State v. Jonathon Wayne Allen Beenken

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.
January 24, 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. 2024AP419-CR Cir. Ct. No. 2019CF485

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JONATHON WAYNE ALLEN BEENKEN,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Monroe County:
MARK L. GOODMAN, Judge. Reversed and cause remanded with directions.

¶1 KLOPPENBURG, J.1 The circuit court entered an order denying
the State of Wisconsin’s motion to revoke the diversion agreement that was

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(g) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2024AP419-CR

entered in this case upon Jonathon Wayne Allen Beenken’s no contest plea to a
felony count of substantial battery as a repeater and as domestic abuse. In that
same order, the court also denied the State’s motion for reconsideration. On
appeal, the State argues that the court erroneously interpreted and applied the
diversion agreement and that, properly interpreted and applied, the diversion
agreement required the court to grant the State’s motion to revoke the agreement
because the State introduced a criminal complaint showing probable cause that
Beenken had violated a criminal law.

¶2 For the reasons set forth below, I conclude that the clear and
unambiguous terms of the diversion agreement required the circuit court to revoke
the agreement if the State showed probable cause that Beenken violated a criminal
law. I also conclude that the criminal complaint introduced by the State in support
of its motion established probable cause. Accordingly, I reverse the court’s order
denying the State’s motion to revoke and remand to the circuit court with
directions to enter an order granting the motion to revoke the diversion agreement
and to hold further proceedings as the court deems appropriate.2

BACKGROUND

¶3 In 2019, the State charged Beenken with several felony and
misdemeanor counts arising from a domestic abuse incident. In March 2021,
Beenken pled no contest to one count of substantial battery as a repeater and as

2
Because I reverse the circuit court’s decision denying the State’s motion to revoke on
my de novo review, I do not separately address its decision denying the State’s motion for
reconsideration, but that order is reversed based on the discussion in this opinion. Cf. Kraft v.
Steinhafel, 2015 WI App 62, ¶27, 364 Wis. 2d 672, 869 N.W.2d 506 (“Because we reverse the
circuit court’s grant of summary judgment[], we need not address separately the court’s denial of
Kraft’s motion for reconsideration.”).

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No. 2024AP419-CR

domestic abuse, and the remaining counts were dismissed and read in. Upon entry
of his plea, the prosecution was suspended and Beenken was “placed on a
diversion agreement” for twenty-four months, through March 2023.

¶4 The diversion agreement contains several conditions, including that
Beenken submit monthly compliance reports, undergo a domestic violence
assessment, follow through on any treatment recommendations, maintain contact
with the Monroe County Justice Department, and, pertinent here, not violate any
criminal laws. Specifically, paragraph two of the diversion agreement says:

The defendant shall not violate any criminal or
criminal traffic laws. In order for the State to show a
violation of any criminal or criminal traffic law, the State
must show by probable cause, that a violation of that law
has been committed. It is sufficient that the State show this
by introducing the criminal complaint but is not limited by
that method. A hearing will be held in order to determine
whether there is probable cause that a violation of
paragraph two (2) has been committed. If the State
presents evidence to the level of probable cause that any
violation occurred, the Court shall revoke this agreement
[and] find the defendant guilty.

¶5 Paragraph seven of the diversion agreement provides that the State
shall move to revoke the diversion agreement “upon the defendant’s failure to
meet or comply with any condition” of the agreement, and paragraph five provides
that “upon revocation, the Court will enter a finding of guilt [on the substantial
battery count] and will proceed to sentencing the defendant.” Paragraph seven
also provides that, “upon successful completion of this agreement[,] the State will
amend Count 3 to Disorderly Conduct as an ordinance [violation] … with a fine of
$100.00 plus costs.”

¶6 In November 2021, the State filed a motion to revoke the diversion
agreement, alleging that Beenken violated a criminal law contrary to paragraph

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No. 2024AP419-CR

two of the diversion agreement. In February 2022, the State and Beenken
stipulated to a six-month extension of the diversion agreement, through
September 22, 2023, and the State withdrew its motion to revoke. The circuit
court entered an order consistent with this stipulation.

¶7 On August 31, 2023, the State again moved to revoke the diversion
agreement, alleging that Beenken violated criminal laws contrary to paragraph two
of the diversion agreement. The State attached to the motion the criminal
complaint in Juneau County case No. 2023CF160. The complaint alleged that
Beenken committed felony bail jumping, misdemeanor battery, and disorderly
conduct. In the motion, the State also related Beenken’s compliance with other
conditions of the diversion agreement, namely his completing a domestic violence
assessment and continuing with mental health therapy, and his maintaining contact
with the Monroe County Justice Department. This second motion to revoke is the
subject of this appeal.

¶8 On December 6, 2023, the circuit court held a hearing on the motion
pursuant to paragraph two of the diversion agreement. At the hearing, the State
introduced the criminal complaint, which contains the following factual
allegations. On July 23, 2023, Officer Smart of the Black River Falls Police
Department was dispatched to Black River Falls Memorial Hospital where he met
with A.B. and observed several injuries to A.B., including a bloody lip, bruises on
her hands, and red marks around her face and head.3 A.B. told Smart the
following: she had been dating Beenken for about two or three months; every

3
To protect the dignity and privacy of the victim, we refer to her as A.B., using initials
that do not correspond to her real name. See WIS. STAT. RULES 809.19(1)(g) and 809.86.

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No. 2024AP419-CR

time she tried to leave the relationship with Beenken she would “get her ass
kicked,” and, in the past week and a half, she had “tried to leave six times and
there was domestic violence each time”; at approximately 11:30 a.m. on the
morning of July 23, she tried to leave Beenken, and Beenken “began to beat her
with closed fists and she was forced to cower in the ‘fetal position’ as he hit her”;
“all of the visible marks [on her] were from th[is] incident”; and Beenken told her
that if she called the police, they “‘better be ready for a shootout’ because he was
not going back to jail.” After speaking with Smart, Deputy Carmody of the
Juneau County Sheriff’s Department spoke to M.L.B., who told Carmody that at
approximately 11:00 a.m. that day, M.L.B. had seen A.B. running from Beenken
“with blood coming from her mouth and yelling at [Beenken] to get away from
her,” that A.B. then locked herself in her car while Beenken pounded on her
window, and that A.B. drove away at a high rate of speed and Beenken “chased”
her in his truck.

¶9 Also at the hearing, Beenken submitted an unsigned statement by
A.B. The statement reads, in its entirety:

I am recanting the probable cause that was written
on my beha[lf] because it is wrong and it is not what really
happened. First off Deputy Brandon Carmody contacted
me at my uncle[’]s home where he called me and I told him
on the phone I would not talk to him [and] that I did not
trust the Sheriff’s department at all. I told him that yes
[Beenken] chased me but that he did not have a gun which
is true. I did see Officer Smart at the hospital but I did not
say that every time I tried to leave I got my ass kicked. I
did not say I tried to leave 6 times. I would love to give an
actual statement of what happened that day and the days
that led to the incident but this is pro[o]f enough that there
is no one in this sherri[ff’s office] that can be trusted. I feel
like I can’t talk to anyone here about it because they make
up their own version and mix my words up.

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No. 2024AP419-CR

¶10 The circuit court marked A.B.’s statement as an exhibit, noting that
“[i]t’s not being received as evidence but the Court did look at it and so I think it’s
important that it be part of the file.” Beenken argued that the statement “cut
against the probable cause” and, therefore, that the court should “deny the State’s
motion and allow the [diversion] agreement to expire by its own terms.” The State
responded that “[a]t best, [the statement] is a partial recantation” because A.B. did
not “correct, supplement or otherwise recant … the[] specific allegations of
physical assault … inflicted by Mr. Beenken,” and, accordingly, even if A.B.’s
statement were accepted as true, there remained probable cause that Beenken
committed a crime in violation of the diversion agreement.

¶11 In making its decision, the circuit court stated that “this is a pretty
close call.” The court recognized that the language of the diversion agreement
“forbids” Beenken from violating any criminal law and that presenting a copy of
the criminal complaint “would be sufficient” to show probable cause, which is
“what the State has done.” However, the court reasoned that “the motion today
paints a fairly positive picture of Mr. Beenken” regarding his compliance with
other terms of the diversion agreement. The court recognized that Beenken had
completed the required domestic violence assessment, followed through on
recommended treatment, continued to see his mental health provider, and
maintained contact with the Monroe County Justice Department as required.

¶12 After reflecting on the seriousness of the charges, the circuit court
explained that it “would have to side with [Beenken] … because of his … mostly
positive performance” on the other terms of the diversion agreement. More
specifically, the court explained:

Go back to what I said earlier, this is a very grave
charge. It’s a Class I felony but it’s got enhancements on

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No. 2024AP419-CR

it. And I had to think carefully about whether what was
said in the Juneau County case should tag Mr. Beenken
with the felony – convicted felony record. But it’s tough.
Certainly [the State] is within [its] discretion to bring this
motion and so there is a lot – there is a lot here[:] [t]he
State’s right to do this and certainly this man’s …
substantial compliance with the terms [of the diversion
agreement]. So I have to balance those and it’s a tough
decision.

I think what I have to do, I would have to side with
the Defendant on this, then, because of his – because his
mostly – mostly positive performance and we do have
another charge. It’s dressed up with some felony bail
jumping and misdemeanor [battery]. And I think if I have
to weigh everything out, I have to come down on his side
because he’s had a mostly positive – we have a lot of these
motions and I don’t see, in a lot of these motions, where
he’s been able to go beyond what he’s done. Like I said,
most [of] the people, they stub their toe on the domestic
violence assessment and he’s done that and so that shows
that he’s invested a substantial effort into this. So I’m not
going to revoke his agreement for those reasons.

Accordingly, the court denied the motion.

¶13 The State filed a motion for reconsideration, arguing, in part, that
because the diversion agreement states that the circuit court “shall revoke the
diversion agreement” upon a showing of probable cause, the court acted “contrary
to established law” by exercising discretion, specifically by weighing Beenken’s
substantial progress with other conditions of the diversion agreement against his
alleged violation of a criminal law. The court denied the motion without comment
on December 21, 2023. On February 27, 2024, the court entered an order denying
both the motion to revoke and the motion for reconsideration and amending
Beenken’s original substantial battery count to disorderly conduct, consistent with
successful completion of the diversion agreement.

¶14 The State appeals.

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No. 2024AP419-CR

DISCUSSION

¶15 I first interpret the diversion agreement and explain my conclusion
that it requires the circuit court to revoke the agreement if the State shows
probable cause that Beenken violated a criminal law. I then apply the diversion
agreement and explain my conclusion that the criminal complaint introduced by
the State makes that showing.

I. Interpretation of Diversion Agreement

¶16 In reviewing whether the circuit court properly denied the State’s
motion to revoke the diversion agreement, I must first interpret the agreement
because the circuit court is bound by its terms. See State v. Barney, 213 Wis. 2d
344, 358-59, 570 N.W.2d 731 (Ct. App. 1997) (interpreting diversion agreement’s
terms regarding revocation to determine whether the circuit court’s revocation of
the agreement was proper and stating that the circuit court is obligated to follow
those terms).

¶17 In interpreting a diversion agreement, this court draws on contract
principles. See Barney, 213 Wis. 2d at 359 (stating that the defendant is “entitled
to the benefit of the bargain he made” via the diversion agreement as part of the
plea agreement); see also State v. Windom, 169 Wis. 2d 341, 348, 485 N.W.2d
832 (Ct. App. 1992) (“A plea agreement is analogous to a contract and we
therefore draw upon contract law principles for its interpretation.”). This court
interprets a contract de novo. Midwest Neurosciences Assocs., LLC v. Great
Lakes Neurosurgical Assocs., LLC, 2018 WI 112, ¶38, 384 Wis. 2d 669, 920
N.W.2d 767. “The law in Wisconsin is that unambiguous contractual language
must be enforced as it is written,” Windom, 169 Wis. 2d at 348, and courts must
similarly enforce diversion agreements as written, Barney, 213 Wis. 2d at 362.

8
No. 2024AP419-CR

Pertinent here, the circuit court is “obligated … to follow the terms of the
[diversion] agreement regarding revocation proceedings.” Id. at 361.

¶18 “Whe[n] the terms of a contract are clear and unambiguous, we
construe the contract according to its literal terms.” Tufail v. Midwest Hosp.,
LLC, 2013 WI 62, ¶26, 348 Wis. 2d 631, 833 N.W.2d 586. “Such language is to
be interpreted consistent with what a reasonable person would understand the
words to mean under the circumstances.” Seitzinger v. Community Health
Network, 2004 WI 28, ¶22, 270 Wis. 2d 1, 676 N.W.2d 426. For the following
reasons, I conclude that the only reasonable interpretation of paragraph two of the
diversion agreement is that the circuit court is required to revoke the agreement
upon a showing of probable cause that Beenken violated a criminal law.

¶19 To repeat, paragraph two states: “If the State presents evidence to
the level of probable cause that any violation [of any criminal or criminal traffic
law] occurred, the Court shall revoke this agreement [and] find the defendant
guilty.” (Emphasis added.) The word “shall” is generally considered to be
mandatory. Cf. Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶32, 339
Wis. 2d 125, 810 N.W.2d 465 (in statutory interpretation, “we presume that the
word ‘shall’ is mandatory”). Thus, paragraph two requires that, if “the State
presents evidence to the level of probable cause” that Beenken violated any
criminal law, then the court must revoke the diversion agreement and “find
[Beenken] guilty” of substantial battery; the court has no discretion to do
otherwise. See Barney, 213 Wis. 2d at 362 (concluding that “once [a] term [is]
included in the diversion agreement, [the parties are] entitled to rely on it and have
it applied at [the] revocation hearing”).

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No. 2024AP419-CR

¶20 Here, the circuit court appeared to interpret the diversion agreement
to allow the court to consider Beenken’s record of compliance with conditions of
the agreement other than that he not violate a criminal law, and to weigh that
record against the State’s introduction of a criminal complaint alleging that
Beenken did so. As explained above, this interpretation is contrary to the
language in the diversion agreement that requires the circuit court to revoke the
agreement if the State shows probable cause that Beenken violated a criminal law,
regardless of Beenken’s record of compliance with the agreement’s other
conditions. Accordingly, the court erred in not confining its review to whether the
State showed probable cause that Beenken violated a criminal law.

¶21 Beenken argues that the diversion agreement does “not create an
automatic revocation process if Beenken picked up new charges,” because the
agreement requires the State to show probable cause that Beenken committed new
crimes. However, this argument does not refute the interpretation stated above
that, if the State does show probable cause that Beenken violated a criminal law,
the circuit court is required to revoke the diversion agreement. Rather, Beenken’s
argument relates to whether the State made that showing, which I address in the
next section.

II. Probable Cause

¶22 Having concluded that the diversion agreement unambiguously
requires the circuit court to revoke the agreement if the State shows probable
cause that Beenken violated a criminal law, I now address whether the State made
that showing.

¶23 Consistent with the diversion agreement (“It is sufficient that the
State show [probable cause] by introducing the criminal complaint….”), the State

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No. 2024AP419-CR

introduced the criminal complaint in Juneau County case No. 2023CF160, alleging
that Beenken committed felony bail jumping, misdemeanor battery, and disorderly
conduct. “Whether a criminal complaint sets forth probable cause to justify a
criminal charge is a legal determination this court reviews de novo.” State v.
Reed, 2005 WI 53, ¶11, 280 Wis. 2d 68, 695 N.W.2d 315; see also State v.
Ploeckelman, 2007 WI App 31, ¶21, 299 Wis. 2d 251, 729 N.W.2d 784 (“On
appeal, when reviewing the sufficiency of the evidence presented to support a
finding of probable cause, we owe no deference to the circuit court’s
determination but review the matter de novo.”); State v. Moats, 156 Wis. 2d 74,
84, 457 N.W.2d 299 (1990) (appellate court “‘may examine the factual record ab
initio and decide as a matter of law whether the evidence constitutes probable
cause’” (quoted source omitted)).

¶24 “A complaint, to be sufficient, must set forth facts within its four
corners that, together with reasonable inferences from those facts, would allow a
reasonable person to conclude that a crime had been committed and that the
defendant was probably the person who committed it. We evaluate a complaint in
a common sense, rather than a hypertechnical manner.” State v. Chagnon, 2015
WI App 66, ¶7, 364 Wis. 2d 719, 870 N.W.2d 27 (internal citations omitted). Put
differently, probable cause is established when there “is a reasonable probability
that the defendant committed a [crime],” State v. Watson, 227 Wis. 2d 167, 204,
595 N.W.2d 403 (1999), or when “the facts and the reasonable inferences drawn
therefrom support the conclusion that the defendant probably committed a
[crime],” State v. Dunn, 121 Wis. 2d 389, 397-98, 359 N.W.2d 151 (1984).
“Simply stated, probable cause at a preliminary hearing is satisfied when there
exists a believable or plausible account of the defendant’s commission of a
[crime].” Id. at 398.

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No. 2024AP419-CR

¶25 “The criminal complaint may rely on hearsay to demonstrate
probable cause, but the hearsay must be sufficiently reliable to make a plausible
showing of probable cause….” State v. O’Brien, 2014 WI 54, ¶59, 354 Wis. 2d
753, 850 N.W.2d 8; see also State v. Romero, 2009 WI 32, ¶20, 317 Wis. 2d 12,
765 N.W.2d 756 (“The veracity of a hearsay declarant and the basis of the
declarant's knowledge … ‘may usefully illuminate the commonsense, practical
question [of] whether there is probable cause….’” (quoting Illinois v. Gates, 462
U.S. 213, 230 (1983))). “The reliability of the [hearsay] information may be
shown by corroboration of details,” while the basis of knowledge “is most directly
shown by an explanation of how the declarant came by [the declarant’s]
information.” Romero, 317 Wis. 2d 12, ¶¶21-22. The fact that hearsay
information is provided by an alleged victim or witness of a crime weighs in favor
of it being credited as reliable. State v. Knudson, 51 Wis. 2d 270, 276, 187
N.W.2d 321 (1971). In addition, “a preliminary hearing is not a proper forum to
choose between conflicting facts or inferences, or to weigh the state’s evidence
against evidence favorable to the defendant.” Dunn, 121 Wis. 2d at 398.

¶26 Consistent with the principles above, I now evaluate whether the
criminal complaint introduced by the State at the hearing shows probable cause
that Beenken violated a criminal law. As stated, the complaint in Juneau County
case No. 2023CF160 alleges that Beenken committed felony bail jumping,
misdemeanor battery, and disorderly conduct. Also as stated, the complaint
alleges the following. Officer Smart observed injuries to A.B. that included “a
bloody lip, bruises on her hands and red marks around her face and head.” A.B.
told Smart that, on the morning of July 23, Beenken “beat her with closed fists”
and that all of the visible injuries “were from th[is] incident.” M.L.B. told police
that she saw A.B. running from Beenken “with blood coming from her mouth and

12
No. 2024AP419-CR

yelling at [Beenken] to get away from her,” and that A.B. then “locked herself in
her car” and drove away from Beenken “at a high rate of speed.”

¶27 Although the complaint relies on hearsay, that hearsay is
“sufficiently reliable to make a plausible showing of probable cause,” see
O’Brien, 354 Wis. 2d 753, ¶59, based on the declarants’ direct witnessing of
events and the corroboration of details such as Beenken chasing A.B., see
Knudson, 51 Wis. 2d at 276 (victims and citizen witnesses considered reliable
because they “do[] not expect any gain or concession in exchange for [their]
information”); Romero, 317 Wis. 2d 12, ¶21 (“If a declarant is shown to be right
about some things, it may be inferred that [the declarant] is probably right about
other facts alleged.”).

¶28 Taken together, “the facts and the reasonable inferences drawn
therefrom,” i.e., A.B.’s initial statement detailing Beenken hitting her, Smart’s
observation of injuries consistent with A.B.’s description of the incident, and
M.L.B.’s observation of A.B. running from Beenken with blood coming from her
mouth, “support the conclusion that [Beenken] probably committed a [crime].”
See Dunn, 121 Wis. 2d at 397-98. That is all that is required, and, accordingly, I
conclude that the State showed probable cause that Beenken violated a criminal
law.

¶29 At the probable cause hearing, the circuit court was presented with
the criminal complaint as well as the unsigned statement of A.B. The court did
not consider A.B.’s statement in reaching its decision. On appeal, Beenken argues
that “the court was required to consider and weigh the [S]tate’s hearsay evidence
against [his] hearsay evidence,” and the State argues to the contrary. Because
Beenken does not cite legal authority supporting his argument, I do not consider it

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No. 2024AP419-CR

further. See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI
App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“Arguments unsupported by legal
authority will not be considered, and we will not abandon our neutrality to develop
arguments.” (internal citations omitted)). Moreover, I observe that the statement
does not refute any of the specific allegations in the criminal complaint
summarized above and, in fact, corroborates M.L.B.’s story by saying, “I told him
that yes [Beenken] chased me.”

¶30 Beenken does not address directly whether the criminal complaint
shows probable cause that Beenken violated a criminal law. Instead, Beenken
argues that the circuit court properly exercised its discretion by determining that
the State did not show probable cause that Beenken violated a criminal law.
However, Beenken does not cite any portion of the transcript of the court’s
remarks containing such a determination. Rather, the court’s remarks, quoted
above, indicate that the court ultimately sidestepped probable cause and
determined that Beenken’s compliance with other conditions in the diversion
agreement weighed against the State’s allegations that he violated a criminal law
so as to warrant denial of the State’s motion to revoke. In any event, as stated, this
court independently reviews the existence of probable cause, and I have on my
independent review concluded that the State met its burden of showing probable
cause here.

¶31 In sum, because the State showed probable cause that Beenken
violated a criminal law, the circuit court is required to revoke the diversion
agreement.

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No. 2024AP419-CR

CONCLUSION

¶32 For the reasons set forth above, I reverse the circuit court’s order
denying the State’s motion to revoke the diversion agreement and remand to the
circuit court with directions to enter an order granting the motion to revoke and to
hold further proceedings as the court deems appropriate.

By the Court.—Order reversed and cause remanded with directions.

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

15