In what is becoming more and more difficult for criminal defense attorneys these days, Attorney Stephen Mays and Mays Law Office, LLC prevailed – eventually – in a probation revocation hearing against the Department of Corrections (DOC) and a very pesky and persistent probation officer and his supervisor.
In April 2023, in Dane County, MLO client was convicted (while represented by another attorney) of Operating a Motor Vehicle While Under the Influence (OWI) as a Fourth Offense, a felony. At sentencing, the court withheld sentence and ordered three years of probation, with some conditional jail time.
Almost two years later, in January 2025, this same person called the police because his house was burning down. The now-MLO client, who was on scene when the officer arrived and identified himself via his state ID card. The officer obtained information from MLO client, which he stated was in following protocol in relation to structure fires. He first asked if there was anything flammable in or near the building, ostensibly for safety purposes, before moving on to asking about any items of value that may have been in the residence. As to the former issue, MLO client stated that there would be ammunition in the residence, along with other potentially flammable or explosive items. When asked about items of value, MLO client stated that there were guns in an unattached outdoor shed.
In total, law enforcement recovered five long guns (rifles or shotguns) from a shed over 150 yards from the burning house. No handguns, other firearms, or weapons of any kind were located or seized. Based upon those items being present and MLO client’s probation status, he was taken into custody for being a felon in possession of firearms. MLO client was compliant in being taken into custody but lamented that he perhaps should not have told officers about the guns, as they would never have been found.
The DOC then sought to revoke MLO client’s OWI probation for the violation of possession of a firearm by a felon – a charge that was also brought separately by the District Attorney’s office and carries a potential of 10 years in prison.
At the revocation hearing, MLO client testified that he told the police that he was on probation and that he was not to be in possession of firearms. He also testified that family members and others had access to the building for storage. No firearms were recovered from the residence. The officer testified that MLO client was cooperative and forthcoming throughout their interactions and that he would not likely have been aware of the presence of any firearms, had MLO client not been honest and truthful with them. In fact, the officer testified that he generally felt bad about having to arrest MLO client due to the infractions, given that he was so forthcoming and helpful to law enforcement.
At the hearing, MLO client admitted the firearms were in his shed. He also admitted that his status as a convicted felon specifically prohibited him from possessing firearms or other weapons. The only felony offense for which MLO client had been previously convicted was the underlying felony OWI 4th. He had no criminal history outside of OWI and traffic-related offenses. Nonetheless, by possessing firearms as a felon, MLO client had violated his probation.
With this, the Administrative Law Judge (ALJ) determined that the DOC had met its burden of proving a probation violation. It was never established that MLO client ever handled the firearms himself at any point after he was convicted and became a felon and was subject to his rules of supervision. However, a violation existed. The next question was whether the violation warranted revocation of probation.
When revoking a person’s probation, such revocation is justified only if, based on the original offense and intervening conduct, the ALJ finds that:
(1) confinement is necessary to protect the public from further criminal activity by the client; or
(2) the client is in need of correctional treatment which can most effectively be provided if confined; or
(3) it would unduly depreciate the seriousness of the violation if supervision were not revoked; and there are no appropriate alternatives to revocation (ATR).
This is known as the “Plotkin” factors, based on the case of State ex rel. Plotkin v. Dep’t of Health & Soc. Servs., 63 Wis.2d 535, 544-45, 217 N.W.2d 641 (1974), Wis. Admin. Code § HA 2.05(7)(b)3.
In rendering his decision not to revoke MLO client’s probation, the ALJ noted that MLO client was 57 years old and on probation for OWI – the offense that resulted in his status as a felon. However, the underlying offense shares no significant nexus to the violation in the revocation proceeding. It was not alleged, or even suggested, that MLO client had consumed alcohol or any other substance on or around the time of the fire or his interactions with law enforcement. There are no OWI or other motor vehicle related allegations.
MLO client’s probation began in April 2023. Since his release to the community, there were no previous violations of his rules of community supervision. On the contrary, MLO client was compliant with supervision, positively engaged with his agent, and reflected overall positive adjustment while on probation. He had stable housing throughout his time in the community, at least until the fire claimed his home. He also enjoyed stable employment, having been with the same company for roughly ten years. He did not have any noted antisocial peers or associations. The DOC did not have any concerns about him whatsoever during his period of probation, including any alcohol or drug use. He did not raise any concerns and had completed his court ordered alcohol assessment. In fact, the DOC stated that he had been doing so well on probation that the DOC petitioned the court to successfully discharge him from probation early – six months earlier than scheduled.
The ALJ went on in his decision, stating the following when addressing the aforementioned Plotkin factors:
- “Generally, a felon being in possession of a firearm is a highly dangerous situation that creates untold opportunities for harm to occur. Due to the seriousness and dangerous nature of that conduct, revocation is largely justified as necessary to not unduly depreciate the seriousness of the violation and to provide for public protection from harm or risk of harm. It is also noted that [MLO client] does not have any apparent treatment need at this time; therefore, there is no support under Plotkin that revocation is justified to provide him with treatment that would be most effective in a confined setting.
Ultimately, though, this is a very unique case and set of circumstances that does not justify revocation of [MLO client’s] probation. [He] has been completely compliant with the department and his rules of supervision while in the community for over two years and on probation for nearly three. The only exception to this statement is the instant violation wherein [he] had been in possession of several long guns for an apparently extended period of time, while on probation. He was aware that he was not to possess firearms; however, it appears that he did not fully understand or appreciate the full extent of what it meant to possess those items. [MLO client’s] ignorance of the law or his rules of supervision is not a defense or mitigating consideration in this matter, but it is relevant to this decision. That is because [he] has been entirely forthcoming and cooperative with law enforcement and the department in regard to the violations. That he contested them here is not viewed as avoiding consequence, as he did not particularly contest any of the facts alleged in the report or by the department. In fact, [he] essentially self-reported the violation to … law enforcement [who] would not likely have been aware of the presence of firearms on the premises {MLO client] volunteering that information. After doing so, he remained compliant with law enforcement. While [MLO client’s] conduct is serious and he has at least been referred to new felony charges of being a felon in possession of a firearm, revocation is not necessary in this matter.
By the time this decision is final, [he] will have been in custody awaiting revocation for approximately four months. That period of time is a sufficient sanction for the proven conduct, if not in excess of what may be necessary to impart the severity of the offense on [him]. This was his first violation of any rule of community supervision. His adjustment was otherwise impeccable and stable over the course of years. He was honest to his own detriment but has appeared to be understanding of why the department has sought revocation. It does not appear that this incident is cause for concern regarding his ongoing relationship with the department or [his agent].
Finally, as previously mentioned, revocation is not supported by any treatment need that [MLO client] may have that is not being adequately addressed in the community. The conduct does not justify a lengthier term of incarceration for any need, much less treatment. [He] has not been directed to treatment by the department during his period of supervision and has not received any alternatives to revocation, based at least partially upon his lack of treatment needs. [He] should not be penalized with a term of confinement because, at least in part, he does not have an easily identifiable treatment need that he can be connected to services on.
It is therefore ORDERED that the probation of [MLO client] Dane County case 22CF*** is not revoked.”
However, as is becoming par for the court in revocation hearings in which the DOC loses, the DOC filed a barely one-page appeal seeking to overturn the above decision not revoking probation. This act, alone, kept MLO client in jail – on the continued probation hold – for at least another 21 days.
Then, 28 days after the DOC’s appeal was filed – and Attorney Mays filed a rebuttal to the DOC’s appeal the day the DOC appealed – the Administrator for the Division of Hearings and Appeals filed this brief decision.
“After review of this appeal pursuant to Wis. Stats. § 301.035, the Decision and Order of the Administrative Law Judge (ALJ) is Sustained for the following reasons:
- The Department of Corrections (DOC) appeals the underlying decision not revoking [MLO client’s] probation supervision. The sole allegation was proven. To wit, on January 9, 2025, [MLO client] possessed firearms. They were discovered by law enforcement responding to a fire at his residence, at which time [MLO client] disclosed that there were rifles in his shed when asked whether there were any potentially flammable items nearby. Emphasizing [MLO client’s] previous excellent adjustment to probation and lack of evidence that he actually handled or used the long guns while on probation, the ALJ did not revoke probation, which would have returned [MLO client] to court for sentencing after revocation on the underlying offense of OWI (4th).
On appeal, the DOC requests reversal, emphasizing the danger of [MLO client] maintaining the firearms in an unlocked shed on his property. It submits that not revoking would unduly depreciate the seriousness of a felon in possession of firearms. In reply to the appeal, [MLO client’s attorney, Stephen Mays] argues that the underlying decision must be sustained. [Attorney Mays] notes the mitigating factors, including no violent criminal history, his truthfulness with the authorities to his own detriment, and his otherwise impeccable performance on probation to the point that the DOC had petitioned to discharge him early. On this de novo review, the record supports the decision.
This case presents unique circumstances making revocation unnecessary. In addition to the mitigating factors listed above, [MLO clients] is likely to have penal consequences as a result of being charged criminally for possessing the firearm, and he has now been in custody for nearly four months. Further, the violation bears no nexus to his underlying offense or criminal history.
Notably, OWI-related offenses constitute his only criminal history. The decision [not to revoke probation] is well-reasoned and supported by the record. It is sustained.”
So, while justice sometimes takes some time, if you have the right attorney, who is knowledgeable and well-versed in both the law and the criminal procedure, and is willing to fight on your behalf, justice can ultimately prevail as it did for her.