approximately two years later, the Wisconsin Department of
Corrections (the “department”) filed a notice with the circuit court advising that
Bilton had completed the SAP. The department requested her release and that the
court convert her remaining confinement time to extended supervision.

¶6 Upon reviewing the proposed order, the circuit court signed and filed
an amended judgment of conviction, converting Bilton’s remaining initial
confinement period to extended supervision. The State filed a motion to reconsider
that order and sought rescission of the first amended judgment, explaining that
Bilton had been declared ineligible for the SAP at sentencing and that the original
judgment incorrectly reflected SAP eligibility.

¶7 On November 15, 2022, the circuit court entered an order rescinding
the first amended judgment and reinstating the original judgment. The department
then notified the court that the original judgment reflected Bilton’s eligibility for the
SAP and, as such, conflicted with the sentencing court’s oral pronouncement at
Bilton’s sentencing hearing. The circuit court responded, clarifying that Bilton was

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No. 2023AP1527-CR

not eligible for the SAP based on the sentencing court’s unambiguous oral
pronouncement and then entering an amended judgment of conviction to that effect.

¶8 Subsequently, Bilton sought reconsideration of the sua sponte order
rescinding the first amended judgment. The circuit court conducted a hearing and
denied Bilton’s motion, declaring that the sentencing court’s oral statement of “I am
not going to order the Substance Abuse Program because I haven’t heard any issue
with substance abuse” unambiguously denied Bilton’s eligibility for the SAP. The
court also cited the PSI’s statement that Bilton did not have substance abuse issues
and Bilton’s counsel’s statement that Bilton did not do drugs or drink. The court
emphasized that the sentencing court was “struck greatly by the criminality of
Ms. Bilton” based on the court’s comments regarding the lengthy sentence imposed.
The court also acknowledged that the sentencing court “asked both counsel,
anything else, and no one made mention of anything regarding that Substance Abuse
Program” after the oral pronouncement. Bilton now appeals the denial of her
motion for reconsideration.

DISCUSSION

¶9 This Court reviews the circuit court’s decision on a motion for
reconsideration using the erroneous exercise of discretion standard. Koepsell’s Olde
Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App
129, ¶6, 275 Wis. 2d 397, 685 N.W.2d 853 (citing State v. Alonzo R., 230 Wis. 2d
17, 21, 601 N.W.2d 328 (Ct. App. 1999)). We will affirm a discretionary decision
if the circuit court “examined the relevant facts, applied a proper standard of law,
and, using a demonstrated rational process, reached a conclusion that a reasonable
judge could reach.” HMO-W Inc. v. SSM Health Care Sys., 2003 WI App 137,
¶33, 266 Wis. 2d 69, 667 N.W.2d 733 (citation omitted).

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No. 2023AP1527-CR

¶10 Bilton first argues the circuit court failed to properly apply the law
when it deemed the sentencing court’s oral pronouncement as unambiguously
foreclosing her participation in the SAP. The State and Bilton agree that when an
oral pronouncement conflicts with a written judgment, the oral pronouncement
controls. See State v. Prihoda, 2000 WI 123, ¶15, 239 Wis. 2d 244, 618 N.W.2d
857. However, Bilton asserts that an oral pronouncement controls only if it is
unambiguous and, quoting State v. Oglesby, 2006 WI App 95, ¶19, 292 Wis. 2d
716, 715 N.W.2d 727, argues that the oral pronouncement here was ambiguous
because it was “capable of being understood by reasonably well-informed persons
in two or more different ways.” Whether an oral pronouncement of a sentence was
ambiguous is a question of law we review de novo. See State v. Miller, 2004 WI
App 117, ¶20, 274 Wis. 2d 471, 683 N.W.2d 485. If an oral pronouncement is
ambiguous, this Court reviews the full record to determine the sentencing court’s
intent. Oglesby, 292 Wis. 2d 716, ¶20 (citing State v. Lipke, 186 Wis. 2d 358, 364,
521 N.W.2d 444 (Ct. App. 1994)).

¶11 We agree with the State that there is no ambiguity in the circuit court’s
oral sentencing pronouncement regarding Bilton’s ineligibility for the SAP. This
case is easily distinguished from Oglesby, where examination of the record revealed
nothing more than a “bald statement in the judgment of conviction” that a sentence
was to be served consecutively rather than concurrently, as presumed. 292 Wis. 2d
716, ¶33. The court in Oglesby noted that if the “court had sent any kind of signal
that a consecutive sentence was necessary or appropriate, [it] likely would rule for
the State.” Id. Here, the court made a pronouncement that Bilton was not eligible
for the program by stating “I am not going to order the Substance Abuse Program,”
and explained, or signaled, its rationale: because it “ha[d]n’t heard any issue with

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No. 2023AP1527-CR

substance abuse.” No one responded to the court’s inquiry inviting more discussion
on the matter.

¶12 Bilton also argued in her motion for reconsideration, as she does on
appeal, that the doctrine of laches barred the circuit court from retroactively finding
her ineligible for the SAP. She asserts that no parties timely raised concerns about
the clerical error in the judgment until more than two years had passed, and she had
detrimentally relied upon the original judgment. Laches is an equitable defense
applicable in some contexts that is based on the notion that a party who fails to act
vigilantly to the detriment of the opposing party should not be rewarded. See State
ex rel. Wren v. Richardson, 2019 WI 110, ¶14, 389 Wis. 2d 516, 936 N.W.2d 587.
A party seeking to assert laches must prove three elements: “(1) unreasonable delay;
(2) lack of knowledge on the part of the party asserting the defense that the other
party would assert the right on which he bases his suit; and (3) prejudice to the party
asserting the defense in the event the action is maintained.” Prihoda, 239 Wis. 2d
244, ¶37. Whether the three elements have been proven is a legal question we
review de novo, although application of laches is within the discretion of the circuit
court. Wren, 389 Wis. 2d 516, ¶¶15-16. Even assuming the doctrine could be
applied in this case, Bilton’s argument fails because she cannot show the elements
as a matter of law.

¶13 First, Bilton asserts that the two years from when the original
judgment was signed in November 2020 until the circuit court corrected the error in
November 2022 constituted an unreasonable delay. But there is nothing that
suggests the court or the State were aware of the clerical error until October 28,
2022, when the Department informed the court that Bilton had completed the SAP.
The court’s amended judgment of conviction was signed October 31, 2022, and the
State promptly sought reconsideration on the grounds that the original judgment

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No. 2023AP1527-CR

erroneously stated Bilton was SAP eligible on November 1, 2022. In a matter of
days, the court corrected the error. There was no unreasonable delay.

¶14 With respect to the second element of laches, Bilton contends that she
could not have known the circuit court would sua sponte and retroactively find her
ineligible for the SAP. This argument misses the point entirely. Bilton was present
when the court declared her ineligible for the SAP, and she raised no questions.
During sentencing, neither Bilton nor her counsel contended that she had ever
abused drugs or alcohol. Bilton even told the PSI writer that “she drinks alcohol on
rare occasions,” once or twice a year, and she “denied ever using illegal drugs.” In
fact, the writer noted that Bilton was never treated for substance abuse and that
Bilton “does not believe there is a need” for it.

¶15 Finally, with regard to the element of prejudice, Bilton argues that her
participation in the SAP without receiving the benefits of an earlier release was
prejudicial as well as detrimental to her mental health. This assertion is inadequate.
Bilton was never entitled to SAP participation or early release, and it was not
reasonable for her to believe that she was, based on the sentencing court’s
statements. And in fact, she may have benefited from the SAP behavioral
programming.

¶16 The doctrine of laches is an equitable remedy that—even if the
elements are satisfied—is ultimately applied at the discretion of the circuit court.
See Wren, 389 Wis. 2d 516, ¶15. It is not available to Bilton, who unreasonably
failed to clarify the conflict between the court’s express statement at sentencing and
the offer to participate in the SAP. She cannot benefit from that inaction.
Accordingly, we affirm the order denying Bilton’s motion for reconsideration.

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No. 2023AP1527-CR

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2024-25).

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