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Week
of April 28, 2008
Supreme Court Cases
Criminal Law/ Sentencing/ Reconfinement/ Sentencing Factors State v. WalkerDocket: 2006AP000562 05-01-08 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published court of appeals' decision, which reversed Walker's two year reconfinement order imposed by the Milwaukee County Circuit Court, John A. Franke, Judge. The court of appeals determined that the reconfinement hearing was defective because nothing in the record indicates that Judge Franke, who did not originally sentence Walker, reviewed the original sentencing transcript in full.
Criminal Law/ Statutes/ Statutory Construction-Interpretation/ School Zoning Penalty Enhancer/ Constitutional Law State v. QuintanaDocket: 2006AP000499 05-01-08 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published decision of the court of appeals, which reversed and remanded the decision of the Marathon County Circuit Court, Vincent K. Howard, Judge. The circuit court concluded that the forehead does not qualify as an "other bodily member" under Wisconsin's mayhem statute, Wis. Stat. § 940.21 (2003-04), and it concluded that the violent crime in a school zone penalty enhancer, Wis. Stat. § 939.632, was unconstitutional as applied to Quintana. The court of appeals reversed and remanded, and Quintana petitioned this court for review. We affirm the court of appeals' decision.
Court of Appeals Cases
Contracts/ Insurance Carey v. Lopez-MartinezDocket: 2007AP000811 04-29-08 PER CURIAM. Susannah Q. Carey appeals pro se from circuit court orders granting summary judgment to American Standard Insurance Company and dismissing all of Carey's claims against both defendants for damages and uninsured motorist benefits. We affirm.
Contracts/ Statute Of Limit Chicago-Kenosha Co. v. West Bend MutualDocket: 2007AP000144 04-30-08 PER CURIAM. Chicago-Kenosha Company appeals from summary judgment in favor of West Bend Mutual Insurance Company. The circuit court dismissed Chicago-Kenosha's complaint because it was not filed prior to the expiration of the statute of limitations. We agree with the circuit court that the complaint was not timely filed, and we affirm the judgment.
Criminal Law/ Constitutional Law/ Right To Confront/ Collateral Attack State v. WilliamsDocket: 2006AP002220 04-29-08 PER CURIAM. Derek Monroe Williams appeals from the circuit court order denying his motion for postconviction relief under WIS. STAT. § 974.06 (2005-06). He argues that he is entitled to retroactive application of the rule that testimonial statements from an unavailable witness are inadmissible unless the defendant has had a prior opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36, 68 (2004). We disagree and affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Appeal Barred State v. BurnsDocket: 2006AP002150 04-29-08 PER CURIAM. Michael D. Burns appeals from an order summarily denying his postconviction motion. The issue is whether the claimed ineffective assistance of postconviction/appellate counsel for failing to challenge trial counsel's effectiveness at sentencing constitutes a sufficient reason to overcome the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994). We conclude that Burns's conclusory allegation for failing to raise this issue on direct appeal does not justify a delay of over three years and five months. Therefore, his motion is procedurally barred; we affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Appeal Barred State v. ClaudioDocket: 2006AP003052 04-29-08 PER CURIAM. Hipolito Claudio appeals from an order summarily denying his postconviction motion. Claudio alleges that his appellate counsel's ineffectiveness for failing to challenge the effectiveness of his trial counsel in three respects is a sufficient reason to overcome the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 185-86, 517 N.W.2d 157 (1994) and State v. Tillman, 2005 WI App 71, ¶¶25-27, 281 Wis. 2d 157, 696 N.W.2d 574. We conclude that because Claudio failed to allege a sufficient reason for not identifying these issues in his no-merit response, he has not overcome Tillman's procedural bar. Therefore, we affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Evidence/ Judicial Authority-Discretion/ Error State v. AlexanderDocket: 2007AP001270 05-01-08 VERGERONT, J. Michael A. Alexander appeals the judgment of conviction for first-degree intentional homicide in violation of WIS. STAT. §§ 939.62(1) (2001-02) and 940.01(1), attempted first-degree intentional homicide in violation of WIS. STAT. §§ 939.32, 939.62(1), and 940.01(1), and two counts of recklessly endangering safety in violation of WIS. STAT. §§ 939.62(1), 939.63(1), and 941.30(1), all while armed as a repeat offender. Alexander contends he received ineffective assistance of counsel on seven different grounds and he asserts four claims of circuit court error. We conclude that Alexander received effective assistance of counsel. We also conclude there was no circuit court error or erroneous exercise of discretion. We therefore affirm the judgment of conviction.
Criminal Law/ Self Defense/ Self Incrimination/ Evidence/ Evidence Ruling/ Judicial Authority-Discretion/ Constitutional Law/ Discovery State v. McClarenDocket: 2007AP002382 05-01-08 Recommended for PublicationBRIDGE, J. Jason McClaren is charged with aggravated battery, attempted first-degree intentional homicide and first-degree reckless injury. The State has conceded that a factual basis exists for him to raise a claim of perfect self-defense. He appeals the circuit court's pretrial order requiring him to disclose, prior to trial, a summary of the evidence he intends to offer in furtherance of his defense regarding what he believed to be the violent character of the victim. In particular, the order requires disclosure of a summary of all specific instances of the victim's violent conduct of which McClaren is aware and intends to introduce at trial, including witnesses to the conduct and the relevant dates and locations of the conduct. We conclude that under the rule articulated in State v. Miller, 35 Wis. 2d 454, 478, 151 N.W.2d 157 (1967), the circuit court's order exceeds its authority under WIS. STAT. § 971.23(2m) (2005-06) governing pretrial discovery in criminal matters. We also conclude that the court's general authority under WIS. STAT. § 906.11 to exercise control over the mode and order of presenting evidence cannot be read to permit it to require pretrial discovery that it would otherwise not be permitted to require under § 971.23(2m) and the rule in Miller. Accordingly, we reverse the circuit court's order.
Criminal Law/ Statutes/ Sex Offender Registry State v. BennettDocket: 2006AP002802 04-30-08 PER CURIAM. William G. Bennett appeals from the judgment of conviction entered against him and the order denying his motion for postconviction relief. He argues on appeal that the circuit court erred when it ordered him to register as a sex offender. Because we conclude that the circuit court properly exercised its discretion when it ordered Bennett to register as a sex offender, we affirm.
Injunctions/ Harassment/ Statutes/ Constitutional Law/ Evidence Welytok v. ZiolkowskiDocket: 2007AP000347 04-30-08 Recommended for PublicationANDERSON, P.J. Timothy J. Ziolkowski appeals from an order of injunction. Jill Gilbert Welytok filed for a harassment injunction against Ziolkowski and, after a hearing, the circuit court ordered the injunction. Ziolkowski's tactics were disappointing to say the least. The fact that he is an attorney only heightens our aversion for his behavior. That said, our decision rests not on our distaste for Ziolkowski's behavior, but on our deferential standard of review and the facts of record. We affirm the circuit court.
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Mortgage/ Laches/ Statute Of Limitations
Zizzo v. Lakeside SteelDocket: 2007AP000566 04-30-08 Recommended for PublicationBROWN, C.J. In 1989, Lakeside Steel & Manufacturing Co. loaned Daniel Zizzo's parents some money and secured its loan with a mortgage on their property. The loan was to be paid off in monthly installments beginning that year and ending in 1993. For unknown reasons, the Zizzos apparently never made a single payment, and Lakeside never attempted to collect or to foreclose on the mortgage. The elder Zizzos died and Daniel became owner of the mortgaged property. Still Lakeside did not take any action to enforce its mortgage. Finally, in 2005, Daniel Zizzo brought a declaratory judgment action asking the court to discharge the mortgage on several grounds, including laches. On summary judgment, the circuit court found Lakeside guilty of laches and extinguished the mortgage.
Personal Injury/ Jury Instructions/ Products Liability Horst v. Deere and CompanyDocket: 2006AP002933 04-30-08 Recommended for PublicationSNYDER, J. Jonathan Horst, by his guardian ad litem, and Jonathan's mother, Kara Horst, appeal from a judgment dismissing their personal injury claim against Deere & Company. The Horsts contend that they are entitled to a new trial because the court provided an erroneous jury instruction on the issue of Deere's duty of care in the design of its products and that there is a probability that the erroneous instruction and the corresponding special verdict question affected the outcome of the trial. We disagree with the Horsts' characterization of a manufacturer's duty and therefore we affirm the judgment dismissing the Horsts' claim together with the order denying them a new trial.
Small Claims/ Notice/ Failure To State A Claim Fouliard v. BierdmannDocket: 2007AP002228 04-30-08 BROWN, C.J. Daniel J. Fouliard appeals an order for summary judgment in favor of defendant court clerk Claudia Bierdemann. Fouliard brought this small claims action alleging that Bierdemann gave him legal advice and committed other purported wrongs, thereby hindering his litigation of an OWI case. The small claims court dismissed Fouliard's suit for several reasons, including failure to state a compensable claim (he sued under criminal statutes that do not provide a civil remedy), failure to file a notice of claim pursuant to WIS. STAT. § 893.80, and Bierdemann's quasi-judicial immunity. Fouliard contends that the notice of claim was not necessary because Bierdemann violated a ministerial duty not to give legal advice. Fouliard also asserts that because of Bierdemann's alleged ministerial duty, the circuit court erred when it concluded that Bierdemann was protected under quasi-judicial immunity. We affirm the circuit court's decision. Fouliard is incorrect when he claims that a violation of a ministerial duty renders a notice of claim unnecessary. Even were this not the case, Fouliard has not suffered any compensable damages. Having disposed of this appeal on these grounds, we need not address the issue of Bierdemann's quasi-judicial immunity.
Statutes/ Statutory Construction-Interpretation/ Taxations/ Trusts Ho-Chunk Nation v. D.O.R.Docket: 2007AP001985 05-01-08 Recommended for PublicationVERGERONT, J. This appeal concerns the Ho-Chunk Nation's claim for a refund of cigarette taxes under WIS. STAT. § 139.323 (2005-06) in respect to sales on the DeJope property. The Tax Appeals Commission denied the claim because it concluded the DeJope property was not "designated trust land on or before January 1, 1983" as required by the statute. See § 139.323(3). The circuit court affirmed and the Ho-Chunk Nation appeals.
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