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    Wisconsin Lawyer
    December 01, 2015

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Law

    Photos of Minors – Overly Broad Statute – Wis. Stat. Section 948.14

    State v. Oatman, 2015 WI App 76 (filed 22 Sept. 2015) (ordered published 28 Oct. 2015)

    HOLDING: The statute that prohibits registered sex offenders from photographing minors without consent is unconstitutionally overbroad.

    SUMMARY: Oatman was charged with several violations of Wis. Stat. section 948.14, which provides in pertinent part that “[a] sex offender may not intentionally capture a representation of any minor without the written consent of the minor’s parent, legal custodian, or guardian.” According to the criminal complaint, Oatman photographed or video-recorded several children while they were playing outside his home. The complaint did not allege that any of the images involved obscenity, nudity, or pornography. The state and Oatman entered into a “confessional stipulation” under which he was found guilty in a way that permitted him to maintain this appeal, attacking the statute’s constitutionality.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    In a decision authored by Reserve Judge Cane, the court of appeals held that Wis. Stat. section 948.14 is unconstitutionally overbroad. It reversed the convictions and dismissed the charges against Oatman. Because the statute “only regulates images of children, § 948.14 is not content neutral” (¶ 11). Strict scrutiny applied.

    Most certainly the state has a compelling interest in protecting its children, but this statute “appears to carry the potential of more harm than good” (¶ 13). It requires registered sex offenders, such as Oatman, to obtain parental permission before photographing a child, but often the only way to identify the parent is by talking to the child. “Nefarious” persons might use the statute as a ruse to speak with kids (id.).

    “Further, children are not harmed by nonobscene, nonpornographic photographs taken in public places” (¶ 14). The court disliked the very idea that “someone might have objectionable thoughts when viewing ordinary images of children,” yet the conduct is constitutionally protected (¶ 16). Thus, the statute fails to protect any compelling state interest and is not narrowly tailored (see ¶ 17).

    Criminal Procedure

    Cell Phones – Texts – Searches

    State v. Tentoni, 2015 WI App 77 (filed 9 Sept. 2015) (ordered published 28 Oct. 2015)

    HOLDING: The defendant’s Fourth Amendment rights were not implicated when police officers viewed texts on a homicide victim’s cell phone.

    SUMMARY: The defendant was convicted of reckless homicide relating to his delivery of a drug to a person who died as a result of ingesting the drug. While searching the victim’s residence, police officers recovered the victim’s cell phone, which displayed incriminating texts the defendant had sent. Based on this information, police officers obtained a search warrant for the defendant’s phone records. The circuit court denied the defendant’s motion to suppress, which contended that the officers unlawfully viewed his texts on the victim’s phone.

    The court of appeals affirmed in an opinion authored by Judge Neubauer. Essentially, the defendant’s Fourth Amendment rights were not implicated in the search of the victim’s cell phone. First, the defendant had no property interest in the victim’s phone. Second, he had no “control” over the victim’s phone “or any right to exclude others from text messages” on the victim’s phone (¶ 8).

    Third, the defendant never claimed to have taken any steps “to enhance the privacy of his text messages to the victim” (id.). In sum, the defendant lacked any property or privacy interest in the texts he sent to the victim and that police officers viewed on the victim’s phone.

    Plea Withdrawal – Misinformation About Maximum Penalty Defendant Faced on Conviction

    State v. Finley, 2015 WI App 79 (filed 30 Sept. 2015) (ordered published 28 Oct. 2015)

    HOLDING: Because of misinformation about the penalty, the defendant’s no-contest plea was not entered knowingly, intelligently, and voluntarily and thus violated his right to due process, a manifest injustice that required plea withdrawal.

    SUMMARY: Finley entered a plea of no contest to first-degree recklessly endangering safety as domestic abuse, with penalty enhancers for habitual criminality and use of a dangerous weapon. The offense, including penalty enhancers, carried a maximum penalty of 23.5 years’ imprisonment, but Finley was erroneously informed at the time of his plea (both by the circuit court and in the plea questionnaire-waiver of rights form) that his maximum exposure was 19.5 years. Finley was sentenced to the actual maximum of 23.5 years’ imprisonment, and he later sought to withdraw his plea.

    In a previous appeal in this case, the appellate court concluded that the defendant had made a prima facie showing that he did not know or understand penalty information that should have been provided at the plea hearing. Pursuant to State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), the court of appeals remanded with instructions for the circuit court to hold an evidentiary hearing at which the state was required to prove by clear and convincing evidence that Finley knew the maximum penalty he faced when he entered his plea, such that his plea was entered knowingly, intelligently, and voluntarily.

    On remand, the state called only one witness, the lawyer who was Finley’s defense counsel when the plea was entered. The lawyer testified that he had no specific recollection of telling Finley the correct maximum penalty and admitted he likely read to Finley the incorrect maximum penalty identified on the plea questionnaire-waiver of rights form.

    The circuit court nonetheless entered an order concluding the state had satisfied its burden of showing that Finley’s plea was entered knowingly, intelligently, and voluntarily. The court then “commuted” Finley’s sentence to 19.5 years’ imprisonment in the interests of justice.

    In the present appeal, Finley argued that the circuit court erroneously concluded that the state met its burden of showing that his plea was knowing, intelligent, and voluntary when it was entered. The state has since abandoned any argument that it met its burden in this regard. Instead the state urged the appellate court to apply an alternative standard for plea withdrawal.           

    “Under the State’s proposed standard, a defendant whose plea was not entered knowingly, intelligently, and voluntarily because the maximum possible penalty was more than he or she understood, is not entitled to withdraw the plea if the defendant’s sentence is commuted – as was done here – to an amount equal to or less than the maximum sentence the defendant believed he or she could receive at the time of the plea” (¶ 3).

    In a decision authored by Judge Hruz, the court of appeals rejected the state’s proposed standard, which “appears contrary to existing case law, which we are bound to follow” (id.). Finley’s plea was not entered knowingly, intelligently, and voluntarily, and thus his plea was entered in violation of his right to due process. This established a manifest injustice requiring plea withdrawal.

    “[S]uch a violation is not curable, after the fact, by ‘commutation’ of an otherwise lawful sentence down to the maximum amount of punishment the defendant was incorrectly informed he or she faced at the time of the plea. Accordingly, we reverse the judgment and order and remand to the circuit court for further proceedings with instructions that it grant Finley’s postconviction motion for plea withdrawal” (¶ 37).

    Family Law

    Paternity – Petition for Genetic Testing – “Best Interest of Child” – Wis. Stat. Section 767.863(1m)

    Douglas L. v. Arika B., 2015 WI App 80 (filed 29 Sept. 2015) (ordered published 28 Oct. 2015)

    HOLDINGS: 1) Circuit courts have discretion to order that dismissals under Wis. Stat. section 767.863(1m) be entered without prejudice. 2) On appeal from best-interest-of-the-child determinations under section 767.863(1m), the appellate court must accept the circuit court’s factual findings unless clearly erroneous, but the appellate court determines the child’s best interest de novo.

    SUMMARY: This case involves Wis. Stat. section 767.863(1m), titled “Paternity allegation by male other than husband; when determination not in best interest of child.” The statute provides as follows:

    “In an action to establish the paternity of a child who was born to a woman while she was married, if a male other than the woman’s husband alleges that he, not the husband, is the child’s father, a party may allege that a judicial determination that a male other than the husband is the father is not in the best interest of the child. If the court … determines that a judicial determination of whether a male other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.”

    In a decision authored by Reserve Judge Cane, the court of appeals considered two issues regarding this statute. The first was the standard of appellate review to be used with respect to the best-interest-of-the-child determination provided for in the statute. The court of appeals concluded that it must “accept the circuit court’s factual findings unless clearly erroneous but determine the child’s best interest de novo” (¶ 18).

    In this case, the circuit court did not set forth any findings of fact or identify what evidence it relied on when it determined that genetic testing would not be in the child’s best interest. “Without any facts on which to base our de novo determination, we are unable to make any determination whatsoever. We therefore must remand for the circuit court to make explicit, detailed findings of fact sufficient to enable this court to independently determine whether genetic testing is in the child’s best interest” (id.).

    The appellate court also considered whether a dismissal of an action under Wis. Stat. section 767.863(1m) must be entered with prejudice. It concluded that “circuit courts have discretion to dismiss actions without prejudice under that statute” (¶ 27).


    Duty to Defend – “Four Corners” – Exclusions

    Water Well Solutions v. Consolidated Ins. Co., 2015 WI App 78 (filed 9 Sept. 2015) (ordered published 28 Oct. 2015)

    HOLDING: Based on the four corners of the complaint, the circuit court properly dismissed claims against an insurer alleging bad faith and breach of the insurer’s duty to defend.

    SUMMARY: A municipality hired Water Well Solutions to remove an old water pump and install a new one in the city’s well. Several years later the pump failed, causing damage estimated at $300,000. Water Well tendered its defense to its insurer, Consolidated Insurance, which denied coverage and provided no defense. Water Well settled with parties for approximately $90,000 and later filed this lawsuit against Consolidated. The circuit court dismissed Water Well’s complaint, finding no covered claim under the policy’s “your product” and “your work” exclusions.

    The court of appeals affirmed in a majority opinion authored by Judge Neubauer. The opinion is based throughout on the four corners of the complaint (see ¶ 6). Consolidated did not dispute that there was an initial grant of coverage under the policy but relied on two exclusions. The “your product” exclusion bars coverage for the insured’s own faulty products (see ¶ 8). There was no allegation of damage to newly installed pipes by anyone but Water Well (see
    ¶ 10). A second exclusion for “your work” also barred coverage. There was no allegation that a subcontractor had done any work (see ¶ 13).

    The court of appeals expressly declined Water Well’s entreaties to look beyond the complaint’s four corners and to consider, for example, an affidavit regarding work done by subcontractors. “Wisconsin law is well settled that an insurer’s duty to defend is determined by comparing the facts alleged within the four corners of the complaint with the coverage provided under the insurance policy” (¶ 16). Finally, case law expressly permits consideration of policy exclusions when ruling on coverage issues (see ¶ 17).

    Judge Reilly dissented. The “four corners” rule is not as “well established” as the majority suggests (¶ 19). He urged the supreme court to clarify this legal point. “The four-corners rule as defined by the majority allows a litigant who is not a party to a contract of insurance to unilaterally control whether a contract (the insurance policy) provides coverage when that litigant has no privity in the contract” (¶ 21).

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