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Vol. 72, No. 7, July 1999

Court of Appeals Digest

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

| Criminal Procedure | Damages |
| Employment Law | Evidence | Legal Malpractice |
| Real Property | Realtors | Zoning |

Guilty Plea Withdrawal - Failure to Advise
Defendant Regarding Federal Firearms Disability

State v. Kosina, No. 98-3421-CR (filed 27 April 1999) (ordered published 26 May 1999)

The defendant was charged with one count of disorderly conduct arising out of an incident of domestic violence. He entered a plea of guilty to the charge without the assistance of counsel. He subsequently filed a post-conviction motion to withdraw his guilty plea alleging that he entered the plea without knowing that his conviction could result in the loss of his right to possess a firearm under those federal statutes that prohibit one convicted of a misdemeanor involving domestic violence from possessing firearms or ammunition. The circuit court denied post-conviction relief and concluded that the effect of the federal firearms statutes was a collateral consequence of the defendant's guilty plea. The court of appeals, in a decision authored by Judge Myse, affirmed.

Section 971.08(1)(a) of the Wisconsin Statutes requires the judge taking a plea to determine that the plea is made voluntarily and with understanding of the nature of the charge and the potential punishment the defendant faces. A plea is not knowingly, voluntarily, and intelligently entered, and a manifest injustice results when a defendant does not know what sentence could actually be imposed. An understanding of potential punishments or sentences includes knowledge of the direct consequences of the plea, but does not require that a defendant be informed of consequences that are collateral to the plea. A direct consequence of a plea has a definite, immediate, and largely automatic effect on the range of a defendant's punishment. A collateral consequence does not automatically flow from the plea. In some cases a particular consequence is deemed "collateral" because it rests in the hands of another government agency or different tribunal. It also can be collateral because it depends upon a future proceeding.

The court of appeals first concluded that the effect of the federal statutes is not an automatic consequence of the defendant's plea because the application of his misdemeanor disorderly conduct conviction to the federal statutes' scope remains open and must be resolved before the federal firearms prohibition takes effect. The court held that because the defendant can, as a preliminary matter, contest the federal statutes' applicability to his state conviction, the operation of the federal firearm prohibition is not automatic. [In footnote the court noted that its conclusion is confined to the question whether federal law applies automatically when the trial court does not make a domestic violence determination. The court did not address the consequences of a trial judge making a factual determination that disorderly conduct is related to domestic violence and including in its judgment that the conviction is domestic violence related.]

Even assuming that the federal statute applies to the disorderly conduct conviction because it involves domestic violence, the appellate court held that its effect is a collateral consequence of the defendant's guilty plea. The prohibition on possessing firearms arises from a body of law that is collateral to the state court proceedings and any consequence arising under that law must therefore also be collateral. The firearms prohibition under the federal statute is a separate, peripheral consequence and does not have an immediate or automatic effect on the range of punishment imposed under state law by the circuit court.

Bail - Incarcerated Defendants - Chapter 969 Conditions of Release Inapplicable While Defendant Remains Incarcerated

State v. Orlik, No. 98-2826-CR (filed 29 April 1999) (ordered published 26 May 1999)

The defendant was charged with several felonies and bail was set in the amount of $320,000. The court also established other conditions of release, including certain no contact orders. The no contact provision was imposed originally as a condition of release pending trial. However, when the defendant was unable to post cash bail, the court decided that the no contact provision also applied while the defendant remained incarcerated. The defendant contended that under the plain language of Wis. Stat. sections 969.01 and 969.03, the circuit court has authority to set conditions on the release of a defendant pending trial, but does not have authority to impose conditions on a defendant who remains incarcerated awaiting trial.

In a decision authored by Judge Vergeront, the court of appeals held that the circuit court did not have authority under sections 969.01 and 969.03 to impose no contact orders on the defendant that would govern him while he remains incarcerated. The court recognized that, pursuant to section 940.47, a court with jurisdiction over a criminal matter has authority to order a defendant not to violate the provisions of the victim and witness intimidation statutes (sections 940.42 to 940.45), to maintain a geographic distance from such persons, or to have no communication with such persons except through an attorney. However, this type of order must be based upon "substantial evidence which may include hearsay or the declaration of the prosecutor, that knowing and malicious prevention or dissuasion of any person who is a victim or who is a witness has occurred or is reasonably likely to occur." See Wis. Stat. § 940.47. The latter type of showing would be required in order for the circuit court to determine whether it should enter an order under section 940.47 (which could apply to an incarcerated defendant).

Revocation of Probation - Credit for Time Spent in Division
of Intensive Sanctions Program

State v. Olson, No. 98-1450-CR (filed 21 April 1999) (ordered published 26 May 1999)

The defendant was convicted of forgery and placed on probation. After he absconded from probation, he was offered placement in the Division of Intensive Sanctions (DIS) program as an alternative to the revocation of his probation. After making progress in the DIS program and having his electronic monitoring bracelet removed, he again absconded. Thereafter his probation was revoked and the court sentenced him to a term in prison.

At the sentencing following revocation of probation, a debate arose as to whether the defendant should receive prison credit for his DIS time. The Department of Corrections (DOC) recommended that he should receive 256 days of credit. The state objected because the defendant was not incarcerated during the time he spent in DIS. The circuit court agreed with the state, concluding that the defendant's participation in DIS was not the functional equivalent of confinement and therefore his sentence should not be credited.

The court of appeals, in a decision authored by Judge Anderson, affirmed. The court first concluded that the circuit court had the exclusive authority to determine the amount of sentence credit to be given a defendant when imposing a post-probation sentence. It further concluded that the circuit court properly rejected prison credit for the time the defendant spent in DIS. Whether sentence credit will be given for DIS time depends upon the restrictions imposed on the defendant's freedom by the program. The record revealed that while in DIS, the defendant was required to wear an electronic monitoring bracelet and had to seek approval in order to leave his residence, but he was not locked in the home at night. Based on these facts, the appellate court concluded that the defendant's participation in the DIS program did not qualify as "custody" for purposes of Wisconsin's sentence credit statute. See Wis. Stat. § 973.155.

Search and Seizure - Expectation of Privacy -
Dumpster - Commercial Premises

State v. Yakes, No. 98-0470-CR (filed 21 April 1999) (ordered published 26 May 1999)

Yakes was convicted of sexually assaulting a child based upon evidence recovered from a dumpster on his company's property. The court of appeals, in an opinion written by Judge Brown, affirmed the conviction and the seizure of the evidence.

The central issue before the court concerned whether Yakes had a reasonable expectation of privacy in the area surrounding his commercial building and in the area where the dumpster was located. Following precedent from the Eleventh Circuit, the court held "that a commercial proprietor must show how affirmative steps were taken to bar the public from the dumpster area in order to validate a claim of an objectively reasonable expectation of privacy regarding trash in the dumpster." The "affirmative steps" might include warning signs or barricades. Yakes had failed to take such affirmative action. Finally, Yakes claimed that the dumpster was located within the curtilage of his residence, although the record amply supported the trial court's conclusion that it was on Yake's business premises.

Implied Contracts - Unjust Enrichment - Quantum Meruit

W.H. Fuller Co. v. Seater, No. 98-1250 (filed 14 April 1999) (ordered published 26 May 1999)

The plaintiff, a contractor, was excavating property near land owned by the defendant. The defendant's lessee arranged to have the contractor dump the excavated fill on the defendant's lot and grade it. The defendant was aware of the arrangement and signed a "hold-harmless agreement" with the plaintiff. Later the plaintiff forwarded an invoice to the defendant for about $17,150 for the fill and grading. The defendant refused to pay it. The circuit court held a bench trial and found that an implied contract existed between the plaintiff and the defendant, and awarded the plaintiff nearly $19,000 in damages.

The court of appeals, in an opinion written by Judge Snyder, affirmed in part and reversed in part. The only issue on appeal concerned the proper measure of damages under a contract implied in law. Under controlling case law, "a contract implied in law necessarily involves recovery through unjust enrichment, not quantum meruit. As such, the measure of damages for a contract implied in law is the benefit received by the defendant."

Here the plaintiff billed the defendant for all materials and service provided. The court held that damages "for unjust enrichment may include services rendered for the defendant," but only when "those services ... constitute the benefit received by the defendant." Finally, the plaintiff was entitled to recover for any "detriment" caused to his property.

Sexual Harassment - No Hostile Environment

Jim Walter Color Separations v. LIRC, No. 98-2360 (filed 8 April 1999) (ordered published 26 May 1999)

At the close of a three-day hearing, an administrative law judge (ALJ) found that the employee's supervisor had sexually harassed her. LIRC adopted the findings. The circuit court reversed LIRC's decision that the employee had been the victim of sexual harassment in the workplace. The circuit court ruled that the multiple acts had not substantially interfered with her work performance and had not created a hostile environment.

The court of appeals, in an opinion written by Judge Vergeront, reversed the circuit court and found that LIRC had correctly interpreted section 111.36(1)(b) of the Wisconsin Statutes. In particular, the court held that "'unwelcome physical contact of a sexual nature' and 'unwelcome verbal or physical conduct of a sexual nature' may constitute sexual harassment even though they do not create a hostile work environment." The sexual harassment must be conducted, however by "the owner or an agent under the principle of respondeat superior."

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