COURT OF APPEALS

DECISION

DATED AND FILED

December 16, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP102 Cir. Ct. No. 2019CV701

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN EX REL. DAVID AUMANN,

 PETITIONER-APPELLANT,

 V.

STATE OF WISCONSIN DEPARTMENT OF CORRECTIONS,

 RESPONDENT-RESPONDENT.

APPEAL from orders of the circuit court for Winnebago County: 

BARBARA H. KEY, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

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). 
No. 2020AP102

2

¶1 PER CURIAM. David Aumann appeals pro se from an order of the 

circuit court converting his petition for writ of habeas corpus into a petition for 

writ of certiorari and remanding the case to the program review committee (PRC) 

to consider Aumann’s request for sentence modification under WIS. STAT.

§ 302.113(9g). Aumann also appeals from an order denying his motion for 

reconsideration. Aumann’s ultimate argument is that the circuit court should have 

remanded his petition for sentence modification to the sentencing court. For the 

reasons that follow, we affirm.

¶2 An inmate, such as Aumann, who is serving a bifurcated sentence

for a crime other than a Class B felony and who is at least sixty years of age and 

has served at least ten years of the initial confinement portion of his bifurcated 

sentence “may submit a petition to the [PRC] at the correctional institution in 

which the inmate is confined” requesting a modification of his sentence. WIS.

STAT. § 302.113(9g)(b)2., (c). The statutory role of the PRC is to review the 

petition and make a determination as to whether “the public interest would be 

served by a modification.” Sec. 302.113(9g)(d). If the PRC determines that the 

public interest would be served by a modification, the Department of Corrections 

(DOC) “shall then refer” the petition to the sentencing court and “request the court 

to conduct a hearing on the petition.” Sec. 302.113(9g)(cm). If, however, the 

PRC determines that the public interest would not be served by a modification, the 

PRC “shall deny the inmate’s petition.” Id. The statute does not explicitly 

provide a method by which an inmate may challenge the PRC’s initial review. See

id.
No. 2020AP102

3

¶3 Aumann was convicted in 2009 and sentenced in Milwaukee County 

Circuit Court on three felony counts for prison terms of ten, ten, and six years to 

be served consecutively.1 Pursuant to WIS. STAT. § 302.113(9g)(b)2., Aumann

petitioned the PRC for sentence modification in early 2018.

2 The PRC denied 

Aumann’s request, finding that he was not eligible to file a petition as the DOC 

held the opinion that he “must serve 10 years on each sentence to be modified. 

Sentences of 10 years or less are not statutory eligible.”

¶4 Aumann responded by filing a petition for writ of habeas corpus in 

Milwaukee County Circuit Court (where he was sentenced) challenging the 

DOC’s eligibility determination. The Milwaukee County Circuit Court initially 

granted the habeas petition and ordered the DOC to release Aumann to extended 

supervision. The court reasoned that the DOC’s interpretation of WIS. STAT.

§ 302.113(9g) was “unreasonable” pursuant to § 302.113(4), which provides in 

pertinent part: “All consecutive sentences imposed ... shall be computed as one 

continuous sentence.” See also State v. Harris, 2011 WI App 130, ¶9, 337 

Wis. 2d 222, 805 N.W.2d 386.

¶5 The DOC moved Milwaukee County Circuit Court to quash its writ 

on jurisdictional, substantive, and procedural grounds. For purposes of this 

appeal, we summarize the DOC’s argument as being that WIS. STAT.

§ 302.113(9g)(cm)-(d) statutorily requires the “public interest” determination to be 

initially made by the PRC, and only if the PRC finds that modification would be in 

 

1

 Aumann also had other sentences for prison terms of six years each, but those were 

“concurrent” sentences and have been completed and are not at issue in this matter. 

2

 The State does not contest that Aumann has served more than ten years of confinement 

time on his three convictions at issue. 
No. 2020AP102

4

the public interest, does the petition then proceed to the sentencing court. See

§ 302.113(9g)(d).3 The DOC also moved the Milwaukee County Circuit Court to 

change the venue of Aumann’s habeas petition to Winnebago County Circuit 

Court, as habeas petitions are to be heard in the circuit court of the county where 

the inmate is detained. The Milwaukee County Circuit Court agreed with the

DOC, quashed its earlier order, and transferred venue to Winnebago County.

¶6 The Winnebago County Circuit Court, following argument,

converted Aumann’s habeas petition into a petition for writ of certiorari. The 

court agreed with Aumann that the DOC needs to calculate Aumann’s consecutive 

sentences as a single consecutive sentence, and it remanded Aumann’s 

modification request to the PRC at the Oshkosh Correctional Institution with the 

recognition that Aumann is eligible for sentence modification consideration.

Aumann filed a motion for reconsideration, which the circuit court denied. 

Aumann appeals.

¶7 As noted above, Aumann complains on appeal that the circuit court 

should have sent his petition to the sentencing court given the court’s ruling that 

the DOC erred in its eligibility interpretation of WIS. STAT. § 302.113(9g). 

Having related the procedural history, we conclude it is unnecessary to examine 

legal machinations that occurred in the circuit court on Aumann’s petition for 

modification. What we do conclude is that the circuit court’s end result was and is 

correct: Aumann is eligible for sentence modification consideration and the PRC 

is the statutory body that must review his petition for sentence modification prior 

 

3

 The inmate, the district attorney, and “any victim of the inmate’s crime has the right to 

be present at the hearing [before the sentencing court] and to provide a statement concerning the 

modification of the inmate’s bifurcated sentence.” WIS. STAT. § 302.113(9g)(d), (g).
No. 2020AP102

5

to the matter being referred to the sentencing court. See § 302.113(9g)(c), (cm). 

We also affirm the circuit court’s legal conclusion that Aumann’s consecutive 

sentences are a single, continuous sentence and that Aumann has served more than 

ten years of that single continuous sentence. See § 302.113(4); Harris, 337 

Wis. 2d 222, ¶9.

¶8 It is the PRC’s statutory responsibility to make the initial 

determination as to whether the public interest would be served by modifying 

Aumann’s remaining confinement time to his extended supervision time prior to 

the issue being referred to the sentencing court. See WIS. STAT. § 302.113(9g)(c), 

(cm). Referral to the sentencing court is dependent upon the PRC determining that 

sentence modification is in the public interest. Sec. 302.113(9g)(cm). That 

determination has not yet been made; therefore, the proper recourse is, as the 

circuit court ordered, a remand of this matter to the PRC to make that 

determination. 

¶9 The tortured process that this matter took was caused by Aumann 

challenging the DOC’s eligibility determination as a habeas petition rather than a 

certiorari petition. While the statute does not explicitly provide a method by 

which an inmate may challenge the PRC’s initial review, see WIS. STAT.

§ 302.113(9g)(cm), if the PRC on remand determines that the public interest 

would not be served by a sentence modification, Aumann’s recourse is by way of 

certiorari, see WIS. STAT. § 801.50(5) (contemplating “an action for certiorari to 

review ... a denial by a program review committee under [§] 302.113(9g) of a 

petition for modification of a bifurcated sentence” (emphasis added)); State ex rel. 

Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185 N.W.2d 306 (1971) (“It is well 

established in this state that where there are no statutory provisions for judicial 

review, the action of a board or commission may be reviewed by way of 
No. 2020AP102

6

certiorari.”). If the PRC determines that the public interest is served by a 

modification, then Aumann’s petition is referred to the sentencing court in 

Milwaukee County for the purposes of scheduling and holding a hearing on 

Aumann’s petition. See § 302.113(9g)(cm), (d). Both Aumann and the state have 

the right to appeal a sentencing court’s determination on a petition for sentence 

modification. See § 302.113(9g)(h).

¶10 In conclusion, we affirm the remand to the PRC for an initial

determination of Aumann’s petition. We further direct that as Aumann’s petition 

was filed in early 2018, and has yet to be heard, Aumann may supplement his 

petition with any additional, pertinent information that developed since he filed it.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.