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• Chapter 980 Commitments/ New Trial/ Evidence/ Interest Of Justice
  
  State v. Kaminski
  Docket: 2008AP002439 11-17-09
  Recommended for Publication
  

  BRUNNER, J. Carl Kaminski appeals from a judgment and an order of commitment under WIS. STAT. ch. 980 and an order denying his motion for a new trial. Following a jury trial, Kaminski was found a "sexually violent person" subject to involuntary commitment. He filed a postverdict motion for a new trial in the interest of justice on the ground that the jury heard improper expert testimony that prevented the real controversy from being fully tried. The circuit court denied the motion. We affirm.
• Chapter 980 Commitments/ Statutes/ Interest Of Justice/ Evidence
  
  State v. Fankhauser
  Docket: 2008AP002775 11-19-09
  

  LUNDSTEN, J. Eric Fankhauser appeals a circuit court judgment committing him, after a bench trial, as a sexually violent person under WIS. STAT. ch. 980. He also appeals an order denying post-commitment relief. Fankhauser asks that we exercise our discretion to reverse in the interest of justice because the real controversy was not fully tried. More specifically, he argues that his prediction that he would reoffend if released, made in connection with a polygraph examination, was inadmissible, that the State's experts and the circuit court should not have relied on this prediction, and that the use of this prediction at trial clouded the issue of whether he is more likely than not to engage in a future act of sexual violence.
• Contempt
  
  Brittain v. Waukesha County
  Docket: 2009AP001253 11-18-09
  

  BROWN, C.J. Attorney Eric Brittain was held in summary contempt by Judge Mac Davis and fined $50. He appeals. When Brittain was addressing the jury in his opening statement after the jury had been impaneled and before testimony was to begin, he looked directly at Judge Davis for about five seconds and then remarked to the jury: "Ladies and Gentlemen, under a lot of--a lot of obstacles, we are here today." Judge Davis ruled that it was a direct imputation on the integrity of the court, a finding of summary contempt was necessary to preserve order in the court, and that it was not improper for the court to wait until Brittain's argument was finished before proceeding with the contempt out of the view of the jury. We affirm.
• Criminal Law/ Evidence
  
  State v. Estrada-Jiminez
  Docket: 2008AP002768 11-19-09
  

  PER CURIAM. Luis Estrada-Jimenez appeals a judgment convicting him of first-degree intentional homicide, as a party to the crime. He also appeals an order denying his motion for postconviction relief. The conviction followed a jury trial. Estrada-Jimenez contends that he is entitled to reversal because the jury did not learn the details of the deals he believes two key prosecution witnesses received in exchange for their testimony. We affirm.
• Criminal Law/ Evidence/ Defendant’s Competency
  
  State v. Rodgers
  Docket: 2008AP000497 11-19-09
  

  PER CURIAM. John Rodgers appeals from a judgment of conviction. The issue is whether a statement he made was voluntary. We affirm.
• Criminal Law/ Evidence/ Search & Seizure/ Constitutional Law/ Reasonable Suspicion
  
  State v. Dobberpuhl
  Docket: 2009AP000075 11-17-09
  

  PER CURIAM. Carmelo Dobberpuhl appeals a judgment of conviction for possession of cocaine with intent to deliver. Dobberpuhl argues the evidence was obtained only after he was unlawfully seized. We affirm.
• Criminal Law/ Habeas Corpus/ Record/ Juries/ New Trial/ Evidence/ Burden Of Proof
  
  State v. Cucuta
  Docket: 2008AP001764 11-17-09
  

  PER CURIAM. Manuel Cucuta appeals from an order following an evidentiary hearing on remand denying his petition for a writ of habeas corpus seeking a new trial. The issue is whether the reconstructed record was adequate to deny Cucuta's petition, or whether the inadequacy of the record entitles him to a new trial. We conclude that the reconstructed record was adequate; however, from that record Cucuta has not demonstrated that a juror was sleeping during his trial, much less that that allegedly sleeping juror prejudiced his right to a fair trial. Therefore, we affirm.
• Criminal Law/ Ineffective Assistance Of Counsel/ Appeal Barred
  
  State v. Williams
  Docket: 2008AP001961 11-17-09
  

  PER CURIAM. Gerald Williams appeals from an order denying his postconviction motion. The issue is whether postconviction counsel's alleged ineffectiveness overcomes the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 185-86, 517 N.W.2d 157 (1994). We conclude that the mere allegation of postconviction counsel's ineffectiveness does not constitute a sufficient reason for failing to raise these issues previously when they were or should have been known at the time of Williams's direct appeal, and certainly by the time he filed his first postconviction motion (subsequent to his direct appeal and previous to the current postconviction motion). Therefore, Williams's current motion is procedurally barred and we affirm.
• Criminal Law/ Plea Withdrawal/ Ineffective Assistance Of Counsel
  
  State v. Bates
  Docket: 2008AP000740 11-17-09
  

  PER CURIAM. Roosevelt Bates appeals from a judgment of conviction for false imprisonment and second-degree sexual assault, and from a postconviction order denying his motion for plea withdrawal. The issue is whether defense counsel's deficient performance--for failing to interview a witness who would have corroborated Bates's defense--was prejudicial, constituting the ineffective assistance of counsel. We conclude that it was not reasonably probable that this corroborative proposed testimony from Bates's live-in stepdaughter would have largely negated the physical evidence, and would have prompted Bates to forego a plea bargain that reduced the charges and his maximum sentencing exposure by half. Therefore, we affirm.
• Criminal Law/ Plea Withdrawal/ Sentencing/ Breach Of Plea Agreement/ Ineffective Assistance Of Counsel/ Interest Of Justice/ New Evidence
  
  State v. Graves
  Docket: 2008AP002183 11-17-09
  State v. Graves
  Docket: 2008AP002184 11-17-09
  

  PER CURIAM. Demarco C. Graves appeals from two judgments of conviction for two counts of felony bail jumping and for resisting an officer, and from a consolidated postconviction order summarily denying his motions for postsentencing plea withdrawal and for sentence modification. The issue is whether Graves was entitled to an evidentiary hearing on any of his three plea withdrawal claims, and whether the trial court erroneously exercised its sentencing discretion when it imposed the sentences consecutively to one another. We conclude that Graves was not entitled to an evidentiary hearing to develop his plea withdrawal claims because he either did not allege sufficient facts to entitle him to relief, or because the record conclusively demonstrated that he was not entitled to relief. Further, the record supports the trial court's imposition of consecutive sentences. Therefore, we affirm.
• Criminal Law/ Pleas/ Plea Withdrawal/ Knowingly, Voluntarily & Intelligently/ Statutes/ Statutory Construction-Interpretation/ Colloquy
  
  State v. Jones
  Docket: 2009AP000498 11-17-09
  

  PER CURIAM. Antonio Jones appeals from a judgment of conviction, entered upon his guilty plea, of one count of first-degree reckless homicide while armed. Jones also appeals an order denying his motion to withdraw his plea. Jones asserts his plea was not knowing, intelligent, and voluntary because he did not understand the elements of the charge against him. We conclude the record appropriately demonstrates Jones' understanding, and we affirm the judgment and order.
• Criminal Law/ Pleas/ Sentencing
  
  State v. Sanders
  Docket: 2009AP000374 11-17-09
  

  PER CURIAM. Levon Sanders appeals from a judgment of conviction, entered upon his no contest plea, on one count of attempted robbery with the threat of force. Sanders also appeals from the order denying his postconviction motion for resentencing. Sanders asserts the circuit court failed to appropriately articulate a basis for imposing the maximum sentence. We reject this argument and affirm the judgment and order.
• Criminal Law/ Search & Seizure/ Evidence/ Warrantless Entry
  
  State v. Moore
  Docket: 2009AP000833 11-17-09
  

  PETERSON, J. Mary Moore appeals a judgment of conviction for possession of tetrahydrocannabinols and for possession of cocaine. Moore argues evidence obtained during a protective sweep of her apartment should have been suppressed because police entered without a warrant or exigent circumstances. We affirm.
• Criminal Law/ Supervision Revoked/ Reconfinement/ New Factor/ Mental Health/ Sentencing/ Constitutional Law
  
  State v. McClure
  Docket: 2008AP003137 11-18-09
  

  PER CURIAM. Christopher R. McClure appeals from an order for reconfinement after his extended supervision was revoked and from an order denying his postconviction motion, in which he contended that the reconfinement court failed to consider a new factor. We agree with the court that McClure's mental health history is not a new factor and was considered, but not given prime importance, at his initial sentencing and on reconfinement. We affirm.
• Damages/ Evidence/ Procedure/ Motions/ Timeless/ Statutes/ Court’s Competency
  
  Link Snacks, Inc. v. Link
  Docket: 2008AP002897 11-17-09
  

  HOOVER, P.J. Jay Link appeals an order reducing a punitive damages award against Jack Link, and a judgment that, among other things, awarded those reduced damages. Jay argues the circuit court lost competency to reduce the award because Jack's motion after verdict was filed late. We agree, reverse the order, and direct the circuit court to amend the judgment and reinstate the full punitive damages award to Jay.
• Family Law/ TPR/ Orders/ Statutes
  
  Winnebago County v. Larry W.H.
  Docket: 2009AP001738 11-18-09
  Winnebago County v. Larry W.H.
  Docket: 2009AP001739 11-18-09
  

  ANDERSON, J. Larry W.H. appeals from orders denying his motion to dismiss the Winnebago County Department of Health and Human Services' child in need of protection or services petitions (CHIPS petitions). Larry argues that the circuit court erred in ruling that the amended dispositional order was a corrected order. Larry is wrong; the amended dispositional order was a corrected order. We affirm.
• Landlord-Tenant/ Attorney Fees/ Small Claims/ Regulations/ Judicial Authority-Discretion
  
  Komes v. Northeastern Illinois Land Management
  Docket: 2009AP001301 11-18-09
  

  NEUBUAER, P.J. Edward and Rachel Komes appeal from an amended small claims judgment granting their claim against Northeastern Illinois Land Management, Inc. d/b/a Land Management, for damages incurred as a result of their landlord's violation of WIS. ADMIN. CODE § ATCP 134.09(2)(c), but awarding only a portion of their requested attorney fees. The Komeses contend that the trial court erred in awarding only $800 in attorney fees for obtaining a small claims judgment. Because we conclude that the trial court properly exercised its discretion in setting the attorney fees award, we affirm the amended small claims judgment.
• OWI/ Constitutional Law/ Seizure/ Community Caretaker
  
  Dane County v. Lamb
  Docket: 2008AP003021 11-19-09
  

  HIGGINBOTHAM, J. Sharon Lamb appeals her judgment of conviction for operating a motor vehicle while impaired and operating a motor vehicle with a prohibited alcohol concentration, first offense. Lamb argues that the circuit court erred in denying her motion to suppress evidence. There are two issues in this case: (1) whether the stop of Lamb's vehicle constituted a seizure under the Fourth Amendment of the United States Constitution and Art. 1, Section 11 of the Wisconsin Constitution; and (2) if a seizure did occur, whether it was justified under the community caretaker doctrine. We assume without deciding that a seizure occurred in this case, and conclude that the deputy's conduct was reasonable within the community caretaker function and thus satisfies the requirements of the federal and state constitutions. We therefore affirm.
• OWI/ Probable Cause To Arrest/ Evidence
  
  State v. Stahl
  Docket: 2008AP002577 11-17-09
  

  PETERSON, J. Casey Stahl appeals a judgment of conviction for operating a motor vehicle while intoxicated, fourth offense. Stahl argues police lacked probable cause to arrest him. We affirm.
• OWI/ Reasonable Suspicion/ Traffic Stops/ Evidence
  
  State v. Kuhn
  Docket: 2009AP000198 11-19-09
  

  LUNDSTEN, J. Kaleb Kuhn appeals the circuit court's judgment convicting him of operating while under the influence of an intoxicant as a third offense and operating with a revoked driver's license as a second offense. Kuhn also appeals the circuit court's order denying his motion for postconviction relief. He argues that the circuit court erred in concluding that a police officer had reasonable suspicion to stop his car. I affirm the judgment and order.
• OWI/ Sentencing/ Huber Privileges/ Judicial Authority-Discretion
  
  State v. Hefte
  Docket: 2009AP000320 11-19-09
  State v. Hefte
  Docket: 2009AP000321 11-19-09
  

  BRIDGE, J. John Hefte appeals from judgments of conviction for operating while under the influence of an intoxicant (OWI), third and fourth offenses, contrary to WIS. STAT. § 346.63(1)(a). Hefte was sentenced to a combined total of 270 days in jail with Huber privileges for all but the first thirty days of his sentence. Hefte complains that the circuit court erred in denying him Huber privileges during the first thirty days of his sentence. He argues that the denial of Huber privileges for that period of time was clearly erroneous because the court followed a preconceived policy of sentencing, that policy being a "desire to keep defendants off of electronic monitoring." He also argues that the denial of Huber privileges during that time period violated the separation of powers in that it interferes with the "sheriff's authority to place [a defendant] on home monitoring." We affirm.
• Property/ Adverse Possession/ Evidence
  
  Kosok v. Fitzpatrick
  Docket: 2008AP002351 11-17-09
  

  PER CURIAM. Michael Fitzpatrick appeals a judgment declaring that Kevin, Cynthia, Albert and Vicki Kosok acquired by adverse possession land previously titled to him. Fitzpatrick argues the evidence does not establish that the Kosoks adversely possessed the subject land. We reject Fitzpatrick's arguments and affirm the judgment.
• Property/ Raze Order/ Towns & Cities/ Notice/ Constitutional Law/ Statutes
  
  Borst v. City of New Richmond
  Docket: 2008AP002136 11-17-09
  

  PER CURIAM. Vernon and Carolyn Borst appeal an order affirming a City of New Richmond raze order. The Borsts assert that because Carolyn, as co-owner of the subject property, was not served with the raze order as required under WIS. STAT. § 66.0413(1)(d), the trial court erred by denying their due process claim. We agree and, therefore, reverse the order.
• Wills/ Estates/ Attorney Fees/ Statutes/ Statutory Construction-Interpretation
  
  Wolf v. Estate of Wolf
  Docket: 2009AP000781 11-17-09
  Recommended for Publication
  

  CURLEY, P.J. Shirley A. Wolf appeals from an order denying her attorney fees as the named personal representative and proponent of the will of Frances V. Wolf (the Estate, unless otherwise specified). We conclude that the applicable statutory language is clear that there is no prevailing party and no appealable contested matter where a will contest results in settlement; as such, the trial court properly denied Shirley Wolf's claim for attorney fees. See WIS. STAT. § 879.37 (2007-08). Consequently, we affirm.