Erich L. Vlach v. Brian Hayes

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.
October 22, 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. 2019AP70 Cir. Ct. No. 2018CV1819

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN EX REL. ERICH L. VLACH,

PETITIONER-APPELLANT,

V.

BRIAN HAYES ADMINISTRATOR, DIVISION OF HEARINGS AND APPEALS,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
JEFFREY A. CONEN, Judge. Affirmed.

Before Brash, P.J., Dugan and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Erich L. Vlach appeals an order of the trial court
which upheld a decision by the Division of Hearings and Appeals (DHA) revoking
No. 2019AP70

Vlach’s probation. DHA found there to be credible evidence supporting each of
the alleged violations of the terms of Vlach’s probation, and that there were no
appropriate alternatives to revocation. Vlach argues that DHA’s decision was
arbitrary and capricious and represented its will rather than its judgment, and that
it failed to consider viable alternatives to revocation.

¶2 Upon certiorari review, the trial court upheld DHA’s determination.
We affirm.

BACKGROUND

¶3 In July 2016, Vlach pled no contest to two charges of fourth-degree
sexual assault. Both charges involved Vlach touching the breasts of two victims
while they were either asleep or unconscious. The trial court sentenced Vlach to
120 days in jail as to the first count; as to the second count, the court imposed and
stayed a consecutive eight-month jail sentence and placed Vlach on probation for
two years.1

¶4 As a condition of his probation, Vlach was required to participate in
sex offender treatment and counseling. Additionally, Vlach was not permitted to
have contact with his mother because it was determined that Vlach had previously
had sexual contact with her. Furthermore, Vlach was prohibited from accessing
the internet, including Facebook.

1
Although Vlach has completed his probation sentence, he argues that this appeal is not
moot because pursuant to his judgment of conviction, the revocation of his probation rendered
him ineligible for the expungement of this conviction. The State concedes this point.

2
No. 2019AP70

¶5 On December 15, 2016, Vlach was taken into custody for violating
the no contact rule with his mother, as well as the rules prohibiting unapproved
internet use and Facebook access. Vlach served a short sanction for the violations
and was released on December 27, 2016. He went directly to his mother’s house
after being released, immediately violating the same condition of his probation for
which he had just been sanctioned. He was again taken into custody and received
a sixty-day sanction from the trial court. He was released on March 14, 2017.

¶6 Shortly after Vlach was released from that sanction, his probation
agent conducted a home visit and found Vlach in possession of a smart phone, a
violation due to its capability of accessing the internet. The phone was
confiscated. Approximately two weeks later on April 1, 2017, Vlach violated his
curfew and was taken into custody.

¶7 After those violations, Vlach was given the option of entering into
an alternative to revocation agreement (ATR). That ATR, executed on April 7,
2017, contained specific conditions such as completing community service
requirements and complying with all of the terms of his probation. However, in
May 2017, Vlach twice violated the terms of the ATR by not participating in
community service as required and by violating his curfew. Then on June 7, 2017,
he reported to his probation agent’s office with a photo of one of his victims in his
possession, taken while she was sleeping, just prior to his assault of her. He was
taken into custody and discharged from his sex offender therapy group for this
incident. However, revocation of Vlach’s probation was not pursued; instead, he
was given the option of signing an amended ATR and was allowed to rejoin his
therapy group.

3
No. 2019AP70

¶8 In September 2017, Vlach was discharged from his sex offender
treatment group for “continued lack of progress[.]” He was assessed as having
risk factors that required “a more intensive level of [s]ex [o]ffender [t]reatment
that can only be offered in an institution setting.” This termination from treatment
constituted a breach of his amended ATR. Vlach was taken into custody and
probation revocation proceedings were commenced.

¶9 A hearing was held before Administrative Law Judge Martha C.
Carlson of the DHA on November 28, 2017. The specific violations that were
alleged as grounds for revocation were (1) his curfew violation in April 2017;
(2) his possession of a smart phone; (3) his possession of a photo of one of the
victims; (4) his discharge from his therapy group after he was found with the
photo of the victim; (5) his termination from treatment in September 2017; and
(6) his failure to comply with the amended ATR.

¶10 ALJ Carlson found that all of these allegations had been established
by a preponderance of the evidence. She also noted that Vlach had already been
granted two ATRs, but had “failed to comply with either” and, as such, was a
“very poor risk to comply” with any further ATRs. Therefore, ALJ Carlson found
that “[c]onfinement [was] necessary” for Vlach, and revoked his probation.

¶11 Vlach appealed that decision to Brian Hayes, the administrator of
DHA, who sustained ALJ Carlson’s decision. Hayes observed that in addition to
Vlach’s many rule violations, he had also disclosed eight additional victims,
assaulted in a manner similar to the victims in this case.

¶12 Hayes further noted that Vlach had been evaluated by two
psychologists who differed in their diagnoses of his mental health issues: one
found that he had autism spectrum disorder, while the other diagnosed him with

4
No. 2019AP70

narcissistic personality disorder. Vlach had argued that the latter “incorrect”
diagnosis had “caused inaccurate assessments of his risk and treatment needs.”
Nevertheless, Hayes stated that Vlach’s failure to comply with his ATR and his
termination from sex offender treatment rendered him “too high-risk to remain in
treatment in the community.” Thus, Hayes agreed that revocation was necessary
“to prevent undue depreciation of the seriousness of [Vlach’s] conduct and to
ensure protection of the public.”

¶13 Vlach then petitioned the trial court for a writ of certiorari
challenging DHA’s decision. Vlach argued that DHA acted arbitrarily and
capriciously because it did not take into consideration any further alternatives to
revocation, and that its decision disregarded the law. Vlach further asserted that
he did not have adequate notice of the rules that he was alleged to have violated.

¶14 The circuit court held that DHA’s decision was reasonable and
supported by substantial evidence, and that it was made according to law and was
not arbitrary and capricious. It therefore affirmed DHA’s decision. This appeal
follows.

DISCUSSION

¶15 “The decision to revoke probation rests within the sound discretion
of [DHA].” State ex rel. Lyons v. DHSS, 105 Wis. 2d 146, 151, 312 N.W.2d 868
(Ct. App. 1981). Accordingly, the scope of judicial review by certiorari of a
probation revocation is limited to certain inquiries: “(1) [w]hether [DHA] kept
within its jurisdiction; (2) whether it acted according to law; (3) whether its action
was arbitrary, oppressive, or unreasonable and represented its will and not its
judgment; and (4) whether the evidence was such that it might reasonably make

5
No. 2019AP70

the order or determination in question.” Van Ermen v. DHSS, 84 Wis. 2d 57, 63,
267 N.W.2d 17 (1978) (citation omitted).

¶16 Vlach argues that DHA’s decision was arbitrary and capricious, and
that DHA disregarded the law in making its determination. These are questions of
law that we review de novo, see State ex rel. Riesch v. Schwarz, 2005 WI 11, ¶14,
278 Wis. 2d 24, 692 N.W.2d 219, and we “decide the merits of the matter
independently of the trial court’s decision,” see State ex rel. Ortega v.
McCaughtry, 221 Wis. 2d 376, 385-86, 585 N.W.2d 640 (Ct. App. 1998).

¶17 In an appeal that “challeng[es] a revocation decision … the
probationer bears the burden of proving that the decision was arbitrary and
capricious.” Von Arx v. Schwarz, 185 Wis. 2d 645, 655, 517 N.W.2d 540 (Ct.
App. 1994). “An agency’s decision is not arbitrary and capricious and represents
its judgment if it represents a proper exercise of discretion.” Id. at 656. A
discretionary decision has been properly reached if it “contemplates a reasoning
process based on the facts of record ‘and a conclusion based on a logical rationale
founded upon proper legal standards.’” Id. (citation omitted).

¶18 Our inquiry into DHA’s exercise of its discretion reviews whether its
conclusion was based on “substantial evidence[.]” Id. “Substantial evidence is
evidence that is relevant, credible, probative, and of a quantum upon which a
reasonable fact finder could base a conclusion.” Id. (citation omitted). The
substantial evidence test is met if DHA’s findings are “‘supported by any
reasonable view of the evidence[.]’” Ortega, 221 Wis. 2d at 386 (citations and
internal quotation marks omitted). This court “‘may not substitute our view of the
evidence for that of [DHA].’” Id. (citations omitted).

6
No. 2019AP70

¶19 DHA found that there was substantial evidence to support all six of
the probation violations against Vlach as alleged. With regard to the first
violation—returning to his residence after his curfew of 4:00 p.m. on April 1,
2017—this violation was established via GPS monitoring. Vlach initially claimed
he was “confused” about his curfew time. However, Vlach’s probation agent
explained that Vlach had texted her around 3:00 p.m. that day to request a
schedule extension, but it was a Saturday and Vlach’s agent was not working, so
she therefore had not responded. The agent asserted that Vlach knew his schedule
had not been changed and thus was not confused, but rather chose not to comply
with his curfew. Vlach subsequently admitted to this violation upon his execution
of the first ATR.

¶20 The violation relating to Vlach’s possession of a smart phone stems
from the rule prohibiting him from accessing the internet without prior
authorization from his agent. Vlach initially denied that the smart phone was his,
telling his probation agent that he only had an approved Blackberry. He then
admitted the smart phone was his, but lied about being able to access the internet
on it. A subsequent search of the phone revealed that its internet history had been
cleared, and that Vlach had been using that phone since December 2016. Vlach
admitted to this violation when he signed the first ATR.

¶21 As for Vlach’s possession of the photo of one of his victims, DHA
maintained that this was a violation of the rule that required Vlach to “[a]void all
conduct which … is not in the best interest of the public welfare or [his]
rehabilitation.” Vlach’s possession of this photo is certainly not in the best interest
of the public welfare—especially the welfare of that victim. Moreover, this
presents a rehabilitation issue because, based on his psychological reports, Vlach
has demonstrated a failure to recognize the harm he caused his victims and was to

7
No. 2019AP70

work on developing empathy for them. Vlach admitted to this being a violation of
his probation when he signed the amended ATR.

¶22 That violation led to Vlach’s discharge from sex offender group
therapy, the fourth violation alleged. Although Vlach was subsequently allowed
to rejoin the group, he admitted in the amended ATR to the violation of being
unsuccessfully discharged from sex offender treatment.

¶23 Violations five and six relate to Vlach’s ultimate termination from
sex offender treatment in September 2017. The reason—as cited in the Sex
Offender Discharge Summary, submitted as evidence—was Vlach’s lack of
progress. He continued to demonstrate a lack of empathy for his victims; in fact,
he wrote an essay on why he despised one of his victims. It had also been
observed that Vlach was “exhibiting signs of denial” and had “heightened risk
factors.” Therefore, DHA found that the Discharge Summary, together with the
credible testimony of Vlach’s probation agent, were sufficient to prove these
violations.

¶24 In sum, DHA found that there was substantial evidence to support all
of the violations alleged. After reviewing the record, we conclude that this is a
“‘reasonable view of the evidence.’” See Ortega, 221 Wis. 2d at 386 (citations
and internal quotation marks omitted).

¶25 DHA then went on to assess, based on this substantial evidence
regarding his violations, whether revocation of Vlach’s probation was justified. It
is well established that revocation is justified if one of the following criteria has
been met:

(i) confinement is necessary to protect the public from
further criminal activity by the offender; or

8
No. 2019AP70

(ii) the offender is in need of correctional treatment
which can most effectively be provided if he is
confined; or

(iii) it would unduly depreciate the seriousness of the
violation if probation were not revoked.

State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 544, 217 N.W.2d 641 (1974)
(citation omitted).

¶26 DHA found that all three criteria had been met here. It noted
Vlach’s repeated and continued violations of his probation rules and both ATRs.
It acknowledged that Vlach had been diagnosed with mental health issues, but
stated that “these conditions do not excuse Mr. Vlach from following his rules of
community supervision.” Therefore, under all of the circumstances surrounding
this matter, DHA found that confinement was necessary to protect the public. It
further found that Vlach “could very well” benefit from further sex offender
treatment, and that such treatment would be “best provided in a confined setting to
ensure that Mr. Vlach remains available for and compliant with treatment.”
Finally, it found that not revoking Vlach’s probation would unduly depreciate the
seriousness of these violations.

¶27 We agree with this analysis. The Sex Offender Program Report,
completed when Vlach was terminated from treatment, explained that despite his
regular attendance at group therapy, Vlach still blamed his victims for his offenses
and portrayed himself as the victim. He also minimized and rationalized his
behavior while diminishing the effects it had on his victims, and refused to accept
feedback during his therapy sessions. The group therapist found that these
behaviors indicate a high risk of reoffending, which led to Vlach’s discharge from
group therapy with the recommendation for a more intensive level of treatment in
confinement. Furthermore, regardless of the differing diagnoses from the two

9
No. 2019AP70

psychologists who examined Vlach, both agreed that Vlach is not impaired in a
manner that would prevent him from conducting himself lawfully in society.

¶28 Vlach also argues that DHA did not consider alternatives to
revocation. In exercising its discretion, DHA “should consider alternatives that
are available and feasible.” Von Arx, 185 Wis. 2d at 656. The record clearly
indicates that DHA did so. ALJ Carlson stated that there were no appropriate
alternatives to revocation due to the therapist’s recommendation of more intensive
treatment, as well as Vlach’s repeated violations, noting that Vlach had previously
been given two ATR’s but “failed to comply with either, demonstrating that he is a
very poor risk to comply with any further [ATRs].” Hayes stated that Vlach’s
failure to complete sex offender treatment and his repeated violations made him “a
risk to the community,” agreeing that another ATR would not be appropriate and
that revocation was necessary.

¶29 In short, DHA’s decision to revoke Vlach’s probation was based on
its application of the proper legal standard—the Plotkin criteria—to the facts of
the case. See Plotkin, 63 Wis. 2d at 544.

¶30 Additionally, Vlach argues that he did not have adequate notice that
two of the alleged violations—possessing a smart phone and possessing a photo of
one of his victims—were violations of the terms of his probation. In the first
place, Vlach failed to raise this issue before DHA, and has therefore waived the
right to raise it in this appeal. See State v. Outagamie Cty. Bd. of Adjustment,
2001 WI 78, ¶55, 244 Wis. 2d 613, 628 N.W.2d 376 (“Ordinarily an appellate
court will not consider issues beyond those properly raised before the
administrative agency, and a failure to raise an issue generally constitutes a waiver
of the right to raise the issue before a reviewing court.”). Furthermore, Vlach’s

10
No. 2019AP70

argument fails on the merits; we have already concluded that there was substantial
evidence to support these violations as alleged, and further, Vlach admitted to
these violations upon executing his two ATRs.

¶31 Vlach also makes a claim of ineffective assistance of counsel,
asserting that his trial counsel failed to prepare and submit another ATR, and
failed to call as witnesses Vlach’s psychologist and his group therapist. However,
the scope of our review on certiorari is strictly limited, as set forth above, and a
claim of ineffective assistance of counsel is not within that scope. See State v.
Ramey, 121 Wis. 2d 177, 181-82, 359 N.W.2d 402 (Ct. App. 1984). As a result,
we cannot consider that claim. See id.

¶32 Therefore, because we conclude that DHA’s decision was based on
substantial evidence as set forth in the record to which it applied the proper legal
standard, it properly exercised its discretion in revoking Vlach’s probation. See
Von Arx, 185 Wis. 2d at 656. As such, the decision was not arbitrary and
capricious. See id. Accordingly, we affirm the trial court’s order to uphold
DHA’s decision.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

11