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Week of October 12, 2008

Supreme Court Cases
  • Attorney Discipline

    Office of Lawyer Regulation v. Hughes
    Docket: 2007AP002546 10-14-08
    PER CURIAM. We review the report of the referee recommending that Attorney Keith R. Hughes' license to practice law in Wisconsin be suspended for three years for professional misconduct. No appeal has been filed.
Court of Appeals Cases
  • Counties/ Verdicts/ Ordinances/ Evidence

    County of Rusk v. Kern
    Docket: 2008AP001010 10-15-08
    BRUNNER, J. Rusk County appeals a judgment notwithstanding the verdict, entered on the court's own motion, after a jury found Amy Kern guilty of an ordinance violation for allowing underage persons on a premises serving alcoholic beverages. The County contends the trial court applied the wrong legal standard to its determination and that, applying the proper standard, the jury's verdict should not have been rejected. We agree and reverse the judgment.
  • Criminal Law/ Appeal Barred

    State v. Collins
    Docket: 2007AP001769 10-15-08
    PER CURIAM. Leonard Collins, Sr., was convicted in 1976 of the first-degree murder of his mother-in-law. Since that time, Collins has filed numerous postconviction motions and appeals, without obtaining relief. Collins now appeals a circuit court order denying his most recent postconviction motion. The circuit court held that Collins' postconviction motion was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994) (postconviction claims that could have been raised in prior postconviction or appellate proceedings are barred absent a sufficient reason for failing to raise the claims in the earlier proceedings). We agree with the circuit court that Collins's motion is barred by Escalona-Naranjo, and we therefore affirm the circuit court's order.
  • Criminal Law/ Evidence/ Burden Of Proof/ Miranda/ Constitutional Law

    State v. Robinson
    Docket: 2007AP001380 10-15-08
    PER CURIAM. A jury found Cantrell Robinson guilty of one count of first-degree intentional homicide; one count of armed robbery; and one count of first-degree recklessly endangering safety, all as a party to a crime. See WIS. STAT. §§ 940.01(1)(a); 943.32(1)(a); 941.30(1); & 939.05 (2005-06). On appeal, Robinson contends that the statements he gave to police were involuntary and the circuit court should have granted his pretrial motion to suppress. Robinson also contends that the State failed to prove the "intent to kill" element of first-degree intentional homicide. See § 940.01(1)(a) (First-degree intentional homicide is defined as "caus[ing] the death of another human being with intent to kill that person or another."). We are not persuaded by either argument and, accordingly, we affirm.
  • Criminal Law/ Jurors/ Ineffective Assistance Of Counsel/ Not Guilty By Reason Of Mental Disease Or Defect

    State v. Warnakulasuriya
    Docket: 2007AP002667 10-15-08
    PER CURIAM. Kristen V. Warnakulasuriya appeals from a judgment convicting her of attempted first-degree intentional homicide and an order denying her motion for postconviction relief based on ineffective assistance of counsel. She contends her counsel did not follow up at voir dire with an unidentified juror who admitted being "sensitive" to mental illness issues, making it reasonably probable that a biased jury determined her responsibility during the mental disease or defect phase of the trial. We disagree and affirm.
  • Criminal Law/ Pleas/ Plea Withdrawal/ Charges/ Restitution/ Ineffective Assistance Of Counsel/ Judicial Authority-Discretion

    State v. Howard
    Docket: 2007AP001877 10-15-08
    Recommended for Publication
    KESSLER, J. Joshua T. Howard appeals from a judgment of conviction for conspiracy to commit theft by fraud, contrary to WIS. STAT. §§ 943.20(1)(d) & (3)(c), and 939.31 (2003-04), and from his motion for postconviction relief. Howard, who pled guilty, argues that he should have been permitted to withdraw his plea after sentencing on grounds that no factual basis for his plea exists, because the theft of telephone services (which he admitted) does not fall within the definition of "property" found in § 943.20(2)(b) that applies to § 943.20(1)(d) (the crime to which he pled guilty). He also argues that he is entitled to a Machner hearing to determine whether his trial counsel was ineffective for failing to request documentation of the restitution ordered. We reject his arguments and affirm the judgment and order.
  • Criminal Law/ Pleas/ Sentencing/ Judicial Authority-Discretion

    State v. Burnett
    Docket: 2008AP000323 10-15-08
    PER CURIAM. Robert Howard Burnett, Jr., appeals from a judgment of conviction and an order denying his postconviction motion. Burnett claims that the circuit court erroneously exercised its sentencing discretion in several respects. We reject his contentions and affirm.
  • Criminal Law/ Procedure/ Appeal Barred/ Ineffective Assistance Of Counsel

    State v. Sprewell
    Docket: 2008AP000264 10-15-08
    PER CURIAM. Ceso Sprewell appeals from the order that denied his motion for postconviction relief brought pursuant to WIS. STAT. § 974.06 (2005­06). The circuit court concluded that Sprewell's motion was procedurally barred. We affirm, but on the alternative ground that Sprewell's appellate brief is wholly inadequate to support his claims. See State v. Holt, 128 Wis. 2d 110, 124­125, 382 N.W.2d 679, 687 (Ct. App. 1985) (appellate court may affirm on ground other than that relied upon by circuit court).
  • Criminal Law/ Sentencing

    State v. VanDuyse
    Docket: 2008AP000450 10-15-08
    PER CURIAM. Jeffrey VanDuyse appeals a judgment of conviction, entered upon his no contest plea, for one count of homicide by intoxicated use of a motor vehicle, as well as an order denying his motion for sentence modification. VanDuyse argues that the court failed to adequately explain his sentence of twenty years' initial confinement and ten years' extended supervision. He further complains the thirty-year sentence is excessive. We reject his arguments and affirm the judgment and order.
  • Criminal Law/ Sentencing/ Sentencing Modification/ Appeal Barred

    State v. Simmons
    Docket: 2007AP001137 10-15-08
    PER CURIAM. Maurice Simmons appeals from a circuit court order denying his motion to modify the sentence he received after he pled no contest to second-degree reckless homicide. Simmons, who had already pursued a direct appeal, argued that the circuit court had based its sentencing decision on improper factors. The circuit court concluded that Simmons' motion was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181­182, 517 N.W.2d 157 (1994) (postconviction claims that could have been raised in prior postconviction or appellate proceedings are barred absent a sufficient reason for failing to raise the claims in the earlier proceedings). Although we affirm the circuit court's order, we employ a slightly different legal analysis. See State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679 (Ct. App. 1985) (reviewing court will affirm if trial court reaches the right result, but for the wrong reason).
  • Criminal Law/ Sentencing/ Sentencing Modification/ Correction Of Sentencing/ Constitutional Law

    State v. Cheeseman
    Docket: 2007AP002951 10-15-08
    PER CURIAM. Scott Cheeseman appeals from the order denying his sentence modification motion. He asserts constitutional, statutory, and common law bases for relief, but all of his arguments are grounded on the assertion that the circuit court unlawfully increased his sentences by amending a judgment of conviction three years after the sentencing proceeding. Because we conclude that the circuit court did no more than correct a scrivener's error in the written judgment, we reject Cheeseman's arguments and affirm.
  • Criminal Law/ Sentencing/ Sentencing Modification/ Earned Release Program (ERP)/ Constitutional Law

    State v. Evanich
    Docket: 2007AP001936 10-15-08
    PER CURIAM. Catherine Evanich appeals from an order denying her motion for sentence modification. She argues that she was sentenced on the basis of inaccurate information regarding her treatment needs and eligibility for the Earned Release Program (ERP). We affirm the order appealed from.
  • Criminal Law/ Warrants/ Probable Cause/ Search & Seizure/ Evidence/ Evidence Ruling

    State v. Casarez
    Docket: 2008AP000080 10-15-08
    Recommended for Publication
    LAROCQUE, J. Juan A. Casarez appeals from a judgment entered after a jury found him guilty of possession with intent to deliver a controlled substance, cocaine (fifteen to forty grams), as party to a crime, second or subsequent offense, contrary to WIS. STAT. §§ 961.16(2)(b)1., 961.41(1m)(cm)3., 939.05, and 961.48 (2005-06). He claims that the trial court erred in denying his motion seeking to suppress the 32.44 grams of cocaine, which was found in his home. He asserts that the affidavit in support of the search warrant lacked probable cause, rendering the search illegal. Because the affidavit contained sufficient facts to support probable cause that ancillary materials relating to guns would be discovered at the home, the search was not illegal, the trial court did not err in denying the motion to suppress, and we affirm.
  • Employment Law/ LIRC/ Worker's Compensation/ Evidence

    County Concrete v. L.I.R.C.
    Docket: 2007AP000864 10-15-08
    PER CURIAM. County Concrete Corporation, Central Processing Corporation and Zurich American Insurance Company (County Concrete) appeal from a circuit court order affirming a decision of the Labor and Industry Review Commission (LIRC) that Susan Hoffman's work activities on one day constituted an appreciable period of work place exposure and was a material contributory causative factor in the progression of her pre-existing neck condition. We affirm because LIRC's decision is supported by credible and substantial evidence, and LIRC properly applied Wisconsin law to the facts it found.
  • Family Law/ Divorce/ Maintenance/ Judicial Authority-Discretion

    Abt v. Abt
    Docket: 2007AP002576 10-15-08
    PER CURIAM. Laurel Abt appeals from a judgment of divorce from David Abt. She challenges the circuit court's imputation of income to her and the amount of indefinite maintenance David must pay. We conclude that the circuit court properly exercised its discretion and affirm the judgment.
  • Insurance/ Uninsured Motorist/ Statutes/ Statutory Construction-Interpretation/ Summary Judgment

    Etter v. State Farm
    Docket: 2008AP000113 10-15-08
    Recommended for Publication
    PETERSON, J. State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company appeal a summary judgment against them totaling $483,064.17. State Farm argues the circuit court erred by holding that Robert and Antoinette Etters' (collectively, with the Estate of Robert Etter, "the Etters") personal liability umbrella policy provided uninsured motorist coverage. We agree and reverse the judgment.
  • Mental Health/ Commitment/ Evidence/ Right To A Defense

    State v. Ernest J.P.
    Docket: 2007AP002602 10-15-08
    State v. Ernest J.P.
    Docket: 2008AP000819 10-15-08
    SNYDER, J. Ernest J.P., Jr., (Ernest) appeals pro se from an October 31, 2007 order extending his WIS. STAT. § 51.20(1)(am) outpatient commitment and adding a firearm restriction provision. Ernest also appeals pro se from a February 19, 2008 order denying without a hearing his motion to correct 181 alleged errors in the trial court record. We consolidated the appeals and now affirm both orders.
  • Personal Injury/ Damages/ Safe Place Statute/ Negligence/ Evidence/ Liability

    Carini v. Acuity
    Docket: 2007AP002603 10-15-08
    KESSLER, J. Charlotte and Leonard Carini (collectively, Charlotte Carini) appeal from an order dismissing Carini's claims for damages based on negligence; violations of Wisconsin's safe place statute, see WIS. STAT. § 101.11 (2005-06); and loss of society and companionship. A jury determined that Carini, who was injured when she fell at the Chanticleer Inn, Inc., was seventy percent liable for her injury. Thus, Carini was not allowed to recover damages and the claims were dismissed. Carini seeks a new trial on liability, on the ground that the trial court erroneously allowed the owner of the Chanticleer to testify about inspections of the restaurant. We conclude that the testimony was erroneously admitted and that there is a reasonable possibility the error contributed to the outcome of the case. Therefore, we reverse and remand for a new trial on liability.
  • Property/ Declaratory Judgment/ Contracts/ Statutes

    Lotus Lake Estates v. Home Owner's Assoc.
    Docket: 2007AP001510 10-15-08
    PER CURIAM. Lotus Lake Estates Home Owner's Association appeals a judgment declaring: (1) the Association lacked authority to impose fines on homeowners as a means of enforcing restrictive real estate covenants; (2) the Association lacked authority to assess homeowners the expenses attributable to its enforcement efforts; and (3) nonresident developers were ineligible to vote for members of the Association's board of directors. We affirm.
  • Refusal/ OWI/ Probable Cause

    County of Jefferson v. Moe
    Docket: 2008AP000124 10-16-08
    BRIDGE, J. Jefferson County appeals an order dismissing the County's action against Heidi J. Moe for refusing to submit to a chemical test under Wisconsin's implied consent law, WIS. STAT. § 343.305(2). The County challenges the court's ruling that Moe's refusal was proper because the arresting officer lacked probable cause to believe Moe was operating a motor vehicle under the influence of an intoxicant. The County argues that contrary to the court's ruling, the evidence did establish probable cause. We disagree and affirm the dismissal.
  • Summary Judgment/ Property/ Declaratory Judgment/ Liens/ Statutes/ Contracts

    Nimmer v. Hidden Ridge Resort
    Docket: 2007AP002878 10-15-08
    PER CURIAM. Joseph Nimmer appeals a summary judgment granted to Hidden Ridge Resort Condominiums Association, Inc. The judgment dismissed Nimmer's slander of title action and his request for a declaratory judgment that Hidden Ridge's "off season occupancy rule" was contrary to WIS. STAT. ch. 703. Because Nimmer waived his right to challenge Hidden Ridge's allegations against him, and because the rule is not contrary to the statutes, we affirm the judgment.
  • Towns & Cities/ Ordinances/ Juvenile Law/ Alcohol/ Evidence/ Good Faith Defense

    City of Brookfield v. Loporchio
    Docket: 2008AP000672 10-15-08
    ANDERSON, P.J. Michael C. Loporchio appeals from an order determining that a restaurant he managed, T.G.I. Friday's, unlawfully sold alcohol to a minor in violation of CITY OF BROOKFIELD, WIS., ORDINANCE § 5.24.11(a). At trial, the City of Brookfield presented sufficient evidence that alcohol was served to a minor at T.G.I. Friday's. We affirm.
Links
Also of Interest
Supreme Court adopts concept to cite unpublished opinions for persuasive value; adopts rules making reporting CLE credits easier
The supreme court adopted in principle Judicial Council petition 08-02 to amend Wis. Stat. § Rule 809.23(3) to allow citation of unpublished opinions for persuasive value and adopted BBE petition 08-04 relating to procedures for reporting CLE credits. More

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