Criminal Procedure – Criminal Law
Plea Negotiations – Breach – Aiding and Abetting the Crime of Theft
State v. Tourville, 2016 WI 17 (filed 15 March 2016)
HOLDINGS: 1) When a plea agreement is silent regarding concurrent or consecutive sentences, the defendant has not bargained for the state’s promise to refrain from recommending the sentences be served consecutively. 2) There was a sufficient factual basis to support the defendant’s guilty plea to the crime of felony theft as a party to the crime.
SUMMARY: Defendant Tourville entered pleas of guilty to multiple crimes pursuant to a plea agreement. The agreement committed the prosecutor to capping the state’s sentencing recommendation “at the high end of what the PSI [presentence investigation report] orders.” The agreement was silent with respect to whether the state would recommend that the sentences be served concurrently or consecutively.
edu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
edu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
At the sentencing hearing, the prosecutor argued for sentences at the maximum amount recommended by the PSI and further argued that the sentences should be served consecutively. The PSI made no recommendation regarding concurrent versus consecutive sentences. The circuit court imposed consecutive sentences.
On appeal, the defendant argued that his counsel was ineffective at sentencing by failing to argue that the prosecutor breached the plea agreement by arguing for consecutive sentences; he also contended that there was an insufficient factual basis to support one of the convictions (felony theft as a party to the crime). In an unpublished decision, the court of appeals affirmed. In a unanimous decision authored by Justice Ann Walsh Bradley, the supreme court affirmed.
The supreme court concluded that the state did not breach the plea agreement when it recommended consecutive sentences. The plea agreement was silent on the matter of concurrent versus consecutive sentences. “[W]hen a plea agreement is silent regarding concurrent or consecutive sentences, the defendant has not bargained for the State’s promise to refrain from recommending the sentences be served consecutively” (¶ 36). Because the state did not breach the plea agreement, defense counsel was not ineffective for failing to object to the state’s sentencing recommendation (see ¶ 37).
The supreme court further concluded that there was a sufficient factual basis to support the defendant’s conviction for felony theft as a party to the crime. The theft originated with the taking of a safe containing firearms and other tools. The defendant did not participate in the original taking.
However, the men who did participate then called Tourville and advised him that they had a safe and needed both a place to take it and help to break it open. They picked Tourville up at his residence and then went to Tourville’s campsite at a resort. After they all participated in opening the safe, Tourville advised the other men where to dispose of it. Ultimately, they disposed of the safe in a swamp. The men drove Tourville home, dropped him off, and later paid him in cash for his assistance.
Said the court, “[t]hese facts provide a sufficient basis for Tourville’s guilty plea to the charge of party to the crime of felony theft” (¶ 51). “He willingly aided others who engaged in felony theft by taking them to his campsite, helping them open the safe, and disposing of the property” (¶ 53). “‘With regard to the crime of larceny in particular, it is generally held that one may be guilty of larceny as a principal where the crime was incomplete until he contributed his aid in the transportation or taking possession of and removal of stolen property’” (¶ 50) (quoting State v. Grady, 93 Wis. 2d 1, 6, 286 N.W.2d 607 (Ct. App. 1979)).
Grandparent Visitation – Wis. Stat. Section 767.43(1) – Proof of “Parent-Child Relationship” Not Required
S.A.M v. Meister, 2016 WI 22 (filed 7 April 2016)
HOLDING: Wisconsin Statutes section 767.43(1) does not require a grandparent, greatgrandparent, or stepparent who files a motion for visitation rights under this subsection to prove that he or she has maintained a relationship similar to a parent-child relationship with the child.
SUMMARY: This is a statutory construction case that arose from the petition of a grandparent for visitation rights to her grandchildren. Under the provisions of Wis. Stat. section 767.43(1), a “grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child” may file a motion for visitation rights. The issue before the court was whether the “parent-child relationship” requirement applies only to the “person” category listed in the statute or whether it applies to a “grandparent, greatgrandparent, [and] stepparent” as well.
The circuit court concluded that every petitioner under this subsection must demonstrate a parent-child relationship with the child to obtain visitation rights. In an unpublished opinion, the court of appeals affirmed, citing its decision in Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347, in which the court stated that grandparents filing a motion under Wis. Stat. section 767.43(1) must, among other things, prove a “parent-like relationship” with the child to secure visitation rights.
In a majority decision authored by Justice Prosser, the supreme court reversed the court of appeals. It concluded that “Wis. Stat. § 767.43(1) does not require a grandparent, greatgrandparent, or stepparent who files a motion for visitation rights under this subsection to prove that he or she ‘has maintained a relationship similar to a parent-child relationship with the child.’ Rather, the parent-child relationship element applies only to a ‘person’ seeking visitation rights who is not a grandparent, greatgrandparent, or stepparent” (¶ 6).
The court further held that “the legislature’s decision to allow courts to grant visitation rights to grandparents, greatgrandparents, and stepparents when visitation is in the best interest of the child does not unconstitutionally infringe on parents’ constitutional rights because any best interest determination must give special weight to a fit parent’s decisions regarding the child’s best interest” (id.).
The court concluded its decision by noting “that while our decision eliminates one unintended impediment for grandparents, greatgrandparents, and stepparents who seek visitation rights under Wis. Stat. § 767.43(1), it does not guarantee that they will prevail. The court must not only consider the constitutional rights of the parents but also decide, in its sound discretion, whether the facts and circumstances of the case warrant granting, modifying, or denying a visitation petition in the best interest of the child” (¶ 47).
Justice Ziegler filed a concurring opinion in which she joined all but one paragraph of Justice Prosser’s opinion (a disagreement that did not affect the court’s conclusion about the meaning of the statute in question); Justice Gableman joined this concurrence. Justice Abrahamson filed a separate concurrence.
Justice Rebecca G. Bradley did not participate in this case.
Recreational Immunity – Releases
Roberts v. T.H.E. Ins. Co., 2016 WI 20 (filed 30 March 2016)
HOLDING: The operator of a hot-air-balloon ride service was not entitled to recreational-use immunity, and its liability waiver form violated public policy.
SUMMARY: Sundog Ballooning offered hot-air-ballooning rides at a charity event on land owned by a conservation group. Roberts signed a waiver of liability and was waiting in line for her turn when one of the tethered balloons broke loose from its mooring, striking and injuring her. Roberts sued Sundog. The circuit court and the court of appeals determined that Sundog was entitled to recreational-use immunity.
The supreme court reversed in an opinion authored by Justice Ann Walsh Bradley. Neither party disputed that Roberts was engaged in a recreational activity (a balloon ride), and case law clearly extends the immunity to injured spectators (standing in line). Nonetheless, this case differed from others because Roberts did not sue the event producer or the owner of the property.
“None of the prior cases interpreting Wis. Stat. § 895.52 has granted immunity to a third party not responsible for opening up the land to the public” (¶ 33). “Sundog provided hot air balloon rides on land that was owned by the Conservationists and occupied by Green Valley [the event producer]. Immunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public” (¶ 37). Nor were Sundog’s hot air balloons “structures” and thus “property” protected by the statute (¶ 46).
The court also held that the exculpatory release Roberts signed was void on public policy grounds. It was overly broad and all inclusive, effectively absolving Sundog “for any activity for any reason, known or unknown” (¶ 59). Moreover, it was a standard form agreement, allowing no opportunity to bargain or negotiate (see ¶ 61).
Justice Ziegler concurred, writing separately to emphasize that “the recreational immunity statute does not cloak a negligent actor with immunity no matter what they do” (¶ 67). She offered a hypothetical involving an “outdoor rock-climbing business” (¶ 76).
Justice Prosser, joined by Chief Justice Roggensack, concurred in the majority’s conclusion that the liability waiver form violated public policy. They dissented, however, on the recreational-use-immunity issue, also (mostly) joining the lone dissent by Justice Rebecca G. Bradley.
Justice Rebecca G. Bradley dissented. She concluded that Sundog was an “owner” for purposes of the recreational-immunity statute because it “actually us[ed] the land during a charity event” (¶ 132).