CaseLaw Express 03/08/2010 - State Bar of Wisconsin

Court of Appeals Cases

Criminal Law/ Evidence/ Ineffective Assistance Of Counsel

State v. Awe
Docket: 2009AP000623 03-04-10
PER CURIAM. Joseph Awe appeals from a judgment of conviction for arson with intent to defraud as a party to the crime, in violation of WIS. STAT. § 943.02(1)(b) (2007-08) and WIS. STAT. § 939.05. On appeal, Awe challenges the participation of individuals in the investigation and at trial who were hired by the company that insured the building that was burned, the effectiveness of his trial counsel, and the sufficiency of the evidence. We affirm the judgment.
Criminal Law/ Evidence/ Statutes

State v. Rico
Docket: 2009AP001370 03-03-10
PER CURIAM. Jacinto S. Rico appeals from a judgment entered after a jury rejected his theory of self-defense and found him guilty of one count of first-degree reckless injury for stabbing Timothy Lowe and one count of first-degree recklessly endangering safety for stabbing John Thrasher. Rico does not dispute that he stabbed Thrasher and Lowe. Rather, he claims the evidence was insufficient to support the jury's verdicts on his convictions for first-degree reckless injury and first-degree recklessly endangering safety. Specifically, Rico contends the evidence was insufficient to satisfy the element "under circumstances which show an utter disregard for human life." See WIS. STAT. §§ 940.23(1)(a) and 941.30(1) (2007-08). We disagree and affirm.
Criminal Law/ Evidence/ Statutes/ Statutory Construction-Interpretation

State v. Schroeder
Docket: 2008AP002810E 03-04-10
Criminal Law/ Evidence/ Warrants/ Probable Cause/ Constitutional Law

State v. Daniels
Docket: 2009AP000496 03-02-10
PER CURIAM. Terrell L. Daniels appeals a judgment convicting him of possession of cocaine with intent to deliver. He argues that the circuit court should have suppressed evidence against him because the search warrant was invalid. We affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Mistrial

State v. Fisher
Docket: 2008AP003217 03-02-10
PER CURIAM. Randall Fisher appeals a judgment convicting him of kidnapping, false imprisonment, first-degree sexual assault, possession of a dangerous weapon, and obstructing an officer, together with an order denying his motion for postconviction relief. Fisher argues (1) the court should have granted a mistrial because of jury contamination, and (2) he received ineffective assistance of trial counsel. We affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Prosecutorial Misconduct/ Evidence/ Jury Instructions/ Judicial Authority-Discretion/ Mistrial

State v. Boose
Docket: 2009AP000848 03-02-10
FINE, J. Mitchell A. Boose appeals the judgment of conviction entered after a jury found him guilty of first-degree reckless homicide while armed, see WIS. STAT. §§ 940.02(1) & 939.63, and being a felon in possession of a firearm, see WIS. STAT. § 941.29(2)(a). He also appeals the order denying his postconviction motion. Boose claims: (1) there was insufficient evidence to support the verdict; (2) it was prosecutorial misconduct for the prosecutor to tell the jury during closing argument that "the natural reaction of a person who is being shot at, [is to] turn"; (3) his lawyer gave him ineffective assistance; and (4) the trial court erroneously exercised its discretion by giving the self-defense instruction. We affirm.
Criminal Law/ Right To Remain Silent/ Miranda/ Evidence/ Police Procedure

State v. Hanson
Docket: 2009AP000968 03-02-10
PER CURIAM. Jessy Hanson appeals a judgment convicting him of armed robbery. Hanson pled no contest pursuant to a plea agreement after the circuit court, on reconsideration, denied Hanson's motion to suppress inculpatory statements he made to detectives. Hanson contends the statements should have been suppressed because the detectives failed to stop the interrogation after he invoked his right to remain silent. We agree. We remand the matter with directions to suppress all statements made after Hanson said "I will stay silent."
Criminal Law/ Sentencing Credit/ Statutes

State v. Allen
Docket: 2009AP000215 03-04-10
PER CURIAM. Matthew Allen appeals a postconviction order denying his motion for sentence credit. We affirm for the reasons discussed below.
Criminal Law/ Sentencing/ Ineffective Assistance Of Counsel/ Pleas/ Statutes/ Jurisdiction

State v. Anderson
Docket: 2009AP001224 03-02-10
PER CURIAM. Corey Levell Anderson, pro se, appeals from an order denying his WIS. STAT. § 974.06 (2007-08) motion, which alleged ineffective assistance of counsel, and from an order denying his motion for a declaration of eligibility for the Earned Release Program (ERP). We conclude Anderson's allegations in his § 974.06 motion are conclusory and the circuit court properly exercised its discretion with regard to Anderson's ERP eligibility. Therefore, we affirm.
Damages/ Statutory Interest/ Judgments

Sarah D. v. Eisold
Docket: 2009AP001682 03-02-10
PER CURIAM. Sarah D. appeals an amended judgment awarding her $5,460 in punitive damages against Jacob Eisold. She contends the circuit court improperly considered the statutory interest rate and the statutory period to collect judgments. We reject that argument and affirm the judgment.
Employment Law/ Worker's Compensation/ Evidence/ Constitutional Law-Due Process/ LIRC/ Jurisdiction

Mallett v. L.I.R.C.
Docket: 2009AP001130 03-02-10
BRENNAN, J. Gregory C. Mallett appeals a circuit court judgment, affirming the Labor and Industry Review Commission's decision to deny him permanent total disability benefits under the Worker's Compensation Act. The Commission found that Mallett had already been paid in full for any December 1983 injury. Mallett raises three claims on appeal: (1) whether the Commission's findings of fact were based on credible and substantial evidence; (2) whether the Commission correctly determined that it was without jurisdiction to review a claim based on an injury occurring in 1981; and (3) whether he was deprived of due process. We affirm.
Family Law/ Divorce/ Contempt/ Maintenance/ Sanctions/ Judicial Authority-Discretion

Roush v. Roush
Docket: 2008AP002467 03-03-10
NEUBAUER, P.J. William S. Roush, Jr., appeals from a trial court order finding him in contempt for willful nonpayment of maintenance to his former spouse, Nancy Hanna Roush. He additionally appeals a subsequent order finding that he had failed to purge the contempt order and sanctioning him to report to the Waukesha county huber facility for a weekend. Roush argues on appeal that the trial court failed to apply the correct legal standard in evaluating whether his actions constituted contempt. He additionally contends that the "purge terms" imposed by the trial court were a misuse of discretion and exceeded its lawful authority. We reject Roush's arguments and affirm the orders.
Family Law/ Divorce/ Contempt/ Venue/ Statutes/ Judicial Authority-Discretion/ Sanctions/ Placement

Roska v. Kroll
Docket: 2008AP002381 03-04-10
PER CURIAM. Ronald Kroll appeals from a post-divorce order that denied his motion for contempt against his ex-wife, Jane Roska, and modified the placement schedule for the parties' children. Roska asks us to declare the appeal frivolous and award her attorney fees. We affirm for the reasons explained below, but decline to impose sanctions.
Family Law/ Divorce/ Property Division/ Marital Estate/ Attorney Fees

Mahle v. Mahle
Docket: 2009AP001479 03-03-10
PER CURIAM. James E. Mahle appeals from a judgment of divorce from Jill E. Mahle. James contends the trial court erroneously exercised its discretion when it determined that the marital residence, purchased with Jill's money but titled jointly, was nondivisible property and awarded it solely to Jill. We affirm because the court's decision was rooted in its finding that Jill presented sufficient credible evidence to rebut a presumption of donative intent. That finding is not clearly erroneous. We also affirm the findings that James committed marital waste and that Jill was entitled to attorney's fees and other fees and costs.
Property/ Contracts/ Foreclosure/ Service Of Process/ Complaints/ Procedure/ Statutes

Sweeney v. Petska
Docket: 2009AP000077 03-02-10
PER CURIAM. Patrick Sweeney appeals an order denying a motion to amend his complaint. Sweeney contends the circuit court erred by denying the motion because justice requires an amendment of the pleadings. Sweeney also claims he should have been allowed to amend the complaint to conform to the evidence. We reject Sweeney's arguments and affirm the order.
Summary Judgment/ Appeal Dismissed/ Jurisdiction

Miller v. Baudry
Docket: 2008AP002870 03-03-10
SNYDER, J. Scott D. Miller, d/b/a Scott's Boat Rental, appeals from an order denying his motion for reconsideration of a summary judgment in favor of Jeff and Heidi Baudry. Miller contends that the circuit court improperly denied his motion for reconsideration and was required to hear, in their entirety, his arguments on the merits of his case. Because Miller's motion for reconsideration did not present any new issues, however, his appeal is untimely. We dismiss for lack of jurisdiction.


Week of March 1, 2010 Supreme Court Cases No decisions were released. Court of Appeals Cases Criminal Law/ Evidence/ Ineffective Assistance Of Counsel State v. Awe Docket: 2009AP000623 03-04-10 PER CURIAM. Joseph Awe appeals from a judgment of conviction for arson with intent to defraud as a party to the crime, in violation of WIS. STAT. § 943.02(1)(b) (2007-08) and WIS. STAT. § 939.05. On appeal, Awe challenges the participation of individuals in the investigation and at trial who were hired by the company that insured the building that was burned, the effectiveness of his trial counsel, and the sufficiency of the evidence. We affirm the judgment. Criminal Law/ Evidence/ Statutes State v. Rico Docket: 2009AP001370 03-03-10 PER CURIAM. Jacinto S. Rico appeals from a judgment entered after a jury rejected his theory of self-defense and found him guilty of one count of first-degree reckless injury for stabbing Timothy Lowe and one count of first-degree recklessly endangering safety for stabbing John Thrasher. Rico does not dispute that he stabbed Thrasher and Lowe. Rather, he claims the evidence was insufficient to support the jury's verdicts on his convictions for first-degree reckless injury and first-degree recklessly endangering safety. Specifically, Rico contends the evidence was insufficient to satisfy the element "under circumstances which show an utter disregard for human life." See WIS. STAT. §§ 940.23(1)(a) and 941.30(1) (2007-08). We disagree and affirm. Criminal Law/ Evidence/ Statutes/ Statutory Construction-Interpretation State v. Schroeder Docket: 2008AP002810E 03-04-10 Criminal Law/ Evidence/ Warrants/ Probable Cause/ Constitutional Law State v. Daniels Docket: 2009AP000496 03-02-10 PER CURIAM. Terrell L. Daniels appeals a judgment convicting him of possession of cocaine with intent to deliver. He argues that the circuit court should have suppressed evidence against him because the search warrant was invalid. We affirm. Criminal Law/ Ineffective Assistance Of Counsel/ Mistrial State v. Fisher Docket: 2008AP003217 03-02-10 PER CURIAM. Randall Fisher appeals a judgment convicting him of kidnapping, false imprisonment, first-degree sexual assault, possession of a dangerous weapon, and obstructing an officer, together with an order denying his motion for postconviction relief. Fisher argues (1) the court should have granted a mistrial because of jury contamination, and (2) he received ineffective assistance of trial counsel. We affirm. Criminal Law/ Ineffective Assistance Of Counsel/ Prosecutorial Misconduct/ Evidence/ Jury Instructions/ Judicial Authority-Discretion/ Mistrial State v. Boose Docket: 2009AP000848 03-02-10 FINE, J. Mitchell A. Boose appeals the judgment of conviction entered after a jury found him guilty of first-degree reckless homicide while armed, see WIS. STAT. §§ 940.02(1) & 939.63, and being a felon in possession of a firearm, see WIS. STAT. § 941.29(2)(a). He also appeals the order denying his postconviction motion. Boose claims: (1) there was insufficient evidence to support the verdict; (2) it was prosecutorial misconduct for the prosecutor to tell the jury during closing argument that "the natural reaction of a person who is being shot at, [is to] turn"; (3) his lawyer gave him ineffective assistance; and (4) the trial court erroneously exercised its discretion by giving the self-defense instruction. We affirm. Criminal Law/ Right To Remain Silent/ Miranda/ Evidence/ Police Procedure State v. Hanson Docket: 2009AP000968 03-02-10 PER CURIAM. Jessy Hanson appeals a judgment convicting him of armed robbery. Hanson pled no contest pursuant to a plea agreement after the circuit court, on reconsideration, denied Hanson's motion to suppress inculpatory statements he made to detectives. Hanson contends the statements should have been suppressed because the detectives failed to stop the interrogation after he invoked his right to remain silent. We agree. We remand the matter with directions to suppress all statements made after Hanson said "I will stay silent." Criminal Law/ Sentencing Credit/ Statutes State v. Allen Docket: 2009AP000215 03-04-10 PER CURIAM. Matthew Allen appeals a postconviction order denying his motion for sentence credit. We affirm for the reasons discussed below. Criminal Law/ Sentencing/ Ineffective Assistance Of Counsel/ Pleas/ Statutes/ Jurisdiction State v. Anderson Docket: 2009AP001224 03-02-10 PER CURIAM. Corey Levell Anderson, pro se, appeals from an order denying his WIS. STAT. § 974.06 (2007-08) motion, which alleged ineffective assistance of counsel, and from an order denying his motion for a declaration of eligibility for the Earned Release Program (ERP). We conclude Anderson's allegations in his § 974.06 motion are conclusory and the circuit court properly exercised its discretion with regard to Anderson's ERP eligibility. Therefore, we affirm. Damages/ Statutory Interest/ Judgments Sarah D. v. Eisold Docket: 2009AP001682 03-02-10 PER CURIAM. Sarah D. appeals an amended judgment awarding her $5,460 in punitive damages against Jacob Eisold. She contends the circuit court improperly considered the statutory interest rate and the statutory period to collect judgments. We reject that argument and affirm the judgment. Employment Law/ Worker's Compensation/ Evidence/ Constitutional Law-Due Process/ LIRC/ Jurisdiction Mallett v. L.I.R.C. Docket: 2009AP001130 03-02-10 BRENNAN, J. Gregory C. Mallett appeals a circuit court judgment, affirming the Labor and Industry Review Commission's decision to deny him permanent total disability benefits under the Worker's Compensation Act. The Commission found that Mallett had already been paid in full for any December 1983 injury. Mallett raises three claims on appeal: (1) whether the Commission's findings of fact were based on credible and substantial evidence; (2) whether the Commission correctly determined that it was without jurisdiction to review a claim based on an injury occurring in 1981; and (3) whether he was deprived of due process. We affirm. Family Law/ Divorce/ Contempt/ Maintenance/ Sanctions/ Judicial Authority-Discretion Roush v. Roush Docket: 2008AP002467 03-03-10 NEUBAUER, P.J. William S. Roush, Jr., appeals from a trial court order finding him in contempt for willful nonpayment of maintenance to his former spouse, Nancy Hanna Roush. He additionally appeals a subsequent order finding that he had failed to purge the contempt order and sanctioning him to report to the Waukesha county huber facility for a weekend. Roush argues on appeal that the trial court failed to apply the correct legal standard in evaluating whether his actions constituted contempt. He additionally contends that the "purge terms" imposed by the trial court were a misuse of discretion and exceeded its lawful authority. We reject Roush's arguments and affirm the orders. Family Law/ Divorce/ Contempt/ Venue/ Statutes/ Judicial Authority-Discretion/ Sanctions/ Placement Roska v. Kroll Docket: 2008AP002381 03-04-10 PER CURIAM. Ronald Kroll appeals from a post-divorce order that denied his motion for contempt against his ex-wife, Jane Roska, and modified the placement schedule for the parties' children. Roska asks us to declare the appeal frivolous and award her attorney fees. We affirm for the reasons explained below, but decline to impose sanctions. Family Law/ Divorce/ Property Division/ Marital Estate/ Attorney Fees Mahle v. Mahle Docket: 2009AP001479 03-03-10 PER CURIAM. James E. Mahle appeals from a judgment of divorce from Jill E. Mahle. James contends the trial court erroneously exercised its discretion when it determined that the marital residence, purchased with Jill's money but titled jointly, was nondivisible property and awarded it solely to Jill. We affirm because the court's decision was rooted in its finding that Jill presented sufficient credible evidence to rebut a presumption of donative intent. That finding is not clearly erroneous. We also affirm the findings that James committed marital waste and that Jill was entitled to attorney's fees and other fees and costs. Property/ Contracts/ Foreclosure/ Service Of Process/ Complaints/ Procedure/ Statutes Sweeney v. Petska Docket: 2009AP000077 03-02-10 PER CURIAM. Patrick Sweeney appeals an order denying a motion to amend his complaint. Sweeney contends the circuit court erred by denying the motion because justice requires an amendment of the pleadings. Sweeney also claims he should have been allowed to amend the complaint to conform to the evidence. We reject Sweeney's arguments and affirm the order. Summary Judgment/ Appeal Dismissed/ Jurisdiction Miller v. Baudry Docket: 2008AP002870 03-03-10 SNYDER, J. Scott D. Miller, d/b/a Scott's Boat Rental, appeals from an order denying his motion for reconsideration of a summary judgment in favor of Jeff and Heidi Baudry. Miller contends that the circuit court improperly denied his motion for reconsideration and was required to hear, in their entirety, his arguments on the merits of his case. Because Miller's motion for reconsideration did not present any new issues, however, his appeal is untimely. We dismiss for lack of jurisdiction.		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