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• Administrative Regulations/ Forfeitures/ Statutes/ Department of Natural Resources (DNR)/ Default Judgment/ Evidence/ Chain Of Custody/ Regulation Construction-Interpretation/ Jury Trial/ Constitutional Law/ Environment
  
  State v. T.J. McQuay, Inc.
  Docket: 2007AP002449 11-25-08
  Recommended for Publication
  

  CURLEY, P.J. SCS of Wisconsin, Inc. (SCS) appeals from a judgment entered against it following a court trial. SCS makes the following arguments: the record does not support a number of the trial court's findings; it was not an "operator" within the meaning of WIS. ADMIN. CODE ch. NR 447 (June 2004); the trial court erroneously exercised its discretion by imposing excessive statutory forfeitures; and the trial court erred in deciding that it was not entitled to a jury trial. We conclude: the trial court's findings of fact are supported by the record; SCS was an "operator" within the meaning of the applicable regulations; the trial court appropriately exercised its discretion in imposing the forfeitures that it did; and because the causes of action asserted against SCS did not exist and were not known or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848, SCS had no constitutional right to a jury trial. See Village Food & Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, ¶11, 254 Wis. 2d 478, 647 N.W.2d 177. Accordingly, we affirm.
• Appeals/ Parties/ Stipulations/ Summary Judgment/ Jurisdiction
  
  Formula Four, Inc. v. Omegbu
  Docket: 2008AP000042 11-25-08
  

  PER CURIAM. Fidelis Omegbu, pro se, appeals from circuit court orders entered on October 10, 2007, and November 21, 2007, following our remand of his earlier appeal, Formula Four, Inc. v. Omegbu, No. 2006AP24, unpublished slip op. (WI App Nov. 7, 2006) (Omegbu I). He also purports to appeal from the final orders of November 1, 2005, that we affirmed in Omegbu I. In Omegbu I, we considered Omegbu's objections to dismissals of his third-party claims against various entities and their insurance companies, including Formula Four, Inc., Richard Bruss, State Farm Fire and Casualty Company, State Farm Insurance Company, and Assurance Company of America. We affirmed all of the dismissals, noting that the circuit court had dismissed some entities, including Continental Casualty Company, earlier in the proceedings. We remanded with instructions to correct an error in the dismissal order that misidentified Assurance Company of America as Zurich Insurance Company. After remand, Omegbu moved the circuit court for summary judgment against two of the dismissed parties and for other relief. The circuit court entered orders amending its misidentification of Assurance and denying Omegbu's motions. We affirm.
• Criminal Law/ Evidence/ Evidence Ruling/ Search & Seizure/ Constitutional Law
  
  State v. McNeill
  Docket: 2008AP001336 11-25-08
  

  FINE, J. John Ronan McNeill appeals the judgment convicting him on his guilty plea of unlawfully having cocaine. See WIS. STAT. § 961.41(3g)(c). He contends that the circuit court erred in not suppressing the cocaine, which a police officer found when the officer searched him. We agree and reverse.
• Criminal Law/ Ineffective Assistance Of Counsel/ Jury Instructions
  
  State v. Thompson
  Docket: 2007AP002913 11-26-08
  

  PER CURIAM. Christopher Thompson appeals from a judgment of conviction and an order denying his postconviction motion for a new trial based on a claim of ineffective assistance of trial counsel. He argues that trial counsel was ineffective at two points in his jury trial. We affirm the trial court's determination that Thompson was not denied effective trial counsel.
• Criminal Law/ Juvenile Law/ Delinquent/ Evidence/ Custody/ Evidence Ruling/ Miranda Rights
  
  State v. Alyssa L.L.
  Docket: 2008AP001892 11-25-08
  

  HOOVER, P.J. Alyssa L. appeals an order adjudicating her delinquent for sexually assaulting a child under the age of sixteen. Alyssa contends the circuit court erroneously denied her motion to suppress, which alleged her statement to police was custodial and involuntary. We disagree and affirm.
• Criminal Law/ Motor Vehicle Law/ Appointment Of Attorney/ Public Defense/ Pro Se/ Constitutional Law/ Statutes/ Burden Of Proof/ Judicial Authority-Discretion/ Indigent
  
  State v. Kennedy
  Docket: 2008AP000435 11-25-08
  Recommended for Publication
  

  BRENNAN, J. Alvernest Floyd Kennedy appeals pro se from two postconviction orders entered after he was convicted of homicide by intoxicated use of a motor vehicle, contrary to WIS. STAT. § 940.09(1)(a) & (1c)(b) (2005-06). He challenges both: (1) the order denying his motion seeking appointment of postconviction counsel at county expense, and (2) the order denying his motion seeking reconsideration of the trial court's denial of the first order. Kennedy claims the trial court erroneously exercised its discretion in (1) upholding the state public defender's ("SPD") determination that he was not eligible for appointment of counsel; and (2) failing to invoke its inherent authority to appoint counsel despite the SPD's denial. Because Kennedy failed to provide the SPD with the information it needed to make a timely and accurate assessment of indigency and its ultimate non-indigency determination based on the information submitted followed the proper legislative criteria, and because the trial court did, in the alternative, conduct an independent review under its inherent authority reaching a reasonable conclusion that Kennedy was not eligible for appointment of counsel, we affirm.
• Criminal Law/ Pleas/ Plea Withdrawal/ Not Guilty By Reason Of Mental Disease Or Defect (NGI)/ Burden Of Proof/ Defense Competency/ Jury Waiver/ New Trial
  
  State v. Schwigel
  Docket: 2007AP002916 11-26-08
  

  PER CURIAM. Gary D. Schwigel appeals a judgment convicting him of one count of sexual assault of a child under thirteen and an order denying his postconviction motion to allow him to withdraw his plea. Schwigel pled guilty to the charge but asserted a defense of not guilty by reason of mental disease or defect (NGI). Schwigel contends that his intellectual deficits and statements at the plea hearing misallocating the burden of proof undermined his plea. He argues in the alternative that the court should not have accepted his plea because, he claims, it found him incompetent. Finally, Schwigel asserts that his jury waiver was invalid because the court misinformed him as to jury unanimity in the responsibility phase. None of his arguments persuades us. We affirm.
• Criminal Law/ Sentencing/ Reconfinement/ Statutes
  
  State v. Harris
  Docket: 2008AP000778 11-25-08
  

  FINE, J. Rodney O. Harris appeals the circuit court's order reconfining him to prison and directing that there be a period of extended supervision following the period of reconfinement. He also appeals the circuit court's order denying his "postconviction motion" in connection with the reconfinement order. He claims that the circuit court did not have the authority to make a condition of that extended supervision that he have no contact with the latest of his domestic-violence victims. We disagree and, accordingly, affirm.
• Criminal Law/ Sentencing/ Sentencing Modification
  
  State v. Moreno
  Docket: 2007AP001700 11-25-08
  

  PER CURIAM. Angel Moreno (also known as Israel Valencia) appeals from a judgment of conviction for possessing over forty grams of cocaine with intent to deliver, and from a postconviction order denying his motion for resentencing. The issues are whether the trial court actually relied on inaccurate information when it sentenced Moreno, and whether Moreno's sentence was unduly harsh and excessive when compared to the relatively lenient disposition Moreno's co-defendant received. We conclude that the trial court did not sentence Moreno on inaccurate information, and that his sentence was not unduly harsh, excessive or disparate compared to that of his co-defendant. Therefore, we affirm.
• Criminal Law/ Sentencing/ Sentencing Modification
  
  State v. Currins
  Docket: 2007AP002473 11-25-08
  

  PER CURIAM. Raven Renee Currins appeals from a corrected judgment of conviction for second-degree reckless homicide while armed, and from a postconviction order denying her motion for sentence modification. The issue is whether the trial court was improperly influenced by an altercation in the courtroom gallery at sentencing between the victim's family and Currins's family, causing it to erroneously exercise its discretion and impose an unduly harsh and excessive sentence. We conclude that the trial court did not impose an unduly harsh and excessive sentence, or erroneously exercise its sentencing discretion simply because it considered the sentencing factors differently than Currins had hoped it would, and that there was no evidence that an altercation that began in the courtroom gallery at sentencing and was removed to the hallway influenced the trial court's sentence. Therefore, we affirm.
• Criminal Law/ Sentencing/ Sentencing Modification/ Evidence
  
  State v. Redmond
  Docket: 2007AP002430 11-25-08
  

  PER CURIAM. Larry Darnell Redmond appeals from a corrected judgment of conviction for kidnapping and false imprisonment, and from a postconviction order denying his motion for sentence modification. The issues are whether there was sufficient evidence to support the guilty verdicts, and whether the trial court actually relied on inaccurate information when it sentenced Redmond. We conclude that there was sufficient credible evidence to support both guilty verdicts, and that Redmond has not shown that the trial court actually relied on the inaccuracy in his prior record when it imposed sentence. Therefore, we affirm.
• Employment Law/ Labor and Industry Review Commission (LIRC)/ Unemployment Taxations/ Statutes/ Statutory Construction-Interpretation
  
  Gilbert v. L.I.R.C.
  Docket: 2006AP002694 11-26-08
  Recommended for Publication
  

  HIGGINBOTHAM, P.J. Gary R. Gilbert appeals a decision of the Labor and Industry Review Commission (LIRC) that was affirmed by the circuit court, determining that Gilbert, d/b/a Gary Gilbert Construction, was liable for delinquent unemployment taxes with interest for calendar year 1999, the first two quarters of 2000 and the first two quarters of 2001. The two issues in this appeal are whether services performed during this period by four workers constituted employment in Wisconsin within the meaning of WIS. STAT. §§ 108.02(15)(b) and (d) (2005-06) rendering Gilbert a Wisconsin employer for unemployment tax purposes, and whether the workers were Gilbert's employees within the meaning of WIS. STAT. §§ 108.02(12)(a), (b), and (bm).
• Family Law/ TPR/ Summary Judgment/ Statutes/ Statutory Construction-Interpretation/ Evidence/ Ineffective Assistance Of Counsel
  
  Tricia L.B. v. Chad K.R.
  Docket: 2008AP001837 11-26-08
  

  VERGERONT, J. Chad K. R. appeals the order terminating his parental rights to Lydia J. R., d/o/b January 2, 2002. He contends the circuit court erroneously granted the guardian ad litem's motion for partial summary judgment on the ground of failure to assume parental responsibility under WIS. STAT. § 48.415(6). We conclude there are genuine issues of material fact that entitle Chad to a trial and therefore reverse.
• Insurance/ Settlements/ Statutes/ Pre Judgment Interest/ Costs
  
  Hadrian v. State Farm Mutual Insurance
  Docket: 2008AP000527 11-25-08
  

  FINE, J. Barbara Hadrian appeals from part of the judgment entered in her favor that denied her request for pre-judgment interest and double costs under the offer-of-settlement provision, WIS. STAT. RULE 807.01. State Farm Mutual Automobile Insurance Company and Christopher L. Kuennen cross-appeal, contending that the circuit court should not have included in the judgment that part of Hadrian's damages that were payable to Foley & Lardner by virtue of its payments to Hadrian, its employee, under its self-funded health and disability Employee Retirement Income Security Act plan. We affirm on the appeal, and this makes the cross-appeal moot.
• Motor Vehicle Law/ License/ Operating After Revocation (OAR)/ Evidence/ OWI/ Operating A Motor Vehicle With A Detectable Amount Of A Restricted Controlled Substance In Blood (OWRCS)/ Statutes
  
  State v. Mertes
  Docket: 2007AP002757 11-26-08
  Recommended for Publication
  

  NEUBAUER, J. Michael G. Mertes appeals from judgments of conviction for operating after revocation (OAR), first offense, and operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood (OWRCS), fifth and subsequent offense. Mertes argues that the evidence at trial was insufficient to establish either that he had operated the vehicle or that he had operated the vehicle on a highway after the revocation of his driving privileges. Viewing the evidence in a light most favorable to the verdict, we conclude that there was sufficient circumstantial evidence upon which the jury could determine that Mertes had operated the vehicle and had done so on a highway. We affirm the judgments.
• OWI/ Forfeiture/ Appearance/ Statutes/ Default Judgment/ Court Rules
  
  County of Waukesha v. Duchek
  Docket: 2008AP000737 11-26-08
  

  NEUBAUER, J. John M. Duchek appeals from a judgment of conviction for operating under the influence (OWI), first offense, contrary to WIS. STAT. § 346.63(1)(a), and a default judgment for driving in excess of the speed limit, contrary to WIS. STAT. § 346.57(5). Duchek argues that the circuit court erred in entering the judgments against him for failing to appear in a traffic forfeiture action when his counsel appeared on his behalf. We agree. We reverse the judgments and remand for further proceedings.
• OWI/ Reasonable Suspicion/ Traffic Stops/ Probable Cause To Arrest
  
  State v. Sauer
  Docket: 2008AP001568 11-26-08
  

  ANDERSON, P.J. Daniel J. Sauer claims that the circuit court erred in denying his motion to suppress evidence because the arresting officer lacked reasonable suspicion both to initiate a traffic stop and to arrest him. We affirm because, under the totality of the circumstances, a reasonable police officer would believe that Sauer was operating a motor vehicle under the influence of alcohol in violation of WIS. STAT. § 346.63(1)(a).
• Public Nuisance/ Verdicts/ New Trial/ Lead Paint/ Evidence/ Jury Instructions/ Private Nuisance/ Agency/ Liability
  
  City of Milwaukee v. N.L. Industries, Inc.
  Docket: 2007AP002873 11-25-08
  

  CURLEY, P.J. The City of Milwaukee (the City) appeals from a final judgment entered on a jury verdict in favor of NL Industries, Inc. (NL Industries). The City raises a total of twelve claims of error. First, the City argues that the special verdict should be changed because the evidence showed that NL Industries intentionally caused the public nuisance found by the jury. In addition, the City argues that a partial new trial should be granted to remedy the following: five purported erroneous rulings on the jury instructions; three allegedly separate instances of improperly admitted evidence; the trial court's decision to dismiss the City's nuisance claim based on reckless conduct; the form of the special verdict related to the City's conspiracy claim; and the trial court's decision granting summary judgment to NL Industries regarding the City's requested future abatement costs.
• Refusal/ OWI/ Notice/ Statutes/ Timelines/ Court's Competency
  
  State v. Stelzer
  Docket: 2008AP001615 11-26-08
  

  SNYDER, J. Howard M. Stelzer, Jr., appeals from an order denying relief from the revocation of his operating privilege due to his refusal to submit to an implied consent blood alcohol test in violation of WIS. STAT. § 343.305(2). The trial court denied Stelzer's motion for a refusal hearing as being untimely. We agree and affirm the order.
• Summary Judgment/ Contracts/ Ordinances/ Statutes/ Declaratory Judgment
  
  Zabler v. Coachlight Village Town Houses
  Docket: 2007AP002534 11-26-08
  

  PER CURIAM. Coachlight Village Town Houses Condominium IV appeals from the summary judgment awarded to Charles Zabler. Coachlight Village argues that the circuit court erred because it improperly interpreted the condominium documents, improperly considered and applied a local ordinance on utility billing practices, and erred when it determined that the condominium association acted improperly. Because we conclude that Zabler is entitled to summary judgment as a matter of law, we affirm the judgment of the circuit court.
• Trusts & Estates/ Wills/ Trustees/ Probates/ Statutes
  
  Bramen v. Angelopulos
  Docket: 2006AP002767 11-26-08
  

  HIGGINBOTHAM, P.J. Richard Bramen appeals an order of the circuit court finding him unsuitable to serve as the trustee of the Estate of Bernadetha Monroe. Bramen contends that the circuit court failed to give proper consideration to Monroe's wishes in appointing a trustee; failed to follow the statutory framework of a removal proceeding, thereby denying him the opportunity to challenge the allegations against him; and failed to articulate sufficient reasons for its finding that Bramen was unsuitable. Bramen further contends that the record does not support the court's finding of unsuitability. We reject these arguments and affirm.