State v. Jeffrey Edward Olson

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.
September 17, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP1987 Cir. Ct. No. 1994CM410611

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY EDWARD OLSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MICHAEL J. HANRAHAN, Judge. Affirmed.

¶1 BRASH, P.J.1 Jeffrey Edward Olson, pro se, appeals the trial
court’s order denying his postconviction motion for plea withdrawal. Olson pled
guilty to a charge of misdemeanor battery in 1994, and received a probation

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP1987

sentence which was completed in 1997. He alleges his probation was extended
without his knowledge, and that the Department of Corrections (DOC) is
attempting to collect “supervision fees” from him for a time period when he was
no longer on probation.

¶2 Wisconsin law clearly states that postconviction relief is available to
defendants only while they are still confined under the sentence they are attacking;
thereafter, the courts no longer have competency to hear such motions. We
therefore affirm.

BACKGROUND

¶3 The matter underlying this appeal is Olson’s plea in December 1994.
The trial court sentenced him to nine months in the House of Correction; that
sentence was stayed, and Olson was placed on probation for two years. His
probation term was to expire on December 5, 1996.

¶4 In November 1996, Olson’s probation was extended for an
additional six months “or until all court obligations [were] completed,” to allow
Olson time to satisfy the condition of paying all outstanding court costs and
surcharges. He was subsequently discharged from probation in May 1997.

¶5 Olson filed a motion requesting an evidentiary hearing on November
4, 2016. He asserted that he was notified by the DOC in October 2016 that he
owed $490 in unpaid supervision fees for a period of time between May 1996 and
January 1998. Olson argued that he was not on probation during that time frame;

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No. 2018AP1987

he stated that he was discharged from probation in April 1996,2 and contended that
he was never notified that his probation had been extended.

¶6 The trial court denied his motion on November 9, 2016, stating that
Olson’s sentence had long expired and that it has no jurisdiction over issues
concerning DOC fees. Olson did not appeal that order.

¶7 Additional correspondence with the court followed over the next
several years. Olson then filed another motion on September 10, 2018, that—
broadly construed—requested the withdrawal of his guilty plea on grounds that the
State had breached the plea negotiations by extending his probation.

¶8 The trial court denied that motion without a hearing on September
17, 2018. It stated that Olson could not raise postconviction claims for a sentence
that had expired, citing State v. Bell, 122 Wis. 2d 427, 362 N.W.2d 443 (Ct. App.
1984). It further observed that Olson’s “real complaint” was with the DOC
regarding the supervision fees, again noting that it has no jurisdiction over such
matters. This appeal follows.

DISCUSSION

¶9 Whether a postconviction motion “alleges sufficient facts that, if
true, would entitle a defendant to relief is a question of law” that appellate courts
review de novo. State v. Burton, 2013 WI 61, ¶38, 349 Wis. 2d 1, 832 N.W.2d
611. “However, if the motion does not raise facts sufficient to entitle the movant
to relief, or presents only conclusory allegations, or if the record conclusively

2
Olson also states in this motion that his probation was revoked in April 1996, and that
he then served “approximately 35-45 days” in jail.

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No. 2018AP1987

demonstrates that the defendant is not entitled to relief, the [trial] court has the
discretion to grant or deny a hearing.” Id. (citations omitted).

¶10 Olson is not entitled to relief for the issue he raises in his motion as a
matter of law. In the first place, the facts he alleges are not accurate. He asserts
that his probation sentence was extended without his knowledge; however, the
record contains the order—which was signed by Olson—that extended his
probation for six months or until all conditions of his probation were satisfied.

¶11 That extension order further notes that Olson’s original term of
probation was to expire on December 5, 1996. In contrast, Olson alleges in his
motion that he was discharged from his probation in June 1996 “after completing
30 or so days … in jail.”3 However, the original term of Olson’s probation would
not have expired for approximately six months after Olson alleges that he was
“discharged.” Furthermore, the record contains the DOC notice that formally
discharged Olson from his probation sentence for this case on May 14, 1997.

¶12 Thus, the record clearly demonstrates that Olson was notified of the
extension to his probation term, notwithstanding his allegation to the contrary. It
also firmly establishes Olson’s probation dates for this case, which conflict with
Olson’s allegations that he was discharged from probation in June 1996 and that
the DOC wrongly charged him with supervision fees for a time frame when he
was not on probation.

3
Olson appears to use the terms “discharged” and “revoked” interchangeably, as he
previously stated that he was “discharged” in April 1996, then subsequently stated that his
probation had been revoked in April 1996 and that he had then served “approximately 35-45
days” in jail. In any event, there is nothing in the record indicating that Olson was discharged
from probation at any time in 1996.

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No. 2018AP1987

¶13 Setting aside these fundamental factual inaccuracies, the court no
longer has competency to hear any postconviction motions on this matter.
WISCONSIN STAT. § 974.06, which outlines the procedure for obtaining
postconviction relief, states that such relief may be sought by “a prisoner in
custody under sentence of a court[.]” See § 974.06(1). That language has been
interpreted by this court to be “one of the prerequisites for the vesting of subject
matter jurisdiction to a [§] 974.06 proceeding.” Bell, 122 Wis. 2d at 431.

¶14 In fact, in Bell we specifically addressed this issue as it related to a
defendant who sought postconviction relief after being discharged from probation.
Id. at 428. We held that since that defendant had already been discharged from
the term of probation imposed in that case, “he was not ‘in custody under sentence
of a court’ within the meaning of [WIS. STAT. §] 974.06” and, as a result, “[t]he
trial court was without subject matter jurisdiction to hear [that defendant]’s
[postconviction] motion.”4 Id. at 431. We therefore affirmed the trial court’s
dismissal of the motion. Id.

¶15 Based on Bell, we reach the same conclusion here. Olson was
discharged from probation in this matter over twenty years ago. Pursuant to WIS.
STAT. § 974.06, the courts no longer have competency to consider requests for

4
Older cases often made reference to courts lacking subject matter jurisdiction when
statutory mandates were not met; in fact, subject matter jurisdiction is conferred by the Wisconsin
Constitution, and thus a trial court “is never without subject matter jurisdiction.” Village of
Trempealeau v. Mikrut, 2004 WI 79, ¶¶1, 8, 273 Wis. 2d 76, 681 N.W.2d 190. However, the
“failure to comply with a statutory mandate pertaining to the exercise of subject matter
jurisdiction may result in a loss of the [trial] court’s competency to adjudicate the particular case
before the court.” Id., ¶9. Put another way, the competency of the court “addresses its ability to
undertake a consideration of the specific case or issue before it. The legislature confers a [trial]
court’s lesser powers, otherwise characterized as the court’s ‘competency.’” State v.
Minniecheske, 223 Wis. 2d 493, 497-98, 590 N.W.2d 17 (Ct. App. 1998) (citation omitted).

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No. 2018AP1987

postconviction relief in this case. See Bell, 122 Wis. 2d at 431. Therefore, we
affirm the trial court’s order denying Olson’s motion for plea withdrawal.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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