### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP102 Cir. Ct. No. 2019CV701 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN EX REL . D AVID A UMANN ,
P ETITIONER - A PPELLANT ,

V . S TATE OF W ISCONSIN D EPARTMENT OF C ORRECTIONS ,
R ESPONDENT - R ESPONDENT .

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 W IS . S TAT . R ULE 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 habea s 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 W IS

. S TAT

. § 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 A n inmate , such as Aumann, who is serving a bifurcated sentence
for a crime other than a C lass 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. W IS

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. § 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 sentenci ng 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 doe s 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 Mil waukee County
Circuit Court on three felo ny counts for prison terms of ten, ten, and six years to be served consecutively. 1 Pursuant to W IS

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. § 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 fil ing 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 W IS

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. § 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 C ourt to quash its writ on jurisdictional , substantive , and procedural grounds

. For purposes of this appeal, we summarize the DOC ’s argument as being that W IS

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. § 302.113(9g)(cm)

- (d) statutorily require s 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 pr oceed 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 pe titions are to be heard in the circuit c ourt of the county where
the inmate is detained. The Milwaukee County Circuit C ourt 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

. Th e 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 O shkosh 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 circu it court

s hould have sent his petition to the sentencing court gi ven the court’s ruling that
the DOC erred in its eligibility interpretation of W IS

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. § 302.113(9g)

. Having related the procedural history, we conclude it is unnecessary to examine legal machinations tha t 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.” W IS

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. § 3 02.113(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 A umann 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 wh ether 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 W IS

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. § 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
dete rmination has not yet been made; therefore , the proper recourse is, as the circuit court ordered, a remand of this matter to the P RC 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 W IS

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. § 302.113(9g)(cm), i f the PRC on remand determines that the public interest would not be served by a sentence modification , Aum ann’s recourse is by way of
certiorari , s ee W IS

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. § 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 ofNo. 2020AP102

6 certiorari.”). If the PRC determines that the public interest is served by a
modification , then Aumann’s petition is r efer red to the s entencing 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 s tate 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 a n initial
dete rmination 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 W IS

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. R ULE 809.23(1)(b)5.