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    Wisconsin Lawyer
    February 09, 2022

    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

    Searches – Emergency Aid – Residential Searches

    State v. Ware, 2021 WI App 83 (filed 4 Nov. 2021) (ordered published 27 Dec. 2021)

    HOLDING: A warrantless search of a garage was justified by the “emergency aid” doctrine.

    SUMMARY: A 911 caller reported observing a large pool of blood in a home’s garage. The caller lived in the home with its owner, the defendant, who was the owner’s son, and a young woman whose body was later discovered in the garage. The owner refused to consent to a search of the home despite police concerns about the victim’s whereabouts. While waiting for a search warrant, police officers observed the blood pool near a truck parked in the garage, which was attached to the house. The caller had opened the garage door for police officers, who then entered and discovered the victim’s body in the truck. They had no search warrant.

    The circuit court denied the defendant’s motion to suppress the evidence found in the garage, and a jury convicted him of homicide and assorted felonies.

    The court of appeals affirmed in an opinion authored by Judge Fitzpatrick, which rejected the defendant’s claim that the warrantless search was unlawful. Initially, the state justified the search under the community caretaking doctrine but, while this case was pending, the U.S. Supreme Court held in Caniglia v. Strom, 141 S. Ct. 1596 (2021), that the community caretaking exception “does not authorize the warrantless search of a residence” (¶ 2).

    Pivoting to the “emergency aid exception,” the appellate court found the warrantless search justified under a two-part test explained in prior cases. First, “there was an immediate need to provide aid or assistance to a person due to actual or threatened physical injury” (¶ 23). The blood pool in the garage, for example, provided reasonable justification for the entry and search for the victim (see ¶ 26).

    Second, the police officers had an objectively reasonable basis to believe that an “immediate entry” was necessary to provide assistance (see ¶ 27). The emergency aid exception “does not require that officers personally observe indications of an ongoing medical emergency” (¶ 30).

    Sentencing – Sentence Credit – Wis. Stat. § 973.10 (2)(b)

    State v. Slater, 2021 WI App 88 (filed 2 Nov. 2021) (ordered published 27 Dec. 2021)

    HOLDING: The defendant is entitled to sentence credit in the present case for time he spent in the county jail awaiting trial after his probation in a previous case was revoked.

    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.

    SUMMARY: Defendant Slater was on probation in a prior case involving the possession of drugs (“the drug case”) when he was arrested and charged with three counts of armed robbery in the present case (“the armed robbery case”). Slater’s arrest on the armed robbery charges triggered a probation hold in the drug case, and his probation was later revoked.

    Slater was not, however, transferred to prison to begin serving his previously imposed-and-stayed sentence in the drug case. Instead, after Slater’s probation was revoked, he remained in the Marathon County jail for more than three years awaiting resolution of the armed robbery case. He was ultimately convicted of the three armed robberies and sentenced to lengthy prison terms on each of them. [Note: The circuit court did not specify whether the armed robbery sentences were to be served concurrently or consecutively to the imposed-and-stayed sentence in the drug case. In these circumstances, an appellate court presumes that the sentences are concurrent (see ¶ 4).]

    In a postconviction motion, Slater argued that he is entitled to sentence credit against his armed robbery sentences for the three years he spent in custody in the county jail after his probation was revoked in the drug case. The circuit court denied the motion. It relied on State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985), in which the supreme court held that the connection between a defendant’s presentence custody and the course of conduct for which sentence is imposed is severed when the defendant begins serving a sentence in a different case. The circuit court concluded that Beets defeated Slater’s claim for additional sentence credit because Slater began serving his previously imposed-and-stayed sentence in the drug case when his probation in that case was revoked (see ¶ 13).

    In an opinion authored by Judge Stark, the court of appeals reversed. It agreed with Slater that under the plain language of Wis. Stat. section 973.10 (2)(b), his imposed-and-stayed sentence in the drug case did not begin to run until the date he entered prison following his sentencing in the armed robbery cases. It further agreed with the defendant that under Beets,the revocation of his probation in the drug case did not sever the connection between his presentence custody and the course of conduct for which his sentences on the armed robbery charges were imposed (see ¶ 14).

    Accordingly, Slater is entitled to sentence credit against his armed robbery sentences for the three years that he spent in custody in the county jail after his probation in the drug case was revoked (see ¶ 4).

    Restitution – Repair or Replace

    State v. Stone, 2021 WI App 84 (filed 17 Nov. 2021) (ordered published 27 Dec. 2021)

    HOLDING: The circuit court properly ordered the defendant to pay the cost of repairing the victim’s vehicle, which exceeded the vehicle’s total value.

    SUMMARY: The defendant was arrested for operating while intoxicated and operating a vehicle without the owner’s consent in 2017. The vehicle was badly damaged and had to be towed to the victim’s property, where it sat unrepaired. The defendant had a mental illness and entered a no-contest plea in 2019. At the restitution hearing, the court heard evidence that the cost of repairing the damaged vehicle was about $5,500 and its value only about $2,400. The trial judge ordered the defendant to pay the cost of repair, even though the defendant’s income was only about $600 per month and he resided in a group home per a Wis. Stat. chapter 51 commitment. (The defendant passed away while the appeal was pending but the court of appeals concluded that his death did not moot this appeal.)

    The court of appeals affirmed the restitution order in an opinion authored by Judge Grogan, which construed the controlling statute, Wis. Stat. section 973.20 (see ¶ 10). The statute gives the trial judge three options in determining restitution: 1) the reasonable repair cost, 2) the reasonable replacement cost, and 3) the property’s value at a specified time (see ¶ 14). Although the cost of repair was more than twice the vehicle’s value, the circuit court properly exercised its discretion in ordering the cost of repair. The Kelly Blue Book value did not compel a different choice (see ¶ 17).

    The trial judge also properly weighed the defendant’s meager ability to pay, which came to about $113 per month (see ¶ 22). The $113 represented his “extra money” after paying his living costs (¶ 23).

    Judge Reilly dissented. The trial judge erred in awarding the repair cost instead of the replacement cost, especially because the victim testified that her plan was to replace, not repair, the truck regardless of the measure of the restitution order (see ¶ 24).

    Motor Vehicle Law

    Fleeing an Officer – Multiplicity

    State v. Wise, 2021 WI App 87 (filed 16 Nov. 2021) (ordered published 27 Dec. 2021)

    HOLDING: The defendant’s several convictions for fleeing an officer arising out of a single high-speed chase were not multiplicitous.

    SUMMARY: Wis. Stat. section 346.04(3) defines the basic offense of fleeing an officer after having received a visual or audible signal from the officer to stop. Wis. Stat. section 346.17(3)(a) provides that this basic offense is punishable as a Class I felony. However, section 346.17 also provides that if the fleeing results in death of another, the actor is guilty of a Class E felony [Wis. Stat. § 346.17(3)(d)]; if the fleeing results in great bodily harm to another, the actor is guilty of a Class F felony [Wis. Stat. § 346.17(3)(c)]; and if the fleeing results in bodily harm to another or damage to the property of another, the actor is guilty of a Class H felony [Wis. Stat. § 346.17(3)(b)].

    The defendant in this case was involved in a high-speed chase ending in a crash that killed one of his passengers, injured another passenger, and caused property damage to two other vehicles. As a result, he was convicted of four felonies: a Class E felony for causing death, a Class F felony for causing great bodily harm, and two Class H felonies for causing damage to the two other vehicles. On appeal, the defendant alleged that he received ineffective assistance of counsel because his attorney failed to seek dismissal of three of the four charges against him on grounds that they were multiplicitous. In an opinion authored by Judge Dugan, the court of appeals affirmed.

    The established methodology for reviewing a multiplicity claim is a two-step test. First, the court determines whether the charged offenses are identical in law and in fact. If they are identical in law and in fact, a presumption arises that the legislature did not intend to punish the same offense under multiple different statutes. If they are not identical in law and in fact, a presumption arises that the legislature did intend to permit multiple cumulative punishments (see ¶¶ 10-11).

    The court of appeals concluded that the offenses of fleeing an officer causing death, great bodily harm, and property damage are not the same in law because each requires proof of elements that the others do not. It disagreed with the defendant’s argument that Wis. Stat. section 346.04(3) sets forth only two elements of the offense of fleeing or eluding a police officer and that Wis. Stat. section 346.17(3) is merely a penalty statute that sets forth no additional elements for an offense under Wis. Stat. section 346.04(3).

    Rather, the court of appeals concluded that, “reading these statutes together, § 346.17(3)(b)-(d) provides additional elements to the offense stated in § 346.04(3) when death, great bodily harm, or property damage is involved, as it was in [the defendant’s] case” (¶ 15). “[W]e interpret § 346.17(3) to define stand-alone crimes that address separate harms, whether it is the simple act of fleeing or eluding as defined in Wis. Stat. § 346.04(3), or a separate harm committed during the course of the act of fleeing or eluding an officer…. [E]ach paragraph in § 346.17(3) sets forth a different felony classification and a particular harm to be addressed, and the proof of that particular harm constitutes an additional element of the offense of fleeing or eluding” (¶ 18).

    It is true that two of the charges against the defendant were identical in law: the two counts alleging that he caused damage to the property of two separate victims. However, these counts were not identical in fact. Each required proof of separate harms to separate victims (see ¶ 23).

    Having concluded that the charges against the defendant were not identical in law and in fact, a presumption arose that the legislature intended to permit cumulative punishments. To overcome that presumption, the defendant bore the burden of proving clear legislative intent to the contrary – a showing that he failed to make in this case (see ¶¶ 26-32).

    Because the charges against the defendant were not multiplicitous, the court of appeals concluded that the defendant’s attorney was not ineffective for failing to raise a multiplicity claim (see ¶ 33).

    OWI – Driving Under the Influence of Controlled Substances – Jury Instructions – Sufficiency of Evidence

    State v. McAdory, 2021 WI App 89 (filed 18 Nov. 2021) (ordered published 27 Dec. 2021)

    HOLDING: The defendant’s right to due process was violated because there is a reasonable likelihood that the state was relieved of its burden to prove the elements of the crime with which he was charged.

    SUMMARY: A jury found defendant McAdory guilty of two driving-related offenses after hearing evidence that a chemical test of a sample of his blood, drawn after he was arrested, showed the presence of cocaine and marijuana. The two offenses were operating a motor vehicle while intoxicated, in violation of Wis. Stat. section 346.63(1)(a) (referred to in this opinion as “the impaired-by-drugs offense”); and operating with a restricted controlled substance, in violation of Wis. Stat. section 346.63(1)(am) (referred to as “the strict-liability offense”). Under the statutory dual-prosecution scheme, in this situation there can be only one conviction, not two. After the trial, the state elected to move to dismiss the strict-liability offense, and the circuit court entered a conviction on the impaired-by-drugs offense and proceeded to sentencing. This was the defendant’s eighth OWI conviction.

    On appeal the defendant argued that the evidence was insufficient to support the conviction on the impaired-by-drugs offense. In a fact-intensive opinion authored by Judge Blanchard, the court of appeals disagreed. “[G]iven the combination of significant indicia of impairment summarized [in the opinion] and the fact that cocaine and THC were in his system, the evidence was sufficient” to support the conviction (¶ 37).

    But the court described this as a “close case.” Though the jury had evidence before it about the amounts of cocaine and THC in the defendant’s blood, “[w]hat makes this a close case is the fact that … the jury did not have before it even a small amount of evidence regarding the particular impairing effects of the levels of cocaine and THC detected in the chemical test” (¶ 26).

    Although the evidence was sufficient, the court of appeals nonetheless reversed the defendant’s conviction on due-process grounds. Of significance here is the circuit court’s modification of the standard jury instruction regarding the impaired-by-drugs offense. See Wis. JI-Criminal 2664. The court did instruct the jury that “under the influence” means that “the defendant’s ability to operate a vehicle was impaired because of consumption of a controlled substance” (¶ 46). It also instructed the jury that “it is not required that impaired ability to operate be demonstrated by particular acts of unsafe driving. What is required is that the person’s ability to safely control the vehicle be impaired” (id.).

    However, over the objection of defense counsel and at the general urging of the prosecutor, the judge removed the following language from the standard jury instruction: “Not every person who has consumed [a controlled substance] is ‘under the influence’ as that term is used here. What must be established is that the person has consumed a sufficient amount [of the controlled substance] to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle” (id.).

    In some cases, the language that was omitted from the standard jury instruction might not contribute to the creation of a due-process violation (see ¶ 65). However, in this case, the court concluded that “there is a reasonable likelihood that the State was effectively relieved of its burden to prove that McAdory was ‘under the influence’ of cocaine and marijuana while driving” (¶ 2).

    The modified instruction created ambiguity given the manner in which this case was tried. As discussed above, there was only limited evidence that the defendant was “under the influence” of cocaine and marijuana at the time of driving. Moreover, the prosecutor made repeated and inaccurate arguments to the jury that all that mattered on the second element of the impaired-by-drugs offense (the element requiring proof that the defendant was “under the influence” of a controlled substance at the time of driving) was that there were detectible amounts of the controlled substances in the defendant’s blood. This left the “strong impression” that mere consumption of cocaine and THC necessarily constituted being “under the influence” (¶ 65).

    In a footnote, the court of appeals observed that the issues addressed in this appeal “would not have arisen if the State had instead elected to dismiss the impaired-by-drugs offense and asked the circuit court to proceed to sentencing on the strict liability offense” (¶ 1 n.2).

    Sexually Violent Persons

    Wis. Stat. chapter 980 – Supervised Release – Intervention by Town

    Town of Mentor v. State, 2021 WI App 85 (filed 11 Nov. 2021) (ordered published 27 Dec. 2021)

    HOLDING: The circuit court properly rejected a town’s motion to intervene in a Wis. Stat. chapter 980 supervised release proceeding.

    SUMMARY: Montgomery was convicted of sexually assaulting children in 1994 and was ordered committed under Wis. Stat. chapter 980 in 2001. In late 2019, the state and Montgomery stipulated that he was eligible for supervised release as provided by chapter 980. In consultation with the county sheriff, a statutorily designated committee provided a placement report, which recommended Montgomery’s placement in the town of Mentor. The town moved to intervene. Following a hearing, the circuit court denied the town’s motion to intervene.

    The court of appeals affirmed in an opinion authored by Judge Blanchard. First, the town failed to establish at least one of the four required elements required for intervention as a matter of right under Wis. Stat. section 803.09(1). Specifically, the town did “not show that its ability to protect its only properly understood interest is impaired as a practical matter by Montgomery’s residential placement in the Town under § 980.08(4)(dm)” (¶ 22). The opinion limits the reach of State v. McGee, 2017 WI App 39, 376 Wis. 2d 413, 899 N.W.2d 396, under the current version of chapter 980: “the Town’s role here as a potential intervenor would not be as a statutorily mandated participant, but instead as an interested party seeking to make arguments about whether the existing parties had taken sufficient steps to see that the statutory process has been complied with” (¶ 28).

    The town’s arguments rested “heavily” on its “premise” that the parties had not complied with Wis. Stat. section 980.08 (¶ 32). Yet the “fatal defect in the Town’s argument is that it fails to establish any violation of the procedures set forth” in the statute (¶ 34). The opinion identifies several ways in which the town failed in this effort (see ¶ 39). For example, the county sheriff’s department filled the role of “local law enforcement agency” under the statute; the town’s police department did not have to be (and was not) consulted.

    Second, on this record the town forfeited its argument that it be allowed to intervene on grounds that a later expert report questioned Montgomery’s eligibility for supervised release. The town failed to raise this argument with the circuit court (see ¶ 45).


    Leases – Exemptions – Sales Tax

    Citation Partners LLC v. Wisconsin Dep’t of Revenue, 2021 WI App 86 (filed 23 Nov. 2021) (ordered published 27 Dec. 2021)

    HOLDING: The total amount paid on an aircraft lease is subject to sales tax without deductions for aircraft maintenance.

    SUMMARY: Citation Partners LLC leases aircraft to customers using a lease form that requires Citation to schedule and pay for all repairs and maintenance and that, in turn, obligates the lessees to “reimburse” Citation. The Wisconsin Department of Revenue ruled that under current tax laws the entire amount of the lease, including the maintenance and repair payments, is subject to sales tax. The Tax Appeals Commission agreed. The circuit court, however, ruled that such payments are statutorily exempt.

    The court of appeals reversed in an opinion authored by Judge Donald. The case involves the interpretation of tax statutes, and the court applied the de novo standard of review to the commission’s decision (see ¶ 21). The plain language of the applicable statutes “provides that a five percent sales tax is applied to the ‘total amount of consideration’ received without any deduction for costs or expenses” (¶ 23). Taxpayers, such as Citation, “cannot avoid taxation by dividing up [the] lease price into categories and affixing labels” (¶ 24).

    The court also rejected Citation’s argument that the payments for engine and aircraft maintenance were exempt by statutory changes made in 2014. Exemptions are “strictly construed against granting an exemption” (¶ 27). Ambiguities are resolved in favor of taxation. “While the direct purchase of a repair or maintenance service or of an aircraft part may qualify for a sales tax exemption, leases are not exempt from sales tax under the statute” (¶ 31).

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