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Vol. 72, No. 7, July 1999 |
Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Criminal Procedure | Damages
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| Employment Law | Evidence
| Legal Malpractice |
| Real Property | Realtors
| Zoning |
Criminal Procedure
Guilty Plea Withdrawal - Failure to Advise
Defendant Regarding Federal Firearms Disability
State v. Kosina,
No. 98-3421-CR (filed 27 April 1999) (ordered published 26 May
1999)
The defendant was charged with one count of disorderly conduct
arising out of an incident of domestic violence. He entered a
plea of guilty to the charge without the assistance of counsel.
He subsequently filed a post-conviction motion to withdraw his
guilty plea alleging that he entered the plea without knowing
that his conviction could result in the loss of his right to
possess a firearm under those federal statutes that prohibit
one convicted of a misdemeanor involving domestic violence from
possessing firearms or ammunition. The circuit court denied post-conviction
relief and concluded that the effect of the federal firearms
statutes was a collateral consequence of the defendant's
guilty plea. The court of appeals, in a decision authored by
Judge Myse, affirmed.
Section
971.08(1)(a) of the Wisconsin Statutes requires the judge
taking a plea to determine that the plea is made voluntarily
and with understanding of the nature of the charge and the potential
punishment the defendant faces. A plea is not knowingly, voluntarily,
and intelligently entered, and a manifest injustice results when
a defendant does not know what sentence could actually be imposed.
An understanding of potential punishments or sentences includes
knowledge of the direct consequences of the plea, but does not
require that a defendant be informed of consequences that are
collateral to the plea. A direct consequence of a plea has a
definite, immediate, and largely automatic effect on the range
of a defendant's punishment. A collateral consequence does
not automatically flow from the plea. In some cases a particular
consequence is deemed "collateral" because it rests
in the hands of another government agency or different tribunal.
It also can be collateral because it depends upon a future proceeding.
The court of appeals first concluded that the effect of the
federal statutes is not an automatic consequence of the defendant's
plea because the application of his misdemeanor disorderly conduct
conviction to the federal statutes' scope remains open and
must be resolved before the federal firearms prohibition takes
effect. The court held that because the defendant can, as a preliminary
matter, contest the federal statutes' applicability to his
state conviction, the operation of the federal firearm prohibition
is not automatic. [In footnote the court noted that its conclusion
is confined to the question whether federal law applies automatically
when the trial court does not make a domestic violence determination.
The court did not address the consequences of a trial judge making
a factual determination that disorderly conduct is related to
domestic violence and including in its judgment that the conviction
is domestic violence related.]
Even assuming that the federal statute applies to the disorderly
conduct conviction because it involves domestic violence, the
appellate court held that its effect is a collateral consequence
of the defendant's guilty plea. The prohibition on possessing
firearms arises from a body of law that is collateral to the
state court proceedings and any consequence arising under that
law must therefore also be collateral. The firearms prohibition
under the federal statute is a separate, peripheral consequence
and does not have an immediate or automatic effect on the range
of punishment imposed under state law by the circuit court.
Bail - Incarcerated Defendants - Chapter 969 Conditions
of Release Inapplicable While Defendant Remains Incarcerated
State v. Orlik,
No. 98-2826-CR (filed 29 April 1999) (ordered published 26 May
1999)
The defendant was charged with several felonies and bail was
set in the amount of $320,000. The court also established other
conditions of release, including certain no contact orders. The
no contact provision was imposed originally as a condition of
release pending trial. However, when the defendant was unable
to post cash bail, the court decided that the no contact provision
also applied while the defendant remained incarcerated. The defendant
contended that under the plain language of Wis. Stat. sections
969.01 and 969.03, the circuit court has authority to set
conditions on the release of a defendant pending trial, but does
not have authority to impose conditions on a defendant who remains
incarcerated awaiting trial.
In a decision authored by Judge Vergeront, the court of appeals
held that the circuit court did not have authority under sections
969.01 and 969.03 to impose no contact orders on the defendant
that would govern him while he remains incarcerated. The court
recognized that, pursuant to section
940.47, a court with jurisdiction over a criminal matter
has authority to order a defendant not to violate the provisions
of the victim and witness intimidation statutes (sections 940.42
to 940.45), to maintain a geographic distance from such persons,
or to have no communication with such persons except through
an attorney. However, this type of order must be based upon "substantial
evidence which may include hearsay or the declaration of the
prosecutor, that knowing and malicious prevention or dissuasion
of any person who is a victim or who is a witness has occurred
or is reasonably likely to occur." See Wis. Stat.
§ 940.47. The latter type of showing would be required in
order for the circuit court to determine whether it should enter
an order under section 940.47 (which could apply to an incarcerated
defendant).
Revocation of Probation - Credit for Time Spent in Division
of Intensive Sanctions Program
State v. Olson,
No. 98-1450-CR (filed 21 April 1999) (ordered published 26 May
1999)
The defendant was convicted of forgery and placed on probation.
After he absconded from probation, he was offered placement in
the Division of Intensive Sanctions (DIS) program as an alternative
to the revocation of his probation. After making progress in
the DIS program and having his electronic monitoring bracelet
removed, he again absconded. Thereafter his probation was revoked
and the court sentenced him to a term in prison.
At the sentencing following revocation of probation, a debate
arose as to whether the defendant should receive prison credit
for his DIS time. The Department of Corrections (DOC) recommended
that he should receive 256 days of credit. The state objected
because the defendant was not incarcerated during the time he
spent in DIS. The circuit court agreed with the state, concluding
that the defendant's participation in DIS was not the functional
equivalent of confinement and therefore his sentence should not
be credited.
The court of appeals, in a decision authored by Judge Anderson,
affirmed. The court first concluded that the circuit court had
the exclusive authority to determine the amount of sentence credit
to be given a defendant when imposing a post-probation sentence.
It further concluded that the circuit court properly rejected
prison credit for the time the defendant spent in DIS. Whether
sentence credit will be given for DIS time depends upon the restrictions
imposed on the defendant's freedom by the program. The record
revealed that while in DIS, the defendant was required to wear
an electronic monitoring bracelet and had to seek approval in
order to leave his residence, but he was not locked in the home
at night. Based on these facts, the appellate court concluded
that the defendant's participation in the DIS program did
not qualify as "custody" for purposes of Wisconsin's
sentence credit statute. See Wis. Stat. §
973.155.
Search and Seizure - Expectation of Privacy -
Dumpster - Commercial Premises
State v. Yakes,
No. 98-0470-CR (filed 21 April 1999) (ordered published 26 May
1999)
Yakes was convicted of sexually assaulting a child based upon
evidence recovered from a dumpster on his company's property.
The court of appeals, in an opinion written by Judge Brown, affirmed
the conviction and the seizure of the evidence.
The central issue before the court concerned whether Yakes
had a reasonable expectation of privacy in the area surrounding
his commercial building and in the area where the dumpster was
located. Following precedent from the Eleventh Circuit, the court
held "that a commercial proprietor must show how affirmative
steps were taken to bar the public from the dumpster area in
order to validate a claim of an objectively reasonable expectation
of privacy regarding trash in the dumpster." The "affirmative
steps" might include warning signs or barricades. Yakes
had failed to take such affirmative action. Finally, Yakes claimed
that the dumpster was located within the curtilage of his residence,
although the record amply supported the trial court's conclusion
that it was on Yake's business premises.
Damages
Implied Contracts - Unjust Enrichment - Quantum
Meruit
W.H. Fuller Co. v.
Seater, No. 98-1250 (filed 14 April 1999) (ordered published
26 May 1999)
The plaintiff, a contractor, was excavating property near
land owned by the defendant. The defendant's lessee arranged
to have the contractor dump the excavated fill on the defendant's
lot and grade it. The defendant was aware of the arrangement
and signed a "hold-harmless agreement" with the plaintiff.
Later the plaintiff forwarded an invoice to the defendant for
about $17,150 for the fill and grading. The defendant refused
to pay it. The circuit court held a bench trial and found that
an implied contract existed between the plaintiff and the defendant,
and awarded the plaintiff nearly $19,000 in damages.
The court of appeals, in an opinion written by Judge Snyder,
affirmed in part and reversed in part. The only issue on appeal
concerned the proper measure of damages under a contract implied
in law. Under controlling case law, "a contract implied
in law necessarily involves recovery through unjust enrichment,
not quantum meruit. As such, the measure of damages for a contract
implied in law is the benefit received by the defendant."
Here the plaintiff billed the defendant for all materials
and service provided. The court held that damages "for unjust
enrichment may include services rendered for the defendant,"
but only when "those services ... constitute the benefit
received by the defendant." Finally, the plaintiff was entitled
to recover for any "detriment" caused to his property.
Employment Law
Sexual Harassment - No Hostile Environment
Jim Walter Color
Separations v. LIRC, No. 98-2360 (filed 8 April 1999)
(ordered published 26 May 1999)
At the close of a three-day hearing, an administrative law
judge (ALJ) found that the employee's supervisor had sexually
harassed her. LIRC adopted the findings. The circuit court reversed
LIRC's decision that the employee had been the victim of
sexual harassment in the workplace. The circuit court ruled that
the multiple acts had not substantially interfered with her work
performance and had not created a hostile environment.
The court of appeals, in an opinion written by Judge Vergeront,
reversed the circuit court and found that LIRC had correctly
interpreted section
111.36(1)(b) of the Wisconsin Statutes. In particular, the
court held that "'unwelcome physical contact of a sexual
nature' and 'unwelcome verbal or physical conduct of
a sexual nature' may constitute sexual harassment even though
they do not create a hostile work environment." The sexual
harassment must be conducted, however by "the owner or an
agent under the principle of respondeat superior."
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