On Point

State v. Corey J. Uhlenberg, 2013 WI App 59; case activity

Miranda custody

Uhlenberg was in “custody” during an interview at the police department, so the circuit court should have suppressed the statements Uhlenberg made during the interrogation after he requested an attorney:

¶11      Throughout its arguments, the State emphasizes the fact that the detective repeatedly told Uhlenberg that he was not under arrest. But while an arrest would mean that a suspect is in “custody,” lack of an arrest does not end the inquiry.  The analysis asks whether a reasonable person would have felt free to end the questioning and leave the scene.  Martin, 343 Wis. 2d 278, ¶33.  In this case, the totality of the circumstances would have led a reasonable person in Uhlenberg’s position to conclude he was in custody. …

After setting out the details of how Uhlenberg was taken to the police department and how he was treated there (¶¶11-12), the court concludes:

¶13      We think no reasonable person in these circumstances—taken from home to the police department in handcuffs in a squad car, escorted into the booking area in handcuffs, placed in a locked interview room with little information about the reasons for the interview or when it might start, having a police escort in and out of the locked room to get water or use the toilet—would have felt free to end the questioning and leave the interview.  See Martin, 343 Wis. 2d 278, ¶¶33, 35; compare Mosher, 221 Wis. 2d at 206-07, 211-12, 219 (holding that a suspect was not in “custody” when he rode to the police station with an officer voluntarily, sat in the front seat of the squad car, exited the squad car on his own, walked into the station voluntarily, and was interviewed in an unlocked room).  So, Uhlenberg was in “custody” during the interrogation.  And when he said, “I am not going to say another word, and I want an attorney,” the detective had to stop the questioning.

“Private safety” exception to Miranda

Statements Uhlenberg made during a failed suicide attempt–when an officer witnessed Uhlenberg removing his shoe laces, concluded he was going to strangle himself, and rushed into the room asking Uhlenberg what he was doing–were not custodial interrogation because they fell within the “private safety” exception to the Miranda rule adopted in State v. Kunkel, 137 Wis. 2d 172, 185, 404 N.W.2d 69 (Ct. App. 1987) (an emergency sufficient to excuse Miranda requirements contains the following elements: 1. urgency of need in that no other course of action promises relief; 2. the possibility of saving human life by rescuing a person whose life is in danger; 3. rescue as the primary purpose and motive of the interrogators).

The court concludes the exception applies to protect the life of the defendant, and not just the life of another person, even though Kunkel involved questioning the defendant as to the whereabouts of his missing nine-month-old child :

¶16      We reject Uhlenberg’s argument that the “private safety” exception should not extend to risks of harm to the defendant in addition to a third person.  Instead we agree with the numerous jurisdictions holding that there is no legitimate reason not to apply the “private safety” exception to situations in which the defendant is at risk of harm.  The interest in preserving the defendant’s life is a pressing human interest, one that “outweighs the need for the prophylactic” Miranda rule.  See People v. Stevenson, 59 Cal. Rptr. 2d 878, 880-81 (Cal. Ct. App. 1996); see also State v. Betances, 828 A.2d 1248 (Conn. 2003); Benson v. State, 698 So. 2d 333 (Fla. Dist. Ct. App. 1997).

The court also concludes that the first element of the exception–urgency of need to question Uhlenberg about what he was doing–was satisfied in this case:

¶17      …. An officer observing a defendant making moves as if to try to kill himself is justified in rushing to the scene and asking related questions without stopping to second-guess himself about whether those questions would cause the defendant to incriminate himself.  The point of the “private safety” exception is that such a situation cannot properly be characterized as “custodial interrogation.”

Not all courts have extended the “private safety” doctrine to the defendant, see, e.g., State v. Montoya, 937 P.2d 145 (Utah Ct. App. 1997), but many have, as represented by the cases cited in the decision. What isn’t mentioned by the court is that the cases it cites involve defendants who have apparently ingested potentially dangerous or even fatal amounts of drugs in attempts to destroy or conceal evidence. In a situation like that, questioning the defendant about what he or she just swallowed really does seem necessary to determine what medical treatment might be needed. Not so here: The jailer saw Uhlenberg remove his shoe laces and hold one up as if he might strangle himself; the jailer rushed into the room and asked Uhlenberg what he was doing. (¶4). Not surprising the jailer would ask that question, but it was hardly necessary to deal with the situation, unlike with a defendant who’s swallowed some unknown substance; why not just grab the shoe lace and end the “pressing emergency” then and there? The court’s analysis doesn’t address these factual distinctions or explain why they don’t provide a “legitimate reason not to apply the ‘private safety'” exception to situations in which the defendant is at risk of harm that can be avoided without questioning.

State v. Donald D. Laufer, 2012AP915, District 2, 4/3/13; court of appeals decision (recommended for publication); case activity

The officer’s erroneous reading of Laufer’s license plate, which caused the officer to wrongly believe that the plate might not be registered to the vehicle, nonetheless supported stop of the car under the good-faith rule, adopting the reasoning of State v. Reierson, No. 2010AP596, unpublished slip op. (Wis. Ct. App. April 28, 2011):

¶11      In Reierson, we analyzed a situation nearly identical to this one, where an officer stopped a vehicle for expired plates based on a misreading of the displayed plates. Reierson, unpublished slip op. ¶¶2-3. We observed that although Wisconsin cases have not directly addressed the issue, “as a general rule, courts decline to apply the exclusionary rule where an officer makes a reasonable, good-faith factual mistake.” Id., ¶9. To support that proposition, Reierson points to federal cases and law review articles, which we also find persuasive. See id.; see also United States v. Cashman, 216 F.3d 582, 587 (7th Cir. 2000) (where officer reasonably believed crack in windshield was long enough to violate statute, but it was not in fact, officer had probable cause to stop for traffic violation); United States v. Miguel, 368 F.3d 1150, 1153-54 (9th Cir. 2004) (“An officer’s correct understanding of the law, together with a good-faith error regarding the facts, can establish reasonable suspicion.” (citation omitted)); ….

¶12      Based on the reasoning in these authorities, the Reierson court concluded that so long as the officer’s misreading of the plate was in good faith, “the officer had a reasonable, if mistaken, belief that [the defendant] was operating a vehicle with an expired registration.” Reierson, unpublished slip op. ¶11. Likewise, the objective facts related by the officer supported a reasonable, if mistaken, suspicion that Laufer was driving a vehicle displaying incorrect plates based on the registration check he ran on the misread plates. We therefore adopt the reasoning set forth in Reierson and uphold the stop based on a good-faith mistake of fact in this case.

The court also rejects Laufer’s claim that the stop was unlawful because it was based on a mistake of law, distinguishing State v. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999):

¶9        Laufer further argues that the officer “was mistaken in his application of the law” when he stopped Laufer’s vehicle because Laufer was not actually in violation of any registration requirements. However, he does not dispute that the observations made by the officer before the stop did constitute a possible violation of the law. See Wis. Stat. §§ 341.15(3)(a) and 341.04(1). It turned out that the officer was mistaken in his observations as a matter of fact, but the facts related by the officer constituted a violation of the law. The mistake in this case was one of fact, not law….

As the officer approached the stopped car he realized he had misread the number on the license plate by one digit. (¶3). The officer continued to approach the car to tell the driver why he’d been stopped, and when he talked to the driver he noticed an odor of intoxicants. Approaching the car to tell the driver the reason for the stop is sanctioned by the cases, as noted in our post on Reierson, though we also noted this is a limit on, not expansion of, authority: the officer’s realization of his mistake terminates authority to continue the detention because its cause has dissipated. The odor of intoxicants then provided an independent basis for continuing the detention. See U.S. v. Jenkins, 452 F.3d 207, 212-14 (2nd Cir. 2006) (after stop based on reasonable but mistaken belief that vehicle lacked temporary license plates, officers noticed plates after car pulled over, dissipating suspicion; officers reasonably approach driver to explain reason for stop, and as they approached they immediately detected an odor of marijuana that gave an independent basis for continuing to detain the vehicle and its occupants).

See some possibility for abuse here? So did the defendant in Jenkins, 452 F.3d at 214 n.10, who warned of “rampant abuse” by police who “claim not to notice a license plate that complies with the law, detain motorists for non-existent motor vehicle violations, and then approach the driver to say ‘sorry’ while taking a sniff and a look inside.” While the court disagreed with his concerns, their explanation why helps focus  the questions and arguments at a suppression hearing:

Our holding here is limited by two key factors. First, the District Court reviewed and deemed credible the officers’ testimony regarding their reasonable but mistaken belief that the SUV lacked license plates…. Second, the District Court found that the odor of marijuana was immediately apparent as the officers approached the SUV. The officers had not detained the SUV for longer than necessary to briefly explain to the occupants the reason for the stop.

In other words, was the officer’s mistake reasonable and in good faith, or is the officer’s explanation for the stop incredible? Did the independent basis for continuing the detention appear immediately, or was the detention continued while the police looked (or sniffed) around for an independent basis? You will have to prevail on one of these questions to succeed in challenging a stop based on an officer’s claim of a good-faith mistake of fact.

State v. Desmond Dejuan Laster, 2012AP1739-CR, District 1, 4/2/13; court of appeals decision (not recommended for publication); case activity

The trial court did not erroneously exercise its discretion in making two evidentiary rulings or in denying Laster’s  motion for a mistrial.

On the first evidentiary ruling, the court of appeals holds the trial court properly exercised its discretion in allowing the prosecutor to ask Hunt, a defense witness, about child abuse she had committed at her day-care center. The questions “established circumstantial evidence of a relationship between Hunt and Laster that was relevant to whether Hunt would fabricate an alibi to help Laster.” (¶14).

The second evidentiary ruling allowed the State to play a jail-recorded phone conversation where Laster called his mother various derogatory names. The court assumed without deciding that the trial court should have sustained the objection to this evidence, but concluded any error was harmless beyond a reasonable doubt because the evidence against Laster–which included testimony against him by an accomplice, his fingerprints on the murder weapon, and uncertain alibi witnesses–was strong. (¶16).

Finally, the trial court did not erroneously deny Laster’s request for a mistrial after the prosecutor asked Hunt about Laster’s lawyer “leading” Hunt through her testimony and played parts of the recorded jail phone conversations that discussed the lawyer’s representation:

¶19      The Record here supports the trial court’s decision to deny the request for a mistrial.  The trial court determined any error could be corrected with a curative instruction.  Both parties agreed and worked together to come up with the language of the instruction.  The instruction was read to the jury.  We presume the jury followed the curative instruction.  See State v. Searcy, 2006 WI App 8, ¶59, 288 Wis. 2d 804, 841, 709 N.W.2d 497, 514.  Laster has not shown us any reason to overturn the trial court’s exercise of discretion.

State v. Devante J. Lumpkins, 2012AP1670-CR, District 1, 4/2/13; court of appeals decision (not recommended for publication); case activity

Lumpkins is liable for restitution for damage to a stolen van he and two co-defendants (“The Jack Boys”) used to commit two armed robberies, even though Lumpkins was not charged with or convicted of the theft of the van. Restitution requires that there be a “direct victim” of the crime and a causal connection between the defendant’s conduct and the claimed damages (¶7), and both of those requirements were present here.

First, the van owner was a “direct victim” of the armed robberies, as the owner is analogous to the homeowners in State v. Hoseman, 2011 WI App 88, ¶¶16-23, 334 Wis. 2d 415, 799 N.W.2d 479, who unwittingly rented a home to someone running a hydroponic marijuana growing operation, which caused significant damage to the home :

¶12      We think that the difference between using a house to procure an illegal substance and using a car to rob people is insignificant, and that Hoseman is directly on point. During the robberies considered at sentencing, Lumpkins and The Jack Boys used the van to find victims, take them by surprise, rob them at gunpoint, and make a quick getaway. While Lumpkins attempts to distinguish Hoseman by pointing out that he could have robbed these individuals without the van, the fact of the matter is that the van was integral to the commission of the crimes. Nor are we persuaded that the fact that the van in this case was stolen two weeks prior to the robberies, and was used for other purposes—such as obtaining fast food—should affect our analysis. Lumpkins and The Jack Boys used the van to rob people at gunpoint, and we therefore conclude that the van owner was in fact a “direct victim” for restitution purposes. See id., ¶16.

Our post on Hoseman described that court’s reliance on a Washington case interpreting a Washington statute that requires restitution “whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property.” That differs from our statute, which mandates restitution to a “victim,” defined as “[a] person against whom a crime has been committed,” § 950.02(4)(a)1., of “a crime considered at sentencing,” § 973.20(1r). One statute merely requires the person suffer injury resulting from the crime, the other that the crime considered at sentencing be committed against the person. To the extent the first is broader than the second, Hoseman provides a fulcrum for expanding the reach of § 973.20–and if this case is any indication, that reach is expansive indeed.

Even if Hoseman makes sense on its facts–and State v. Madlock, 230 Wis. 2d 324, 334, 602 N.W.2d 104 (Ct. App. 1999), reminds us each restitution case “must turn on its own facts”–its analysis is grounded on the homeowners being “direct targets” of the crime considered at sentencing because Hoseman rented the house using a ruse, intending to set up the operation that would cause the damage. Id., ¶23. The “direct target” concept was culled from, and then used to distinguish, the caselaw that rejects restitution for various law enforcement expenses because the police entities were not the “direct targets” of the crime. Id., ¶¶17-22. Here, the van owner clearly was not the “direct target” of the armed robberies, which were the crimes considered at sentencing; on the other hand, the van owner was the direct target of the earlier theft of the van and of any intentionally caused damage to the van, but neither theft nor criminal damage to property were crimes considered at sentencing.  (Lumpkins wasn’t charged with criminal damage, though of course a conviction or a read in for that crime would have indisputably established the van owner as a direct victim under § 973.20.) While the opinion in this case quotes Hoseman‘s “direct target” language (¶11), it doesn’t remark on how that concept applies (or, really, doesn’t apply) here. Nor does it acknowledge the disconnect between the crimes considered at sentencing and the crimes committed against the “victim” van owner.

Causation–whether the defendant’s criminal activity was a substantial factor in causing the damage, Madlock, 230 Wis. 2d at 333–is also established:

¶13      …. In this case, Lumpkins’ actions were [a] precipitating cause of the damages to the van because, had the van not been stolen and used to commit robberies, it would have been in the care of its owner, and not damaged. Additionally, we conclude that the damage is a “natural consequence” of the van’s being stolen. While it certainly does not automatically follow that property damage is a consequence of an item’s being stolen, we need not determine that it is the only conceivable consequence; we instead determine whether it is a “natural” consequence. We conclude that the property damage to the van was in fact a natural consequence of its being stolen. Therefore, construing the restitution statute “‘broadly and liberally in order to allow victims to recover their losses as a result of a defendant’s criminal conduct,’” see [Madlock, 230 Wis. 2d] at 332 (citation omitted), we determine that there was a causal connection between Lumpkins’ use of the van and the damages suffered by the victim.

“Broadly and liberally” are the operative words when it comes to causation, making this another illustration of the phenomenon we’ve noted before (e.g., here and here): Causation requires precious little for purposes of restitution under § 973.20. Even so, the court seems to misstep here by referring to the natural consequences of the van being stolen;  Lumpkins wasn’t charged with stealing the van, so shouldn’t the question be whether the damage to the van was a natural consequence of the robberies, as that was the criminal activity Lumpkins engaged in? Of course, a trial court may take the defendant’s “entire course of conduct into consideration” including “‘all facts and reasonable inferences concerning the defendant’s activity related to the ‘crime’ for which [he] was convicted, not just those facts necessary to support the elements of the specific charge.’” Madlock, 230 Wis. 2d at 333. So no doubt the answer to the correct question will yield the same result.

Dane County DHS v. Mable K., 2013 WI 28, reversing court of appeals summary order; case activity

¶3        We conclude, and the circuit court has acknowledged, that it erroneously exercised its discretion when it entered a default judgment finding that grounds existed to terminate Mable K.’s parental rights after barring her attorney from offering additional evidence. It also erred when it granted the default judgment before taking evidence sufficient to establish the grounds alleged in the amended petitions. We further conclude that the circuit court’s remedy for correcting the errors is fundamentally unfair under the facts of this case.

The facts and legal posture of this case are unusual, so a summary is indispensable to an understanding of the issues and the decision.

Mable K. appeared late on the second day of a jury trial on TPR grounds. (¶6). Shortly before the trial was scheduled to start that day, Mable called her attorney, saying she didn’t feel well, that court was extremely stressful, and that she didn’t think she could come to court. (¶7). The County asked for a default judgment, but the trial court instead let Mable’s lawyer contact Mable. (¶8). During that conversation Mable said she would come but could not arrive until 9:50;  the trial court held the default motion in abeyance and proceeded to take evidence addressing the TPR petitions against the fathers. (¶¶9-10). At 10:20 Mable still hadn’t appeared, so the County renewed its motion. (¶11).

Recognizing the need to take evidence establishing grounds for termination even when granting a default judgment, Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶16-19, 246 Wis. 2d 1, 629 N.W.2d 768, the trial court allowed the County to call another witness. (¶11). The court allowed Mable’s lawyer to cross examine this witness, but not to present evidence that would contradict the petition’s allegations and, she said, make it “difficult” for the County to prove abandonment. (¶¶12-13, 23-29). Based on the testimony of the County’s final witness and Mable’s nonappearance the trial court entered a default judgment. (¶14). Mable appeared 10 minutes later. (¶15). She testified about why she was late, but based on her “inconsistent” reasons for appearing late the trial court refused to vacate the default judgment due to excusable neglect or mistake. (¶¶16-17).

After her parental rights were terminated, Mable appealed. The court of appeals remanded for postdisposition proceedings; on remand, the trial court agreed it deprived Mable of her statutory right to counsel by barring her attorney from presenting evidence to refute the abandonment grounds. (¶¶21, 30). The trial court vacated the termination order, but fashioned an ad hoc remedy: The case would pick up from the point where counsel was barred from presenting evidence and would be heard by the court, not a jury. (¶¶31, 35). The case returned to the court of appeals, which dismissed the appeal because Mable had obtained partial relief and so wasn’t appealing from a final order. (¶¶32, 36, 37). The supreme court now reverses and orders a new fact-finding trial before a jury. Here’s why:

Relying on State v. Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623 (2006), the supreme court agrees with the trial court’s conclusion on remand (and the County’s concession at oral argument) that it was error to bar Mable’s lawyer from presenting evidence before determining whether grounds existed before granting default judgment. (¶¶43-51). The supreme court also holds (¶¶52-55) that the trial court could not make an independent determination of grounds without hearing the evidence Mable’s attorney planned to offer:

¶56      In refusing to hear Attorney Lehner’s additional evidence before entering a default judgment finding that grounds existed to terminate Mable K.’s parental rights, the circuit court put the cart before the horse. The circuit court could not make a decision based on clear and convincing evidence having heard only one side’s version of the facts when the other side was requesting an opportunity to offer evidence that could defeat the allegations in the amended petitions. See Evelyn C.R., 246 Wis. 2d 1, ¶26.

The majority then concludes the trial court’s remedy—restarting the fact-finding hearing at the point the default motion was granted—is “fundamentally unfair.” It impairs Mable’s right to jury trial, hobbles the effectiveness of her new lawyer because of the trial court’s finding Mable to be incredible, and essentially shifts the burden to Mable to prove she is not unfit because she would have to rebut the County’s case, on which basis the trial court already found grounds to terminate. (¶¶62-65). Thus:

¶72      Under these facts, the only fundamentally fair remedy is a new fact-finding hearing.  A new fact-finding hearing honors the intent of the legislature by providing Mable K. with heightened legal safeguards. Shirley E., 298 Wis. 2d 1, ¶24. It provides Mable K. with the only remedy that can assure a fair hearing that recognizes and enforces Mable K.’s statutory rights to an attorney and to a jury. See Wis. Stat. § 48.01(1)(ad).

Note well, however, that the trial court’s remedy could be appropriate in some cases. Under § 805.03, a trial court could conclude the right to a jury was forfeited—and could even enter a default judgment—as a sanction for violating a court order, if the party’s conduct is egregious or in bad faith. (¶¶67-70). That statute, and those grounds, were not cited or analyzed by the trial court when it granted default judgment at Mable’s fact-finding hearing. The trial court did describe Mable’s conduct as egregious and in bad faith, but that was at the postdispostion hearing, and it didn’t assess Mable’s conduct under the applicable standard: To be egregious, the party’s failure to follow orders must be “extreme, substantial and persistent”; to act in bad faith, the party must “intentionally or deliberately” delay, obstruct, or refuse to comply with the court order. (¶¶70-71). Had the trial court done so, the majority says, “our analysis would be different.” (¶71). The dissenters (Justices Ziegler, Roggensack, and Gableman) do just that analysis, concluding that Mable’s conduct was egregious–a remarkable conclusion, really, given Mable’s intellectual challenges (¶19) and the fact she appeared on time at every other court date (¶6 n.4)–and that forfeiture of a jury for the fact-finding hearing was an appropriate sanction. (¶¶97-110).

Finally, our prior post on the grant of review noted another question raised by the case, one the court ordered the parties to brief when it accepted review: Whether Mable had standing to appeal the circuit court’s grant of partial relief, which would turn on whether she is “aggrieved” by the order. The dissent believes there is no final order and that review should not have been granted. (¶¶83-89). The majority doesn’t reach the issue, however, saying only that “[h]aving accepted the petition for review, determining the exact implications of the circuit court’s actions on the status of these appeals is not necessary to the resolution of this case.” (¶38 n.9). Why this sort of ipse dixit instead of a holding Mable was aggrieved? After all, as our prior post put it, surely Mable was aggrieved by the loss of her right to jury, not to say the absence of any integrity to a fact-finding process that would be so disjointed.

State v. Jessica A. Nellessen, 2013 WI App 46, petition for review granted 10/15/13; case activity

¶14      The issue in dispute is whether Nellessen was aware that the marijuana was in her trunk.  The question before the circuit court was therefore whether the informant might have information that bears upon that aspect of the State’s case against Nellessen.  Outlaw, 108 Wis. 2d at 125-26.  As in Outlaw, “[t]he informer was, it is to be assumed, the eyes and ears of the narcotic agents.”  Id. at 125.  Here the informer provided a considerable amount of detail to the police regarding the transportation of the marijuana:  the model of the motor vehicle; the route of travel, the approximate amount of marijuana involved and that the marijuana was located in the trunk.  It is reasonable to infer from the information provided by the informer to the police that there is a “possibility” that the informer could supply testimony necessary to a fair determination of whether Nellessen was aware that the marijuana was in the trunk of her vehicle at the time the police stopped her in Marshfield.

Contrary to the state’s argument, it does not matter at this stage that the information Nellessen seeks might not establish reasonable doubt. That is not the standard for triggering an in camera review:

¶16      …[T]he standard that the State is relying upon is the standard for whether the informant’s identity should be revealed after the court determines to conduct an in camera review.  See Wis. Stat. § 905.10(3)(b); Outlaw, 108 Wis. 2d 112.  To trigger the review, it is only necessary to show that it is possible that the informer knew enough about the transaction to lend credence to Nellessen’s claim, not that it be certain, or even probable, that the informer had such information.  Here, there are sufficient facts, tied directly to the core issue in the case, to demonstrate that the informer might have information that bears upon that issue and that this is not just a ‘fishing expedition.’  There still remain sufficient safeguards in the in camera review procedure to assure that the confidential informant will not be compromised unless the information would be sufficient to establish reasonable doubt.  See generally Outlaw, 108 Wis. 2d 112 (describing in camera review procedure).  Thus, based on the undisputed information the informer provided to the police regarding the marijuana and how and when it was being transported establishes a possibility that the informer may have information regarding whether Nellessen was aware of the marijuana in the trunk of her vehicle, we conclude that an in camera review is mandated.

Clark County v. Rex A. Potts, 2012AP2001, District 4, 3/28/13; court of appeals decision (1-judge, ineligible for publication); case activity

Potts’s 1996 conviction for OWI in violation of a county ordinance is void and must be vacated because defendant had prior convictions for operating while intoxicated—even though Potts did not move to vacate the judgment until 2012 and even though the prior convictions were from Massachusetts.

The circuit court rejected Potts’s motion for relief from the 1996 judgment because of his delay in bringing the motion, citing Wis. Stat. § 806.07(2)’s requirement that motions be brought within a reasonable time. (¶4). This conclusion is wrong, the court of appeals holds. In Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985), the Wisconsin Supreme Court held that the reasonable time requirement under § 806.07(2) doesn’t apply to void judgments because “[a] void judgment may be expunged by a court at any time” and “[i]t is the duty of the court to annul an invalid judgment.” (¶6). The circuit court thought the rule in Neylan was contrary to the plain language of the statute and that it might be time for the rule to change, but the court of appeals reminds circuit courts they are bound by a supreme court decision despite their disagreement with it. (¶6 n.2).

The County conceded Potts’s motion was allowed under Neylan, but argued the 1996 conviction is not void because Potts hasn’t shown that Massachusetts’s OWI law was substantially similar to Wisconsin’s OWI law at the time of the offense, and therefore the priors did not count under Wisconsin law. ( ¶¶5, 10). The court disagrees:

¶11      We stated in State v. White, 177 Wis. 2d 121, 126, 501 N.W.2d 463 (Ct. App. 1993), that another state’s drunk driving statute is “substantially similar” to Wisconsin’s drunk driving statute as long as that state’s statute “prohibit[s] the use of a motor vehicle while intoxicated.”  The requirement that the laws be “substantially similar” does not mean that the drunk driving statute of another state must contain the same elements as Wisconsin’s drunk driving statute. See State v. Puchacz, 2010 WI App 30, ¶12, 323 Wis. 2d 741, 780 N.W.2d 536. Indeed, “Wisconsin even counts prior offenses committed in states with OWI statutes that differ significantly from our own.” Id. ….

Taking judicial notice of Massachusetts’s drunk driving laws in effect at the time of Potts’s prior convictions, the court concludes Massachusetts’s OWI law in effect at the time of Potts’ OWI convictions in that state was “substantially similar” to Wisconsin law and that those convictions should have been counted for purposes of determining the proper charge for Potts’s 1996 Wisconsin OWI offense. (¶12).

Finally, the court rejects the County’s argument that Potts should have disclosed his Massachusetts convictions at the time of his 1996 conviction, and that because he didn’t he is not entitled to relief now:

We understand the County to be asking us to adopt a good faith exception to the general rule that a defendant is entitled to relief from a judgment that is void.^[4] We decline to do so.  The County cites to no legal authority to suggest that such a good faith exception exists.

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^[4]  We appreciate the circuit court’s and the County’s frustration with Potts’ failure to disclose his prior Massachusetts OWI convictions.  However, the County does not cite any legal authority showing that a defendant, such as Potts, is required to disclose his prior convictions from another state.