Vol. 72, No. 12, December 1999

Court of Appeals Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Appellate Procedure | Commercial Law |
| Criminal Law | Criminal Procedure |
| Employment Law | Family Law | Fireworks |
| Insurance | Open Meetings Law | Torts |

Interlocutory Orders - Cross-appeal

Fedders v. American Family Mut. Ins. Co., No. 99-1526 (filed 22 Sept. 1999) (ordered published 25 Oct. 1999)

This case presented the following novel issue: "May a party cross-appeal as of right any interlocutory order in an action once leave to appeal has been granted?" In this case the cross-appellants argued that under Rule 809.50(3) of the Wisconsin Statutes, they acquired the right of a respondent to file a notice of cross-appeal under Rule 809.10(2)(b) once leave to appeal was granted. The right extended, they argued, to any other interlocutory order.

In a per curiam decision, the court of appeals rejected the argument and dismissed the cross-appeal. "Rule 809.50(3) does not have the effect of turning the interlocutory judgment or order on which leave to appeal is granted into a final judgment or order from which the respondent may cross-appeal as a matter of right. ... Therefore, once leave to appeal is granted, a cross-appeal from the same interlocutory order or judgment or any other interlocutory order or judgment in the action requires a petition for leave to appeal."

Leases - Unconscionability - Venue Provision

First Federal Financial Serv. Inc. v. Derrington Chevron Inc., No. 98-2763 (filed 22 Sept. 1999) (ordered published 25 Oct. 1999)

In this case the court held unconscionable a forum clause in a finance lease. The lessees owned a service station in California and entered into a relationship with a California firm that supplied security surveillance equipment. Although the husband wanted to pay cash, the supplier persuaded him to lease the equipment. When the equipment arrived several days later, his wife signed what she thought was an "okay for the equipment" but which actually was the lease. The back page of the document contained 16 provisions in small print, including one conferring jurisdiction in Waukesha, Wis. Two weeks later the equipment failed to function. When the supplier failed to fix it and the finance lessor, FFF, said that it "didn't care," the lessees stopped payment. The circuit court held that the Waukesha forum clause was unconscionable.

The court of appeals, in a decision authored by Judge Brown, affirmed. The only basis for jurisdiction in Wisconsin was the lease clause. Indeed the lessor's existence was buried deep in the small print and it was reasonable for the wife to conclude that she was merely signing an "acknowledgement of installation," not a lease. The lessor, FFF, "peddles" its leases nationwide. The court opined that FFF "cannot sit in its offices in southeastern Wisconsin and expect [lessees] from across the country to march to Waukesha county to defend themselves from collection actions." The only party that got a deal was FFF - "it was guaranteed a home court while [the lessees] were stuck with security equipment that did not work and a lawsuit in ... Wisconsin."

Failure to Pay Child Support - Statute of Limitations

State v. Monarch, No. 99-1054-CR (filed 21 Sept. 1999) (ordered published 25 Oct. 1999)

The defendant was charged with numerous felony counts of failing to pay child support. The charges emanated from his alleged failure to pay court-ordered child support arrears from 1993 to 1998. He was originally ordered to pay support under a 1977 divorce agreement. That obligation ended in 1985 when his youngest child attained majority. Since 1990 he has been subject to an "arrearages only" order. However, with the exception of one payment in 1998, he made no payments from 1993 through 1998.

The defendant moved to dismiss the charges, contending that his 1998 prosecution for failure to pay child support arrears accumulated from 1977 to 1985 should be dismissed because it is barred by the six-year statute of limitations. In a decision authored by Judge Hoover, the court of appeals disagreed.

Wis. Stat. section 948.22(2) provides that any person who intentionally fails for 120 or more consecutive days to provide child support that the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class E felony. A prosecutor may charge a person with multiple counts for a violation under this subsection if each count covers a period of at least 120 consecutive days and there is no overlap between periods.

The defendant argued that his crime was complete more than six years ago because the definition of child support only applies to current support. The court of appeals rejected this argument. The definition of child support in the statute makes no distinction between current and past support. In fact, a crime is committed only when an arrearage develops. The essence of the offense is failing to pay support for at least 120 days. The crime is complete after each 120-day period during which the defendant intentionally fails to pay child support and continues until he or she no longer intentionally fails to pay that support. The statute of limitations begins to run from the end of each 120-day period.

Because the defendant is alleged to have intentionally failed to provide for the support of a child within the six years preceding the current prosecution, the statute of limitations is not a defense. The current age of the child (who in this case reached majority in 1985) is immaterial to this analysis.

Plea Negotiations - Enforcement of Agreements
by Specific Performance

State v. Scott, No. 98-2109-CR (filed 29 Sept. 1999) (ordered published 25 Oct. 1999)

The defendant reached a plea agreement with the state under which he pled no contest to and was found guilty of several offenses. The plea agreement restricted the state's sentencing recommendation. At the sentencing hearing, the state was permitted to withdraw from the agreement. Later, it advanced a modified sentencing proposal that afforded the state the ability to recommend a significantly longer sentence. The defendant agreed to the new proposal and thereafter was sentenced to prison.

The defendant then sought resentencing on the ground that his trial counsel provided ineffective assistance by failing to advise him that he had a right to seek enforcement of the original plea agreement under which he entered his no contest pleas. The circuit court denied relief. In a majority opinion authored by Judge Langhoff (sitting by special assignment pursuant to the Judicial Exchange Program), the court of appeals reversed.

Prior to the time the defendant entered his no contest plea, the plea agreement between the parties was wholly executory. Each party had an opportunity to withdraw from or modify the plea agreement. Where a plea agreement has been reached and the criminal defendant has not entered pleas of guilty or no contest, he or she may seek enforcement of the agreement only upon affirmatively demonstrating detrimental reliance. Absent detrimental reliance on the bargain, the defendant has an adequate remedy by being restored to the position occupied prior to the agreement.

A detrimental reliance need not be demonstrated where a plea agreement has been reached and a guilty or no contest plea has been entered. After a prosecutor induces a plea pursuant to a plea agreement, the prosecutor is required to carry out his or her part of the bargain.

In this case defense counsel assumed that the only choices available to the defendant were withdrawing his pleas or assenting to the state's revised proposal made after the defendant had already entered his no contest pleas. Defense counsel failed to advise the defendant that he could elect to pursue a third option, namely, specific performance of the plea agreement pursuant to which he had entered his no contest pleas. The court concluded that this was deficient performance that resulted in prejudice to the defendant.

Accordingly, the court of appeals reversed the circuit court and granted the defendant's request for a new sentencing hearing requiring the state to adhere to the terms of the plea agreement as it existed when the no contest pleas were entered.

Judge Nettesheim filed an opinion concurring in part and dissenting in part.

Probation - Revocation to be Initiated by
Department of Corrections

State v. Burchfield, No. 99-0716-CR (filed 1 Sept. 1999) (ordered published 25 Oct. 1999)

The defendant was convicted of delivering cocaine and was sentenced to prison. The trial court stayed the prison sentence and ordered the defendant to serve a term of probation. The probation agent subsequently requested a trial court probation review and the possible imposition of conditional jail time because of probation violations. Following a hearing the trial court ordered that probation be revoked.

The defendant appealed the order revoking his probation because the revocation was not initiated by the Department of Corrections (DOC). He argued that under Wis. Stat. section 973.10(2) a sentencing court has no authority to revoke probation.

In a decision authored by Judge Snyder, the court of appeals agreed and reversed the order. It concluded that the statute prohibits judicial revocation of probation by trial courts. The appellate court relied in part on the decision in State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999), which it believed supported the defendant's contention that the executive branch (here DOC) has exclusive statutory authority to administer and to revoke probation.

Motion to Withdraw Guilty Plea After Original Sentence
Vacated - "Fair and Just Reason" Standard to be Applied

State v. Manke, No. 98-2545-CR (filed 8 Sept. 1999) (ordered published 25 Oct. 1999)

The defendant entered a plea of no contest to a charge of recklessly endangering safety and was sentenced to five years in prison. After sentencing he moved to withdraw his plea or, alternatively, to be resentenced before a different judge. He argued that he was entitled to withdraw his plea because the state had breached the plea agreement by recommending incarceration at the sentencing hearing when it had promised to "stand silent" with regard to disposition. The circuit court agreed and ordered that the defendant be resentenced before a new judge. Before the new judge, the defendant moved to withdraw his plea of no contest. The judge granted that motion after applying the "fair and just reason" standard.

The issue before the court of appeals was whether the "fair and just reason" standard was properly applied in this case. This standard is used when a defendant moves to withdraw his or her plea prior to sentencing. After sentencing, the more onerous "manifest injustice" standard is applied to motions to withdraw pleas.

In a decision authored by Judge Anderson, the court of appeals affirmed. Because the original sentence had been vacated, the court concluded that the circuit judge properly applied the presentencing standard of "fair and just reason" to the defendant's plea withdrawal motion.

Search and Seizure - Unoccupied Premises - No-knock Entry

State v. Moslavac, No. 98-3037-CR (filed 1 Sept. 1999) (ordered published 25 Oct. 1999)

The court of appeals, in a decision authored by Judge Nettesheim, affirmed orders denying the defendant's challenge to the legality of the searches and seizures in this case. The court addressed two issues. First, it held that police can forcibly execute a search warrant against a premises when the occupant is absent. The entry, of course, must be reasonable under the circumstances. Second, the court held that "[t]he police are not required to knock and announce prior to executing a search warrant against unoccupied premises." If they don't so announce, however, the police are taking the risk that someone might in fact be present and have standing to challenge the entry.

Search and Seizure - Automobile - Marijuana Odor

State v. Mata, No. 98-2895-CR (filed 22 Sept. 1999) (ordered published 25 Oct. 1999)

The defendant, Mata, was charged after police discovered marijuana in his automobile. The trial court denied his motion to suppress.

The court of appeals, in an opinion authored by Judge Nettesheim, affirmed. The sole issue on appeal was "whether a police search of a passenger in a motor vehicle based solely on the odor of marijuana is reasonable." Earlier cases, including a 1999 supreme court decision, did not specifically address the reasonableness of searches based on odor where there are several people in the vehicle. Although prior cases "arguably" conflicted, the court found probable cause based on the record in this case. Here the police had searched the other two occupants and found nothing before they got to the defendant: "under the particular circumstances of this case, the odds of Mata possessing the suspected marijuana had increased - not diminished." (Emphasis original.) The court also rejected arguments sounding in Knowles v. Iowa, 525 U.S. 113 (1998) (searches of vehicles stopped only for traffic violations), and the Terry doctrine.

Restitution - Evidentiary Hearing - Fact of Damage

State v. Madlock, No. 98-2718-CR (filed 1 Sept. 1999) (ordered published 25 Oct. 1999)

The defendant appealed from an order denying his motion to vacate the restitution provision of a conviction judgment. He claimed the trial court erred by not holding an evidentiary hearing on the appropriate amount of restitution, if any.

The court of appeals, in an opinion written by Judge Nettesheim, reversed. The court's analysis proceeded under the general restitution statute, section 973.20. It conceded that "in most cases the facts in support of the criminal conviction, coupled with the statutory presumption of restitution, will allow for a restitution order." This happened, however, to be one of those "rare cases where that result does not automatically flow." The restitution statutes permit evidentiary hearings. They speak directly to the amount of restitution, but "they also apply to a situation where the propriety of restitution is challenged in the first instance." The hearings are informal, not "a full-blown civil trial." The record in this case failed to establish the fact or nature of the damage or the nexus between the damage and the defendant's conduct. The matter was remanded for an evidentiary hearing.

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