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• Criminal Law/ Evidence/ Evidence Ruling/ Judicial Notice/ Statutes/ Searches
  
  State v. Wasserman
  Docket: 2007AP001441 08-26-08
  Recommended for Publication
  

  WEDEMEYER, J. Heath N. Wasserman appeals from a judgment of conviction for one count of possession of a firearm by a convicted felon contrary to WIS. STAT. § 941.29(2)(a) (2005-06). The judgment was entered pursuant to a negotiated no-contest plea dated October 16, 2006, after the original charge was dismissed because of a missing witness. When reissued, the new trial court took judicial notice of the original court's findings in the suppression motion. Wasserman contends that the trial court erred by taking judicial notice of earlier findings from the original trial court rather than re-hearing the suppression motion. Wasserman also challenges the original trial court's ruling on the suppression motion on the grounds that the search was unlawful. Because the trial court erred in taking judicial notice of the prior judge's discretionary decision in a dismissed case that never went to judgment, when the court should have conducted a new suppression hearing and issued its own decision, we reverse, set aside the no-contest plea, and remand for a new suppression hearing.
• Criminal Law/ Evidence/ Warrants/ Probation
  
  State v. Barefield
  Docket: 2007AP001283 08-26-08
  

  PER CURIAM. Cedric Leon Barefield, Jr., appeals from a judgment of conviction for eight armed robberies. The issue is whether the evidence found during a search of the apartment where Barefield was staying should have been suppressed because police did not have a search warrant. We conclude that the violation of a probation warrant issued to take Barefield into custody was sufficient to justify that search pursuant to State v. Pittman, 159 Wis. 2d 764, 772, 465 N.W.2d 245 (Ct. App. 1990). Therefore, we affirm.
• Criminal Law/ Ineffective Assistance Of Counsel/ Constitutional Law/ Public Trial
  
  State v. Key
  Docket: 2007AP002585 08-26-08
  

  CURLEY, P.J. George J. Key, Jr., appeals the judgment, entered following a jury trial, convicting him of two counts of first-degree recklessly endangering safety while armed, one count of possession of a firearm by a felon, and one count of possession of a short-barreled shotgun, all as a habitual criminal, contrary to WIS. STAT. §§ 941.30(1), 939.63, 941.29(2), 941.28(2), and 939.62 (2003-04), respectively. Key also appeals from the order denying his postconviction motion. Key argues that his trial counsel was ineffective for failing to object to the trial court's directive prohibiting Key's grandmother from taking notes at the trial. He submits that the trial court's order denied him his constitutional right to a public trial. Because the trial court's prohibition against note-taking by Key's grandmother during the jury trial was not a denial of Key's right to a public trial, Key's attorney was not ineffective for failing to object. Consequently, we affirm.
• Criminal Law/ Ineffective Assistance Of Counsel/ Evidence/ Procedure
  
  State v. Vermaat
  Docket: 2007AP001610 08-26-08
  

  PER CURIAM. Donald Vermaat appeals a judgment of conviction on one count of sexual assault of a child under age thirteen and an order denying his motion for postconviction relief. Vermaat contends he received ineffective assistance of counsel. He also asserts the trial court impermissibly limited his cross-examination of a witness. Because we conclude counsel was not deficient and the trial court did not err, we affirm the judgment and order.
• Criminal Law/ Pleas/ Plea Withdrawal/ Knowingly, Voluntarily & Intellectually/ Evidence/ Evidence Ruling/ Sentencing
  
  State v. Harris
  Docket: 2006AP000285 08-28-08
  

  PER CURIAM. Shawn Harris appeals from a judgment of conviction and an order denying his postconviction motion. We affirm.
• Criminal Law/ Sentencing/ Sentencing Modification
  
  State v. Ray
  Docket: 2007AP002087 08-26-08
  

  PER CURIAM. Vincent Evelyn Ray appeals from an order denying his postconviction motion seeking to modify his sentence. Ray asserts two grounds for appeal. First, he claims that the trial court's sentence imposing consecutive rather than concurrent time was unduly harsh. Second, he claims that his worsening health and his belief that he cannot obtain the health care he needs in prison constitute a new factor warranting sentence modification, and the trial court erred by not holding a hearing on his postconviction motion. Because consecutive sentences were not unduly harsh, and because no new factors exist warranting sentencing modification, we affirm.
• Estates/ Negligence/ Apportionment Of Negligence/ Summary Judgment/ Comparative Negligence/ Statutes
  
  Berglund v. Hunsaid
  Docket: 2007AP001132 08-28-08
  

  HIGGINBOTHAM, P.J. This is a negligence apportionment case. Joseph Berglund negligently caused a motor vehicle accident on a Wisconsin highway. As a result, his car and the car he collided with were disabled on the highway. Soon thereafter, a vehicle driven by Mandy Hunsaid struck and killed Berglund. Lisa Berglund, as special administrator of the estate of her deceased husband, Joseph Berglund, and on her own behalf (collectively "the Estate"), brought this action against Mandy Hunsaid and her automobile insurance providers, American Family Mutual Insurance Company and Progressive Insurance Company (collectively "Hunsaid").
• Family Law/ Divorce/ Child Support/ Contracts
  
  Winters v. Winters
  Docket: 2007AP000909 08-27-08
  

  PER CURIAM. Linda Winters has appealed from a postdivorce order addressing child support. We affirm the order.
• Injunction/ Harassment/ Evidence/ Statute
  
  Kebbekus v. Fedran
  Docket: 2007AP002089 08-27-08
  

  BROWN, C.J. Brian Fedran appeals from a harassment injunction forbidding him from having contact with Cassandra Kebbekus or from possessing firearms. He requests reversal on two grounds: that the circuit court improperly received and considered hearsay testimony at the injunction hearing and that his actions with respect to Kebbekus do not meet the statutory definition of "harassment." Having examined the hearing transcript and the court's decision, we conclude that all testimony relied on by the court was properly admitted. We also conclude that the facts found by the trial court support its holding that Fedran repeatedly committed acts harassing to Kebbekus and that he did so intentionally. We therefore affirm.
• Juvenile Law/ Criminal Law/ Delinquent/ Constitutional Law-Due Process/ Bias/ Judicial Authority-Discretion
  
  State v. Thor G.B.
  Docket: 2007AP002447 08-27-08
  

  NEUBAUER, J. Thor G.B. appeals from a dispositional order adjudging him delinquent based on his admission to being party to the crime of arson, contrary to WIS. STAT. § 943.02(1)(a), and ordering him to be placed in secure detention. Thor contends that his due process rights to a fair dispositional hearing were violated when the juvenile court relied upon a report prepared by a social worker who was married to one of the investigating officers. We reject Thor's argument for two reasons. First, the juvenile court gave Thor the opportunity to address the case worker's relationship with the investigating officer and he did not do so. Second, neither the facts presented on appeal nor the controlling case law support a conclusion that this relationship resulted in bias as a matter of law or actual bias. We therefore affirm the order.
• OWI/ Collateral Attack/ Right To Counsel/ Waiver Of Right To Counsel
  
  State v. Shanks
  Docket: 2007AP002981 08-28-08
  

  DYKMAN, J. The State appeals from the trial court's order granting Benjamin Shanks' motion to exclude a prior Illinois driving under the influence conviction for penalty purposes in a pending Wisconsin operating while intoxicated prosecution. Shanks argues that the prior conviction was properly excluded because his constitutional right to counsel was violated in the Illinois proceeding, which precluded that conviction from raising his OWI-1st to an OWI-2nd. See WIS. STAT. § 346.65(2)(am). The State argues that Shanks' prior conviction is valid for two reasons. First, Shanks had no constitutional right to counsel in the Illinois DUI proceeding. Second, even if Shanks had a right to counsel, he validly waived that right. We conclude that Shanks was denied his constitutional right to counsel during his Illinois DUI proceeding. Accordingly, we affirm.
• OWI/ Evidence/ Reasonable Suspicion/ Traffic Stops/ Constitutional Law/ Traffic Signs/ Statutes
  
  City of Whitewater v. Craig
  Docket: 2007AP002612 08-27-08
  

  ANDERSON, P.J. Terry Craig appeals from an order affirming the municipal court's judgment of conviction for operating while intoxicated, first offense, under WIS. STAT. § 346.63(1)(a). Craig argues that the circuit court erred in denying his motion to suppress evidence because the police officer did not have reasonable suspicion to stop his vehicle. We conclude there was reasonable suspicion. We affirm the order.
• Property/ Adverse Possession/ Jurisdiction
  
  Dorsha v. Wiesner
  Docket: 2006AP002153 08-28-08
  

  PER CURIAM. Dale Wiesner appeals from a judgment in favor of Carroll and Frank Dorsha in this adverse possession case. Wiesner argues: (1) the Dorshas did not carry their burden of proving the elements of adverse possession; (2) Wiesner himself adversely possessed the land as to the Dorshas; and (3) the circuit court erred in denying his motion to reopen the judgment. We affirm.
• Property/ Permits/ Town & Cities/ Ordinances
  
  Oltman v. Primrose
  Docket: 2007AP000314 08-28-08
  

  PER CURIAM. Christine Oltman appeals from an order affirming a decision of the Town of Primrose. She contends that the Town acted unlawfully and unreasonably in denying her a driveway permit. We affirm.
• Small Claims/ Default Judgment/ Jurisdiction/ Court's Competency
  
  Winkler v. Spaman Wholesale
  Docket: 2008AP000449 08-27-08
  

  NEUBAUER, J. Spaman Wholesale, Inc., appeals from the circuit court's denial of its WIS. STAT. § 806.07 motion to reopen a default judgment entered in small claims court in favor of Tom and Jill Winkler. The small claims court entered the default judgment against Spaman in the amount of the statutory limit, $5000, although the Winklers' small claims complaint requested an award of $8000. Spaman contends that the circuit court erred in denying its request to reopen and vacate the judgment because the small claims court lacked competency to address the Winklers' demand for $8000. We reject Spaman's argument and affirm the order.
• Small Claims/ Replevin/ Statutes/ Failure To State A Claim/ Notice
  
  Williams v. Kamin
  Docket: 2007AP001707 08-28-08
  

  BRIDGE, J. William Frederick Williams, appearing pro se, appeals an order dismissing his small claims replevin action for failure to state a claim upon which relief may be granted. The court determined that Williams failed to comply with the notice of claim statute, WIS. STAT. § 893.82(3). We conclude that the outcome of this case is controlled by Lewis v. Sullivan, 188 Wis. 2d 157, 524 N.W.2d 630 (1994), and that, although that portion of Williams' complaint seeking compensatory damages is barred by his failure to comply with the notice of injury statute, that portion of his complaint seeking declaratory relief is not. We therefore affirm in part, reverse in part, and remand the cause for further proceedings.
• Summary Judgment/ Informed Consent/ Evidence/ Negligence/ Medical Malpractice/ Judicial Authority-Discretion
  
  Weinke v. Freeman
  Docket: 2007AP002062 08-27-08
  

  PER CURIAM. Duane Weinke's estate appeals from the summary judgment dismissing the action against the defendant physicians. The estate strenuously argues that decisions here regarding administration of prophylactic antibiotics with a lung biopsy present informed consent and standard of care issues not appropriate for resolution by summary judgment. It also contends that the testimony of its sole expert, a family practitioner, regarding the need for prophylactic antibiotics, goes to weight and credibility, not admissibility. We affirm the exclusion of the expert's testimony as a proper exercise of the trial court's discretion and the resultant grant of summary judgment.