Chapter HA 2

Chapter HA 2

PROCEDURE AND PRACTICE FOR CORRECTIONS HEARINGS

HA 2.01   Application of rules.

HA 2.02   Definitions.

HA 2.03   Service of documents.

HA 2.04   Witnesses and subpoenas.

HA 2.05   Revocation hearing.

HA 2.06   Good time forfeiture, reconfinement and reincarceration hearings.

HA 2.07   Transcripts.

HA 2.08   Harmless error.

Ch. HA 2 Note Division of Hearings and Appeals Note (CR 09-101): For a further explanation of the provisions in ch. HA 2, see the appendix following the last section of this chapter.

HA 2.01 HA 2.01 Application of rules.

HA 2.01(1) (1) Authority. These rules are promulgated under the authority of s. 301.035 (5), Stats., and interpret ss. 302.11 (7), 302.113 (9) (am), 302.114 (9) (am), 938.357 (5), 973.09, 973.10, 973.155, 975.10 (2), Stats., and ch. 304, Stats.

HA 2.01(2) (2) Scope. This chapter applies to corrections hearings under ss. 302.11 (7), 973.10, 975.10 (2) and ch. 304, Stats. The procedural rules of general application contained in this chapter also apply to youth aftercare revocation proceedings in any situation not specifically dealt with in ch. DOC 393.

HA 2.01 History History: Cr. Register, December, 1991, No. 432, eff. 1-1-92; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1999, No. 527; CR 01-018: am. Register September 2001 No. 549, eff. 10-1-01; corrections in (1) made under s. 13.92 (4) (b) 7., Stats., Register May 2010 No. 653.

HA 2.02 HA 2.02 Definitions. For purposes of this chapter:

HA 2.02(1) (1) “Administrative law judge” means an administrative hearing examiner employed by the division of hearings and appeals.

HA 2.02(2) (2) “Administrator” means the administrator of the division of hearings and appeals.

HA 2.02(3) (3) “Client” means the person who is committed to the custody of the department of corrections and is the subject of the corrections hearing.

HA 2.02(4) (4) “Conditions” means specific regulations imposed on the client by the court or department.

HA 2.02(5) (5) “Day” means any working day, Monday through Friday, excluding legal holidays, except as specifically provided otherwise in s. HA 2.05 (4) (a).

HA 2.02(6) (6) “Department” means the department of corrections.

HA 2.02(7) (7) “Division” means the division of hearings and appeals.

HA 2.02 Note Division of Hearings and Appeals Note (CR 09-101): “Offender” as used in this chapter was intended to have the same meaning as “client”. A definition of “offender” will be created by future rule making.

HA 2.02(8) (8) “Revocation” means the removal of a client from probation, parole, extended supervision or youth aftercare supervision.

HA 2.02(9) (9) “Rules” means those written department regulations applicable to a specific client under supervision.

HA 2.02(10) (10) “Supervision” means the control and supervision of clients exercised by the department of corrections.

HA 2.02 History History: Cr. Register, December, 1991, No. 432, eff. 1-1-92; CR 01-018: am. (8), Register September 2001 No. 549, eff. 10-1-01.

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 2.03 History History: Cr. Register, December, 1991, No. 432, eff. 1-1-92; CR 09-101: am. Register May 2010 No. 653, eff. 6-1-10.

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 2.04 History History: Cr. Register, December, 1991, No. 432, eff. 1-1-92; CR 09-101: am. Register May 2010 No. 653, eff. 6-1-10.

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)(a) (a) The date, time, and place of the hearing;

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)(c) (c) A statement of the rights established under sub. (2);

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)(d)1. 1. Any documents.

HA 2.05(1)(d)2. 2. Any physical or chemical evidence.

HA 2.05(1)(d)3. 3. Results of a breathalyzer test.

HA 2.05(1)(d)4. 4. Any statements by the offender.

HA 2.05(1)(d)5. 5. Police reports regarding the allegation.

HA 2.05(1)(d)6. 6. Warrants issued.

HA 2.05(1)(d)7. 7. Photographs.

HA 2.05(1)(d)8. 8. Witness statements.

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) (f) In parole revocation cases:

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)(g) (g) In extended supervision cases under s. 302.113 (9) (am), Stats., the department’s recommended period of reconfinement.

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: