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Week of October 6, 2008

Supreme Court Cases
  • Attorney Discipline/ Reinstatement Granted

    Office of Lawyer Regulation v. Burke
    Docket: 2006AP000432 10-09-08
    PER CURIAM. We review the report and recommendation of the referee, Christine Harris Taylor, that the petition of Attorney Brian B. Burke for the reinstatement of his license to practice law in this state be granted. Because no party has responded to or appealed from that report and recommendation, our review proceeds under SCR 22.33(3).
Court of Appeals Cases
  • Contracts/ Negligence/ Summary Judgment/ Preclusion/ Procedure/ Liability

    Black v. Bach
    Docket: 2007AP001569 10-08-08
    PER CURIAM. Bruce and Tracie Black, doing business as Westside Auto Center, LLC (the Blacks), appeal from an order dismissing their complaint against Tim Bach alleging breach of contract and negligence in the construction of a commercial building. They argue that Bach's motion for summary judgment was untimely and issue preclusion does not apply. We affirm the order of the circuit court.
  • Contracts/ Statutes/ Statutory Construction-Interpretation/ Damages/ Attorney Fees/ Conversion/ Theft/ Jury Instructions

    Cook v. Public Storage, Inc.
    Docket: 2007AP002077E 10-07-08
  • Counties/ Zoning/ Preclusion/ Ordinance

    County of Portaqe v. Hintz
    Docket: 2007AP002104 10-09-08
    LUNDSTEN, J. The County of Portage appeals the circuit court's order dismissing its action against Ladislaus Hintz for operating an automobile wrecking yard and a solid waste disposal site in violation of the County's zoning ordinance. We uphold the circuit court's conclusion that claim preclusion bars the County's action, and affirm the order.
  • Criminal Law/ Evidence/ Evidence Ruling/ Constitutional Law

    State v. Andreyev
    Docket: 2007AP002555 10-09-08
    PER CURIAM. Sergey Vladimir Andreyev appeals from a judgment convicting him of three counts of second-degree sexual assault of a child and one count of obstructing an officer. He argues that there was insufficient evidence to prove the sexual assault charges and that the circuit court should have suppressed incriminating statements he made. We affirm.
  • Criminal Law/ Ineffective Assistance Of Counsel/ Writ Of Habeas Corpus/ Statutes/ Statutory Construction-Interpretation

    State v. Lynch
    Docket: 2007AP001976 10-09-08
    PER CURIAM. Gerald Lynch, Jr., appeals an order denying him WIS. STAT. § 974.06 (2005-06) relief from a conviction for homicide by intoxicated use of a vehicle, and two counts of fleeing from an officer resulting in bodily harm. We affirmed his conviction in a prior appeal. See State v. Lynch, 2006 WI App 231, 297 Wis. 2d 51, 724 N.W.2d 656, review denied, 2007 WI 59, 299 Wis. 2d 326, 731 N.W.2d 636. His postconviction motion in this proceeding alleged that he received ineffective representation from the attorney who represented him in his first appeal. Lynch should have brought his claim by filing a petition for a writ of habeas corpus in this court, commonly known as a Knight petition. See State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992). Nevertheless, to dispose of this case efficiently, we decide the merits of Lynch's ineffectiveness claim. We affirm.
  • Criminal Law/ Juvenile Law/ Evidence/ Burden

    State v. William Z.
    Docket: 2008AP001311 10-08-08
    BROWN, C.J. We accepted review of this nonfinal order denying William Z.'s motion for an in camera review of the alleged victim's confidential psychological and counseling records pursuant to State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, and State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), colloquially known as a Shiffra/Green motion. We determine that William has not shown a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence, and that the evidence is not cumulative and not otherwise available to him. Accordingly, we affirm.
  • Criminal Law/ Not Guilty By Reason Of Insanity / Commitment/ Evidence/ Statutes

    State v. Wilinski
    Docket: 2008AP000404 10-07-08
    Recommended for Publication
    PETERSON, J. Paul Wilinski appeals an order of commitment for institutional care entered after he was found not guilty by reason of mental disease or defect. Wilinski argues the circuit court's finding that he would pose a significant risk of bodily harm to himself or others if he were placed on conditional release was not supported by sufficient evidence. We disagree and affirm the order.
  • Criminal Law/ Plea/ Plea Colloquy/ Knowingly & Voluntarily Plea/ Ineffective Assistance Of Counsel/ Sentencing/ Judicial Authority-Discretion

    State v. Procknow
    Docket: 2007AP000723 10-09-08
    State v. Procknow
    Docket: 2007AP000724 10-09-08
    PER CURIAM. Jason Procknow appeals an order denying WIS. STAT. § 974.06 (2005-06) relief from two felony convictions. Procknow entered guilty pleas to uttering a forgery and eluding an officer, both as a repeat offender. His postconviction motion alleged that he entered his pleas without an adequate plea colloquy and received ineffective assistance from counsel. He also alleged that the trial court erroneously exercised its sentencing discretion. The trial court denied the motion without a hearing, resulting in this appeal. We reverse in part and affirm in part, and remand for a hearing on Procknow's claim that he did not enter a knowing plea because the plea colloquy was inadequate.
  • Criminal Law/ Pleas/ Plea Withdrawal/ Plea Agreement/ Sentencing/ Sentencing Modification/ Ineffective Assistance Of Counsel/ Defense Competency

    State v. Wade
    Docket: 2006AP002968 10-08-08
    State v. Wade
    Docket: 2006AP002969 10-08-08
    PER CURIAM. Joshua M. Wade has appealed pro se from judgments convicting him of two counts of second-degree sexual assault of a child in violation of WIS. STAT. § 948.02(2) (2005-06), and one count of child enticement in violation of WIS. STAT. § 948.07(3). Wade has also appealed from an order denying his motion for postconviction relief. We affirm in part, reverse in part, and remand the matter for further proceedings.
  • Criminal Law/ Probation/ Revocation/ Sentencing/ Statute/ Statutory Construction-Interpretation

    State v. Collins
    Docket: 2007AP002580 10-09-08
    Recommended for Publication
    DYKMAN, J. Steven Collins appeals from an order of reconfinement following revocation of his extended supervision. Collins argues that the trial court's order of reconfinement is illegal because he had not completed his extended supervision for an earlier conviction, and thus had not begun his extended supervision in this case when his extended supervision was revoked. We conclude that Collins's consecutive periods of extended supervision consisted of one continuous period, and thus revocation for the entire period was proper. Accordingly, we affirm.
  • Criminal Law/ Sentencing/ Presentence Investigation (PSI) Report/ Evidence/ Constitutional Law/ Mental Illness

    State v. Charles
    Docket: 2007AP001566 10-07-08
    PER CURIAM. Todd W. Charles appeals a judgment sentencing him to sixteen years' initial confinement and sixteen years' extended supervision for first-degree reckless homicide. He also appeals an order denying his postconviction motion for a new sentencing hearing in which he alleged: (1) the presentence investigation report (PSI) contained inaccurate information; (2) the PSI violated his due process rights because it demonstrated bias by its author; (3) the PSI author's focus on Charles' writings violated his First Amendment rights; and (4) the sentence was unduly harsh and essentially punishes Charles for suffering from a mental disorder. The trial court denied the motion without a hearing and without stating any reasons. Because we conclude the issues relating to the PSI are not properly preserved and none of the issues are meritorious, we affirm the judgment and order.
  • Failure To State A Claim/ Unjust Enrichment/ Attorney Fees/ Statutes

    Bartelt v. Nissan
    Docket: 2007AP002212 10-07-08
    LAROCQUE, J. Plaintiff, Stephen Bartelt, appeals from an order dismissing his unjust enrichment complaint for failure to state a claim upon which relief can be granted. Defendant Rosen Nissan, Inc. ("Rosen") moves for costs, fees and reasonable attorney fees under the frivolous appeal statute, WIS. STAT. RULE 809.25 (2005-06). We affirm the order and grant the motion.
  • Family Law/ Divorce/ Child Support/ Placement/ Property Division/ Contracts

    Gonzalez v. Gonzalez
    Docket: 2008AP000164 10-07-08
    LAROCQUE, J. Martin Gonzalez appeals from provisions of a divorce judgment, awarding child support to Sandra Gonzalez of $532 per month, despite his having obtained primary placement of one of the parties' two minor children, and equal placement of the other child. He contends that the trial court did not have sufficient reason to deviate from the Child Support Percentage of Income Standard, WIS. ADMIN. CODE § DWD 40. He also challenges that part of the property division awarding Sandra a $2,000 cash payment, contrary to the terms of a court-approved partial marital settlement agreement. For reasons set forth herein, we conclude that the trial court should have applied the child support standards, and should have excluded the $2,000 cash payment as part of the property division. We therefore reverse those parts of the judgment challenged on appeal and remand with directions.
  • Family Law/ Divorce/ Contempt/ Statutes/ Burden Of Proof/ Statutes/ Sanctions

    Rierson v. Rangaswamy
    Docket: 2007AP002720E 10-09-08
  • Inmates/ Department of Corrections (DOC) Regulations/ Discipline/ Evidence

    Nelson v. Pollard
    Docket: 2007AP000192 10-09-08
    PER CURIAM. Antoine Nelson, pro se, appeals an order denying his petition for certiorari review of a prison disciplinary decision finding him guilty of attempted possession of intoxicants and attempted possession of contraband. He argues: (1) that his due process rights were violated because the record did not contain the official toxicology test result or form DOC-77, which addresses statements made by confidential informants; (2) that he was not given the confidential informants' statements prior to his disciplinary hearing; (3) that there was insufficient evidence to support the disciplinary decision because the confidential informants' statements were uncorroborated and unreliable and the record was void of any information showing that the substance found was marijuana; (4) that the hearing officer did not provide a sufficient written explanation of the decision; (5) that he should have been allowed to submit written statements made by him and another inmate; and (6) that the certiorari record was incomplete because it contained only redacted versions of the confidential informants' statements. We affirm.
  • Interest Award/ Statutes/ Insurance/ Settlement

    Estate of Pulda v. State Farm
    Docket: 2006AP002395 10-09-08
    PER CURIAM. State Farm Mutual Automobile Insurance Company, State Farm Fire & Casualty Company, and the Estate of Marvin W. Pies (collectively, State Farm) appeal a judgment awarding interest under WIS. STAT § 628.46 (2005-06) to Gordon Pulda. The issue is whether Pulda satisfied the criteria for an interest award, as set forth in Kontowicz v. American Standard Ins. Co. of Wis., 2006 WI 48, 290 Wis. 2d 302, 714 N.W.2d 105. We conclude that he did not satisfy those criteria, and reverse.
  • OWI/ Prohibited Alcohol Concentration (PAC)/ Reasonable Suspicion/ Traffic Stops/ Arrest

    City of Madison v. Weinstein
    Docket: 2008AP000875 10-09-08
    HIGGINBOTHAM, P.J. Eli Weinstein appeals a judgment against him for operating a motor vehicle under the influence of an intoxicant and for operating a motor vehicle with a prohibited alcohol concentration, contrary to WIS. STAT. §§ 346.63(1)(a) and 346.63(1)(b). The circuit court found Weinstein guilty after denying his motion to suppress evidence gathered as a result of the traffic stop. Weinstein argues that the stop was unlawful because the officer lacked reasonable suspicion to believe that he had committed a traffic violation. In the alternative, he argues that if the stop was legal initially, it later became an illegal arrest when the investigating officer transported him to the parking garage of the City-County Building to conduct field sobriety tests. Because we conclude that the stop was supported by reasonable suspicion, and that the transport of Weinstein to the City-County Building did not transform the stop into an arrest, we affirm the judgment of conviction.
  • Personal Injury/ Negligence/ Safe Place Statute/ Respondent Superior/ Verdicts/ Pre Judgment Interest/ Settlement Offer/ Statutes

    Grabske v. Integrity Mutual
    Docket: 2007AP000482 10-08-08
    ANDERSON, P.J. Kenneth M. Grabske, Jr., sustained an injury while working on a construction job site. He and his wife, Mary L. Grabske, sued Integrity Mutual Insurance Company, Corporate Construction, Ltd., Lewis Construction, Inc., and Regent Insurance Company alleging negligence, negligence per se, and violation of the safe place statute under the doctrine of respondeat superior. The jury returned a special verdict. Integrity Mutual, Corporate Construction and Lewis Construction appeal. The Grabske's cross-appeal. We affirm on the appeal and reverse on the cross-appeal.
  • Taxation/ Tribes/ Property/ Evidence/ Summary Judgment

    Forest County v. Township of Lincoln
    Docket: 2007AP002523E 10-09-08
  • Towns & Cities/ Property/ Summary Judgment/ Easements/ Damages/ Roads

    Thompson v. Town of Brooklyn
    Docket: 2007AP002301 10-09-08
    PER CURIAM. Luke Thompson appeals from an order dismissing his complaint against the Town of Brooklyn and an order denying his motion for reconsideration. While we agree that certain claims were properly dismissed on summary judgment, we do not agree as to all of them. We therefore reverse and remand.
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Also of Interest
Wisconsin Supreme Court sets winter hearing dates
The court will hold a public hearing and administrative conference on Dec. 17 regarding State Bar Petition 08-17 to create an Access to Justice Commission. The court will hold open administrative conferences on Jan 22 and Feb 20, 2009, to discuss the court-appointed legislative redistricting committee report (Petition 02-03), supplemental memo, and comments received. No public hearing is anticipated at this time. The court will accept written comments by Dec 31, 2008. More

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