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• Criminal Law/ Appeal Barred/ Ineffective Assistance Of Counsel
  
  State v. Towns
  Docket: 2009AP000301 01-12-10
  

  PER CURIAM. James D. Towns appeals pro se from an order denying his postconviction motion brought under WIS. STAT. § 974.06 (2007-08). The circuit court concluded that the motion was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and State v. Tillman, 2005 WI App 71, 281 Wis. 2d 157, 696 N.W.2d 574. We agree and affirm.
• Criminal Law/ Colloquy/ New Trial/ Defendant’s Right To Testify/ Evidence
  
  State v. Garcia
  Docket: 2009AP000516 01-13-10
  Recommended for Publication
  

  SNYDER, J. Tom L. Garcia appeals from judgments convicting him of substantial battery and criminal trespass. He further appeals from an order denying his postconviction motion for a new trial. Garcia contends that the circuit court erred first by failing to conduct the colloquy mandated by State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, and second by remedying the oversight by holding an evidentiary hearing instead of granting him a new trial. We agree that the circuit court's failure to engage in the mandatory colloquy was error, but we reject Garcia's position that a new trial is required. The circuit court properly addressed its error by holding an evidentiary hearing to determine whether Garcia knowingly, voluntarily and intelligently waived his right to testify. We affirm the judgments and the order of the circuit court.
• Criminal Law/ Evidence/ Statutes/ Statutory Construction-Interpretation
  
  State v. Rodriguez
  Docket: 2008AP002520 01-12-10
  

  PER CURIAM. Alejandro Luis Rodriguez appeals from a judgment entered after a jury found him guilty of causing great bodily harm to Cristal T. with intent to cause her great bodily harm, in violation of WIS. STAT. § 940.19(5). He also appeals from an order denying his motion for postconviction relief. Rodriguez asserts that the evidence was insufficient to support the jury's verdict. We affirm.
• Criminal Law/ Forgery/ Statutes/ Statutory Construction-Interpretation
  
  State v. Fortun
  Docket: 2009AP001172 01-14-10
  Recommended for Publication
  

  LUNDSTEN, J. Rene Fortun altered a drug prescription and presented it to a pharmacist. She altered the quantity of pills from 60 to 120. The question on appeal is whether the drug prescription from her doctor is a writing that creates "legal rights" within the meaning of the forgery statute, WIS. STAT. § 943.38(1)(a) (2007-08). The circuit court answered that question no and, therefore, dismissed a forgery charge against Fortun. We conclude the answer is yes. We therefore reverse the circuit court's order and remand with directions to reinstate the charge.
• Criminal Law/ Ineffective Assistance Of Counsel
  
  State v. Mitchell
  Docket: 2008AP002691 01-14-10
  

  PER CURIAM. Ivan Mitchell appeals from an order denying his postconviction motion. We affirm.
• Criminal Law/ Ineffective Assistance Of Counsel/ Evidence
  
  State v. Schultz
  Docket: 2009AP000420 01-13-10
  

  PER CURIAM. Randy Schultz appeals from a judgment of conviction of five counts of being a felon in possession of a firearm and from an order denying his postconviction motion. He argues that there was no proof that he possessed the firearms on the date stated in the information because he had been taken into custody the day before and that his trial counsel's performance was constitutionally ineffective because counsel called Schultz's brother as a witness despite Schultz's instruction not to do so. We affirm the judgment and order.
• Criminal Law/ New Evidence/ New Trial/ Interest Of Justice/ Ineffective Assistance Of Counsel
  
  State v. Jeffrey A.W.
  Docket: 2009AP000645 01-13-10
  Recommended for Publication
  

  BROWN, C.J. A jury convicted Jeffrey A.W. of repeated sexual assault of his daughter, AMK, when she was three years old. AMK was a teenager when this came to light and she testified that she came forward because she now has herpes and said that it could only have come from her father, the single person to have had sexual contact with her. Jeffrey testified that he did not sexually assault his daughter and did not have herpes. Thus, whether Jeffrey had herpes was a central component of the case. But Jeffrey had no scientific evidence to prove that he did not have herpes and the prosecutor took advantage of that fact. Now, after conviction, he has a test that shows that he does not have herpes and an expert to say that the test is 99.8% accurate. The determinative issue in this case is whether this after-the-trial test result should afford him a new trial in the interest of justice. Because the credibility battle turned on whether Jeffrey had herpes and the prosecutor's theme was that Jeffrey had no accurate test result to confirm that he did not have herpes and because an accurate test was actually available at the time of trial but Jeffrey's counsel did not ask the right people to get the right answers about the availability of such a test, the jury never heard what, in fairness, it should have heard. The real issue was therefore not tried and we reverse and remand with directions.
• Criminal Law/ Plea Withdrawal/ Knowingly, Voluntarily & Intelligently/ Pleas/ Plea Colloquy
  
  State v. Ruby
  Docket: 2008AP002277 01-13-10
  

  NEUBAUER, P.J. Thomas Q. Ruby appeals from a postconviction order denying his motion for plea withdrawal. Ruby contends that his no contest plea to first-degree sexual assault of a child was not knowingly and intelligently entered because the trial court failed to ascertain that Ruby understood the maximum penalties to which he was subject or the elements of the offense as required by WIS. STAT. § 971.08(1)(a) (2007-08). Ruby asserts that if he had understood the omitted information, he would not have entered a plea of no contest. Based on our review of the record, we conclude that the trial court erred in its determination that Ruby failed to make a prima facie case for plea withdrawal. We therefore reverse and remand to the circuit court for an evidentiary hearing at which the State will have an opportunity to prove by clear and convincing evidence that Ruby understood the nature of the charges to which he pled guilty and the penalties involved.
• Criminal Law/ Pleas/ Evidence/ Consent To Search/ Constitutional Law/ Arrest
  
  State v. Laster
  Docket: 2009AP000692 01-12-10
  

  KESSLER, J. Hezekiah Laster, Jr., appeals from a judgment of conviction for possessing with intent to deliver heroin (three grams or less), contrary to WIS. STAT. § 961.41(1m)(d)1. (2007-08), entered on his guilty plea. Laster argues the circuit court erroneously denied his motion to suppress drug evidence obtained from his apartment after he was illegally arrested and his roommate (who was his girlfriend) gave officers consent to search the apartment. We reject his arguments and affirm.
• Criminal Law/ Sentencing Modification/ Appeal Barred
  
  State v. Williams
  Docket: 2009AP000681 01-12-10
  State v. Williams
  Docket: 2009AP000682 01-12-10
  

  PER CURIAM. Charles London Williams, pro se, appeals from an order denying his motion to modify his sentence. He argues that he was sentenced based on inaccurate information. We affirm.
• Criminal Law/ Sentencing Modification/ Statutes/ Sentencing/ Procedure
  
  State v. Sargent
  Docket: 2009AP001221 01-12-10
  

  PER CURIAM. Jimmie Sargent, pro se, appeals from an order denying his motion for sentence modification. The circuit court denied the motion as procedurally barred. We affirm.
• Default Judgment/ Indigent/ Right To Counsel/ Right To Voir Dire/ Juries/ Damages/ Constitutional Law/ Statutes/ Civil Trial
  
  County of Fond du Lac v. Kedinger
  Docket: 2008AP002851 01-13-10
  

  SNYDER, J. Dean T. Kedinger appeals from a default judgment entered when he failed to appear for a jury trial. He further appeals from an order denying his post-judgment motion for reconsideration and awarding costs to the County of Fond du Lac. Kedinger contends that he was denied pretrial due process and the right to voir dire the jury, that the circuit court failed to address his indigence and desire for counsel, and that the circuit court failed to act in an impartial and unbiased manner. We disagree and affirm the judgment and order.
• Employment Law/ LIRC/ Worker's Compensation/ Constitutional Law-Due Process
  
  Montgomery v. L.I.R.C.
  Docket: 2009AP000351 01-12-10
  

  FINE, J. Curtisthene Montgomery appeals from an order of the circuit court affirming the decision of the Labor and Industry Review Commission dismissing Montgomery's traumatic- and occupational-injury claims as not work-related. Montgomery argues that the Commission exceeded its authority and violated her due-process rights by considering and dismissing the occupational-injury theory of liability because she contends that she only asserted a traumatic-injury theory of liability. We affirm.
• Family Law/ Divorce/ Maintenance/ Judicial Authority-Discretion
  
  Beck v. Beck
  Docket: 2009AP000646 01-12-10
  

  PER CURIAM. Barbara Beck appeals from an order modifying the amount of maintenance paid by her ex-husband pursuant to a divorce settlement agreement. We conclude the circuit court properly exercised its discretion in ordering the modification, and affirm.
• Family Law/ Grandparent Visitation/ Statutes/ Placement/ Constitutional Law-Equal Protection/ Statutory Construction-Interpretation/ Best Interest Of Child
  
  Rick v. Opichka
  Docket: 2009AP000040 01-13-10
  Recommended for Publication
  

  BROWN, C.J. This is a grandparent visitation case where the family court ordered that the parents of a deceased mother would have overnight visitation during the second weekend of each month, plus one week during the summer. The father, Jeffrey Opichka, objects to this order on grounds that it allows more than just grandparent visitation; it is rather like an order often seen in divorce judgments whereby primary physical placement is awarded one parent with expansive, structured overnights and summer vacations awarded to the other parent. Opichka claims that this kind of order gives the grandparents an interest in raising the children that goes well beyond the intent of the grandparent visitation statute, which he contends is merely to allow a modicum of continuity between the deceased parent's family and the children. Additionally, Opichka claims that the grandparent visitation statute violates equal protection because it treats similarly situated parents differently by allowing the State to intervene when one parent is deceased, but not when both parents are alive and in an intact family arrangement. We conclude that grandparent visitation is not a question of the quantity of the visitation, but whether the best interests of the children would be served thereby, fully in keeping with the commands of the statute and the law. But still, we must reverse and remand a portion of the order for clarification purposes which we will later explain. We further hold that a family with a deceased parent is not similarly situated to an intact family and reject the equal protection arguments. We also address other issues.
• Family Law/ TPR/ Statutes/ Uniform Commercial Code Jurisdiction and Enforcement Act (UCCJEA)/ Court’s Competency/ Jurisdiction/ Child Custody/ Evidence/ Judicial Authority-Discretion
  
  Melissa S. v. Edward T.K.
  Docket: 2009AP002354 01-14-10
  

  DYKMAN, P.J. Edward T.K. appeals from an order terminating his parental rights (TPR) to Clayton J.K. following a jury trial on a TPR petition filed by Clayton's mother, Melissa S. Edward argues that the trial court lost competency to exercise its jurisdiction under Wisconsin's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because an Iowa court previously entered a custody order for Clayton and did not decline jurisdiction until seven months after this action was filed. Alternatively, Edward argues that the trial court erroneously exercised its discretion in admitting into evidence an audio recording of his interaction with Clayton, which Edward claims was irrelevant and highly prejudicial. We conclude that the trial court complied with the UCCJEA and properly exercised its discretion to admit the recording. Accordingly, we affirm.
• Insurance/ Bad Faith/ Claim Preclusion/ Breach Of Contract
  
  Viscusi v. Progressive
  Docket: 2009AP000942 01-12-10
  

  PER CURIAM. Giovanni Viscusi appeals a judgment dismissing his bad faith action against Progressive Universal Insurance Company. The circuit court concluded claim preclusion barred Viscusi's action. Viscusi argues the circuit court erred because there was no identity of claims between his bad faith claim and earlier breach of contract claim. We disagree and affirm.
• Juvenile Law/ Delinquent/ Venue/ Ineffective Assistance Of Counsel/ Constitutional Law
  
  State v. Jennifer Z.
  Docket: 2009AP000846 01-12-10
  

  BRUNNER, J. Jennifer Z. appeals a delinquency adjudication on five counts and an order denying her postdisposition motion to dismiss for the State's failure to prove venue. She contends she received ineffective assistance of counsel when her attorney failed to challenge venue in Taylor County and elicited incriminating testimony that led to an additional count of delinquency for misdemeanor theft. We conclude defense counsel's failure to challenge venue does not constitute ineffective assistance of counsel, but reverse the delinquency finding on the misdemeanor theft count because it resulted from testimony her attorney elicited for no discernible tactical purpose. We therefore affirm Jennifer's delinquency adjudication on all counts but that relating to the additional misdemeanor theft count.
• OWI/ Default Judgment/ Defendant’s Appearance/ Statutes
  
  Village of Butler v. Clay
  Docket: 2009AP001763 01-13-10
  

  BROWN, C.J. Levarn Clay did not show up for his OWI (first offense) trial, although his attorney did. The trial court, noting that he had not shown up for his suppression hearing either and further noting that it had ordered Clay to appear at all subsequent judicial proceedings, ordered a default judgment. We reverse. Our supreme court long ago held that a court may not default a defendant to a noncriminal action so long as the defendant appears by his attorney. We are bound by that law, as is the trial court.
• OWI/ Reasonable Suspicion/ Traffic Stops
  
  State v. Schaetzer
  Docket: 2009AP001796 01-13-10
  

  BROWN, C.J. In this appeal from a conviction of operating a vehicle while intoxicated (2nd offense), the issue is whether there was reasonable suspicion to make an investigatory stop of a motor vehicle driven by Mary B. Schaetzer. The trial court found reasonable suspicion that Schaetzer violated a traffic statute, WIS. STAT. § 346.31(2), requiring right hand turns to be made as close as practicable to the right-hand edge or curb of the roadway. We reject Schaetzer's argument that, since the deputy stopped the vehicle for a different reason than the reason seized upon by the trial court, the trial court was not authorized to use an alternative basis to uphold the stop. And we also reject her argument that she did not violate the traffic statute because the statute makes exception for extra-wide vehicles such as hers. We affirm.
• OWI/ Traffic Stops/ Reasonable Suspicion/ Anonymous Tip/ Constitutional Law
  
  State v. Tischer
  Docket: 2009AP000992 01-14-10
  

  DYKMAN, P.J. John Tischer appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol content, third offense. See WIS. STAT. § 346.63(1)(b). Tischer argues that an anonymous tip to police together with subsequent police observations did not amount to reasonable suspicion to support the traffic stop of his vehicle. We agree. Accordingly, we reverse.
• OWI/ Traffic Stops/ Statutes/ Statutory Construction-Interpretation
  
  County of Grant v. Collins
  Docket: 2009AP002469 01-14-10
  

  LUNDSTEN, J. Kaleena Collins appeals the circuit court's judgment convicting her of operating a motor vehicle while under the influence of an intoxicant. She challenges the circuit court's ruling that a police officer lawfully stopped her car based on a license plate violation. I affirm the judgment.
• Small Claims/ Contracts/ Attorney Fees/ Constitutional Law-Due Process
  
  Doocy v. Zohimsky
  Docket: 2008AP002702 01-14-10
  

  DYKMAN, P.J. Jill Zohimsky appeals from a small claims judgment awarding Danielle Doocy $1,392 in Doocy's action against Zohimsky for breach of a residential purchase contract. Zohimsky contends that the trial court erred in awarding Doocy the earnest money Zohimsky submitted with an offer to purchase residential property from Doocy, and in awarding Doocy attorney fees. Zohimsky also argues that she was denied due process because: (1) the trial court failed to provide its reasoning process in written form, (2) the trial court judge was biased, and (3) Doocy failed to notify Zohimsky that she obtained legal representation during the proceedings in this case. We reject each of these contentions, and affirm.
• Small Claims/ Evidence/ Proof
  
  Mitra v, Schmidt's Auto, Inc.
  Docket: 2009AP001308 01-14-10
  

  VERGERONT, J. This is a small claims action in which Rajib Mitra seeks from Schmidt's Auto, Inc., the value of a radar/laser detector system that, according to Mitra, was missing when his automobile was returned to his family. The circuit court dismissed Mitra's complaint, concluding that he had not established at trial that the radar/laser system was taken from his automobile either by Schmidt's Auto or during the time the automobile was in the custody of Schmidt's Auto. For the reasons explained below, we affirm.
• Small Claims/ Marital Property/ Jurisdiction/ Divorce/ Procedure
  
  Richardson v. Henderson
  Docket: 2009AP000345 01-13-10
  

  NEUBAUER, P.J. Trevor Richardson appeals from a small claims order dismissing his action against Robert W. Henderson for allegedly failing to return marital property. Richardson's wife, who rented an apartment from Henderson, fled the country during divorce proceedings and prior to the division of marital property. While the divorce was pending, Richardson filed a small claims action against Henderson requesting the return of a $200 security deposit, $1000 paid at the termination of the lease, and other property left in the apartment which he believed to be marital property. The small claims court dismissed Richardson's action on grounds that his claim involved the enforcement of a temporary order issued by the family court which it did not have jurisdiction to enforce. Although Richardson claims that he was pursuing the return of marital property outside of the divorce action, the resolution of Richardson's claim required a determination of the status of the alleged marital property at issue, the property division, and potentially the interpretation and application of a family court order, which the small claims court properly deferred to the family court. We therefore affirm the dismissal order.
• Summary Judgment/ Legal Malpractice/ Evidence/ Causation
  
  Brophy v. Mei
  Docket: 2009AP000194 01-12-10
  

  CURLEY, P.J. Timothy J. Brophy, Jr., a/k/a Timothy J. Brophy, appeals from an order granting summary judgment and dismissing his complaint. Brophy argues that the trial court improperly applied the summary judgment standard by failing to take the facts most favorable to him, as the nonmoving party, prior to granting summary judgment in favor of Daniel J. Mei, Patrick McMahon, Mei & Associates, S.C., and Travelers Insurance Co. (collectively referred to as Mei & Associates unless otherwise specified). In addition, Brophy asserts that the trial court erred when it concluded that an expert was required to establish legal malpractice under the circumstances presented and that Brophy could not establish a causal connection between his damages and the conduct of Mei & Associates. Because we conclude that expert testimony is required to prove the applicable standard of care, and further, that Brophy cannot prove causation, we affirm the trial court's order.