State v. Jonathon Wayne Allen Beenken, 2024AP419-CR, 1/24/25, District IV (1-judge decision, ineligible for publication); case activity (including briefs)
COA holds that the clear and unambiguous terms of Beenken’s diversion agreement required the circuit court to grant the state’s motion to revoke the agreement.
Beenken entered into a diversion agreement upon his no contest plea to a felony count of substantial battery as a repeater and as domestic abuse. The state later moved to revoke the agreement, and the circuit court denied the state’s motion. One of the conditions of the agreement was that “The defendant shall not violate any criminal or criminal traffic laws.” (¶4). The agreement provided that the state could show a violation by showing probable cause, and a criminal complaint would be sufficient but not required. It further provided, “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.”
The state moved to revoke the agreement, alleging criminal violations, and attached a criminal complaint charging Beenken with felony bail jumping, misdemeanor battery, and disorderly conduct. (¶7). Beenken submitted an unsigned statement by the alleged victim in the new case, partly recanting her report that was used for the probable cause portion of the complaint. (¶9). The court considered the provisions of the agreement, and the state’s motion, which also listed Beenken’s compliance with various terms. Ultimately, the court denied the motion “because of his . . . mostly positive performance[.]” (¶12). The court also denied the state’s motion for reconsideration.
Courts are bound by the terms of a diversion agreement, and draw on contract principles in their interpretation. See State v. Barney, 213 Wis. 2d 344, 358-59, 570 N.W.2d 731 (Ct. App. 1997). “The law in Wisconsin is that unambiguous contractual language must be enforced as it is written,” State v. Windom, 169 Wis. 2d 341, 348, 485 N.W.2d 832 (Ct. App. 1992), and courts must similarly enforce diversion agreements as written, Barney, 213 Wis. 2d at 362. Pertinent here, the circuit court is “obligated … to follow the terms of the [diversion] agreement regarding revocation proceedings.” Id. at 361.
COA concludes that the terms of the agreement here are unambiguous, “shall” is mandatory. (¶¶18-19). The court then turns to whether the state made a sufficient showing of probable cause by introducing the complaint. It concludes that although the complaint relies on hearsay, that hearsay is sufficiently reliable to make a plausible showing of probable cause. (¶¶22-28). Beenken fails to support his argument that the circuit court was required to consider the alleged victim’s written statement, so the COA does not consider it.
Given that the COA concludes, on its independent review, that the state met its burden to show probable cause, it reverses and remands with directions to enter an order granting the motion to revoke.
