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    Wisconsin Lawyer
    May 01, 2017

    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 Procedure

    Guilty Plea Hearings – Participation of Defendant by Telephone

    State v. Anderson, 2017 WI App 17 (filed 22 Feb. 2017) (ordered published 29 March 2017)

    HOLDING: The circuit court’s waiver colloquy regarding the defendant’s right to be present at his guilty-plea hearing was inadequate.

    SUMMARY: Defendant Anderson sought to withdraw his guilty plea to second-degree sexual assault; the circuit court denied his motion. On appeal he argued that the court should have allowed him to withdraw his plea because his statutory right to be present at his plea hearing, during which the court pronounced judgment, was violated when he appeared at that hearing by telephone. Anderson further contended that he did not knowingly, intelligently, and voluntarily waive his right to be present at his plea hearing.

    In the alternative, he argued that the fact that he was not present in the same room as his lawyer during the plea hearing violated his Sixth Amendment right to counsel. For the reasons discussed below, the court of appeals, in a majority decision authored by Judge Stark, reversed the circuit court.

    The guilty-plea hearing during which judgment was pronounced was conducted by telephone. The judge, the prosecutor, and defense counsel were together in the judge’s courtroom; the defendant participated by telephone from prison. Video equipment to conduct the hearing via the internet was not available.

    The appellate court first addressed whether the defendant’s right to counsel was violated because he was not in the same room as his lawyer during the plea hearing. The Sixth Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the case, including plea hearings. The defendant claimed that his physical separation from his lawyer was tantamount to a complete denial of counsel and that, under United States v. Cronic, 466 U.S. 648 (1984), this is structural error that is legally presumed to prejudice a defendant.

    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.

    The appellate court declined to apply Cronic in the circumstances of this case and instead determined that the defendant’s claim should be addressed under ineffective-assistance-of-counsel standards articulated in Strickland v. Washington, 466 U.S. 668 (1984). It concluded that the defendant did not develop any argument on appeal that his lawyer was ineffective under the Strickland standards, which require proof of deficient performance and prejudice (see ¶ 27).

    The appellate court did agree with the defendant that under Wis. Stat. section 971.04(1), as interpreted in State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848, he had a statutory right to be present in person for his plea hearing, in the same courtroom as the presiding judge (¶ 29). The disputed issue was whether he waived his right to be present in the same courtroom as the presiding judge by agreeing to proceed with the plea hearing by telephone. In the Soto case, in which the defendant was with his lawyer in a courtroom and entered his plea through the videoconference medium with the judge who was in a different courtroom, the supreme court set forth two requirements that must be met to ensure a valid waiver when videoconferencing is proposed for a plea hearing at which it is anticipated judgment will be pronounced.

    “First, the circuit court ‘should enter into a colloquy with the defendant that explores the effectiveness of the videoconferencing then being employed.’ Specifically, the court, ‘shall ascertain whether the defendant and his attorney, if represented by counsel, are able to see, speak to and hear the judge and that the judge can see, speak to and hear the defendant and counsel.’ Second, the court ‘shall ascertain, either by personal colloquy or by some other means, whether the defendant knowingly, intelligently, and voluntarily consents to the use of videoconferencing. In so doing, questions should be asked to suggest to the defendant that he has the option of refusing to employ videoconferencing’” (¶ 33) (citations omitted).

    Said the court of appeals, “[W]hile Soto describes what a circuit court should do to establish a valid waiver of the defendant’s right to be present at his or her plea hearing when the defendant appears by videoconferencing or similar technology, is in a courtroom, and is in the same room as his or her attorney, we conclude more is required when, as in Anderson’s case, the defendant appears by telephone, from prison, and is physically separated from counsel. Under these circumstances, we hold that a valid waiver of the defendant’s right to be present must be predicated upon a colloquy that unambiguously informs the defendant he or she has a right to be physically present for the plea hearing in the same courtroom as the presiding judge. In addition, the court must specifically inquire, as often and in whatever manner necessary under the circumstances, whether the defendant is able to hear and understand the court and the other participants” (¶ 42).

    The appellate court concluded that the record in this case “clearly shows that the circuit court’s colloquy in the instant case clearly fell short of these requirements. The court never plainly informed Anderson he had a right to be physically present in the courtroom for his plea hearing, nor did the court inquire, at any point during the hearing, whether Anderson could hear and understand the court and the other participants. Anderson has therefore demonstrated that, under the specific facts of this case, the circuit court’s waiver colloquy was insufficient” (¶ 43).

    The court also concluded that even if the colloquy in Anderson’s case were measured against the less demanding standards of Soto, it would still be inadequate (see ¶¶ 44-50).

    The court of appeals remanded the matter to the circuit court for a new postconviction hearing at which the state will have the burden of proving by clear and convincing evidence that Anderson knowingly, intelligently, and voluntarily waived his right to be present at his plea hearing (see ¶ 59).

    Judge Hruz filed a concurring opinion.

    Computer Searches – Probation

    State v. Keller, 2017 WI App 19 (filed 8 Feb. 2017) (ordered published 29 March 2017)

    HOLDING: A warrantless search of a computer was lawfully carried out as a probation search.

    SUMMARY: A condition of defendant Keller’s probation provided that he could not possess or use a computer without his agent’s prior approval. When the probation agent suspected Keller had violated this condition, she seized computer equipment from his dwelling. Lacking the ability to search the computer herself, the agent requested that a Wisconsin Department of Justice Division of Criminal Investigation (DCI) investigator conduct a search.

    The agent ordered the search stopped when the investigator discovered a suspected image of child pornography. A later search conducted under auspices of a search warrant revealed child pornography. The circuit court granted Keller’s motion to suppress on grounds that the initial warrantless search was not a lawful probation search.

    The court of appeals reversed in an opinion authored by Judge Reilly. Without dispute, the agent had lawfully seized Keller’s computer equipment (see ¶ 9). Case law holds “that as long as there are ‘reasonable grounds’ to believe a probationer has contraband, a probation agent will almost always have the right to search the contraband itself without a warrant. The special need for ensuring that probationers are rehabilitated and that the public is protected creates an exception to the warrant or probable cause requirement for reasonable searches” (¶ 14).

    In sum, the initial search at the agent’s request was a lawful probation search, not a “police” search. “[A]n agent has the authority to examine not only whether a probationer has contraband but also has the right to determine the ‘extent’ of the violation. Keller’s probation agent lawfully seized contraband from Keller but did not have the ability to examine the contents of the contraband” (¶ 17) (citation omitted). The case law permits such assistance because “the agent here did not have the ability to forensically examine the extent of Keller’s use of the computer” (id.).

    Employment Law

    Unemployment Benefits – Termination – Inadvertent Error

    Easterling v. LIRC, 2017 WI App 18 (filed 2 Feb. 2017) (ordered published 29 March 2017)

    HOLDING: A Labor and Industry Review Commission (LIRC) decision denying a claim for unemployment benefits because of alleged “substantial fault” was unsupported by the evidence of intentional conduct.

    SUMMARY: A driver for Badger Bus, Paulina Easterling, was fired after a bus passenger in an unsecured wheelchair fell over during the bus ride. She applied for unemployment benefits, which were denied. LIRC found that she had been fired because of her “substantial fault” in the wheelchair-tipping incident. The circuit court affirmed.

    The court of appeals reversed in an opinion authored by Judge Sherman. The “dispositive issue” boiled down to whether Paulina’s failure to secure the wheel chair was intentional or inadvertent (¶ 11). LIRC conceded that its findings only supported inadvertence (the driver was overwhelmed by the number of riders) but argued that other facts supported denial.

    The court was unconvinced. “LIRC points to no pattern of conduct, no admission or action inconsistent with inadvertence, or other substantial evidence that could support a finding that Easterling acted intentionally” (¶ 19).

    Municipal Law

    Municipal Ordinance – Vagueness Doctrine – “Organizer”

    City of Oshkosh v. Kubiak, 2017 WI App 20 (filed 15 Feb. 2017) (ordered published 29 March 2017)

    HOLDING: The term “organizer” as used in a particular municipal ordinance is not unconstitutionally vague.

    SUMMARY: The city of Oshkosh special-events ordinance requires an “organizer” of an event to apply for a permit and pay the city for any extraordinary services associated with that event. Specifically, the ordinance provides that “[n]o person or entity acting as an event organizer shall set up for, hold, or conduct a Special Event … without first obtaining a … permit” (¶ 2).

    For several years defendant Kubiak applied for a permit and paid the required costs as the purported organizer of semi-annual gatherings called the Oshkosh Pub Crawl. However, in 2014, he refused to comply, and the city filed suit. After a bench trial, the circuit court concluded that the term “organizer” as used in the ordinance was unconstitutionally vague and dismissed the suit. In a decision authored by Judge Hagedorn, the court of appeals reversed.

    Procedural due process requires that an ordinance provide fair notice and proper standards for adjudication; an ordinance is vague when it fails to do so (see ¶ 10). Civil ordinances are reviewed more deferentially than criminal statutes because the consequences of imprecision are qualitatively less severe (see ¶ 11).

    In this case the appellate court concluded that “people of ordinary intelligence can read and sufficiently understand the requirements of the Ordinance. To ‘organize’ means to ‘arrange by systematic planning and coordination of individual effort.’ Organize, Webster’s Third New International Dictionary 1590 (1993). Other standard definitions incorporate the same concept of planning, structure, and coordination…. The Ordinance confirms this definition. It provides that only those who ‘set up for, hold, or conduct a Special Event’ are required to apply for a permit and pay for ‘Extraordinary Services.’ By describing the conduct of an ‘organizer,’ the Ordinance restricts its applicability to those who take an active role in the Special Event, not merely those who encourage others to attend” (¶ 14).

    Accordingly, the court concluded that the term “organizer” as used in the ordinance is not unconstitutionally vague.


    Billboard Permits – Taxation as Real Property

    Clear Channel Outdoor Inc. v. City of Milwaukee, 2017 WI App 15 (filed 21 Feb. 2017) (ordered published 29 March 2017)

    HOLDING: The city of Milwaukee lawfully assessed billboard permits as real property for the tax years 2009-2013.

    SUMMARY: This case presented a narrow issue: whether the city of Milwaukee properly assessed the billboard permits of Clear Channel Outdoor Inc. as real property for the years 2009-2013. Clear Channel brought this excessive assessment action under Wis. Stat. section 74.37 (2011-12), raising statutory and constitutional challenges (“as-applied” equal-protection and uniformity-clause challenges) to the city’s tax assessments on approximately 850 billboard permits for each year from 2009 through 2013. Clear Channel sought a declaratory judgment that the assessments were invalid and a refund of the taxes paid on the grounds that it was improper to assess the billboard permits as real property.

    The city responded that Wis. Stat. chapter 70 and Adams Outdoor Advertising Ltd. v. City of Madison, 2006 WI App 104, 294 Wis. 2d 441, 717 N.W.2d 803, established that the billboard permits were taxable real property; it further contended that there was no constitutional violation.

    The circuit court ruled that the city’s assessments were proper. In a decision authored by Judge Brennan, the court of appeals agreed, holding that the billboard permits were taxable as real property under the provisions of Wis. Stat. chapter 70 that applied to the years in question (2009-2013); it also concluded that taxation of the billboards did not violate the equal protection and uniformity clauses.

    (Editors’ Note: The legislature changed the law in 2014 (effective Jan. 1, 2014) to specifically exclude taxation of billboard permits as real property, negating the applicability of the case law relied upon in this decision. See 2013 Wis. Act 20 §§ 1278d., 1278e., 9337(10d), creating Wis. Stat. § 70.03(2). The court of appeals noted that “the record includes a transcript of the legislative committee hearing concerning this legislative action. The transcript shows that the legislature expressly considered and rejected retroactive application of the provision” (¶ 1 n.3).)


    Recreational Immunity – Supervising a Child

    Wilmet v. Liberty Mut. Ins. Co., 2017 WI App 16 (filed 28 Feb. 2017) (ordered published 29 March 2017)

    HOLDING: The supervision of a child engaged in recreational activity falls within the immunity granted for recreational activities by Wis. Stat. section 895.52.

    SUMMARY: The plaintiff was injured when she tripped over a doorstop at a municipal swimming pool. She was at the pool to watch her grandchildren. The circuit court granted summary judgment in favor of the city, finding that the plaintiff’s conduct fell within the immunity granted for recreational activities by Wis. Stat. section 895.52.

    The court of appeals affirmed in an opinion authored by Judge Hruz. The undisputed facts showed that the plaintiff tripped as she walked through a locker room toward the pool for purposes of supervising her grandson, who was on the high dive. “Water sports” are designated activities under Wis. Stat. section 895.52(1)(g). The parties’ dispute centered on whether plaintiff’s supervision of the grandchild also precluded liability (see ¶ 12).

    The court held “that ‘supervising’ other persons, who are themselves engaged in recreational activities, is a ‘recreational activity’ within the meaning of Wis. Stat. [section] 895.52(1)(g). Such supervision involves actively overseeing or directing the performance of the recreational activity of another. Thus, ‘supervision’ is akin to, and subsumed within, ‘practice’ and ‘instruction’ in a recreational activity, which the legislature specifically identified as giving rise to immunity. In addition, conferring recreational immunity for supervision is consistent with the legislature’s purpose in enacting [Wis. Stat. section] 895.52” (¶ 25).

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