CaseLaw Express 10/12/2009 - State Bar of Wisconsin

Court of Appeals Cases

Cities & Towns/ Taxation/ Churches/ Statutes/ Statutory Construction-Interpretation

United Methodist Church v. City of Wauwatosa
Docket: 2009AP000202 10-06-09
Recommended for Publication
BRENNAN, J. Wauwatosa Avenue United Methodist Church ("United Methodist") appeals the circuit court's order denying its motion for summary judgment and upholding the decision of the City of Wauwatosa (the "City") tax assessor. The circuit court found that WIS. STAT. § 70.11(4) (2007-08) did not provide a tax exemption for the church-owned residence of the church custodian. On appeal, United Methodist argues for extending the tax exemption beyond the present statutory list set forth in § 70.11(4) to include residences of persons who are "integral to the functioning of the church." The City responds that neither the plain language of the statute nor case law supports that expanded test, and that under the existing test the church custodian's residence does not qualify for the tax exemption of § 70.11(4). We agree with the City and affirm the circuit court.
Criminal Law/ Appeal Barred/ Plea Withdrawal/ Ineffective Assistance Of Counsel

State v. Powell
Docket: 2008AP002886 10-06-09
PER CURIAM. Sharome Andre Powell, pro se, appeals an order denying his WIS. STAT. § 974.06 (2007-08) motion to vacate his no contest plea. The circuit court concluded Powell's motion was foreclosed by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We agree with the circuit court and affirm the order.
Criminal Law/ Defendant’s Competency/ Constitutional Law/ Right To Present Defense/ Pro Se/ Right To Counsel

State v. Lautenbach
Docket: 2009AP000752 10-06-09
HOOVER, P.J. Wayne Lautenbach appeals a judgment of conviction for battery and disorderly conduct. He argues he was not competent to proceed pro se at trial. Lautenbach further contends he was denied his constitutional right to present a defense because the circuit court precluded him from calling two witnesses at trial, and because he was not competent to proceed pro se. We reject Lautenbach's arguments and affirm.
Criminal Law/ Evidence/ Evidence Ruling/ Constitutional Law/ Voluntary Statements

State v. Bailey
Docket: 2008AP001747 10-06-09
PER CURIAM. Mark W. Bailey appeals from a corrected judgment of conviction for the second-degree sexual assault of a child to challenge the denial of his suppression motion. The issue is whether Bailey's statements should be suppressed as involuntary because they were improperly induced by the detective's promise that, in exchange for Bailey's cooperation, he would be able to return home. We conclude that the trial court found that no promises were made to Bailey, and that that finding is not clearly erroneous. We therefore affirm.
Criminal Law/ Evidence/ Jury Instructions

State v. Kobin
Docket: 2008AP002885 10-06-09
PER CURIAM. A jury found Sean A. Kobin guilty of first-degree reckless injury. See WIS. STAT. § 940.23(1) (2005-06). The court imposed a twenty-five year term of imprisonment, comprised of fifteen years of initial confinement and ten years of extended supervision. Kobin filed a postconviction motion in which he contended that: (1) the jury was incorrectly instructed on the meaning of "utter disregard for human life," one of the elements of first-degree reckless injury; and (2) the evidence was insufficient to support the guilty verdict. The circuit court denied Kobin's motion. On appeal, he renews his postconviction arguments. Because neither of Kobin's arguments are persuasive, we affirm.
Criminal Law/ Evidence/ New Trial/ Ineffective Assistance Of Counsel

State v. Valoe
Docket: 2008AP001960 10-06-09
PER CURIAM. A jury found Danielle Marie Valoe guilty of one count of conspiracy to commit theft by false representation, value greater than $10,000, see WIS. STAT. §§ 943.20(1)(d) and (3)(c), 939.61 (2005-06), and one count of conspiracy to commit theft by false representation, value between $2500 and $5000, see §§ 943.20(1)(d) and (3)(bf), 939.61 (2005-06). In a postconviction motion, Valoe sought a new trial, arguing that evidence of Valoe's prior criminal convictions was erroneously placed before the jury. The trial court denied the motion, ruling that any error was harmless in light of the "strong and overwhelming evidence" of Valoe's guilt. We affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Evidence

State v. Jackson
Docket: 2009AP000700 10-06-09
PER CURIAM. Donta Jackson appeals a judgment of conviction, entered upon a jury's verdict, for one count of first-degree intentional homicide while armed. Jackson also appeals an order denying his postconviction motion. He alleges there was insufficient evidence to support the jury's verdict and that counsel was ineffective for failing to pursue an interlocutory appeal of the bindover decision. We reject Jackson's arguments and affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ New Trial/ New Evidence

State v. Doyle
Docket: 2008AP003107 10-06-09
PER CURIAM. Dontae L. Doyle, pro se, appeals an order denying his WIS. STAT. § 974.06 motion, which sought a new trial on the basis of newly discovered evidence. Doyle, who was convicted of a dozen crimes and sentenced to eighty-seven years' imprisonment, offered affidavits and testimony of five other inmates, two of whom claimed responsibility for Doyle's crimes. We agree with the circuit court's conclusion that there is no probability of a different result at trial and, therefore, we affirm the order.
Criminal Law/ Ineffective Assistance Of Counsel/ Stipulations/ Evidence

State v. Brooks
Docket: 2008AP001577 10-06-09
PER CURIAM. Cyrus L. Brooks appeals from a judgment of conviction for two counts of first-degree recklessly endangering safety, and from a postconviction order denying his motion for a new trial. The issue is whether trial counsel was ineffective for agreeing to the trial court reading a stipulation to the jury that one of the alleged victims would not be testifying because he was dead, but "not as a result of the alleged events in this incident." We conclude that Brooks's counsel did not render ineffective assistance because: (1) trial counsel's performance was not deficient for stipulating to an explanation of why that alleged victim would not be testifying; (2) Brooks has not proven that the stipulation was prejudicial to his defense; (3) Brooks personally agreed to the stipulation; and (4) trial counsel explained his strategic reasons for stipulating to the trial court reading those statements to the jury. Therefore, we affirm.
Criminal Law/ New Trial/ New Evidence/ Ineffective Assistance Of Counsel

State v. Lipscomb
Docket: 2008AP002657 10-06-09
BRENNAN, J. James E. Lipscomb appeals pro se from an order denying his WIS. STAT. § 974.06 (2007-08) postconviction motion. Lipscomb raises two claims: (1) that his postconviction counsel provided ineffective assistance; and (2) that he is entitled to a new trial based upon newly discovered evidence. Because we resolve each claim in favor of upholding the trial court's order, we affirm.
Criminal Law/ Sentencing/ Judicial Authority-Discretion/ Sentencing Modification

State v. Williams
Docket: 2008AP001826 10-06-09
PER CURIAM. Antoine T. Williams appeals from a corrected judgment of conviction for burglary to a dwelling, and from a postconviction order summarily denying his sentence modification motion. The issues are whether the trial court erroneously exercised its discretion in imposing sentence, in declaring Williams ineligible for the Challenge Incarceration and Earned Release Programs ("Programs") before determining his statutory eligibility, and for denying his sentence modification motion. We conclude that the trial court properly exercised its discretion in imposing sentence, in declaring Williams ineligible 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.
Criminal Law/ Sentencing/ New Factor/ Statutes/ Judicial Authority-Discretion

State v. Robinson
Docket: 2008AP002463 10-07-09
PER CURIAM. Antoine D. Robinson appeals from a judgment convicting him of felony bail jumping and from an order denying his motion to modify his sentence to make him eligible for the Earned Release Program (ERP) and Challenge Incarceration Program (CIP). We conclude that the sentence and the decision not to modify it represent a proper exercise of discretion. We affirm.
Criminal Law/ Sentencing/ Resentencing

State v. Fisher
Docket: 2009AP000535 10-06-09
PER CURIAM. Marvin Lavell Fisher appeals from a judgment of conviction, entered upon his guilty plea, for one count of burglary to a building or dwelling as party to a crime. He also appeals an order denying his postconviction motion for resentencing. Fisher contends the circuit court erroneously exercised its discretion when it deemed him ineligible for the challenge incarceration and earned release programs. We reject Fisher's argument and affirm the judgment and order.
Failure To State A Claim/ Costs/ Negligence/ Standing/ Statutes

Durigan v. Podratz
Docket: 2008AP001299 10-08-09
PER CURIAM. Owen Durigan appeals a summary judgment order dismissing his lawsuit against a deputy sheriff, the Sheriff of Jefferson County and Jefferson County, and an order taxing costs against him. Both sides seek costs and attorney fees on the grounds that the other side's arguments on appeal are frivolous. We affirm for the reasons discussed below and award costs and attorney fees to the respondents pursuant to WIS. STAT. RULE 809.25 (2007-08).
Family Law/ Divorce/ Judicial Authority-Discretion/ Agreements

Keim v. Keim
Docket: 2008AP002911 10-08-09
PER CURIAM. James Keim appeals from that portion of a judgment of divorce in which the trial court reversed a previous order and determined that a post-marital agreement was unenforceable. James argues that the circuit court erroneously exercised its discretion when it overruled a previous decision, made by a judge who had since retired. James argues that the circuit court erred because its decision involved weighing testimony heard by its predecessor, and because its determination that the post-marital agreement was inequitable was not based on the correct legal standard. Because we conclude that the circuit court properly reconsidered the order of its predecessor and properly exercised its discretion when it determined that the post-marital agreement was inequitable, we affirm.
Family Law/ Divorce/ Property Division/ Marital Estate/ Attorney Fees

Hamilton v. Hamilton
Docket: 2007AP002773 10-08-09
PER CURIAM. Cheryl Hamilton appeals the property division portion of a judgment dissolving her marriage to Daniel Hamilton. Cheryl also appeals that part of the judgment awarding Daniel $1,000 in attorney's fees. Cheryl argues the circuit court erroneously exercised its discretion when dividing certain aspects of the marital estate and when awarding attorney's fees. We reject Cheryl's arguments and affirm the judgment.
Family Law/ Non-Marital Child/ Custody/ Placement/ Support

Anderson v. Tipperreiter
Docket: 2008AP001260 10-07-09
PER CURIAM. Karie S. Anderson has appealed from an order awarding custody and physical placement of her daughter, Bryanna, the non-marital child of Anderson and the respondent, Edward J. Tipperreiter. The order awarded joint legal custody to Anderson and Tipperreiter, who reside in Wisconsin and Florida, respectively. It awarded primary physical placement to Tipperreiter, with secondary physical placement to Anderson. It established one placement schedule for the period up to August 23, 2009, and a different schedule after that date. Beginning September 1, 2009, Anderson was also required to begin paying child support of $140 per month. We affirm the order.
Guardianship/ Protective Placement/ Procedure/ Statutes/ Number Of Judges

Waukesha County v. Genevieve M.
Docket: 2009AP001755 10-07-09
Recommended for Publication
PER CURIAM. This appeal is taken from an order appointing a guardian of the person and guardian of the estate for Genevieve M. under WIS. STAT. ch. 54 (2007-08), and from an order requiring her protective placement under WIS. STAT. ch. 55. WISCONSIN STAT. § 752.31(1) requires this court to sit in panels of three judges to dispose of cases on their merits. However, § 752.31(2)(d) and (3) provide that appeals in cases under ch. 55 are to be decided by one court of appeals judge. We sua sponte raised whether this appeal should be decided by a three-judge panel or by one judge. Only the appellant has filed the required memorandum addressing the issue and she argues that the appeal should be decided by one judge. We conclude that decision by a three-judge panel is required.
Motor Vehicle Law/ License/ Evidence/ Identification

State v. Albrecht
Docket: 2009AP000922 10-07-09
SNYDER, J. Nathan J. Albrecht appeals from a judgment convicting him of operating a motor vehicle without carrying a valid license contrary to WIS. STAT. § 343.18(1), and of causing a hit-and-run accident involving injury contrary to WIS. STAT. § 346.67(1). He contends that the circuit court improperly denied his motion to suppress identification evidence obtained by the investigating officer and to suppress a subsequent in-court identification. We agree that the out-of-court identification should have been suppressed. We further conclude that the record is insufficient to resolve whether there was an independent basis for the subsequent identification. Accordingly, we reverse the judgment and we remand for further proceedings.
OWI/ Constitutional Law/ Warrants/ Probable Cause

State v. Madrid
Docket: 2009AP000305 10-08-09
BRIDGE, J. Juan Madrid appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, third offense, and the order of the circuit court denying his motion to suppress evidence. He contends that the porch extending from the rear of his apartment is curtilage protected by the Fourth Amendment, and that because a law enforcement officer was on the porch without a valid warrant or without probable cause and exigent circumstances, the circuit court should have suppressed all evidence obtained as a result of the illegal intrusion. We disagree and therefore affirm.
OWI/ Prohibited Alcohol Concentration (PAC)/ Traffic Stops/ Evidence/ Reasonable Suspicion/ Probable Cause To Arrest

State v. Peters
Docket: 2009AP000384 10-08-09
BRIDGE, J. Rochelle Peters appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC), fourth offense, in violation of WIS. STAT. § 346.63(1)(b), and the circuit court's order denying her motion to suppress evidence gained as a result of the investigatory stop of Peters' vehicle. Peters contends the circuit court erroneously denied her motion to suppress for the following three reasons: (1) the arresting officer lacked reasonable suspicion to believe she violated "any drunk driving or alcohol related laws"; (2) the arresting officer lacked probable cause to administer the preliminary breath test; and (3) without the results of the preliminary breath test, the arresting officer did not have probable cause to arrest her for violating § 346.63(1)(a) and (b). We agree with Peters' second and third contentions and therefore reverse.
OWI/ Sentencing/ Enhancer Penalty/ Collateral Attack/ Waiver Of Right To Counsel

State v. Deaver
Docket: 2008AP002223 10-07-09
SNYDER, J. Michael A. Deaver appeals from a judgment of conviction for a third offense of operating a motor vehicle while under the influence of an intoxicant (OWI). He contends that his second OWI, which occurred in 1998, should not be available for sentence enhancement because the circuit court did not ascertain that his waiver of counsel at that time was knowing and voluntary. We agree. We reverse and remand with directions that Deaver be sentenced without consideration of the 1998 OWI conviction for sentence enhancement purposes.
OWI/ Sentencing/ Sentencing Modification/ Enhancer Penalty/ Out Of State OWI/ Evidence

State v. Burton
Docket: 2008AP003010 10-07-09
SNYDER, J. Charlie N. Burton appeals from a judgment finding him guilty of operating a motor vehicle while under the influence of an intoxicant (OWI), fourth violation, contrary to WIS. STAT. §§ 346.63(1)(a) and 346.65(2)(am)4. He also appeals from an order denying his motion for sentence modification. Burton contends that he should not have been subjected to the enhanced penalties for a fourth offense because only one of three prior Colorado convictions qualified as a prior offense under Wisconsin law.
Property/ Easement/ Evidence/ Statutes/ Statutory Construction-Interpretation

Armstrong v. Fischer
Docket: 2008AP002168 10-06-09
PER CURIAM. Donald and Judy Armstrong appeal a judgment dismissing their action under WIS. STAT. § 805.17(1). The trial court concluded that the land over which the Armstrongs sought a prescriptive easement was wild and unimproved under WIS. STAT. § 893.28(3). Based on the evidence, the trial court determined that Francis and Joyce Fischer were entitled to the statutory presumption of permissive use.
Small Claims/ Replevin/ Constitutional Law/ Notice

Musick v. Bradley
Docket: 2008AP002386 10-08-09
DYKMAN, P.J. Melissa Bradley appeals from an oral order in Nicole Musick's small claims replevin action to recover a vehicle in Bradley's possession. Bradley argues that the trial court erred in ordering her to sell the vehicle and split the proceeds equally with William Davis, a non-party witness in this action. Bradley contends that courts may not issue money judgments in replevin actions, and that a court does not have the authority to award money to a non-party. Musick responds that a trial court has broad power to conduct trials, and acted within its authority by effectively adding Davis as a party and then sua sponte ordering the vehicle sold and the proceeds split between Bradley and Davis. We conclude that the trial court's order for Bradley to sell the vehicle and split the proceeds with Davis did not comport with constitutional due process notice principles, because Bradley had no notice that she was expected to defend against a claim by Davis. Accordingly, we reverse.
Summary Judgment/ Breach Of Fiduciary Duty/ Negligence/ Sanctions/ Evidence/ Expert Testimony

Fears v. Brill
Docket: 2008AP001629 10-07-09
PER CURIAM. Psychotherapist Brian Fears does business as Choices Family Education Services, S.C. ("Choices"). Choices, Brian Fears and his wife, Jennifer, (collectively, Fears) appeal from a summary judgment granted in favor of Ann Brill, a certified public accountant. Fears claimed that Brill was negligent and breached her fiduciary duty in performing her accountant responsibilities. We agree that Fears' failure to provide expert testimony defeats his claims. We also agree that Fears' and his attorney's misrepresentations and dilatory conduct warrant WIS. STAT. § 802.05 (2007-08) sanctions. We affirm.
Summary Judgment/ Insurance/ Constructive Trust/ Contracts/ Marital Settlement

Pluemer v. Pluemer
Docket: 2009AP000155 10-08-09
Recommended for Publication
DYKMAN, P.J. Patricia Pluemer appeals from an order granting summary judgment to Jessica Pluemer in Jessica's action to recover life insurance proceeds paid to Patricia following the death of Gerald Pluemer, who was Patricia's husband and Jessica's father. Patricia contends that the trial court erred in imposing a constructive trust over the insurance proceeds based on the marital settlement agreement between Gerald and Jessica's mother, Lisa, which required both parents to name Jessica as the beneficiary on their life insurance policies. Patricia contends that she is entitled to the life insurance proceeds despite the marital settlement agreement because (1) she is a bona fide purchaser of the life insurance proceeds, and therefore her right to the proceeds is superior to Jessica's; and (2) the life insurance provision in the marital settlement agreement is not "support-related," and thus the court was prohibited from imposing a constructive trust over the insurance proceeds.
Taxation/ Property/ Assessment/ Valuation/ Statute/ Statutory Construction-Interpretation/ Department of Revenue

Nestle U.S.A., Inc. v. D.O.R.
Docket: 2008AP000322 10-08-09
Recommended for Publication
HIGGINBOTHAM, J. This is a property tax case. Nestlé USA, Inc. appeals a circuit court order affirming a decision and order of the Wisconsin Tax Appeals Commission upholding the Wisconsin Department of Revenue's (DOR) valuation for tax years 2003 and 2004 of improvements to Nestlé's Gateway Plant, a facility that manufactures powdered infant formula. Nestlé argues that the DOR erred by failing to apply the comparable sales approach in valuating the property, contrary to WIS. STAT. § 70.32(1) (2007-08), and by making the assessment based on the property's intrinsic worth to Nestlé and not its market value, contrary to State ex rel. Northwestern Mutual Life Insurance Co. v. Weiher, 177 Wis. 445, 188 N.W. 598 (1922). Nestlé also argues that DOR's application of the cost approach in valuating the property was erroneous because it did not include reductions for functional obsolescence. We reject these arguments and conclude that the DOR's assessment upheld by the Commission was based on the proper interpretation and application of § 70.32(1). We therefore affirm the circuit court's order upholding the Commission's decision.
Towns & Cities/ Employment Law/ Statutes/ Statutory Construction-Interpretation/ Wages/ Mootness/ Writ Of Madamus/ Preclusion

Sliwinski v. City of Milwaukee
Docket: 2008AP002141 10-06-09
Recommended for Publication
BRENNAN, J. This action arises out of Philip Sliwinski's claim for back pay, benefits and penalties under WIS. STAT. ch. 109 (2007-08). There are two issues in this appeal: (1) whether Sliwinski can bring a claim for his back pay and benefits under ch. 109; and (2) whether this appeal is moot.


Week of October 5, 2009 Supreme Court Cases No decisions were released. Court of Appeals Cases Cities & Towns/ Taxation/ Churches/ Statutes/ Statutory Construction-Interpretation United Methodist Church v. City of Wauwatosa Docket: 2009AP000202 10-06-09 Recommended for Publication BRENNAN, J. Wauwatosa Avenue United Methodist Church ("United Methodist") appeals the circuit court's order denying its motion for summary judgment and upholding the decision of the City of Wauwatosa (the "City") tax assessor. The circuit court found that WIS. STAT. § 70.11(4) (2007-08) did not provide a tax exemption for the church-owned residence of the church custodian. On appeal, United Methodist argues for extending the tax exemption beyond the present statutory list set forth in § 70.11(4) to include residences of persons who are "integral to the functioning of the church." The City responds that neither the plain language of the statute nor case law supports that expanded test, and that under the existing test the church custodian's residence does not qualify for the tax exemption of § 70.11(4). We agree with the City and affirm the circuit court. Criminal Law/ Appeal Barred/ Plea Withdrawal/ Ineffective Assistance Of Counsel State v. Powell Docket: 2008AP002886 10-06-09 PER CURIAM. Sharome Andre Powell, pro se, appeals an order denying his WIS. STAT. § 974.06 (2007-08) motion to vacate his no contest plea. The circuit court concluded Powell's motion was foreclosed by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We agree with the circuit court and affirm the order. Criminal Law/ Defendant’s Competency/ Constitutional Law/ Right To Present Defense/ Pro Se/ Right To Counsel State v. Lautenbach Docket: 2009AP000752 10-06-09 HOOVER, P.J. Wayne Lautenbach appeals a judgment of conviction for battery and disorderly conduct. He argues he was not competent to proceed pro se at trial. Lautenbach further contends he was denied his constitutional right to present a defense because the circuit court precluded him from calling two witnesses at trial, and because he was not competent to proceed pro se. We reject Lautenbach's arguments and affirm. Criminal Law/ Evidence/ Evidence Ruling/ Constitutional Law/ Voluntary Statements State v. Bailey Docket: 2008AP001747 10-06-09 PER CURIAM. Mark W. Bailey appeals from a corrected judgment of conviction for the second-degree sexual assault of a child to challenge the denial of his suppression motion. The issue is whether Bailey's statements should be suppressed as involuntary because they were improperly induced by the detective's promise that, in exchange for Bailey's cooperation, he would be able to return home. We conclude that the trial court found that no promises were made to Bailey, and that that finding is not clearly erroneous. We therefore affirm. Criminal Law/ Evidence/ Jury Instructions State v. Kobin Docket: 2008AP002885 10-06-09 PER CURIAM. A jury found Sean A. Kobin guilty of first-degree reckless injury. See WIS. STAT. § 940.23(1) (2005-06). The court imposed a twenty-five year term of imprisonment, comprised of fifteen years of initial confinement and ten years of extended supervision. Kobin filed a postconviction motion in which he contended that: (1) the jury was incorrectly instructed on the meaning of "utter disregard for human life," one of the elements of first-degree reckless injury; and (2) the evidence was insufficient to support the guilty verdict. The circuit court denied Kobin's motion. On appeal, he renews his postconviction arguments. Because neither of Kobin's arguments are persuasive, we affirm. Criminal Law/ Evidence/ New Trial/ Ineffective Assistance Of Counsel State v. Valoe Docket: 2008AP001960 10-06-09 PER CURIAM. A jury found Danielle Marie Valoe guilty of one count of conspiracy to commit theft by false representation, value greater than $10,000, see WIS. STAT. §§ 943.20(1)(d) and (3)(c), 939.61 (2005-06), and one count of conspiracy to commit theft by false representation, value between $2500 and $5000, see §§ 943.20(1)(d) and (3)(bf), 939.61 (2005-06). In a postconviction motion, Valoe sought a new trial, arguing that evidence of Valoe's prior criminal convictions was erroneously placed before the jury. The trial court denied the motion, ruling that any error was harmless in light of the "strong and overwhelming evidence" of Valoe's guilt. We affirm. Criminal Law/ Ineffective Assistance Of Counsel/ Evidence State v. Jackson Docket: 2009AP000700 10-06-09 PER CURIAM. Donta Jackson appeals a judgment of conviction, entered upon a jury's verdict, for one count of first-degree intentional homicide while armed. Jackson also appeals an order denying his postconviction motion. He alleges there was insufficient evidence to support the jury's verdict and that counsel was ineffective for failing to pursue an interlocutory appeal of the bindover decision. We reject Jackson's arguments and affirm. Criminal Law/ Ineffective Assistance Of Counsel/ New Trial/ New Evidence State v. Doyle Docket: 2008AP003107 10-06-09 PER CURIAM. Dontae L. Doyle, pro se, appeals an order denying his WIS. STAT. § 974.06 motion, which sought a new trial on the basis of newly discovered evidence. Doyle, who was convicted of a dozen crimes and sentenced to eighty-seven years' imprisonment, offered affidavits and testimony of five other inmates, two of whom claimed responsibility for Doyle's crimes. We agree with the circuit court's conclusion that there is no probability of a different result at trial and, therefore, we affirm the order. Criminal Law/ Ineffective Assistance Of Counsel/ Stipulations/ Evidence State v. Brooks Docket: 2008AP001577 10-06-09 PER CURIAM. Cyrus L. Brooks appeals from a judgment of conviction for two counts of first-degree recklessly endangering safety, and from a postconviction order denying his motion for a new trial. The issue is whether trial counsel was ineffective for agreeing to the trial court reading a stipulation to the jury that one of the alleged victims would not be testifying because he was dead, but "not as a result of the alleged events in this incident." We conclude that Brooks's counsel did not render ineffective assistance because: (1) trial counsel's performance was not deficient for stipulating to an explanation of why that alleged victim would not be testifying; (2) Brooks has not proven that the stipulation was prejudicial to his defense; (3) Brooks personally agreed to the stipulation; and (4) trial counsel explained his strategic reasons for stipulating to the trial court reading those statements to the jury. Therefore, we affirm. Criminal Law/ New Trial/ New Evidence/ Ineffective Assistance Of Counsel State v. Lipscomb Docket: 2008AP002657 10-06-09 BRENNAN, J. James E. Lipscomb appeals pro se from an order denying his WIS. STAT. § 974.06 (2007-08) postconviction motion. Lipscomb raises two claims: (1) that his postconviction counsel provided ineffective assistance; and (2) that he is entitled to a new trial based upon newly discovered evidence. Because we resolve each claim in favor of upholding the trial court's order, we affirm. Criminal Law/ Sentencing/ Judicial Authority-Discretion/ Sentencing Modification State v. Williams Docket: 2008AP001826 10-06-09 PER CURIAM. Antoine T. Williams appeals from a corrected judgment of conviction for burglary to a dwelling, and from a postconviction order summarily denying his sentence modification motion. The issues are whether the trial court erroneously exercised its discretion in imposing sentence, in declaring Williams ineligible for the Challenge Incarceration and Earned Release Programs ("Programs") before determining his statutory eligibility, and for denying his sentence modification motion. We conclude that the trial court properly exercised its discretion in imposing sentence, in declaring Williams ineligible 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. Criminal Law/ Sentencing/ New Factor/ Statutes/ Judicial Authority-Discretion State v. Robinson Docket: 2008AP002463 10-07-09 PER CURIAM. Antoine D. Robinson appeals from a judgment convicting him of felony bail jumping and from an order denying his motion to modify his sentence to make him eligible for the Earned Release Program (ERP) and Challenge Incarceration Program (CIP). We conclude that the sentence and the decision not to modify it represent a proper exercise of discretion. We affirm. Criminal Law/ Sentencing/ Resentencing State v. Fisher Docket: 2009AP000535 10-06-09 PER CURIAM. Marvin Lavell Fisher appeals from a judgment of conviction, entered upon his guilty plea, for one count of burglary to a building or dwelling as party to a crime. He also appeals an order denying his postconviction motion for resentencing. Fisher contends the circuit court erroneously exercised its discretion when it deemed him ineligible for the challenge incarceration and earned release programs. We reject Fisher's argument and affirm the judgment and order. Failure To State A Claim/ Costs/ Negligence/ Standing/ Statutes Durigan v. Podratz Docket: 2008AP001299 10-08-09 PER CURIAM. Owen Durigan appeals a summary judgment order dismissing his lawsuit against a deputy sheriff, the Sheriff of Jefferson County and Jefferson County, and an order taxing costs against him. Both sides seek costs and attorney fees on the grounds that the other side's arguments on appeal are frivolous. We affirm for the reasons discussed below and award costs and attorney fees to the respondents pursuant to WIS. STAT. RULE 809.25 (2007-08). Family Law/ Divorce/ Judicial Authority-Discretion/ Agreements Keim v. Keim Docket: 2008AP002911 10-08-09 PER CURIAM. James Keim appeals from that portion of a judgment of divorce in which the trial court reversed a previous order and determined that a post-marital agreement was unenforceable. James argues that the circuit court erroneously exercised its discretion when it overruled a previous decision, made by a judge who had since retired. James argues that the circuit court erred because its decision involved weighing testimony heard by its predecessor, and because its determination that the post-marital agreement was inequitable was not based on the correct legal standard. Because we conclude that the circuit court properly reconsidered the order of its predecessor and properly exercised its discretion when it determined that the post-marital agreement was inequitable, we affirm. Family Law/ Divorce/ Property Division/ Marital Estate/ Attorney Fees Hamilton v. Hamilton Docket: 2007AP002773 10-08-09 PER CURIAM. Cheryl Hamilton appeals the property division portion of a judgment dissolving her marriage to Daniel Hamilton. Cheryl also appeals that part of the judgment awarding Daniel $1,000 in attorney's fees. Cheryl argues the circuit court erroneously exercised its discretion when dividing certain aspects of the marital estate and when awarding attorney's fees. We reject Cheryl's arguments and affirm the judgment. Family Law/ Non-Marital Child/ Custody/ Placement/ Support Anderson v. Tipperreiter Docket: 2008AP001260 10-07-09 PER CURIAM. Karie S. Anderson has appealed from an order awarding custody and physical placement of her daughter, Bryanna, the non-marital child of Anderson and the respondent, Edward J. Tipperreiter. The order awarded joint legal custody to Anderson and Tipperreiter, who reside in Wisconsin and Florida, respectively. It awarded primary physical placement to Tipperreiter, with secondary physical placement to Anderson. It established one placement schedule for the period up to August 23, 2009, and a different schedule after that date. Beginning September 1, 2009, Anderson was also required to begin paying child support of $140 per month. We affirm the order. Guardianship/ Protective Placement/ Procedure/ Statutes/ Number Of Judges Waukesha County v. Genevieve M. Docket: 2009AP001755 10-07-09 Recommended for Publication PER CURIAM. This appeal is taken from an order appointing a guardian of the person and guardian of the estate for Genevieve M. under WIS. STAT. ch. 54 (2007-08), and from an order requiring her protective placement under WIS. STAT. ch. 55. WISCONSIN STAT. § 752.31(1) requires this court to sit in panels of three judges to dispose of cases on their merits. However, § 752.31(2)(d) and (3) provide that appeals in cases under ch. 55 are to be decided by one court of appeals judge. We sua sponte raised whether this appeal should be decided by a three-judge panel or by one judge. Only the appellant has filed the required memorandum addressing the issue and she argues that the appeal should be decided by one judge. We conclude that decision by a three-judge panel is required. Motor Vehicle Law/ License/ Evidence/ Identification State v. Albrecht Docket: 2009AP000922 10-07-09 SNYDER, J. Nathan J. Albrecht appeals from a judgment convicting him of operating a motor vehicle without carrying a valid license contrary to WIS. STAT. § 343.18(1), and of causing a hit-and-run accident involving injury contrary to WIS. STAT. § 346.67(1). He contends that the circuit court improperly denied his motion to suppress identification evidence obtained by the investigating officer and to suppress a subsequent in-court identification. We agree that the out-of-court identification should have been suppressed. We further conclude that the record is insufficient to resolve whether there was an independent basis for the subsequent identification. Accordingly, we reverse the judgment and we remand for further proceedings. OWI/ Constitutional Law/ Warrants/ Probable Cause State v. Madrid Docket: 2009AP000305 10-08-09 BRIDGE, J. Juan Madrid appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, third offense, and the order of the circuit court denying his motion to suppress evidence. He contends that the porch extending from the rear of his apartment is curtilage protected by the Fourth Amendment, and that because a law enforcement officer was on the porch without a valid warrant or without probable cause and exigent circumstances, the circuit court should have suppressed all evidence obtained as a result of the illegal intrusion. We disagree and therefore affirm. OWI/ Prohibited Alcohol Concentration (PAC)/ Traffic Stops/ Evidence/ Reasonable Suspicion/ Probable Cause To Arrest State v. Peters Docket: 2009AP000384 10-08-09 BRIDGE, J. Rochelle Peters appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC), fourth offense, in violation of WIS. STAT. § 346.63(1)(b), and the circuit court's order denying her motion to suppress evidence gained as a result of the investigatory stop of Peters' vehicle. Peters contends the circuit court erroneously denied her motion to suppress for the following three reasons: (1) the arresting officer lacked reasonable suspicion to believe she violated "any drunk driving or alcohol related laws"; (2) the arresting officer lacked probable cause to administer the preliminary breath test; and (3) without the results of the preliminary breath test, the arresting officer did not have probable cause to arrest her for violating § 346.63(1)(a) and (b). We agree with Peters' second and third contentions and therefore reverse. OWI/ Sentencing/ Enhancer Penalty/ Collateral Attack/ Waiver Of Right To Counsel State v. Deaver Docket: 2008AP002223 10-07-09 SNYDER, J. Michael A. Deaver appeals from a judgment of conviction for a third offense of operating a motor vehicle while under the influence of an intoxicant (OWI). He contends that his second OWI, which occurred in 1998, should not be available for sentence enhancement because the circuit court did not ascertain that his waiver of counsel at that time was knowing and voluntary. We agree. We reverse and remand with directions that Deaver be sentenced without consideration of the 1998 OWI conviction for sentence enhancement purposes. OWI/ Sentencing/ Sentencing Modification/ Enhancer Penalty/ Out Of State OWI/ Evidence State v. Burton Docket: 2008AP003010 10-07-09 SNYDER, J. Charlie N. Burton appeals from a judgment finding him guilty of operating a motor vehicle while under the influence of an intoxicant (OWI), fourth violation, contrary to WIS. STAT. §§ 346.63(1)(a) and 346.65(2)(am)4. He also appeals from an order denying his motion for sentence modification. Burton contends that he should not have been subjected to the enhanced penalties for a fourth offense because only one of three prior Colorado convictions qualified as a prior offense under Wisconsin law. Property/ Easement/ Evidence/ Statutes/ Statutory Construction-Interpretation Armstrong v. Fischer Docket: 2008AP002168 10-06-09 PER CURIAM. Donald and Judy Armstrong appeal a judgment dismissing their action under WIS. STAT. § 805.17(1). The trial court concluded that the land over which the Armstrongs sought a prescriptive easement was wild and unimproved under WIS. STAT. § 893.28(3). Based on the evidence, the trial court determined that Francis and Joyce Fischer were entitled to the statutory presumption of permissive use. Small Claims/ Replevin/ Constitutional Law/ Notice Musick v. Bradley Docket: 2008AP002386 10-08-09 DYKMAN, P.J. Melissa Bradley appeals from an oral order in Nicole Musick's small claims replevin action to recover a vehicle in Bradley's possession. Bradley argues that the trial court erred in ordering her to sell the vehicle and split the proceeds equally with William Davis, a non-party witness in this action. Bradley contends that courts may not issue money judgments in replevin actions, and that a court does not have the authority to award money to a non-party. Musick responds that a trial court has broad power to conduct trials, and acted within its authority by effectively adding Davis as a party and then sua sponte ordering the vehicle sold and the proceeds split between Bradley and Davis. We conclude that the trial court's order for Bradley to sell the vehicle and split the proceeds with Davis did not comport with constitutional due process notice principles, because Bradley had no notice that she was expected to defend against a claim by Davis. Accordingly, we reverse. Summary Judgment/ Breach Of Fiduciary Duty/ Negligence/ Sanctions/ Evidence/ Expert Testimony Fears v. Brill Docket: 2008AP001629 10-07-09 PER CURIAM. Psychotherapist Brian Fears does business as Choices Family Education Services, S.C. ("Choices"). Choices, Brian Fears and his wife, Jennifer, (collectively, Fears) appeal from a summary judgment granted in favor of Ann Brill, a certified public accountant. Fears claimed that Brill was negligent and breached her fiduciary duty in performing her accountant responsibilities. We agree that Fears' failure to provide expert testimony defeats his claims. We also agree that Fears' and his attorney's misrepresentations and dilatory conduct warrant WIS. STAT. § 802.05 (2007-08) sanctions. We affirm. Summary Judgment/ Insurance/ Constructive Trust/ Contracts/ Marital Settlement Pluemer v. Pluemer Docket: 2009AP000155 10-08-09 Recommended for Publication DYKMAN, P.J. Patricia Pluemer appeals from an order granting summary judgment to Jessica Pluemer in Jessica's action to recover life insurance proceeds paid to Patricia following the death of Gerald Pluemer, who was Patricia's husband and Jessica's father. Patricia contends that the trial court erred in imposing a constructive trust over the insurance proceeds based on the marital settlement agreement between Gerald and Jessica's mother, Lisa, which required both parents to name Jessica as the beneficiary on their life insurance policies. Patricia contends that she is entitled to the life insurance proceeds despite the marital settlement agreement because (1) she is a bona fide purchaser of the life insurance proceeds, and therefore her right to the proceeds is superior to Jessica's; and (2) the life insurance provision in the marital settlement agreement is not "support-related," and thus the court was prohibited from imposing a constructive trust over the insurance proceeds. Taxation/ Property/ Assessment/ Valuation/ Statute/ Statutory Construction-Interpretation/ Department of Revenue Nestle U.S.A., Inc. v. D.O.R. Docket: 2008AP000322 10-08-09 Recommended for Publication HIGGINBOTHAM, J. This is a property tax case. Nestlé USA, Inc. appeals a circuit court order affirming a decision and order of the Wisconsin Tax Appeals Commission upholding the Wisconsin Department of Revenue's (DOR) valuation for tax years 2003 and 2004 of improvements to Nestlé's Gateway Plant, a facility that manufactures powdered infant formula. Nestlé argues that the DOR erred by failing to apply the comparable sales approach in valuating the property, contrary to WIS. STAT. § 70.32(1) (2007-08), and by making the assessment based on the property's intrinsic worth to Nestlé and not its market value, contrary to State ex rel. Northwestern Mutual Life Insurance Co. v. Weiher, 177 Wis. 445, 188 N.W. 598 (1922). Nestlé also argues that DOR's application of the cost approach in valuating the property was erroneous because it did not include reductions for functional obsolescence. We reject these arguments and conclude that the DOR's assessment upheld by the Commission was based on the proper interpretation and application of § 70.32(1). We therefore affirm the circuit court's order upholding the Commission's decision. Towns & Cities/ Employment Law/ Statutes/ Statutory Construction-Interpretation/ Wages/ Mootness/ Writ Of Madamus/ Preclusion Sliwinski v. City of Milwaukee Docket: 2008AP002141 10-06-09 Recommended for Publication BRENNAN, J. This action arises out of Philip Sliwinski's claim for back pay, benefits and penalties under WIS. STAT. ch. 109 (2007-08). There are two issues in this appeal: (1) whether Sliwinski can bring a claim for his back pay and benefits under ch. 109; and (2) whether this appeal is moot.		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