On Point

State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe

Issue/Holding:

¶29      We will assume, for purposes of Patterson’s argument, that the definition of “juvenile” in Wis. Stat. § 938.02 applies for purposes of defining “delinquency” in Wis. Stat. § 948.40. Nonetheless, Patterson’s statutory analysis ignores the fact that a seventeen-year-old is only excepted from the definition of “juvenile” for a single purpose, the “purpose[] of investigating or prosecuting” the “person who is less than 18 years of age.”See § 938.02(10m). Here, the question is not whether Tanya S. is a “juvenile” for purposes of prosecuting her, but instead for purposes of prosecuting Patterson. Thus, Tanya S. was a “juvenile” for purposes of Patterson’s prosecution for contributing to the delinquency of a child with death as a consequence. ^[12]

State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe

Issue/Holding:

¶25      There is no dispute that testing revealed that Tanya S. had Oxycodone in her system at the relevant time. However, as Patterson argues, the presence of drugs in someone’s system, standing alone, is not sufficient evidence to support a conviction for possession of a controlled substance. SeeState v. Griffin, 220 Wis. 2d 371, 381, 584 N.W.2d 127 (Ct. App. 1998). “Possession” in this context requires evidence that the individual had a substance in his or her control. See id. at 381 (citing Wis JI—Criminal 920). Still, as we explained in Griffin, “‘when combined with other corroborating evidence of sufficient probative value, evidence of [ingestion] can be sufficient to prove possession.’” Griffin, 220 Wis. 2d at 381 (citation omitted). That is the situation here.

Various witnesses saw Patterson give Oxycodone to Tanya S., ¶26.

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09

For Wesley: Alvin Ugent

Issue/Holding:

¶24      Here, as we said, Wesley claims that he understood the term “dismissed outright” to mean that the State could never use the underlying facts against him. He claims that his trial counsel was ineffective for failing to object. He also claims that, if the plea agreement was ambiguous, he should have known about it and lays the blame at counsel’s feet. These are all facts, which if true, would entitle him to relief. The trial court rejected the call for a hearing by deciding that the agreement was not ambiguous. We have already held otherwise. This leaves many facts to be parceled out and they can come out at a Machner hearing only. We reverse and remand with directions that the trial court conduct a Machner hearing. At this hearing, should Wesley decide to testify about whether he knowingly and intelligently understood the terms of the plea agreement, the court shall make findings of fact regarding this issue as well as any ineffective assistance of counsel claims before the court.¶25      We also point out that there is another question that the parties must flesh out on remand. The law in Wisconsin is that “[a]greements by … prosecutors … not to reveal relevant and pertinent information to the trial judge charged with the duty of imposing an appropriate sentence upon one convicted of a criminal offense, are clearly against public policy and cannot be respected by the courts.” Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186 (1976). Whether the State was merely providing pertinent and relevant information or went beyond it by using it to augment its argument in favor of incarceration is a question to be decided on remand. This question will come into play with respect to the ineffective assistance of counsel claims. It is up to the parties, and ultimately the trial court, to measure the extent by which the policy impacts the result.

This is an exceptionally readable opinion, a genuine pleasure to read, but the court inexplicably stumbles a bit just before the finish line. Most significantly: the court acknowledges that Wesley may well be entitled “to relief,” but simply does not say explicitly what form of relief he’s eligible for. Presumably, it’s like this: notwithstanding ambiguity in the provision, if Wesley reasonably thought it meant no-allocution, then his reasonable assumption will be enforceable at a resentencing; nonetheless, if the provision is deemed, per Grant, violative of public policy, then the court may not enforce it and the remedy necessarily would be limited to plea-withdrawal. To be sure, the court doesn’t spell any of this out, but that seems to be what the court is driving at. Grant is, as the quote indicates, clear enough about unenforceability, but it expressly avoided the question of plea-withdrawal, 73 Wis. 2d at 447. However, a federal habeas court subsequently ordered plea-withdrawal, Grant v. Wisconsin, 450 F. Supp. 575 (E.D. Wis. 1978).

One last thing, totally tangential: spell-check can be your best friend or your worst enemy (“The State then explained that the witness lost site of the vehicle,” ¶5).

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Notwithstanding “irregularities” with respect to the burden of proof, the hearing on Hoppe’s Bangert challenge established that his plea was knowing and voluntary, given “the circuit court’s findings … that the circuit court disbelieved the defendant’s claims that he did not receive and did not understand the information that was provided in the Plea Questionnaire/Waiver of Rights Form but that was not provided to the defendant during the plea colloquy,” ¶¶46-58.

These findings also doom Hoppe’s Nelson-Bentley claim for plea-withdrawal, which involves issues similar to his Bangert claim (knowledge of maximum penalties, rights waived, import of read-ins, counsel’s unpreparedness), ¶¶59-66. Roughly put, Bangert deals with an “intrinsically” bad plea colloquy and the State has the burden of proving that the plea was nonetheless valid; and Nelson-Bentley deals with problems “extrinsic” to the plea colloquy, so that the defendant has the burden of proving up these problems. Detailed discussion in the opinion.

Clay Teasdale v. Marinette County Child Support Agency, 2009 WI App 152

Issue/Holding: Case specialist’s request to judge via affidavit and proposed order for remedial-contempt commitment was in fact if not form a “motion” and “was improper on numerous grounds”: it violated the §802.05(1) requirement that aside from pro se litigation motions must be signed by an attorney else must “be stricken”; it wasn’t filed with the clerk of circuit court, contrary to § 801.16(1); it violated the proscription against ex parte communications; and, it failed to afford the 5-days’ minimum notice required by § 801.15(4).

Minor point, perhaps: the court notes Teasdale’s argument that, because the request was signed by a nonattorney, the trial court lacked competency to issue the order, ¶1, but the court never quite gets around to saying whether or not it agrees. The court, to be sure, clearly says “the child support agency’s request for a commitment order should have been stricken from the record,” id., but whether that outcome equates to a lack of competency is left to the reader’s determination. The court is clear, though, about the necessity of notice:

¶11      Further, motions “shall” be heard on a minimum of five days’ notice. Wis. Stat. § 801.15(4). Yet, here the agency’s request for a commitment order was granted the day after its submission. A contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with purge conditions. V.J.H., 163 Wis.  2d at 838, 842-44 (“When a contemnor’s liberty interests are at risk he or she must be given the opportunity to show the court that the failure to comply with the purge condition was not willful and intentional.”). Thus, as a matter of necessity, the contemnor must be provided notice of the allegations before any arrest warrant is issued. ^[7] In light of our decision in V.J.H., the court’s policy as described in this case, to jail the contemnor first and ask questions later, cannot be condoned. ^[8]

Milton J. Christensen, et al. v. Sullivan, et al., 2009 WI 87, reversing 2008 WI App 18
For Christensen: Peter M. Koneazny, Patrick O. Patterson

Issue: Whether remedial contempt supports monetary sanction for past acts (here: intentional violations of jail-overcrowding consent decree) where the sanctionable conduct has terminated.

Holding: Remedial sanction, including monetary award, is limited to “continuing” contempt of court, and is therefore unsupported for past acts of contempt.

¶58      Section 785.04(1)(a), if read in isolation, could be somewhat ambiguous on this score. ^[8] Standing alone, the paragraph could be interpreted as allowing payment of a sum of money for a loss or injury suffered in the past; however, such an interpretation would ignore the fact that the continuing nature of the contempt is what authorizes the court to impose a remedial sanction as opposed to a punitive sanction. ^[9] See Wis. Stat. § 785.01(3) (“‘Remedial sanction’ means a sanction imposed for the purpose of terminating a continuing contempt of court.”); Note, § 11, ch. 257, Laws of 1979, at 1355 (“[A] remedial sanction . . . cannot be imposed if for any reason the contempt has ceased, even as the result of the settlement of a case.”) (emphasis added); see also King, 82 Wis.  2d at 131-32, 138 (disallowing civil contempt proceedings under the previous contempt statutes after the underlying dispute settles); 17 Am. Jur. 2d Contempt § 145 (“When the parties settle the underlying case that gave rise to a civil contempt sanction, the contempt proceeding is moot, since the case has come to an end.”). Permitting the imposition of a remedial sanction in a situation where there is no continuing contempt would effectively rewrite the statute.^[10]Therefore, the key to the issue in this case is whether the County’s contempt of court was continuing on and after the September 13, 2004 motion for a finding of contempt and imposition of remedial sanctions.¶59      Chapter 785 does not define “a continuing contempt of court.” If the court is required to interpret a statute and the words in the statute are not defined, the court must apply the ordinary meaning of the words to give effect to the statutory language. Kalal, 271 Wis.  2d 633, ¶45.

¶60      The word “continuing” has many definitions. However, when using “continuing” in the context of determining whether something has either been terminated or is ongoing, as in this statute, see Wis. Stat. § 785.01(3), the word generally means “[t]o go on with a particular action or in a particular condition; persist,” The American Heritage Dictionary of the English Language 408 (3d ed. 1992), see also Black’s Law Dictionary 316 (7th ed. 1999) (“(Of an act or event) that is uninterrupted <a continuing offense>.”).

…

¶78      Inasmuch as the County’s contempt of court had ceased and was no longer continuing at the time the contempt proceedings were initiated, remedial sanctions could not be imposed. Consequently, we affirm the circuit court’s judgment denying the plaintiff class remedial sanctions in this case.

Severe jail overcrowding led to a consent decree, notwithstanding which such a “staggering” number of violations continued to occur such that the circuit court found them to be “intentional,” ¶35. But, because the violations ceased once the plaintiffs sought redress through this contempt action, they were no longer “continuing” and thus no longer subject to remedial sanction—according to the supreme court. Punitive sanction might be supported, but that remedy “is not specifically concerned with protecting private rights,” ¶52, and therefore wouldn’t result in a monetary award. “In fact, imposing punitive sanctions is much akin to imposing a criminal penalty, which is why the legislature has required that proceedings for punitive sanctions be brought exclusively by ‘[t]he district attorney of a county, the attorney general or a special prosecutor appointed by the court’ in a nonsummary procedure. Wis. Stat. § 785.03(1)(b) …,” ¶53. Unless you think there’s the remotest chance of prosecution of a law enforcement agency, then once you take monetary award off the table you’re essentially saying that as a practical matter there is no remedy at all for a staggering, intentional violation of a court order.

State v. Mark T. Jahnke, 2009 WI App 4
For Jahnke: Harold L. Harlowe; Michael J. Herbert

Issue/Holding: Secretly videotaping another without consent, though that person knowingly exposes herself nude to the video taper, supports criminal liability:

¶6        Jahnke contends that the facts do not support the third element, the expectation of privacy element. He reasons that his girlfriend had no reasonable expectation of privacy because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her. In Jahnke’s view, the only pertinent question for purposes of the privacy element is whether his girlfriend had a reasonable expectation that Jahnke would view her nude at the time of the recording.

¶7        The State argues that there is a more precise question for purposes of the privacy element that is geared to the specific privacy interest the statute is designed to protect. According to the State, the question is whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude. We agree with the State.

The court previously, in State v. Nelson, 2006 WI App 124, ¶21, said that this element “requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others[.]” The dissent says (¶28), more than a little plausibly, that this holding wasn’t a “narrow” one but, rather, the product of “numerous pages of inquiry and analysis” aimed at providing a definition meaningful to “future readers of the statute.” The majority disagrees, leading the dissent to all but accuse it of a result-oriented conclusion:

¶24      I do not join in the majority’s opinion because it is an attempt to avoid the requirement of Cook v. Cook, 208 Wis.  2d 166, 190, 560 N.W.2d 246 (1997), that “the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals.” ^[6]The majority acknowledges that it may not hold that the meaning we gave to “reasonable expectation of privacy” in the predecessor to Wis. Stat. § 942.09(2)(am)1. (2007-08) ^[7] in State v. Nelson, 2006 WI App 124, ¶¶19-21, 294 Wis.  2d 578, 718 N.W.2d 168, is incorrect, and therefore it cannot use the words “overrule, modify or withdraw.” Majority, ¶20. Instead, the majority uses the word “incomplete” to avoid the meaning we previously gave to the statute. Majority, ¶20.¶25      Thus, if the court of appeals uses the word “incomplete” to differentiate one of our published opinions, we can avoid Cook in most circumstances. While this is ingenious wordsmithing, it is not the way a hierarchical legal system should operate. Though we are not saying “that was then and this is now,” the result is the same.

By the way, ¶24 n. 6 is a gem, dryly remarking that the court of appeals has devised transparent ways to avoid the stricture of Cook, and adducing by way of example an instance of “distinguishing prior published opinion though [the] facts are identical.” Hard to disagree with the dissent, but it does make one wonder why there was no argument that the statute, as precedentially construed by Nelson, failed to provide sufficient notice to Jahnke that his conduct came within it. Too late now—and too late, certainly, for anyone else now that the court has broadly construed the element.