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Week of July 5, 2010
Supreme Court Cases
Criminal Law/ Pro Se Right / Evidence/ Waiver Of Right To Counsel/ Knowingly, Voluntarily & Intelligently/ Constitutional Law/ Colloquy State v. ImaniDocket: 2008AP001521 07-07-10 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published court of appeals decision that reversed a judgment entered on a jury verdict by the Waukesha County Circuit Court, J. Mac Davis, Judge. Rashaad A. Imani (Imani) was convicted of one count each of armed robbery, as party to a crime, in violation of Wis. Stat. § 943.32(2) (2007-08) and possession of a firearm by a felon in violation of Wis. Stat. § 941.29(2), both as a repeater pursuant to Wis. Stat. § 939.62(1)(c). The court of appeals concluded that the evidence was more than sufficient for the jury to convict Imani; nevertheless, the court remanded for a new trial on the grounds that the circuit court denied Imani's pretrial motion to represent himself without engaging him in the colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). The State petitioned this court for review, and we accepted. We now reverse the decision of the court of appeals and uphold Imani's conviction.
Criminal Law/ Attorneys/ New Trial/ Constitutional Law/ Right To Counsel/ Judicial Authority-Discretion/ Hearing Impaired/ Interpreters State v. JonesDocket: 2008AP002343 07-08-10 N. PATRICK CROOKS, J. This is a review of an unpublished opinion of the court of appeals affirming a judgment and order of the circuit court for Milwaukee County. Dwight Glen Jones appeals from his judgment of conviction and an order denying his post-conviction motion seeking a new trial. He seeks a new trial on the grounds that the circuit court erred when it denied his request to substitute counsel. He contends that the denial was error because the circuit court should have given more weight to the timeliness of his request----made more than three months before trial----and should have balanced that with the conflict he had with trial counsel. He claims that the dispute related partly to his severe hearing impairment. He also argues that the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution give him the right to reject his appointed counsel and, because substitute counsel was available through the Office of the State Public Defender (SPD), to have a second attorney appointed. His basis for the constitutional claim is that the United States Supreme Court and this court have both upheld, though on slightly different constitutional grounds, a defendant's right to retained counsel of choice; he contends that such a right should be applied to indigent defendants to the extent possible and would require a court to grant his request for substitution of counsel.
Criminal Law/ Evidence/ Evidence Ruling/ Judicial Authority-Discretion/ Statutes State v. RingerDocket: 2008AP000652 07-08-10 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an unpublished per curiam decision of the court of appeals that affirmed an order in limine by the Barron County Circuit Court, Timothy M. Doyle, Judge. Jim H. Ringer (Ringer) was charged with repeated sexual assault of a child in violation of Wis. Stat. § 948.025(1)(ar) (2005-06). The circuit court granted Ringer's motion in limine, allowing him to introduce at trial evidence that the child complainant made prior allegedly untruthful allegations of sexual assault against her biological father, Christopher H. (Christopher). On appeal, the State argues that the circuit court erroneously exercised its discretion when it deemed the evidence admissible. We agree and therefore reverse the court of appeals' decision.
Criminal Law/ Pleas/ Knowingly, Voluntarily & Intelligently/ Sentencing/ Plea Withdrawal/ Constitutional Law/ Statutes/ Plea Colloquy State v. CrossDocket: 2009AP000003 07-08-10 MICHAEL J. GABLEMAN, J. Travis Vondell Cross pled guilty to second degree sexual assault of a child, and was informed by the State, the circuit court, and his own attorney that this offense was punishable by 40 years imprisonment with a maximum initial confinement of 25 years. The circuit court imposed the maximum sentence. Cross later discovered that he should have been subject to a maximum of only 30 years imprisonment with 20 years initial confinement.
Insurance/ Worker's Compensation/ Statutes/ Statutory Construction-Interpretation/ Constitutional Law-Due Process/ Statute Of Limitations/ Contract Clause Society Insurance v. L.I.R.C.Docket: 2008AP003135 07-08-10 PATIENCE DRAKE ROGGENSACK, J. This case comes before us by certification from the court of appeals. The certified question is: "Whether retroactive application of Wis. Stat. §§ 102.17(4) and 102.66(1), as amended effective April 1, 2006, is unconstitutional."
Jurisdiction/ Arbitration/ Statutes/ Appeal/ Petition To Supreme Court Estate of Parker v. Beverly Enterprises, Inc.Docket: 2008AP002440 07-08-10 ANN WALSH BRADLEY, J. This case is before the court in an unusual procedural posture. Elizabeth Parker and the Estate of Robert Parker (collectively, "Parker") filed a petition for review of two orders of the court of appeals, which dismissed and denied Parker's appeals of a circuit court order compelling arbitration. In response, Beverly Enterprises-Wisconsin, Inc. d/b/a Golden Age Nursing Home and other defendants (collectively, "Beverly Enterprises") filed a motion to dismiss the petition for review. We address here the motion to dismiss the petition.
Property/ Mortgage/ Guarantee/ Redemption/ Contract/ Liability/ Judgments/ Statutes/ Statutory Construction-Interpretation/ Procedure Bank Mutual v. S.J. Boyer Construction, Inc.Docket: 2008AP000912 07-09-10 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals, Bank Mutual v. S.J. Boyer Construction, Inc., 2009 WI App 14, 316 Wis. 2d 266, 762 N.W.2d 826, which reversed an order of the Brown County Circuit Court, Timothy A. Hinkfuss, Judge. The order denied Steven and Marcy Boyer (the Boyers) relief from judgments for the amount due on several notes. The Boyers had guaranteed payment on the notes.
Summary Judgment/ Easement/ Deed/ Riparian Rights/ Statutes Konneker v. RomanoDocket: 2008AP001546 07-07-10 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an unpublished per curiam decision of the court of appeals that reversed an order of the Green Lake County Circuit Court, Judge William M. McMonigal presiding, which granted summary judgment to Robert and Ann Konneker (the Konnekers) and denied summary judgment to Robert and Francis Romano (the Romanos) and Norman and Lawrence Nelson (the Nelsons). The court of appeals remanded, directing the circuit court to enter summary judgment in favor of the Romanos. The Konnekers petitioned this court for review, and we accepted. We now reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings.
Summary Judgment/ Property/ Contracts/ Lease/ Damages/ Liability/ Statutes Maryland Arms Limited Partnership v. ConnellDocket: 2008AP001700 07-07-10 ANN WALSH BRADLEY, J. The petitioner, Maryland Arms Limited Partnership (Maryland Arms), seeks review of a published court of appeals decision reversing the circuit court's grant of summary judgment, which was in Maryland Arms' favor. The court of appeals remanded the case to the circuit court with directions that summary judgment be entered instead for the defendants, Cari and Linda Connell.
Court of Appeals Cases
Criminal Law/ Evidence/ Evidence Ruling/ Ineffective Assistance Of Counsel/ Mistrial/ Right To Confrontation State v. HabersatDocket: 2009AP000976 07-07-10 KESSLER, J. Raymond A. Habersat appeals from a judgment of conviction for one count of first-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(1) (2005-06), and from orders denying his motion for postconviction relief. He argues that he is entitled to a new trial because: (1) the trial court erroneously admitted other acts evidence; and (2) trial counsel provided ineffective assistance in numerous ways. We reject Habersat's arguments and affirm.
Criminal Law/ Evidence/ Procedure/ New Trial/ Judicial Authority-Discretion/ Constitutional Law State v. RhodesDocket: 2009AP000025 07-07-10 FINE, J. Olu A. Rhodes appeals a judgment entered after a jury found him guilty of first-degree intentional homicide as party to a crime, see WIS. STAT. §§ 940.01(1)(a) & 939.05, and first-degree recklessly endangering safety as party to a crime, see WIS. STAT. §§ 941.30(1) & 939.05. Rhodes makes four claims: (1) the trial court erred when it cut off his cross-examination of Nari Rhodes while he was trying to "rebut the State's allegation that [Olu A. Rhodes] had a motive to harm the victim"; (2) the trial court erroneously allowed a State witness to give allegedly unqualified expert testimony; (3) the trial court erroneously allowed the State to use cellular telephone records to place Olu A. Rhodes at the scene of the shootings; and (4) the trial court erroneously excluded prior-conviction evidence of one of the victims. We reverse on the first issue and remand for a new trial; thus, we do not address the other issues. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) ("cases should be decided on the narrowest possible ground").
Criminal Law/ Jury Instructions/ Evidence/ Evidence Ruling/ Miranda Rights/ Police Conduct/ Motions/ New Trial State v. GonzalezDocket: 2009AP001249 07-07-10 Recommended for PublicationCURLEY, P.J. Esteban M. Gonzalez appeals from a judgment convicting him of exposing a child to harmful material, contrary to WIS. STAT. § 948.11(2)(a) (2005-06). He also appeals from the trial court's order denying his motion for postconviction relief. Gonzalez raises seven issues on appeal. He argues: (1) the jury instructions and the trial court's denial of a theory of defense instruction violated his constitutional rights by misleading jurors; (2) the trial court erred in failing to respond to the jury's questions; (3) the trial court erred when it precluded his expert, Ronald Matthew, Ph.D., from testifying; (4) the trial court erred when it denied his pretrial motion to admit other acts of police misconduct, bias, and prejudice; (5) the evidence was insufficient to sustain his conviction because no substantial fact corroborates his statements to police; (6) he is entitled to a new trial because the real controversy was not fully tried; and (7) the trial court erred when it denied his motions to suppress and for reconsideration.
Criminal Law/ New Trial/ Evidence/ Statutes/ Statutory Construction-Interpretation/ Ineffective Assistance Of Counsel State v. SadowskiDocket: 2009AP000340 07-07-10 PER CURIAM. Corey A. Sadowski has appealed from judgments convicting him of one count of the repeated sexual assault of the same child in violation of WIS. STAT. § 948.025(1) (1997-98), and two counts of child abuse in violation of WIS. STAT. § 948.03(2)(b). He has also appealed from an order denying his amended postconviction motion for a new trial. We affirm the judgments and order.
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Criminal Law/ Not Guilty By Reason Of Mental Disease Or Defect/ Evidence/ Statute/ Statutory Construction-Interpretation
State v. BrownDocket: 2009AP001822 07-07-10 Recommended for PublicationHOOVER, P.J. Wendy Brown was found not guilty by reason of mental disease or defect of one charge of identity theft. She appeals a commitment order to institutional care and an order denying her motion for postcommitment relief. Brown argues the State presented insufficient evidence of a significant risk of "serious property damage" under WIS. STAT. § 971.17(3)(a). She contends serious property damage requires physical harm to an object. We disagree and affirm.
Criminal Law/ Pleas/ Plea Withdrawal/ Statutes/ Statutory Construction-Interpretation/ Deportation/ Colloquy State v. VangDocket: 2009AP002162 07-07-10 Recommended for Publication
State v. Vang
Docket: 2009AP002163 07-07-10
Recommended for Publication HOOVER, P.J. Hou Vang appeals an order denying his motion to withdraw his no contest pleas to second-degree sexual assault of a child and felony bail jumping. Vang argues WIS. STAT. §§ 971.08(1)(c), (2) entitle him to withdraw his pleas because, although the circuit court provided the statutory deportation warning at his arraignment, it failed to give the warning at the plea hearing. We agree and reverse.
Criminal Law/ Sentencing Reconfinement/ Revocation State v. KingDocket: 2009AP002248 07-07-10 PER CURIAM. Morris D. King appeals from an order for reconfinement entered after revocation of his extended supervision and from an order denying his subsequent motion for relief. King asserts his reconfinement sentence was based on inaccurate information. We conclude that to the extent there was inaccurate information, King has not shown that the reconfinement court relied on it. We therefore affirm the orders.
Criminal Law/ Sentencing/ Resentencing/ Restitution State v. GrabowskiDocket: 2009AP002118 07-07-10 FINE, J. Michael J. Grabowski appeals the judgment and amended judgment entered after he pled guilty to one count of theft of movable property with a value of between $2,500 and $5,000. See WIS. STAT. § 943.20(1)(a). He also appeals from orders denying his motion for resentencing. Grabowski claims that: (1) he was sentenced on inaccurate information; and (2) the postsentencing determination of restitution was a new factor. We affirm.
Criminal Law/ Sentencing/ Restitution/ Appeal Barred State v. GarrisonDocket: 2009AP001672 07-07-10 PER CURIAM. Anthony Garrison, pro se, appeals an order denying his motion to rescind restitution. The circuit court determined Garrison's motion was procedurally barred. We agree and affirm the order.
Criminal Law/ Sentencing/ Sentencing Modification/ New Factor State v. EggenbergerDocket: 2009AP001998 07-07-10 PER CURIAM. Charles Eggenberger appeals an order denying his request for either sentence modification or resentencing. Eggenberger argues the sentence he received after he was convicted of sexual contact with a child should be reduced because recent research has established his crimes likely stemmed from his adverse reaction to Prozac. We affirm.
Family Law/ Pleas/ Plea Withdrawal/ Knowingly, Voluntarily & Intelligently Dane County D.H.S. v. Brittany W.Docket: 2009AP002778 07-08-10 HIGGINBOTHAM, J. Brittany W. appeals orders terminating her parental rights to her daughter, Na'Keyshia C., and denying her post-termination motion to withdraw her plea of no contest as to grounds for termination. Brittany contends that the circuit court erred when it determined that her no-contest plea was made knowingly, intelligently, and voluntarily because the court's plea colloquy was inadequate and Brittany did not understand the direct consequences of her plea. Brittany further argues that, because her plea was not actually knowing, intelligent and voluntary, plea withdrawal is necessary to prevent a manifest injustice. We reject these arguments and affirm.
Inmates/ Department of Corrections Disciplinary/ Constitutional Law-Due Process/ Evidence/ Administrative Regulations Beaton v. SmithDocket: 2009AP000407 07-08-10 PER CURIAM. Renato Beaton, pro se, appeals an order affirming a prison disciplinary decision on certiorari review. Beaton argues his due process rights were violated and he was otherwise entitled to the process due for a major, as opposed to a minor, violation. Beaton also challenges the sufficiency of the evidence to support the disciplinary decision and further claims that the discipline imposed by the hearing officer violated double jeopardy. Finally, Beaton claims the circuit court erroneously relied on matters outside the record and misconstrued the administrative code. For the reasons discussed below, we reject Beaton's arguments and affirm the order.
Inmates/ Writ Of Habeas Corpus/ Jurisdiction Pitts v. StateDocket: 2009AP001137 07-07-10 PER CURIAM. Titus Pitts, pro se, appeals from an order of the circuit court denying his petition for a writ of habeas corpus. We conclude the court properly denied the petition and affirm the order.
Property/ Condemnation/ Statutes/ Court’s Competency/ Estoppel/ Writ Of Mandamas/ Preclusion/ Procedure/ Department of Transportation Meis v. State of WisconsinDocket: 2008AP000616 07-08-10
Meis v. State of Wisconsin
Docket: 2010AP000394 07-08-10 PER CURIAM. William Meis and Debra Meis appeal an order barring them from returning to a condemnation commission for further proceedings. We reverse and remand with directions to order the commission to hold a hearing and issue an award.
Property/ Contracts/ Foreclosure/ Statutes/ Offset/ Damages/ Redemption Waterstone Bank v. PanenkaDocket: 2009AP001297 07-07-10 PER CURIAM. Kimberly A. Panenka appeals from a judgment granting WaterStone Bank SSB a judgment of foreclosure against her and determining the amount rescindable under a 2007 refinance transaction. Panenka argues that WaterStone did not provide acceptable disclosure of her right to rescind because the bank's modified form was not "substantially similar" or "comparable" to federal Truth-in-Lending Act (TILA) model forms. She also challenges the offset application, the calculation of interest and attorney fees, the court's denial of damages and its refusal to extend the period of redemption. For the reasons set forth below, we affirm the judgment.
Property/ Damages/ Jury Instructions/ Procedure/ Waiver Of Issue/ Evidence McDonald Enterprises v. Excel EngineeringDocket: 2009AP000193 07-07-10 PER CURIAM. McDonald Enterprises/Fond du Lac Limited Partnership, by its general partner, appeals from judgments dismissing its claims against Excel Engineering, Inc. and Signature Homes by Adashun Jones, Inc. after a jury trial. We affirm the judgments.
Small Claims/ Eviction Discovery/ Evidence Hroscikoski v. CzysDocket: 2009AP000684 07-08-10 DYKMAN, P.J. John Hroscikoski appeals from the dismissal of his small claims action against Steven Czys for wrongful eviction, failure to return his security deposit or account for its withholding, and damages for property he left at the rental premises. Hroscikoski argues that the trial court erred in dismissing his action because Czys did not follow the proper procedure to evict him, did not provide a written explanation of the amount withheld from the security deposit, did not notify Hroscikoski of where his belongings could be recovered, and failed to provide discovery materials prior to trial. We conclude that the evidence in the record supports the trial court's decision, and we therefore have no basis to reverse. Accordingly, we affirm.
Summary Judgment/ Ordinance/ Contracts/ Procedure/ Benefits Milwaukee Deputy Sheriffs' Association v. County of MilwaukeeDocket: 2009AP001622 07-07-10 FINE, J. The Milwaukee Deputy Sheriffs' Association and the individual plaintiffs, who are members of the Association, appeal the order dismissing on summary judgment their amended complaint against the County of Milwaukee. The dispositive issue is whether, as the circuit court held, the plaintiffs' contention that the County owes them increased vacation benefits under a County ordinance must be first resolved by a grievance under the Association's collective-bargaining agreement with the County. On our de novo review, we agree with the circuit court that it must.
Taxation/ Assessment/ Permit/ Frivolous Suit Adams Outdoor Advertising v. City of MadisonDocket: 2009AP001373 07-08-10 LUNDSTEN, J. The City of Madison appeals a circuit court judgment that rejected the City's property tax assessments of billboards owned by Adams Outdoor Advertising. This appeal follows the supreme court's rejection, in Adams Outdoor Advertising, Ltd. v. City of Madison, 2006 WI 104, 294 Wis. 2d 441, 717 N.W.2d 803 (Adams I), of the City's previous attempt to assess Adams' billboards. After remand, the City reassessed Adams' billboards. The circuit court determined that the City's reassessments and other more recent assessments were improper under Adams I. The City appeals. Adams not only responds to the City's arguments, but goes further and asks us to declare the City's appeal frivolous.
Unemployment Compensation/ Statutes Statutory Construction-Interpretation/ Administrative Regulations/ Employment Law Department of Workforce Development v. L.I.R.C.Docket: 2009AP001364 07-08-10 DYKMAN, P.J. The Wisconsin Department of Workforce Development (DWD) appeals from a circuit court order affirming a decision by the Wisconsin Labor and Industry Review Commission (LIRC) that Dunham Express Corporation is not liable for unemployment insurance contributions for its "contract drivers." DWD argues that LIRC's decision is not entitled to any deference because its interpretation of the applicable statute and administrative rules was plainly erroneous and its findings of fact were not supported by substantial and credible evidence. It contends that Dunham failed to establish that the drivers were free from Dunham's direction and control in performing services for Dunham, or that the drivers were engaged in independently established businesses, as required under WIS. STAT. § 108.02(12)(c) (2007-08) to avoid classification as "employees." LIRC responds that its decision is entitled to great weight and controlling deference, that all of its factual findings are supported by the record, and that it properly determined that Dunham's contract drivers were not employees under § 108.02(12)(c). We reverse.
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