State of Wisconsin ex rel. James A. Mentek, Jr., Petitioner-Appellant, v. David H. Schwarz, Administrator Division of Hearings and Appeals, Respondent-Respondent, 235 Wis. 2d 143

SNYDER, J. ¶ 1. James A. Mentek, Jr. appeals pro se from a circuit court order dismissing his petition for writ of certiorari because he failed to exhaust his administrative remedies prior to filing the petition. He contends that he was denied effective assistance of counsel when his attorney decided not to seek an administrative appeal of his probation revocation despite his request to do so. Mentek further contends that the circuit court judge who dismissed the petition lacked the authority to hear the petition because Mentek had filed a motion for substitution that was ignored. ¶ 2.

We conclude that Mentek's ineffective assistance of counsel claim must fail because neither state nor federal constitutional law recognizes a right to effective assistance of counsel on an appeal of a probation revocation. In addition, we are not persuaded that such a right has been established by the Division of Hearings and Appeals. We decline to create such a right in this case. As to Mentek's request for judicial substitution, we conclude that his claim is rendered moot because he does not have a cause of action before the certiorari court. Thus, we affirm the circuit court's order. BACKGROUND ¶ 3.

The essential facts are undisputed. Mentek was convicted in Kenosha county of one count of uttering a forged check and sentenced to prison for ten years on May 12,1993. The sentence was stayed and Mentek was placed on ten years of probation. On May 28,1993, he was convicted of one count of issuing worthless checks and sentenced to a stayed prison term of two years and placed on three years of probation. Judge Mary K. Wagner-Malloy presided over Mentek's criminal convictions. ¶ 4. Mentek's probation was contingent upon his reporting to his probation officer and attending substance abuse counseling sessions.

When Mentek was arrested in another state six months after failing to attend counseling sessions and failing to report to his probation officer, the State sought revocation of his probation. Revocation hearings were held on October 1, 1997, and February 23,1998, before an administrative law judge (ALJ). At the February 23 final revocation hearing, Mentek was represented by an appointed state public defender. On March 6, 1998, the ALJ revoked Mentek's probation. ¶ 5. On March 25,1998, the public defender sent Mentek a letter stating that an appeal of the March 6, 1998 revocation decision had no merit.

The public defender submitted several reasons for not pursuing an appeal and concluded by stating, "Failure to file an administrative appeal does not bar you from filing a Writ of Certiorari in the circuit court in which you were convicted." ¶ 6. On August 24, 1998, Mentek filed a petition for writ of certiorari raising a number of points of error involving administrative and procedural defects prior to and during the revocation proceedings. He also claimed that his due process rights had been violated, including his right to effective assistance of counsel. ¶ 7.

On August 24, Mentek also filed a motion for "an order changing venue from Judge [Wagner-Mal-loy]." He asserted that Judge Wagner-Malloy could not be fair and impartial to his case because she had previously handled aspects of his sentencing about which he was displeased. In response to his motion, Mentek received a request form for substitution of judge. Mentek completed the form and filed it on or about August 26, 1998. He restated his concern that Judge Wagner-Malloy was biased against him. ¶ 8.

In October 1998, the State moved to summarily dismiss Mentek's writ of certiorari on the ground that he failed to exhaust his administrative remedies as required by WlS. Stat. § 801.02(7) (1995-96) because he failed to appeal the hearing examiner's revocation decision. On November 10, 1998, Judge Wagner-Malloy ruled in the State's favor, thereby dismissing Mentek's request for certiorari review. DISCUSSION A. Ineffective Assistance of Counsel ¶ 9.

On appeal, Mentek does not dispute the statutory requirement that "any administrative remedies" must be exhausted before a petition for writ of certio-rari can be heard in civil court. See id. Instead, he raises an ineffective assistance of counsel argument. ¶ 10. Mentek asserts that following his final revocation hearing on February 23, he made it clear to his public defender that he wanted to challenge the "countless procedural errors" that were committed prior to and during the hearings.

Mentek claims that the public defender indicated that he would file an administrative appeal and that he would contact Mentek when the appeal was completed. Pursuant to WlS. Admin. CODE § HA 2.05(8)(a), Mentek had ten days in which to file an administrative appeal of the Division of Hearings and Appeals' March 6,1998 decision. Instead of seeking an appeal, however, the public defender provided Mentek a letter explaining why an appeal was meritless. The letter was dated March 25, 1998, almost three weeks following the March 6 decision and five days after the deadline for Mentek's administrative appeal.

The public defender concluded his letter by advising Mentek that he would not need to file an administrative appeal in order to pursue a writ of certiorari before the circuit court. ¶ 11. Mentek contends that his due process right to effective assistance of counsel was violated because the public defender's failure to pursue an administrative appeal precluded him from seeking judicial review through a petition for writ of certiorari.

We conclude that Mentek's contention must fail because Wisconsin and federal constitutional law do not recognize a right to appointed counsel, nor by extension a right to effective assistance of counsel, on an administrative appeal of a probation revocation decision. ¶ 12. Whether Mentek has a due process right to effective assistance of counsel is a question of law we review de novo. Cf. State v. Pultz, 206 Wis. 2d 112, 119, 556 N.W.2d 708 (1996). Every criminal defendant in Wisconsin has a constitutional right to the effective assistance of counsel under the Sixth Amendment, see Strickland v.

Washington, 466 U.S. 668, 686 (1984), and under

article I,

section 7 of the Wisconsin Constitution, see State v. Sanchez, 201 Wis. 2d 219, 226-36, 548 N.W.2d 69 (1996). That right applies to a criminal defendant's trial proceedings, see Gideon v. Wainwright, 372 U.S. 335, 342-44 (1963), and to the first appeal as of right, see Evitts v. Lucey, 469 U.S. 387, 396 (1985). ¶ 13. Probation and parole proceedings, however, are not subject to the same constitutional protections as criminal proceedings. The reason for this is that probation revocation is a civil proceeding, not a stage of a criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); State ex rel.

Vanderbeke v. Endicott, 210 Wis. 2d 502, 513, 563 N.W.2d 883 (1997). Fundamental differences between criminal trials and probation revocation proceedings justify their different constitutional treatment: In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics.

In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by a parole officer . . .; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole. Gagnon, 411 U.S. at 789. These differences entail that a probationer is "not entitled to the full panoply of rights accorded persons subject to criminal process." Vanderbeke, 210 Wis. 2d at 513.

Nonetheless, courts recognize that probation revocation "deprives an individual, not of the absolute liberty to which every citizen is entitled, but ... of the conditional liberty properly dependent on observance of special [probation] restrictions." Gagnon, 411 U.S. at 781 (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)); see Vanderbeke, 210 Wis. 2d at 514. As a probationer's interest in personal liberty increases, so does his or her right to due process. Cf. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 26 (1981). ¶ 14.

In Gagnon, the United States Supreme Court ruled that a probationer is constitutionally entitled to two hearings: the first, a preliminary hearing at the time the probationer is detained due to an alleged probation rule violation; the second, a more comprehensive hearing before the final probation revocation decision is issued. See Gagnon, 411 U.S. at 781-82.

Revocation proceedings must include written notice of the claimed violations, disclosure of the evidence against the probationer, an opportunity to be heard, the right to confront and cross-examine adverse witnesses, a "neutral and detached" hearing body, and a written statement by the fact finder regarding evidence relied upon and reasons for revoking probation. See id. at 786 (citing Morrissey, 408 U.S. at 489). What is not constitutionally mandated is an unqualified right to appointed counsel.

The Court held, instead, that appointment of counsel should be provided on a case-by-case basis where the state probation and parole authority determines in its own discretion that a probationer is in need of counsel. See id. at 790; see also State ex rel. Cresci v. DHSS, 62 Wis. 2d 400, 413, 215 N.W.2d 361 (1974) (adopting Gagnons case-by-case approach). Where a probationer is found to be in need of counsel consistent with Gagnon, due process requires that counsel be effective. See A.S. v.

State, 168 Wis. 2d 995, 1003, 485 N.W.2d 52 (1992) ("It is axiomatic that the right to be represented by appointed counsel is worthless unless that right includes the right to effective counsel."). ¶ 15. Mentek contends that under Gagnon, "counsel is required for fundamental fairness in parole revocation hearings." Mentek's reading of Gagnon — that counsel is required — overstates the law. Gagnon held that there is no justification for a new inflexible constitutional rule with respect to the requirement of counsel. . . .

Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness ... will require that the State provide at its expense counsel for indigent probationers or parolees. Gagnon, 411 U.S. at 790.

Gagnon established a conditional right to appointed counsel, which is only triggered under certain circumstances, such as when a probationer has made a "timely and colorable claim" that he or she has not violated probation conditions or that he or she has "substantial reasons" justifying the violation. See id. at 790. Thus, we reject Mentek's premise that the law contains a per se requirement that counsel be appointed for probation and parole revocation proceedings. ¶ 16.

Mentek continues his argument, claiming that Gagnon's "right to counsel" at the revocation hearing stage extends to the administrative appeals stage. Citing Evitts, he argues that he is guaranteed effective assistance of counsel on his first appeal as of right, including the appeal of a revocation decision. We are unconvinced. First, Evitts does not control here because Evitts involved a direct appeal of a criminal conviction and, as Gagnon instructs, criminal and civil proceedings are to be treated differently for purposes of due process. ¶ 17. Second, in State ex rel. Schmelzer v.

Murphy, 201 Wis. 2d 246, 253, 548 N.W.2d 45 (1996), our supreme court determined that "[w]here a statutory right to counsel exists, we have held that the right includes the right to effective counsel." Here, Wisconsin administrative law does provide for the right to assistance of counsel for final revocation hearings. See Wis. Admin. Code § HA 2.05(3)(f) ("The client's rights at the [revocation] hearing include: The right to the assistance of counsel."). But there is no provision establishing a concomitant right to counsel on administrative appeal. We decline to establish such a right in this case. ¶ 18.

In sum, constitutional due process recognizes only a conditional guarantee of appointed counsel during probation revocation hearings, determined on a case-by-case basis. On administrative appeal, a probationer may be assisted by counsel, but there is no due process right or conditional right to appointed counsel or effective assistance of counsel. Appointed counsel for the probation revocation stage does not have a constitutional duty to ensure that the probationer's administrative appeal is filed on time and in proper form. This obligation falls to the probationer. ¶ 19.

In the present case, when the Division of Hearings and Appeals issued its revocation decision, it included notice to Mentek that he had ten days to file an administrative appeal. Because Mentek did not file a timely appeal, no appeal was recorded and thus his administrative remedies were not exhausted pursuant to Wis. Stat. § 801.02(7). As such, the circuit court's dismissal of his petition for certiorari review was appropriate. B. Request for Substitution of Judge ¶ 20.

Next, Mentek contends that Judge Wagner-Malloy did not have jurisdiction to hear his petition for writ of certiorari after he filed a request for substitution of judge. Mentek cites Wis. Stat. § 801.58(2) (1997-98), which provides for the substitution of a judge where a request is timely and in proper form. If the request is properly submitted, "the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03."

Section 801.58(2). ¶ 21. As the State points out, the appellate record is somewhat confusing as to Mentek's request for substitution. On August 24, 1998, Mentek submitted a motion for change of venue asking to have his petition for writ of certiorari transferred out of Judge Wagner-Malloy's court. According to Mentek, in response to his motion, he received a request form for substitution of judge. Mentek submitted his request on or about August 26, 1998.

He stated that he did not want his writ of certiorari heard before Judge Wagner-Malloy because she was "not only biased and prejudiced against Petitioner, but also retaliatory, and will do whatever is necessary to prevent her sentence from being overturned." Both his motion to change venue and his request for substitution of judge contained the case number 98-IP-14, although the case number assigned to his petition for writ of certiorari was 98-CV-962. ¶ 22. Mentek asserts that after filing his request, his case was assigned to Judge S. Michael Wilk.

Mentek points out that Judge Wilk's name is stamped on Mentek's petition for writ of certiorari, his motion for reversal of decision, and the- circuit court's writ of certiorari. As Mentek notes, however, Judge Wagner-Malloy signed the writ of certiorari, conducted the November 10, 1998 hearing on the State's motion to dismiss, and signed the order dismissing Mentek's petition. Our review of the record indicates that apart from Judge Wilk's stamp on several documents, there is no document evidencing a judicial substitution; there is also no explanation for why Judge Wagner-Malloy continued to hear the case.

The record does not show that a judge reviewed Mentek's request for substitution of made a determination as to timeliness or proper form. See State ex rel. Oman v. Hunkins, 120 Wis. 2d 86, 88, 352 N.W.2d 220 (Ct. App. 1984) ("If the judge finds the request timely and proper, the clerk shall request reassignment."). ¶ 23. Regardless of whether Mentek's case was in fact reassigned, we conclude that his substitution claim is moot because he does not have a viable ineffective assistance of counsel claim as a matter of law.

A matter is moot if a determination is sought that cannot have a practical effect on an existing controversy. See City of Racine v. J-T Enters., Inc., 64 Wis. 2d 691, 700, 221 N.W.2d 869 (1974). Mentek failed to exhaust his administrative remedies before seeking certiorari relief and there is no right to statutory or constitutional assistance of counsel on an appeal of a final probation revocation decision. Substituting another branch of the Kenosha County Circuit Court would not have made a difference to Mentek's claim for relief or to the result he obtained. ¶ 24.

Thus, we affirm the circuit court's order dismissing Mentek's petition for writ of certiorari. By the Court. — Order affirmed. Mentek's previously appointed counsel resigned in December 1997. Wisconsin Stat. § 801.02(7) (1995-96) provides that "[n]o prisoner... may commence a civil action... until the person has exhausted any administrative remedies that the department of corrections has promulgated by rule."

Section 801.02(7) was amended effective September 1,1998, shortly after Mentek filed his petition for writ of certiorari. See 1997 Wis. Act 133, §§ 11, 44(1). All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted. At the time the Division of Hearings and Appeals issued its decision, it sent Mentek a letter indicating that the decision would "take effect and be final 10 working days after the date it was issued unless an administrative appeal is filed under sec. HA 2.05(8), Wis. Admin.

Code." While Mentek states that the public defender sent him a "no merit report," the record does not contain one and WlS. STAT. Rule 809.32 (1997-98) does not prescribe one in the context of an administrative appeal of a probation revocation. The Supreme Court's holding in Gagnon is an extension of Morrissey v. Brewer, 408 U.S. 471, 484-90 (1972), which determined that a person subject to parole revocation should be afforded a hearing before a neutral and detached hearing officer at both the preliminary hearing and the final revocation hearing. The dissent concludes that the language in Wis. ADMIN.

Code § HA 2.05(3) is ambiguous as to whether ”[t]he client's rights at the hearing" include a mandated constitutional or statutory right to assistance of counsel on an appeal from an administrative revocation. To resolve the ambiguity, the dissent relies upon Wis. Admin. CODE § HA 2.05(8), entitled "Appeal," which states that "[t]he client, the client's attorney, if any, or the department representative may appeal the administrative law judge's decision."

Section HA 2.05(8)(a) (emphasis added). We fail to see how the resolve of this perceived ambiguity creates a constitutional or statutory right to counsel. At best, the code defines who may file an appeal and permits an attorney, if the client has one, to file an appeal on the client's behalf. We are satisfied that this court cannot establish such a statutory or constitutional right where such right has not been affirmatively established by the proper authority. See State v.

Engler, 80 Wis. 2d 402, 410, 259 N.W.2d 97 (1977) ("[W]e are obliged to apply the law as it is written, not as it might well have been written, or as it might some day be rewritten by the legislature."). While the majority disagrees with the dissent's analysis of the administrative rule, we agree with the dissent that a problem exists if an attorney promises to file an appeal and then fails to act on that promise in some meaningful way. We differ from the dissent only as to whether this court has the authority to fashion a remedy.

Indeed, we believe this issue should be visited by the supreme court, which does have the authority to fashion a remedy. Mentek's request for substitution was dated August 26, 1998, but was not date-stamped by the court clerk.