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Gaspardo v. Schwarz3/15/2000
would be placed in the AODA Boot Camp if he violated his rules of supervision by drinking, that warning did not prevent the department from implementing a greater sanction if warranted by the circumstances. Considering the totality of the circumstances surrounding Mr. Gaspardo's arrest, I agree that neither the Boot Camp program nor the DACC program is a viable alternative to revocation of supervision. Mr. Gaspardo's violations show that he is a danger to others and that he is not a good risk for continued community supervision.
. While we acknowledge that Gaspardo did more than just drink here, we are at a loss to understand why the boot camp and DACC were rejected in so summary a fashion. Our understanding of both DACC and AODA boot camp is that they are not community based; they are confined settings, though perhaps low security. The agent's recommendation, the ALJ's decision and the administrator's decision on appeal all emphasize the need to remove Gaspardo from the community. But not one of them addresses why removal to a setting such as the boot camp would not accomplish that end. We realize that the division's duty to consider alternatives does not require it to consider any and all alternatives. Furthermore, we understand that our review is limited. But we may "examine the record ab initio to see if it supports the [division]." Id. at 67. Nothing in this record, nor reasonable inferences drawn from its contents, supports the conclusion that the AODA boot camp was outside the realm of possibilities for Gaspardo. In its decisions, the division's emphasis is on the need to confine Gaspardo; but nowhere are we told why confinement at the boot camp or DACC would be insufficient. In short, the decision was arbitrary.
. We emphasize that the facts of this case are unique and drive the result. The DOC itself set up boot camp as a consequence for drinking. While such a plan does not bind the DOC to send Gaspardo to boot camp-perhaps there are unstated reasons why confinement at the boot camp was inappropriate-it does oblige the DOC to at least discuss why the planned option is no longer feasible. Decency, logic and fairness require as much.
. At oral argument, we asked the parties to address the appropriate remedy-affirmance of the circuit court order reinstating Gaspardo's probation or remand for discussion of the feasibility of boot camp and DACC. Remand may be appropriate in cases where new evidence becomes available, see State ex rel. Leroy v. DHSS, 110 Wis. 2d 291, 295-96, 329 N.W.2d 229 (Ct. App. 1982), or where the record does not reveal whether the DOC and the division complied with procedural rules, see State ex rel. Lomax v. Leik, 154 Wis. 2d 735, 741, 454 N.W.2d 18 (Ct. App. 1990). However, remand to allow the record to be shored up with additional discussion in support of revocation violates the concepts of due process and fair play. See Leroy, 110 Wis. 2d at 295. Thus, rather than remand, we affirm the circuit court's order reinstating Gaspardo's probation.
By the Court. -- Order affirmed.
Not recommended for publication in the official reports.
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