PER CURIAM. We review a report and recommendation by Referee James G. Curtis that Attorney Daniel F. DeMaio be publicly reprimanded for his professional misconduct and that he be ordered to pay the full costs of this disciplinary proceeding.

LUNDSTEN, J. Patrick Patterson gave a controlled substance to seventeen-year-old Tanya S., and she died as a result. Among other crimes, Patterson was convicted of first-degree reckless homicide by delivery of a controlled substance, under WIS. STAT. § 940.02(2)(a), and contributing to the delinquency of a child with death as a consequence, under WIS. STAT. § 948.40(4)(a). Patterson argues that these two charges are multiplicitous and that the evidence was insufficient to convict him for contributing to the delinquency of Tanya S. because it is legally impossible to contribute to the delinquency of someone who is seventeen years old or older. We reject these arguments and others that Patterson makes. We affirm the judgment of conviction and the order denying Patterson's motion for postconviction relief.

PER CURIAM. Michael Haydon appeals a judgment of conviction for first-degree sexual assault by use of a dangerous weapon, false imprisonment, threat to injure or accuse of a crime, burglary, and five counts of intercepting a wire communication. Haydon argues the circuit court's refusal of his request to play a tape recording of the victim at trial violated his constitutional right to present a defense. Haydon alternatively argues the refusal constituted a prejudicial evidentiary error. We reject Haydon's arguments and affirm.

PER CURIAM. Matthew J. Knapp appeals a judgment of conviction for first-degree murder while using a dangerous weapon, as a habitual offender. Knapp argues that the State presented insufficient evidence to support the conviction, and that the circuit court erred when it allowed other acts evidence to be admitted during his trial. Because we conclude that there was sufficient evidence to support the conviction, and that the circuit court properly exercised its discretion when it admitted the other acts evidence, we affirm the judgment of conviction.

PER CURIAM. Johnnie Sally appeals a judgment of conviction for second-degree sexual assault of a child. He also appeals an order denying postconviction relief. Sally argues that the circuit court erroneously exercised its discretion by (1) denying his request for new counsel and (2) prohibiting him from introducing evidence concerning a rape-kit examination of the victim and evidence of the victim's prior sexual conduct. We reject Sally's arguments and affirm.

PER CURIAM. Joseph Fecht appeals an order denying his motion for habeas corpus relief in the form of the reinstatement of his postconviction rights under WIS. STAT. RULE 809.30 (2007-08) and the reappointment of counsel. Fecht contends that he was denied his right to file a supplemental plea withdrawal motion and/or a direct appeal due to the abandonment of counsel. As we will explain below, we agree that Fecht was entitled to a writ of habeas corpus reinstating his postconviction rights on the grounds that he was denied a direct appeal, but we conclude that, regardless of that error, the circuit court properly determined that Fecht was not entitled to the reappointment of counsel. We further conclude that, between the evidentiary hearing already conducted by the circuit court and this court's review on the present appeal, Fecht has now obtained all the relief to which he was entitled.

PER CURIAM. Shawn McGowan appeals an order denying his postconviction motion. McGowan argues his trial counsel was ineffective for failing to advise him he had a right to request substitution of the sentencing judge. We affirm.

PER CURIAM. Michael Nollenberg appeals a judgment of conviction for homicide by intoxicated use of a vehicle and an order denying his postconviction motion. We exercise our discretion to reverse Nollenberg's conviction in the interest of justice and remand for a new trial.

PER CURIAM. Michael S. Mack has appealed from a judgment convicting him of one count of first-degree sexual assault of a child in violation of WIS. STAT. § 948.02(1) (2003-04), and one count of incest with a child in violation of WIS. STAT. § 948.06(1). He also appeals from an order denying his motion for postconviction relief. We affirm the judgment and the order.

PER CURIAM. Christopher A. Smith appeals from a judgment of conviction and postconviction order. A jury found Smith guilty of three counts of first-degree intentional homicide and one count of possession of a firearm by a felon. See WIS. STAT. §§ 940.01(1)(a) and 941.29(2) (2005-06). The court imposed three consecutive life sentences without eligibility for extended supervision for the homicides and a concurrent ten-year sentence for the possession of a firearm by a felon count. In a postconviction motion, Smith moved for a new trial based on newly-discovered evidence. The trial court denied the motion without a hearing. We affirm the judgment of conviction and postconviction order.

PER CURIAM. Michael Shackelford appeals from orders summarily denying his postconviction plea withdrawal and reconsideration motions. The issues are whether Shackelford's failure to respond to the no-merit report on direct appeal bars his current motion, and whether he alleged sufficient facts to entitle him to an evidentiary hearing on his plea withdrawal motion. The former issue is currently pending before the Wisconsin Supreme Court in State v. Allen, Case No. 2007AP795. We therefore decide this appeal on its merits, and conclude that, notwithstanding the defect in the guilty plea colloquy, Shackelford's failure to allege that absent that defect he would not have pled guilty defeats his plea withdrawal motion. Therefore, we affirm.

PER CURIAM. Anthony Ellis, pro se, appeals from an order denying a motion for sentence modification, from an order denying a motion for reconsideration, and from an order denying a motion for a psychiatric examination. Ellis's sentence modification motion is premised on an alleged new factor. Because the facts relied on by Ellis are not a new factor, we affirm the circuit court's denial of Ellis's sentence modification motion. Because Ellis's motion for reconsideration and for a psychiatric examination are procedurally barred, we also affirm those orders.

PER CURIAM. Tony Williams appeals from a corrected judgment of conviction for armed robbery and from a postconviction order summarily denying his sentence modification motion. The issues are whether the trial court erroneously exercised its sentencing discretion in failing to: (1) consider Williams's background and character as mitigating factors; (2) explain the length of the sentence; (3) explain the linkage between the component parts of the bifurcated sentence and the trial court's sentencing objectives; (4) first determine Williams's statutory eligibility for the Challenge Incarceration and Earned Release Programs ("Programs"), and then determine his suitability for the Programs mindful of his substance abuse problems; and (5) "revisit its earlier rationale in a meaningful way" in denying his sentence modification motion. We conclude that the trial court properly exercised its discretion in imposing sentence, in determining Williams's ineligibility for the Programs, and in denying his postconviction motion for sentence modification; its doing so differently than Williams had hoped does not constitute a misuse of discretion. Therefore, we affirm.

PER CURIAM. Craig Steven Burnett appeals pro se from a postconviction order denying his motion to quash the DNA surcharge imposed as a condition of his sentence. The issue is whether the trial court failed to liberally construe Burnett's pro se motion to allow his untimely challenge. We conclude that liberal construction cannot render timely Burnett's belated challenge to the trial court's exercise of discretion in imposing a DNA surcharge as a condition of his sentence. Therefore, we affirm.

PER CURIAM. Daniel Ray appeals a judgment convicting him of second-degree sexual assault of a child, and an order denying postconviction relief. Ray pled guilty to the sexual assault charge and the circuit court sentenced him to four years of initial confinement and six years of extended supervision. He filed a postconviction motion for resentencing and, because the court failed to consider the sentencing guidelines, it ordered him resentenced before a different judge. On resentencing, a different presiding judge imposed a sentence of five years of initial confinement and seven years of extended supervision. The issue is whether the circuit court violated Ray's right to due process when it sentenced him to a longer term than first imposed. We affirm.

FINE, J. Stanley L. Terry appeals a circuit-court order affirming the Labor and Industry Review Commission's determination that he falsely represented that he was able to work during the weeks for which claims were filed under his name even though he was incarcerated, and directing the forfeiture of almost three-thousand dollars in unemployment benefits. Terry argues that the Commission exceeded its authority when it applied WIS. STAT. § 108.04(11)(a), ("If a claimant, in filing his or her application for benefits or claim for any week, conceals any material fact relating to his or her eligibility for benefits, the claimant shall forfeit benefits ."), to him. He also contends that the Commission's decision was not supported by substantial and credible evidence. We affirm.

NEUBAUER, P.J. Gerard W. Carter pled guilty to operating while intoxicated (OWI), fourth offense. The issue on appeal is whether two prior out-of-state "zero tolerance" suspensions count as prior convictions under WIS. STAT. § 343.307 (2007-08) for sentencing enhancement purposes under WIS. STAT. § 346.65(2). We conclude that they do not. We reverse the judgment and remand for sentencing based on a second offense OWI.

BRUNNER, J. Matthew Foley appeals a conviction for operating while under the influence of an intoxicant in violation of WIS. STAT. § 346.63(1)(a) as a second offense. Foley argues that the circuit court admitted unlawfully seized evidence in violation of his constitutional rights. In addition, Foley claims the court erroneously exercised its discretion by refusing to declare a mistrial when the jury was improperly presented with evidence of Foley's prior OWI conviction. We conclude that the trial court properly denied Foley's suppression motion, but erroneously denied his request for a mistrial. We remand for a new trial.

PER CURIAM. William Gerhartz appeals from judgments of conviction entered against him and the order denying his motion for postconviction relief. Gerhartz argues that he received ineffective assistance of trial counsel because his counsel did not move to suppress the results of a blood test, did not adequately investigate the facts of an accident scene, and did not hire an accident reconstructionist. Because we conclude that Gerhartz did not receive ineffective assistance of trial counsel, we affirm.

BROWN, C.J. Durinda A. Kuczor pled no contest to operating while intoxicated--third offense. She appeals the denial of her suppression motion contesting the officer's justification for opening her zipped duffel bag. Until that bag was opened, the arresting officer had no inkling that Kuzcor was intoxicated. But the contents of the bag included opened bottles of vodka, and those bottles set in motion the subsequent investigation leading to the operating while intoxicated arrest. Despite her claim that the community caretaker exception was not raised by the State as the reason for the police investigation, this court's review of the transcript satisfies us that the community caretaker exception was in play. However, that exception did not provide the deputy with justification to fish for information by searching the contents of the bag. This court is constrained to reverse.

LUNDSTEN, J. Michael Wittmershaus appeals a circuit court judgment convicting him of operating a motor vehicle while under the influence of an intoxicant as a fourth offense. He challenges the circuit court's determinations that the police had probable cause to arrest him and also had reasonable suspicion to test his blood for evidence of a crime. I affirm the judgment.

DYKMAN, P.J. Leon R. McQueen appeals from a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant, third offense, contrary to WIS. STAT. § 346.63(1)(a). McQueen argues that the trial court erred in denying his motion to suppress the evidence obtained during the traffic stop of his vehicle. He contends that the stop violated his constitutional rights because the police lacked reasonable suspicion to conduct the traffic stop. We conclude that the facts establish that the police had reasonable suspicion to conduct the stop, and therefore affirm.

BRENNAN, J. GEICO Indemnity Company and Ceree King (unless otherwise noted collectively referred to as GEICO) appeal from the trial court's amended judgment imposing sanctions for: (1) GEICO's breach of the Civil Division Scheduling Order; and (2) GEICO's filing of Motions After Verdict in which GEICO sought relief from the sanction previously imposed for violating the trial court's scheduling order. With regard to the former, GEICO argues that the trial court lacked the authority to sanction it for violating the scheduling order and that the sanction imposed (travel expenses) was unjust. With regard to the latter, GEICO argues that the trial court exceeded its authority in imposing a sanction on GEICO for seeking reconsideration of the trial court's earlier order for sanctions.

BROWN, C.J. Andrew Heuser was the third student in one day to sustain a cut while using a scalpel to dissect a flower during 8th grade science. He sued the Kenosha Unified School District #1, claiming negligence. The School District responded, in pertinent part, by asserting that it was immune from negligence suits. Andrew replied that the known and compelling danger exception allowed him to recover. The School District countered that the exception does not apply because the teacher had the discretion to decide which precautionary measure to take. The trial court ruled in favor of Andrew. We affirm. What the School District says is true--so long as a precautionary measure is taken in response to an open and obvious danger, the law is that the government remains immune from suit. But the trial court found that the teacher in this case took no precautionary measure to deal with the danger. While the teacher had the option to pick one precautionary measure over another, she certainly did not have the option to do nothing. We conclude that the exception applies.

KESSLER, J. Inna Lebedinsky appeals from a judgment dismissing her claims for unjust enrichment and conversion. She argues that the trial court erroneously exercised its discretion when it denied her claims based on the "clean hands doctrine," having concluded that Lebedinsky lacked clean hands. We affirm.

VERGERONT, J. Robert Perkins appeals the order denying his motion to reopen a small claims case based on his affidavit of noncompliance which asserted that BOS-MRS Enterprises, Inc., missed a payment required by the parties' stipulation to settle the case. He contends that the circuit court denied him equal protection and committed error by failing to grant him double damages based on BOS-MRS's deduction from his settlement check of eight dollars for uniform fees and failure to designate the payment as 2005 wages. He also contends that the court improperly denied him a jury trial and was biased against him. We conclude that the circuit court properly denied Perkins' motion and we affirm.

VERGERONT, J. This is a small claims action in which Tina Howells and Shaw Jackson (the tenants) claim that their former landlord, Grosso Investment Properties, LLC, unlawfully withheld their security deposit, and the landlord counterclaims that, in addition to the withheld security deposit, the tenants owe the landlord for cleaning and repair expenditures and other items. The circuit court determined that the security deposit was withheld in violation of Madison General Ordinances and the tenants were therefore entitled to $2,614.00, double the amount of the security deposit. It then determined that the landlord was entitled to a credit of $1,584.69 against that amount on its counterclaim and entered judgment in favor of the tenants in the amount of $1,029.31. The court also awarded the tenants attorney fees in the amount of $1,373.40, which was less than they requested.