PATIENCE DRAKE ROGGENSACK, J. We review an unpublished court of appeals decision reversing a circuit court's denial of Brian Duchow's (Duchow) motion to suppress threatening statements he directed to a disabled child aboard a public school bus. The child, Jacob M., surreptitiously recorded Duchow's statements using a voice-activated tape recorder that his parents placed in his backpack. The circuit court concluded that the tape-recorded statements were not "oral communication" as defined by the Electronic Surveillance Control Law, Wis. Stat. §§ 968.27-.33 (2005-06), and accordingly, the strictures of the Law did not operate to prevent use of the statements. In contrast, the court of appeals concluded that the statements were oral communication and that the oral communication was lawfully intercepted. However, the court of appeals also concluded that, notwithstanding the statements' lawful interception, the statements could not be admitted at trial because they were not intercepted in accord with the "under color of law" requirement of Wis. Stat. § 968.29(3)(b). State v. Duchow, 2007 WI App 162, ¶42, 303 Wis. 2d 744, 735 N.W.2d 192.

ANNETTE KINGSLAND ZIEGLER, J. This is a review of an unpublished court of appeals' decision, which affirmed the decisions of the Shawano County Circuit Court, James R. Habeck, Judge. Jorgensen was convicted of bail jumping, operating while intoxicated (fifth offense), operating with a prohibited alcohol concentration (fifth offense), and operating a motor vehicle after revocation. The circuit court denied Jorgensen's motion for post-conviction relief concluding that defense counsel was not ineffective but instead had made decisions based upon a reasonable trial strategy, and any error that occurred did not negatively impact Jorgensen. The circuit court also concluded that none of the errors constituted plain error. The court of appeals affirmed the circuit court's decision, and as a result, Jorgensen petitioned this court for review. On this appeal, Jorgensen asserts four theories of relief: plain error, in the interest of justice, ineffective assistance of counsel, and structural error. We conclude that the unobjected to errors of the judge and the prosecutor in this case are fundamental, obvious, and substantial; and the State has failed to meet its burden of proof that these errors were harmless. Thus, we conclude that these errors constitute plain error. As a result, we reverse the court of appeals' decision and remand to the circuit court for a new trial.

PATIENCE DRAKE ROGGENSACK, J. We are asked to review a decision of the court of appeals that affirmed the circuit court's order denying Douglas Plude's motion for postconviction relief from his conviction of first-degree homicide, contrary to Wis. Stat. § 940.01 (2005-06). Plude's conviction was based on the death of his wife, Genell Plude. He sought to have the jury's verdict set aside and to have the charges dismissed or to have a new trial based on two allegations of error.

N. PATRICK CROOKS, J. This is a review of a published decision of the court of appeals that affirmed the Circuit Court for Brown County, Judge William M. Atkinson, presiding.

PER CURIAM. Gerald Tyler, pro se, appeals a judgment, entered on a jury's verdict, finding The Riverbank not liable for losses Tyler claims he suffered when his wife Bianca made withdrawals from certain accounts. In essence, Tyler alleges that the evidence does not support the verdict and that the trial court made certain procedural errors which corrupted the results. Tyler also appeals an order denying his motion to change the jury's answers, reiterating his insufficient evidence argument. We reject Tyler's arguments and affirm.

PER CURIAM. Michael Schaar appeals his commitment as a sexually violent person under WIS. STAT. ch. 980. Schaar also appeals an order denying his motion for post-commitment relief. Schaar challenges the timeliness of the petition seeking his commitment as a sexually violent person. We reject Schaar's arguments and affirm the judgment and order.

HIGGINBOTHAM, P.J. Jeremy Montrell Muskin appeals a judgment of conviction for two counts of armed robbery with threat of force as a party to a crime, contrary to WIS. STAT. §§ 943.32(2) and 939.05 (2005-06). Muskin also appeals the trial court's order denying his motion for postconviction relief without a hearing. Muskin challenges the judgment of conviction on multiple grounds. First, he contends a colloquy with the trial court was improper and compromised the voluntariness of his waiver of the right to testify. Second, he asserts the trial court should have prohibited a police detective from giving opinion testimony. Third, he maintains his right to due process was denied by the prosecutor's repeated references at trial to the race of the victims and by the prosecutor's failure to disclose exculpatory information. Finally, he contends that several errors of trial counsel denied him his right to effective assistance.

WEDEMEYER, J. Cory Miriell Wright appeals from a judgment of conviction after a jury found him guilty of two counts of armed robbery, party-to-a-crime, in violation of WIS. STAT. §§ 943.32(2) and 939.05 (2005-06). He also appeals from postconviction orders denying his motions on one of the counts of armed robbery and for a new trial.

PER CURIAM. Zalassio Sain appeals a judgment of conviction and an order denying his motion for postconviction relief. He argues that the circuit court should have granted his motion to compel the State Crime Laboratory to conduct an examination for fingerprints on a stolen Tums jar dropped by robbers in the yard outside the apartment building where the robbery occurred. See WIS. STAT. § 165.79(1) (2005-06). The State counters that § 165.79(1) does not apply post-trial. In the alternative, Sain argues that the circuit court should have allowed his expert access to the Tums jar so it could be examined for the presence of fingerprints, citing State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999). We affirm.

PER CURIAM. Thomas E. Buntrock has appealed from a judgment convicting him of the possession of narcotic drugs in violation of WIS. STAT. § 961.41(3g)(am) (2005-06). The sole issue on appeal is whether Buntrock is entitled to reversal of the trial court's order denying his motion to suppress evidence seized from his residence. Because the trial court properly determined that the seizure resulted from a lawful protective sweep of the premises, we affirm the judgment.

PER CURIAM. Prince Preston appeals from judgments convicting him of delivery of cocaine and maintaining a drug trafficking place. The sole issue on appeal is whether evidence seized pursuant to a search warrant should have been suppressed based on the State's failure to provide the defendant with a timely transcript of the telephonic search warrant request. We agree with the trial court that suppression was not required, and therefore affirm.

KESSLER, J. Adrian J. Jackson appeals from a judgment of conviction and sentence which followed his guilty plea after the trial court denied his motion to suppress certain evidence obtained pursuant to a search warrant. Jackson asserts the warrant was invalid. We conclude that the warrant failed to establish the particularity required for the search of one unit in a multifamily residence, and failed to establish probable cause for the search of the building as a whole or either unit therein. Consequently, we reverse.

PER CURIAM. Kenneth Gering appeals from an order denying his petition for writ of coram nobis. We affirm.

PER CURIAM. Eric Zendejas appeals a judgment of conviction for second-degree sexual assault of a child and an order denying his motion for sentence credit. Zendejas sought credit for the time between entry of his no contest plea and the date of sentencing for this offense, even though he was simultaneously serving prison sentences for unrelated offenses. Because we conclude Zendejas is not entitled to additional credit, we affirm the judgment and order.

WEDEMEYER, J. Devaillous R. Hankins appeals from a judgment and orders following his guilty plea to one count of possession with intent to deliver cocaine. Hankins' complaint is that the trial court erred when it denied him 139 days of sentence credit that he believes he should receive. Because the trial court did not err in denying Hankins credit for the 139 days during which he was serving a sentence on a fleeing conviction until the time he was sentenced for possession, we affirm.

PER CURIAM. The Wisconsin Worker's Compensation Uninsured Employers Fund (the Fund) appeals an order affirming a jurisdictional coverage decision by the Labor and Industry Review Commission (LIRC). We affirm for the reasons discussed below.

KESSLER, J. David E. Bielinski appeals from the trial court's order which retains child support at seventeen percent of Bielinski's imputed gross income without downward deviation for shared placement pursuant to WIS. ADMIN. CODE § DWD 40.04(2) (Dec. 2003). Because the trial court has provided a thorough and thoughtful analysis of its reasons for deviating from § DWD 40.04(2) in setting child support, and thus demonstrates a reasoned exercise of its discretion, we affirm.

FINE, J. David W. appeals the order terminating his parental rights to his son Ameen W. A jury found that David W. failed to assume his parental responsibility in connection with Ameen, see WIS. STAT. § 48.415(6), and the trial court determined that it was in Ameen's best interests to terminate David W.'s parental rights to him. David W. claims that the trial court erred in upholding the jury's verdict, and, also, that the trial court erred in terminating his parental rights to Ameen. We affirm.

LUNDSTEN, J. David P.E. appeals the circuit court's order that terminated his parental rights to his son, Jesse J.E. David argues that he is entitled to a new trial because the circuit court erroneously admitted evidence that he pressured Jesse's mother to have sexual intercourse with him. David also argues that he is entitled to a new dispositional hearing because the court failed to make reference to one of the factors it was required to consider at disposition under WIS. STAT. § 48.426(3). We reject David's arguments and affirm the circuit court's order.

HIGGINBOTHAM, P.J. Jeremy T. Greene, a prisoner in the custody of the Department of Corrections (DOC), appeals an amended order of restitution directing DOC to distribute ten percent of his prison "wages, earnings and accounts" to pay restitution. Greene argues the circuit court lacked the authority to direct DOC to access "accounts" holding gifted funds from friends and family to pay restitution. He further argues that the amended restitution order violates his double jeopardy protections, and that the order wrongfully increased his sentence in the absence of a new sentencing factor. We conclude that under WIS. STAT. § 973.20 (2005-06)the court properly ordered Greene to pay restitution from funds held in his prison account, which presumably includes gifted funds. We also conclude that the order did not violate Greene's double jeopardy guarantees or wrongfully increase his sentence. We therefore affirm the circuit court's amended restitution order.

SNYDER, J. Richard and Marjorie Bubb initiated a medical malpractice action against Dr. William Brusky, Dr. Xian Feng Gu, St. Agnes Hospital, and their insurers. The Bubbs contend the circuit court erred when it refused to submit the question of informed consent to the jury, effectively dismissing that portion of their claim and limiting the inquiry to whether Dr. Brusky and Dr. Gu were negligent in their care of Richard. The Bubbs submit that sufficient evidence supported their claim that the doctors failed to adequately inform Richard of alternate, viable treatment options and thereby prevented him from giving informed consent to be sent home from the emergency room of St. Agnes Hospital. We disagree and affirm the judgment.

KESSLER, J. James Lister appeals from an order dismissing his complaint after Lister twice failed to appear for his deposition and then failed to provide a court-ordered physician's report as to his ability to travel to, and participate in, a deposition. We affirm.

HIGGINBOTHAM, P.J. Janette I. Wilson appeals a judgment entered on a jury verdict finding her guilty of operating a motor vehicle while under the influence of an intoxicant (OWI), third offense, and operating a motor vehicle with a prohibited alcohol concentration (PAC), third offense, contrary to WIS. STAT. §§ 346.63 and 346.65. During its deliberations, the jury asked the court if it needed to determine Wilson's exact blood alcohol content (BAC) to answer a special jury question found on the verdict form for the operating a motor vehicle with a PAC count. In response, the court informed the jury that it could determine that the BAC was greater than a certain amount without determining the exact figure. Ultimately, the jury returned a verdict on the PAC count that found that Wilson's BAC was "greater than 0.08%."

ANDERSON, P.J. In this case we reverse the circuit court's order denying Arlyn W. Noffke's motion for reconsideration seeking to withdraw his admissions and the vacation of summary judgment in favor of Alan Dordel. The court had granted Dordel summary judgment based solely on Noffke's failure to respond to requests for admissions served thirty-two days after the summons and complaint were filed. The record does not demonstrate that when the court considered the motion to relieve Noffke from his deemed admissions, it gave careful thought whether resolution of the merits of the action would be promoted by withdrawal of the admissions and whether Dordel would be prejudiced by the withdrawal of the admissions. Both considerations are required by law.

PER CURIAM. Randall Sobjeck appeals an amended order reaffirming a sale of mortgaged property, granting a petition for a deficiency judgment, and establishing a deficiency amount after applying funds from a deposit account at Peoples State Bank toward the deficiency. Sobjeck argues Peoples Bank was not entitled to a deficiency judgment, which was filed nearly two years after the order confirming the sheriff's sale. Sobjeck also argues the funds in the deposit account were exempt from the claims of creditors. We disagree and affirm the amended order.

PER CURIAM. Daniel Rittenhouse appeals a summary judgment in favor of Ron Hulce and Michael Begres. Rittenhouse argues summary judgment is not appropriate because of disputed material facts. We conclude the circuit court correctly granted Hulce and Begres summary judgment on Rittenhouse's conspiracy claim and his tortious interference claim against Hulce. However, we agree with Rittenhouse that material factual disputes prevent summary judgment on his promissory estoppel claim and his tortious interference with contract claim against Begres. We therefore affirm in part, reverse in part, and remand for further proceedings.

PER CURIAM. The Law Offices of Elizabeth G. Rich appeals a circuit court order denying Rich's petition to review the Wisconsin Department of Administration's (DOA) denial of her protest of a decision of the University of Wisconsin ­ Milwaukee and dismissing her claim. Rich argues that, in awarding a contract to another proposer, UWM violated the notice requirement of WIS. ADM. CODE Adm 10.08(6) (Dec. 2006), and that the evaluation committee acted arbitrarily in administering the contract selection process. She also asserts that the winning proposal was inadequate. We disagree and affirm.