HA 2.03
HA 2.03
Service of documents. HA 2.03(1)
(1)
By the division. The division may issue decisions, orders, notices and other documents by first class mail, inter-departmental mail, electronic mail or by facsimile transmission.
HA 2.03(2)
(2) By a party. Unless specified otherwise by law or this chapter, materials filed by a party with the division may be delivered personally or by first class, certified or registered mail, inter-departmental mail, electronic mail or by facsimile transmission. All correspondence, papers or other materials submitted by a party shall be provided on the same date by that party to all other parties to the proceeding. No affidavit of mailing, certification, or admission of service need be filed with the division.
HA 2.03(3)
(3) Filing date. Materials mailed to the division shall be considered filed with the division on the date of the postmark. Materials submitted personally or by inter-departmental mail or electronic mail shall be considered filed on the date they are received by the division. Materials transmitted by facsimile shall be considered filed on the date they are received by the division as recorded on the division facsimile machine.
HA 2.04
HA 2.04
Witnesses and subpoenas. An attorney may issue a subpoena to compel the attendance of witnesses under the same procedure as provided by s.
805.07 (1), Stats. The secretary of the department of corrections, or any person authorized by the secretary to act in his or her stead, may issue a subpoena to require the attendance of witnesses, on behalf of the department of corrections, in any community supervision revocation proceeding as provided by s.
301.045, Stats. If a person on community supervision is not represented by an attorney, the division or the administrative law judge may issue subpoenas as provided in
ch. 885, Stats.
HA 2.05
HA 2.05
Revocation hearing. HA 2.05(1)
(1)
Notice. Notice of a final revocation hearing shall be sent by the division within 5 days of receipt of a hearing request from the department to the offender, the offender's attorney, if any, and the department's representative. The notice shall include:
HA 2.05(1)(b)
(b) The conduct that the client is alleged to have committed and the rule or condition that the offender is alleged to have violated;
HA 2.05(1)(d)
(d) Unless otherwise confidential or disclosure would threaten the safety of a witness or another, a list of the potential evidence and potential witnesses to be considered at the hearing which may include any of the following:
HA 2.05(1)(e)
(e) A statement that whatever information or evidence is in the possession of the department is available from the department for inspection unless otherwise confidential;
HA 2.05(1)(f)1.
1. The department's recommendation for forfeiture of good time and any sentence credit in accordance with s.
973.155, Stats.; or
HA 2.05(1)(f)2.
2. The department's recommendation for a period of reincarceration and any sentence credit in accordance with statutes.
HA 2.05(1)(h)
(h) In extended supervision cases under s.
302.114 (9) (am), Stats., for persons serving a life sentence, the department's recommended period of time for which the person shall be reconfined before being released again to extended supervision.
HA 2.05(2)
(2) Amendments. Any notice information required under
s. HA 2.05 (1) may be amended and additional allegations may be added by the department if the client and the attorney, if any, are given written notice of the amendment at least 5 days prior to the hearing and the amendment does not materially prejudice the client's right to a fair hearing.
HA 2.05(3)
(3) Offender's rights. The offender's rights at the hearing include any of the following:
HA 2.05(3)(a)
(a) The right to attend the hearing in person or by electronic means.
HA 2.05(3)(c)
(c) The right to be heard and to present witnesses.
HA 2.05(3)(h)
(h) The right to receive a written decision stating the reasons for it based upon the evidence presented.
HA 2.05(4)(a)(a) If a client is detained in a county jail or other county facility pending disposition of the hearing, the division shall begin a hearing within 50 calendar days after the person is detained by the department in the county jail or county facility. If not so detained, the hearing shall begin within a reasonable time from the date the hearing request is received.
HA 2.05(4)(b)
(b) A hearing may be rescheduled or adjourned for good cause taking into consideration the following factors:
HA 2.05(4)(b)9.
9. The convenience or inconvenience to the parties, witnesses and the division; and
HA 2.05(4)(b)10.
10. Whether the client and the client's attorney, if any, have had adequate notice and time to prepare for the hearing.
HA 2.05(4)(c)
(c) Any party requesting that a hearing be rescheduled shall give notice of such request to the opposing party.
HA 2.05(5)(a)(a) The identity of a witness may be withheld from the client if disclosure of the identity would threaten the safety of the witness or another.
HA 2.05(5)(b)
(b) Testimony of a witness may be taken outside the presence of the client when there is substantial likelihood that the witness will suffer significant psychological or emotional trauma if the witness testifies in the presence of the client or when there is substantial likelihood that the witness will not be able to give effective, truthful testimony in the presence of the client at hearing. The administrative law judge shall indicate in the record that such testimony has been taken and the reasons for it and must give the client an opportunity to submit questions to be asked of the witness.
HA 2.05(5)(c)
(c) The hearing examiner [administrative law judge] shall give the client and the client's attorney an opportunity on the record to oppose protection of a witness before any such action is taken.
HA 2.05(6)(a)(a) The hearing may be closed to the public and shall be conducted in accordance with this chapter. The administrative law judge may conduct the hearing by video conference. The hearing may also be conducted by telephone conference if all parties agree. If all parties do not agree to conduct a hearing by telephone conference, the administrative law judge may conduct the hearing by telephone conference if there is no factual dispute regarding the violations alleged by the department or when the administrative law judge determines that good cause exists to conduct the hearing by telephone conference. All witnesses for and against the offender, including the offender, shall have a chance to speak and respond to questions.
HA 2.05(6)(b)
(b) The administrative law judge shall weigh the credibility of the witnesses.
HA 2.05(6)(c)
(c) Evidence to support or rebut the allegation may be offered. Evidence gathered by means not consistent with
ch. DOC 328 or in violation of the law may be admitted as evidence at the hearing.
HA 2.05(6)(d)
(d) The administrative law judge may accept hearsay evidence.
HA 2.05(6)(e)
(e) The rules of evidence other than
ch. 905, Stats., with respect to privileges do not apply except that unduly repetitious or irrelevant questions may be excluded.
HA 2.05(6)(f)
(f) The department has the burden of proof to establish, by a preponderance of the evidence, that the client violated the rules or conditions of supervision. A violation is proven by a judgment of conviction arising from conduct underlying an allegation.
HA 2.05(6)(g)
(g) The administrative law judge may take an active role to elicit facts not raised by the client or the client's attorney, if any, or the department's representative.
HA 2.05(6)(h)
(h) Alternatives to revocation and any alibi defense offered by the client or the client's attorney, if any, shall be considered only if the administrative law judge and the department's representative have received notice of them at least 5 days before the hearing, unless the administrative law judge allows a shorter notice for cause.
HA 2.05(6)(i)
(i) The administrative law judge may issue any necessary recommendation to give the department's representative and the client reasonable opportunity to present a full and fair record.
HA 2.05(7)(a)(a) The administrative law judge shall consider only the evidence presented in making the decision.
HA 2.05(7)(b)1.
1. Decide whether the client committed the conduct underlying the alleged violation;
HA 2.05(7)(b)2.
2. Decide, if the client committed the conduct, whether the conduct constitutes a violation of the rules or conditions of supervision;
HA 2.05(7)(b)3.
3. Decide, if the client violated the rules or conditions of supervision, whether revocation should result or whether there are appropriate alternatives to revocation. Violation of a rule or condition is both a necessary and a sufficient ground for revocation of supervision. Revocation may not be the disposition, however, unless the administrative law judge finds on the basis of the original offense and the intervening conduct of the client that:
HA 2.05(7)(b)3.a.
a. Confinement is necessary to protect the public from further criminal activity by the client; or
HA 2.05(7)(b)3.b.
b. The client is in need of correctional treatment which can most effectively be provided if confined; or
HA 2.05(7)(b)3.c.
c. It would unduly depreciate the seriousness of the violation if supervision were not revoked.
HA 2.05(7)(b)4.
4. Decide, if the client violated the rules or conditions of supervision, whether or not the department should toll all or any part of the period of time between the date of the violation and the date an order is entered, subject to credit according to s.
973.155, Stats.
HA 2.05(7)(b)5.
5. Decide, if supervision is revoked, whether the client is entitled to any sentence credits under s.
973.155, Stats.
HA 2.05(7)(c)
(c) If the administrative law judge finds that the client did not violate the rules or conditions of supervision, revocation shall not result and the client shall continue with supervision under the established rules and conditions.
HA 2.05(7)(d)
(d) The administrative law judge shall issue a written decision based upon the evidence with findings of fact and conclusions of law stating the reasons to revoke or not revoke the client's supervision. The administrative law judge may, but is not required to, announce the decision at the hearing.
HA 2.05(7)(e)
(e) If an administrative law judge decides to revoke the offender's parole, the decision shall apply the criteria established in
s. HA 2.06 (6) (b) and shall include a determination of:
HA 2.05(7)(e)1.
1. Good time forfeited, if any, under
ch. 302, Stats., and, for mandatory release parolees, whether the offender may earn additional good time; or
HA 2.05(7)(f)
(f) If an administrative law judge decides to revoke a period of extended supervision under s.
302.113 (9) (am), Stats., the administrative law judge shall include a determination of the period of reconfinement taking into consideration the following criteria:
HA 2.05(7)(f)3.
3. The offender's conduct and behavior while on community supervision;
HA 2.05(7)(f)4.
4. The amount of reconfinement that is necessary to protect the public from the risk of further criminal activity, to prevent the undue depreciation of the seriousness of the violation or to provide confined correctional treatment.
HA 2.05(7)(g)
(g) If an administrative law judge decides to revoke a period of extended supervision for a person serving a life sentence under s.
302.114 (9) (am), Stats., the decision shall consider the criteria established in
s. HA 2.05 (7) (f), and shall include a determination of the period of time for which the person shall be incarcerated before being eligible for release to extended supervision.
HA 2.05(7)(h)
(h) The administrative law judge's decision shall be written and forwarded within 10 days after the hearing to the client, the client's attorney, if any, and the department's representative. An extension of 5 days is permitted if there is cause for the extension and the administrative law judge notifies the parties of the reasons for it.
