On Point

State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district was a “direct victim” of the crime.

¶11      By contrast, where the conduct involved in the crime considered at sentencing is directed at government property, the owner of that property is entitled to restitution. Thus, in Howard-Hastings, the government was entitled to restitution as the direct victim of the defendant’s acts of vandalism where the defendant was convicted of criminal damage to property after cutting down several government owned “telephone-type poles.”  Howard-Hastings, 218 Wis. 2d at 154, 157-58;see also Haase, 293 Wis. 2d 322, ¶16 (citing favorably the analysis in State v. Dillon, 637 P.2d 602 (Ore. 1981), in which the court upheld a restitution order for the cost to repair a patrol car that the defendant intentionally rammed with his vehicle and for which the defendant was convicted of criminal mischief).

¶12      Here, Vanbeek likens the staff at the Markesan School District to the police officers in Ortiz and Haase, contending that the direct victims of his false bomb scare were those who evacuated the building, and not the school district. This argument misses the mark. Vanbeek conveyed a false threat to destroy school district property, which resulted in an evacuation and a direct loss to the school district. There is no doubt that the conduct involved in the crime considered at sentencing—conveying a threat to destroy school district property by means of explosives—was directed at the school district. Vanbeek left the bomb scare note on school district property and the note threatened to destroy school district property.

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue/Holding:

¶52      The State counters that there is no language in the statute that requires victim claims to be submitted before sentencing. The State also argues that where restitution was held open, there is no expectation of finality and thus no equitable grounds for denying the claims.

¶53      While Wis. Stat. § 973.20(13)(c) provides the right for a defendant to dispute claims of losses, it does not set any explicit deadlines for victims’ claims. Recognizing the unique nature of the restitution process, the statute imposes only limited duties on district attorneys, requiring them to “attempt to obtain from the victim prior to sentencing information pertaining to the factor specified [as to the amount of loss suffered],” ^[29] and on a court, requiring the court to “inquire of the district attorney” as to any claims for restitution from any victims.

¶54      There is no language in the statute that prohibits the consideration of claims presented before the restitution hearing occurred, which is when Dalka’s and CNR’s claims were presented. Where, as here, Fernandez had notice of Dalka’s injuries (and therefore of those of his insurer, CNR) because Fernandez knew that Dalka had been hurt, there was no expectation of finality at a sentencing hearing when restitution was ordered in an amount to be determined. Even if Fernandez somehow was unaware of the injuries on the night of the crash, the complaint included information on Dalka’s being taken by ambulance to the hospital and being told by a doctor that he had torn ligaments in his left knee.

State v. Perry, 181 Wis. 2d 43, 510 N.W.2d 722 (Ct. App. 1993) (60-day timeline for adjourning sentence to consider restitution “directory” rather than mandatory), ratified, ¶56. The holding may be somewhat limited, as the following suggests, ¶58: “In light of the open-ended language of the statute and the court of appeals’ holding in Perry, there is no error at least where the claims are made before the hearing is concluded and restitution is ordered, as the claims were here.”

State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09For Lammers: Amelia L. Bizzaro

Issue/Holding:

¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine, which allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78, ¶¶28-29, 301 Wis. 2d 642, 734 N.W.2d 115. Plain error is “error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Sonnenberg, 117 Wis. 2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial,” and courts should use the plain error doctrine sparingly. Id.¶13      There is no bright-line rule for what constitutes plain error. … “[W]here a basic constitutional right has not been extended to the accused,” the plain error doctrine should be invoked. Id. at 195. Our courts have consistently used this constitutional error standard in determining whether to apply the plain error rule. State v. King, 205 Wis. 2d 81, 91, 555 N.W.2d 189 (Ct. App.1996).

¶14      If plain error occurred, the burden is on the State to prove that it was harmless beyond a reasonable doubt. …

State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se

Issue/Holding: State failure to argue, in the trial court, that Miller’s 974.06 motion was barred under Escalona-Naranjo waived the argument on appeal:

¶25   We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State’s Escalona argument. Waiver is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. See Ford Motor Co. v. Lyons, 137 Wis.  2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987). Miller’s case differs from Crockett, wherein the defendant failed to raise his claim in three prior postconviction motions, and did not assert a sufficient reason for failing to raise his claim in his direct appeal or the prior postconviction proceedings. Crockett, 248 Wis.  2d 120, ¶10. The present case is more akin to State v. Avery, 213 Wis.  2d 228, 247-48, 570 N.W.2d 573 (Ct. App. 1997), in which we concluded that the State had waived its right to assert the procedural bar of Escalona. Like Miller, Avery had made no prior § 974.06 motions. Moreover, as in Miller’s case, the circumstances weighed heavily in favor of reaching the merits. Avery’s motion alleged a miscarriage of justice based on the late discovery that the sheriff’s department had withheld evidence. Here, Miller’s motion asserts claims that he was unable to raise in his direct appeal, as explained below, and alleges that the State failed to meet its burden of proof on his conviction for first-degree reckless injury. For the foregoing reasons, we therefore conclude that the State has waived its argument that Miller’s claims are procedurally barred by Escalona. ^[9]

The court further indicates, fn. 9, that the indistinguishable State v. Robinson, 177 Wis.  2d 46, 53, 501 N.W.2d 831 (Ct. App. 1993)(serial-litigation bar inapplicable where trial counsel was also direct-appeal counsel) would nullify Escalona here anyway. Note, as well, the court’s instruction, ¶22 fn. 10, citing State v. Ndina, 2009 WI 21, ¶¶29-30, that “forfeiture” is the correct nomenclature; “waiver” used merely because the parties use the term.

Additional authority discussing and applying State’s waiver in various contexts: State v. Danny G. Harrell, 2008 WI App 37; State v. Jonathan W. Nawrocki, 2008 WI App 23; State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998); State v. Gerald J. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1997). But: State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998) (state’s waiver doesn’t apply where defendant’s action supported judicial estoppel)

State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: By failing to object, defendant waived right to challenge judicial response to deliberating jury’s question, notwithstanding conceded unanimity problems in the response:

¶15   Nevertheless, we must agree with the State and hold that Becker waived his argument that the trial court erroneously exercised its discretion in answering the jury’s question in the manner it did. At the time the trial court announced its intention to provide the challenged answer to the jury’s question, Becker’s trial counsel did not object to it. Indeed, he appears to have expressly “okayed” it ……

¶17   Here, the answer the trial court gave to the jury’s question regarding its instruction became part of its instruction to the jury. Thus, as in Marcum, this appeal rests on claimed errors in the jury instructions. See Marcum, 166 Wis. 2d at 915. And, like Marcum, Becker has a timing issue with his objection. Because Becker’s objection came too late; we will not review the instruction to the jury “in the context of whether the trial court erred.” See id. at 916.

The objection is reviewable under an ineffective-assistance claim, ¶18. Obvious, perhaps, but worth noting nonetheless: an answer to a jury question becomes “part of” the jury instructions.

State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district lost the value of these employee’s services during that time.

¶14      Vanbeek contends that even if the school district is a victim it did not suffer a pecuniary loss because “[t]he school district did not pay out any additional sum in salary and benefits than was already required under its contracts nor did the school district pay for an additional day of school.”  However, the rationale underlying Vanbeek’s argument was previously rejected by this court in State v. Rouse, 2002 WI App 107, 254 Wis. 2d 761, 647 N.W.2d 286.

[While the bank’s employees were investigating Rouse’s the bank lost the value of their services. “The deprivation of an employee’s productivity is a loss in itself that may or may not have an end result of lost profits. Requiring such a showing could deprive entities that do not work for profit any compensation for their lost resources.”]

¶17      We see no reason to treat the school district’s loss differently. During the four and one-half hours that the students and staff were evacuated from school district property as a result of Vanbeek’s bomb scare, the school district paid its employees, but received no services from them. Under Rouse and Wis. Stat. § 973.20(5)(a), it is entitled to restitution for that loss of employee productivity.

True, Rouse did mention “entities that do not work for profit,” but that reference plainly was dicta; the question there was whether a (for-profit) bank was entitled to restitution for its (not some non-profit’s) employees’ lost productivity – which, one may reasonably assume, translated to a reduction in the bank’s income. How was the school district harmed financially in this instance? The students were deprived of instruction, but that doesn’t equate to a financial loss to the district. If the end result were an additional 4-hours’ schooling beyond the end of the school year, to make up for lost time, financial harm would be easily seen – but no such thing happened. Perhaps local taxpayers were harmed, in the sense that 4 hours’ worth of their property tax payments went for naught. And perhaps the rationale might be that the only way to make the taxpayers whole is to compensate the district. But compensating the district is simply a windfall to the district (because, again, it hasn’t suffered any measurable financial loss) and certainly does nothing to relieve the taxpayers for the loss of 4 hours of instruction. Someone might be entitled to payment. But the school district itself? Reliance on dicta in Rouse may settle the issue as a practical matter but it’s hardly convincing.

State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding:

¶43      If a defendant’s right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors. ^[15]

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 ^[15]  See Neder v. United States, 527 U.S. 1, 8 (1999) (listing “denial of [a] public trial” among errors deemed “to be ‘structural,’ and thus subject to automatic reversal”); Johnson v. United States, 520 U.S. 461, 468-69 (1997) (same); Fulminante, 499 U.S. at 310 (same); Waller v. Georgia, 467 U.S. 39, 49-50 & n.9 (1984) (agreeing that “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee because such a requirement “would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.”) (alterations in original; quoted source omitted).See also State v. Ford, 2007 WI 138, ¶43 and n.4, 306 Wis.   2d 1, 742 N.W.2d 61 (citing cases; characterizing the right to a public trial as a structural error subject to automatic reversal).

The question whether a constitutional error is susceptible to harmless-error analysis or rather is structural, requiring automatic reversal, should not be conflated with the question whether a constitutional right may be forfeited by timely failure to assert it or rather must be waived knowingly, voluntarily, and intelligently. The two inquiries, although related, are distinct.

The court of appeals had held that the public-trial issue had been waived and therefore was reviewable through the lens of ineffective assistance of counsel, which in turn required a defense showing of prejudice, 2007 WI App 268, ¶13. The supreme court did not distinctly overturn that holding which may as a result remain viable. Use of the term “prejudice” may be a bit confusing in this context. Indeed, Waller itself uses the term—but it’s obvious in context that what the court means is that the error is “structural,” which is to say, not subject to harmless error analysis. See Waller, at 50 n. 9. This (the “structural” nature of the error) is a point made implicitly by State v. David L. Vanness, 2007 WI App 195, and a bit more explicitly by Ndina. To be sure, this wouldn’t be the first time a court has held that “structural” error nonetheless requires a showing of “prejudice.” E.g., State v. Jesse Franklin, 2001 WI 104, ¶24 (“when not falling within one of the three presumptions enumerated in Strickland, prejudice will only result when the counsel’s errors have deprived the defendant of a fair trial whose result is reliable”), holding that violation of right to 12-person jury non-prejudicial. But at a certain level of generality a conundrum remains: How may a right be so “fundamental” as to require automatic reversible on preserved error yet nonetheless be subject to proof of prejudice when counsel fails to preserve objection? A riddle, wrapped in a mystery, inside an enigma? Or merely to be set aside as forgettable grist for the law review industry?