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    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

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

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    Judicial Review – Discovery

    Marlowe v. IDS Property Cas. Ins. Co., 2013 WI 29 (filed 5 April 2013)

    Holding: The circuit court lacked jurisdiction to hear an interlocutory appeal from an arbitration panel; the scope of discovery in an arbitration proceeding is delimited by Wis. Stat. section 788.07 unless the parties explicitly contract for broader discovery.

    The Marlowes filed a claim with their insurer, IDS, which denied it. The dispute then went before an arbitration panel, which ordered far-ranging discovery as permitted by Wis. Stat. chapter 804. The Marlowes objected, contending that the scope of discovery was limited to that permitted by Wis. Stat. section 788.07 (evidentiary depositions). The arbitration panel unanimously ruled in favor of IDS.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The Marlowes took the matter to circuit court, which issued a declaratory judgment in their favor. In a published decision, the court of appeals reversed, ruling that the Marlowes should not have sought judicial relief before the panel rendered a final decision and that chapter 804 controlled the scope of discovery. See 2012 WI App 51.

    The supreme court modified and affirmed the court of appeals’ decision and remanded the case for arbitration. Justice Gableman wrote the opinion for the court. First, the court held that the Marlowes had taken an “interlocutory appeal” when they appeared in the circuit court (“the filing in circuit court interrupts an ongoing proceeding before the panel”) (¶ 15), and that they were not entitled to bring such an interlocutory appeal absent a “compelling reason” (¶ 20), which they lacked. The court held that “in Wisconsin a party involved in an arbitration proceeding must ordinarily wait until the arbitrators have reached a final decision on the award to be given, if any, before turning to the circuit courts” (¶ 19).

    Despite the impropriety of the interlocutory appeal, the court nonetheless took up the second issue precisely “because the court of appeals unnecessarily and incorrectly addressed the merits of the discovery dispute before us” (¶ 22). It held that the discovery should have been limited to that allowed under Wis. Stat. section 788.07, a conclusion that revisited Borst v. Allstate Insurance Co., 2006 WI 70, 291 Wis. 2d 361, 717 N.W.2d 42.

    Arbitrators have no “inherent authority to dictate the scope of discovery and absent an express agreement, the parties are limited to the procedures for depositions, as described in [§ 788.07]” (¶ 28) (internal quotations omitted). A “single holding” emerged from Borst: “for a party in arbitration to enjoy discovery outside of Wis. Stat. § 788.07, the insurance policy must provide for it expressly, explicitly, specifically, and in a clearly drafted clause” (¶ 30). The contract clause in the IDS policy fell well short (see ¶ 39). The court’s opinion explains those shortcomings in some detail, including why a cryptic reference to “local rules” did not signal the incorporation of chapter 804 (see ¶ 49).

    Finally, the arbitration panel “did not have the sole power to regulate discovery” (¶ 50). “Had IDS wanted the benefit of Wis. Stat. ch. 804 discovery, it could simply have said, in the policy it drafted, ‘discovery will be governed by Wis. Stat. ch. 804,’ or any number of equally clear and concise alternatives” (¶ 59).

    Chief Justice Abrahamson concurred, joined by Justice Bradley. The concurrence concluded that the Marlowes had indeed shown “special circumstances” warranting their interlocutory appeal when the panel unlawfully expanded the scope of discovery (see ¶ 70).

    Justice Prosser concurred in part and dissented in part. He agreed with the majority’s determination of the interlocutory appeal issue but departed on the scope-of-discovery issue, arguing that the court of appeals was “essentially correct” (¶ 74). 

    Criminal Procedure

    Interrogation – Custody

    State v. Lonkoski, 2013 WI 30 (filed 9 April 2013)

    Holding: Because the defendant was not in custody when he demanded a lawyer while being questioned by police officers, the Miranda rule was inapplicable and the police were not compelled to stop questioning him.

    The defendant, who was suspected of committing child abuse, voluntarily appeared at the police station for questioning. At one point, he demanded a lawyer be present but soon thereafter retracted the request and spoke with police officers. After being arrested and charged with child abuse, the defendant moved to suppress the statements he made after requesting counsel at the police station. The circuit court denied the motion, finding that the defendant was not in custody at the time; hence, Miranda was not applicable and the defendant’s request for counsel did not compel the police to cease all interrogation. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed in a unanimous decision authored by Justice Crooks. It was undisputed that the defendant was interrogated; the only issue was whether he was in custody when he demanded a lawyer (see ¶ 24). The parties agreed that he was not in custody at the beginning of the interview (see ¶ 29). Case law illustrates the variety of factors courts may consider when determining the existence of custody, including the purpose, length, and place of interrogation and the degree of restraint. A suspect’s subjective belief that he was in custody is not determinative (see ¶ 34). Looking at the totality of the circumstances, the supreme court held that the circuit court properly concluded the defendant was not in custody, so his demand for an attorney did not compel the police to cease questioning him.

    Finally, the supreme court rejected the defendant’s contention that because officers arrested him soon after he requested counsel, his “imminent custody” triggered Miranda, much as other cases had looked to a suspect’s “imminent interrogation” in construing Miranda protections. The supreme court said that such a rule was “unnecessary”; the absence of custody means “the coerciveness is substantially lessened because a reasonable person in the suspect’s position would believe that he or she could end the conversation and leave at any time” (¶ 38). Moreover, “‘custody’ encompasses both formal arrest and situations in which a reasonable person would consider himself or herself in custody” (¶ 39). 

    Appeals – Use of Presentence Investigation Reports

    State ex rel. Office of the State Public Defender v. Court of Appeals, 2013 WI 31 (filed 9 April 2013)

    Holding: In a merit appeal, parties entitled to have a copy of a presentence investigation (PSI) report by statute need not ask any court for permission to use the PSI report in an appellate brief.

    An assistant state public defender representing a defendant in postconviction proceedings moved the court of appeals for permission to use, cite to, and quote from the PSI report of the defendant in his appellate brief. The state requested similar latitude. The court of appeals told the parties to move the circuit court for permission. The Office of the State Public Defender (SPD) petitioned the supreme court for a supervisory writ clarifying that the parties need not ask permission of any court before citing a PSI report in their appellate briefs.

    In an opinion written by Justice Ziegler, the supreme court declared the rights and granted the relief requested. First, however, the court held that requirements for a supervisory writ had not been met. Even assuming that “extraordinary hardship” was present, it was unclear that the court of appeals had a “plain duty to accept the brief as filed” (¶ 17).

    Nonetheless, the supreme court reached the merits of the issue under its superintending and administrative authority to clarify procedures. It held “that in a merit appeal, parties who are entitled ‘to have and keep a copy’ of a PSI pursuant to Wis. Stat. § 972.15(4m) need not ask any court’s permission to reference a PSI in an appellate brief. Parties may reference information from the PSI that does not reveal confidential information and that is relevant to the appeal. Extreme caution should be undertaken when referencing sensitive information” (¶ 19).

    The court further held that the restrictions regarding PSIs set forth in State v. Parent, 2006 WI 132, 298 Wis. 2d 63, 725 N.W.2d 915, are “confined to no-merit appeals” (¶ 29). With respect to the confidentiality requirement of Wis. Stat. section 972.15, parties’ briefs must comply with nomenclature practices set forth in Wis. Stat. sections 809.81(8) and 809.19(1)(g) (see ¶ 39).

    “While a PSI may not be a public record and may contain confidential and sensitive information, that alone cannot render it unreachable in the context of appellate litigation. In fact, information in the PSI may be seminal to the appeal” (¶ 41). Parties do not have “unfettered discretion” in using the PSI report; rather, the PSI must be “relevant” to the appeal (see ¶ 42). The supreme court urged lawyers to exercise “sound discretion when citing information from a PSI” (¶ 43).

    Judge Bradley dissented, joined by Chief Justice Abrahamson and Justice Prosser. “[T]he majority’s approach appears at odds with the words of the statute [§ 972.15] and provides neither adequate guidance nor protection” (¶ 46). 

    Sentencing – Right to Be Sentenced on Accurate Information

    State v. Travis, 2013 WI 38 (filed 2 May 2013)

    Holding: The defendant was entitled to resentencing because the circuit court relied on erroneous information when it imposed the original sentence in this case.

    The circuit court sentenced the defendant to eight years’ confinement followed by 10 years’ extended supervision. In a postconviction motion, the defendant sought resentencing because the circuit judge was under the erroneous impression that the crime of conviction carried a minimum confinement term of five years. In fact, there was no such minimum.

    The circuit judge acknowledged that the five-year mandatory minimum “was inaccurately referenced beginning in the pleadings and carried out through the plea, the sentencing and ultimately really pervaded the entire file in this case” (¶ 6). Nonetheless, the circuit court denied the defendant’s motion for resentencing, viewing the error as harmless.

    In a published decision, the court of appeals reversed the circuit court and remanded the case for resentencing, concluding that the error in sentencing, namely the mistake of law that a mandatory minimum confinement period applied, constituted structural error. See 2012 WI App 46.

    The question of law before the supreme court was whether a circuit court’s imposition of a sentence using the inaccurate information that the defendant was subject to a mandatory minimum five-year confinement period is structural error or subject to the application of harmless-error analysis. If the latter, the question is whether the error in the present case was harmless.

    In a majority opinion authored by Chief Justice Abrahamson, the court concluded that imposing a sentence under the erroneous belief that the defendant was subject to a five-year mandatory minimum confinement period is an error subject to a harmless-error analysis. The error is not structural (see ¶ 10). The court also concluded that the error in the present case was not harmless.

    Pursuant to State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, a defendant is entitled to resentencing if he or she meets a two-pronged test: 1) the defendant shows that the information at the original sentencing was inaccurate; and 2) the defendant shows that the court actually relied on the inaccurate information at sentencing (see ¶ 21).

    In this case, information relevant to the defendant’s sentencing, namely a mandatory minimum confinement term, was inaccurate and was presented to the circuit court at sentencing. At that proceeding, the judge repeatedly and mistakenly stated the court was required to impose a five-year minimum mandatory confinement period, although no such mandatory minimum was applicable (see ¶ 26).

    As for the second prong of the Tiepelman analysis, the circuit judge explained at least four times that the mandatory minimum term applied to the defendant, and the supreme court was satisfied that “the circuit judge gave explicit attention to the inaccurate penalty information and that this inaccurate information thus formed part of the basis for the sentence” (¶ 49) (internal quotations omitted).

    Because the defendant met his two-pronged burden under Tiepelman, the burden shifted to the state to prove that the error was, nonetheless, harmless (see ¶ 66). The supreme court concluded that, although the circuit judge at the postconviction proceeding stated that he would have imposed the same sentence even if he had not been mistaken about the mandatory penalty, the error permeated the entire sentencing procedure (see ¶ 85). “When the circuit court imposes a sentence with the misunderstanding that a mandatory minimum period of confinement applies, the framework for sentencing is thrown off, and the sentencing court cannot properly exercise its discretion based on correct facts and law” (¶ 80).

    The court held that the state did not meet its burden of proving this error harmless. “The State has not demonstrated that the error did not affect the circuit court’s selection of sentence; that there is no reasonable probability that the error contributed to the sentence; or that it is clear beyond a reasonable doubt that the same sentence would have been imposed absent the error” (¶ 86). Accordingly, the supreme court vacated the defendant’s sentence and remanded the case to the circuit court for resentencing (see ¶ 88).

    Justice Prosser did not participate in this case. Justice Roggensack filed a dissenting opinion.

    Guilty/No-Contest Pleas – Denial of Motion to Withdraw Plea – Bangert

    State v. Taylor, 2013 WI 34 (filed 23 April 2013)

    Holding: The circuit court did not err in denying the defendant’s motion to withdraw a no-contest plea without a hearing because the record was clear that the defendant knowingly, intelligently, and voluntarily entered his plea.

    The defendant entered a no-contest plea to uttering a forged check as a habitual criminal (repeater). The forgery crime carried a six-year maximum imprisonment term. The repeater statute added another two years. The overall maximum imprisonment time the defendant faced (eight years) was correctly stated in the criminal complaint, the information, and the guilty-plea questionnaire (which the defendant and his attorney both signed). Nonetheless, at the plea hearing, the court referred only to a six-year maximum term, and that was the sentence the court imposed.

    The defendant moved to withdraw his plea, arguing that because of this error, the plea was not entered knowingly, intelligently, and voluntarily. The circuit court denied the motion without requiring the state to prove that the defendant entered his plea knowingly, intelligently, and voluntarily at a Bangert hearing (see ¶ 20). (See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).) The circuit court believed the error was harmless because it informed the defendant that he could be sentenced to six years, and that was the sentence the defendant received (see ¶ 20). The defendant appealed, and the court of appeals certified the case to the supreme court, which granted certification.

    In a majority decision authored by Justice Ziegler, the supreme court affirmed. Said the majority, “the record is replete with evidence that Taylor was nonetheless aware of the potential eight-year term of imprisonment. Moreover, at the plea hearing, the circuit court verbally informed Taylor of the six-year term of imprisonment to which he was ultimately sentenced. As a result, Taylor’s plea was entered knowingly, intelligently, and voluntarily, and it was not a violation of Taylor’s due process rights to deny his motion to withdraw his no contest plea” (¶ 28).

    The circuit court’s failure to specifically refer to the two-year repeater penalty at the plea hearing was an “insubstantial defect” such that an evidentiary hearing was not required to determine if the defendant entered his plea knowingly, intelligently, and voluntarily. “A Bangert violation occurs, and a hearing is required, when the plea is not entered knowingly, intelligently, and voluntarily. No such hearing is required here because this record reflects that Taylor indeed pled knowingly, intelligently, and voluntarily. He knew of the eight-year maximum term of imprisonment, and in any event, he was verbally informed by the court at the plea hearing of the sentence that he actually received” (¶ 39).

    Finally, the court concluded that the defendant did not demonstrate that withdrawal of his plea is necessary to correct a manifest injustice (see ¶ 56). Plea withdrawal remains within the circuit court’s discretion, and a circuit court’s decision on the matter will not be disturbed unless the defendant shows that doing so is necessary to correct a manifest injustice.

    In this case, “it was not manifestly unjust to deny Taylor’s motion to withdraw his no contest plea where (1) the circuit court informed Taylor at the plea colloquy that he could receive a six-year term of imprisonment; (2) Taylor actually received a six-year term of imprisonment; and (3) the record is abundantly clear that Taylor was nonetheless aware of the two-year penalty enhancer from the alleged repeater” (¶ 54).

    Justice Prosser filed a concurring opinion. Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.