State v. Les Paul Henderson, 2023AP2079-CR, 5/31/24, District IV (not recommended for publication); case activity
Although Henderson fails to persuade COA that a JOC making him eligible for early release programming controls, he does live to fight another day given COA’s order that he receive a hearing at which time the circuit court will have to exercise its discretion to determine his eligibility.
Henderson was convicted and sentenced in 2020. (¶1). Although his conviction for fourth-degree sexual assault rendered him statutorily ineligible for programming, he was eligible on his conviction for causing mental harm to a child. (¶5). Problematically, the PSI erroneously indicated he was categorically ineligible and the sentencing court did not address eligibility during its sentencing remarks. (¶7). However, the minutes sheet, the written explanation of determinate sentence, and the JOC all indicate that Henderson is deemed eligible. (¶8). As a result, DOC ultimately placed Henderson in SAP. (¶9).
When the State learned of this development, it filed a motion to “correct” the judgment of conviction, which ultimately resulted in the issuance of an amended JOC making Henderson ineligible. (¶10). Henderson, in turn, filed a motion to vacate that amended JOC, asking that the original eligibility determination be reinstated. (¶11). The postconviction court (a different judge) held an evidentiary hearing which included the testimony of the clerk who had prepared the documents. (¶15). Ultimately, the postconviction court made a finding that the clerk had erroneously checked the boxes without consulting the judge and that the circuit court had not affirmatively considered Henderson’s eligibility. (¶16). It then went one step further and concluded that the absence of consideration meant that the sentencing court intended Henderson to be ineligible and denied Henderson’s request that it exercise its discretion to determine Henderson’s eligibility. (¶¶17-18).
On appeal, Henderson first tries to argue that the documents filed by the clerk should control and, given the judge’s silence at sentencing, “unambiguously show that the sentencing court intended to declare Henderson eligible to to participate in these programs.” (¶24). But-for the ample postconviction factfinding, COA indicates it might be inclined to agree. (Id.). There was, however, nothing improper about the postconviction court’s decision to go outside the record and to take testimony and, further, nothing clearly erroneous about the resulting findings of fact. (¶¶26-27). Accordingly, the record, as a whole, does not support Henderson’s argument that the written documents should control under these facts. (¶30).
However, COA agrees with Henderson that he should receive an opportunity to have the circuit court exercise its discretion and determine his eligibility, as the record demonstrates that the sentencing court never addressed this issue during the original sentencing and the record does not permit COA to infer otherwise. (¶31). Accordingly, the postconviction court erred when it attributed an affirmative intent to make Henderson ineligible. (Id.). The mere fact that the sentencing court considered the crime to be serious is insufficient as is the fact that the court did consider other prison programming, such as sex offender treatment. (¶¶35-36). COA also rejects the State’s attempt to argue that Henderson has forfeited his argument that he should be entitled to a hearing on remand. (¶37). Accordingly, Henderson is entitled to a new hearing, at which time the circuit court will have to exercise its discretion and determine whether Henderson should be eligible for SAP and/or CIP. (¶38).
