author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Kelley L. Hauk, Defendant-Appellant.
    Court of Appeals

      Nos. 01-1668-CR, 01-1669-CR.

      Submitted on briefs April 17, 2002.

    Decided August 1, 2002.

    2002 WI App 226
    (Also reported in 652 N.W.2d 393.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David D. Cook, Monroe.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney-general, and Jeffrey J. Kassel, assistant attorney general.
    Before Dykman, Roggensack and Deininger, JJ.

       See Callaghan’s Wisconsin Digest, same topic and section number.

   DYKMAN, J.

¶ 1. Kelley Hauk appeals from two judgments of conviction for bail jumping and from two orders denying her motions for postconviction relief. With regard to the first conviction for bail jumping, Hauk presents arguments regarding the sufficiency of the evidence, the circuit court's authority to approve a stipulation, waiver of her right to a jury trial, and ineffective assistance of counsel. In addition, she argues that if we reverse the first bail jumping conviction, we should order resentencing or sentence modification on the second bail jumping conviction.

¶ 2. Although the State presented sufficient evidence to prove that Hauk committed a crime, we conclude that Hauk did not waive her right to have a jury determine all the elements of bail jumping. Accordingly, we reverse and remand for a new trial with respect to the first bail jumping conviction. Further, we conclude that the reversal of Hauk's first conviction constitutes a new factor with regard to the sentence for her second bail jumping conviction. Accordingly, we remand to allow the circuit court to exercise its discretion to determine whether the new factor justifies a sentence modification.

BACKGROUND

¶ 3. This is an unusual case with a somewhat unusual background. The events leading up to Hauk's bail jumping charge began when the State charged Hauk with interference with custody. After her arrest, Hauk was released on bond. One of her conditions of release was to not "commit any crimes or engage in any criminal activity."

¶ 4. While Hauk was free on bond, a friend of Hauk's, Cynthia Guevara, contacted the Green Bay Police Department claiming that Hauk had hired someone to murder her ex-boyfriend and his current wife. Detective Scot Miller met with Guevara later that same evening. Miller interviewed Guevara, and wrote out a statement that Guevara reviewed and signed. Guevara repeated in the statement that Hauk told Guevara that she hired Stanley Thomas, a co-worker, to kill her ex-boyfriend and his wife. However, after speaking with Guevara, Hauk had agreed to call Thomas to tell him "not to do it, to call the whole thing off."

¶ 5. Hauk called Guevara while Miller was at Guevara's home. Guevara invited Miller to listen to the conversation on another telephone without telling Hauk that he was doing so. Miller testified that the conversation was "about hiring this Mr. Thomas to kill her ex-boyfriend and his new wife and how Cindy [Guevara] had talked her out of that and that from what I can remember she was going to place a call to Mr. Thomas and have this alleged hit stopped."

¶ 6. The following day Hauk gave her own statement to Miller, in which she confessed that she had spoken with Thomas. She stated that after complaining to Thomas that her son was being sexually abused, Thomas told her "he would kill the guy." The next day Hauk told Thomas "to go ahead and make the call." However, after talking with Guevara, Hauk decided "to call it off." She contacted Thomas and told him "to stop the hit."

¶ 7. Rather than charge Hauk with attempted murder, conspiracy or solicitation, the State charged Hauk with bail jumping, contrary to Wis. Stat. § 946.49(l)(b) (1997-98). Although Hauk was ultimately acquitted of the interference with custody charge, she was on bond at the time her conversations with Thomas allegedly took place. The State alleged that Hauk had intentionally failed to comply with a term of her bond not to "commit any crimes or engage in any criminal activity" when she "made arrangements to have two people killed." Hauk moved to dismiss the charge on the grounds that the facts as alleged in the complaint did not provide a sufficient basis for the charged crime. The circuit court denied the motion.

¶ 8. Hauk's attorney filed a document with the court stating that the defendant wished to stipulate to some of the elements of bail jumping. The circuit court approved it on the first day of trial. As a result, the jury was not informed that Hauk was charged with bail jumping and did not decide whether Hauk was charged previously with a felony or misdemeanor, whether she was released from custody on bond, or whether she intentionally failed to comply with the terms of her bond. Instead, the jury was asked to determine only whether Hauk had committed a crime. The court, however, did not decide prior to trial which crime would be submitted to the jury.

¶ 9. After testimony from the ex-boyfriend, Miller, Guevara and a second detective, the circuit court concluded that it would instruct the jury on the crime of solicitation under Wis. Stat. § 939.30. The jury found Hauk guilty and the circuit court entered a judgment of conviction for bail jumping.

¶ 10. Hauk failed to appear at her sentencing hearing. As a result, the State filed a complaint against Hauk, charging her with another count of bail jumping. She pleaded no contest to the second bail jumping offense, and the circuit court sentenced her to four years in prison for the first bail jumping charge, and five years for the second bail jumping charge, to run concurrently with the first sentence. Hauk filed post-conviction motions in both cases, which the circuit court denied. Hauk appeals.

DECISION

A. Sufficiency of the Evidence

1. Standard of Review

[I, 2]

¶ 11. The parties agree that the standard for reviewing the sufficiency of a jury verdict was set forth in State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990). If, in viewing the evidence in the light most favorable to the conviction, no reasonable jury could have found guilt beyond a reasonable doubt, the conviction must be reversed. Id. at 501. We agree with Hauk that, under this standard, a conviction cannot be sustained on the sole basis that there is "some evidence" supporting a guilty verdict. Rather, there must be sufficient evidence to enable a reasonable jury to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317-18 (1979).

¶ 12. We disagree, however, that we must reverse the conviction if "any trier of fact" would be able to "reconcile the evidence upon any reasonable hypothesis consistent with the defendant's innocence." Hauk has confused the standard for the jury to use in determining whether reasonable doubt exists and the standard of appellate review. It is the role of the fact finder, not this court, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts. Poellinger, 153 Wis. 2d at 506. Therefore, although the jury is required to exclude every reasonable hypothesis of the defendant's innocence before returning a guilty verdict, we must affirm the jury's finding if there is any reasonable hypothesis that supports the conviction. State v. Blair, 164 Wis. 2d 64, 68 n.1, 473 N.W.2d 566 (Ct. App. 1991).

2. Necessity of a Conviction for the Underlying Crime

¶ 13. Under Wis. Stat. § 969.03(2), when an individual charged with a felony is released on bond, one of the conditions of release must always be that the defendant "not commit any crime." Hauk's bond required her "not [to] commit any crimes or engage in any criminal activity." Hauk contends that there was insufficient evidence to prove that she violated this condition because she was never convicted of an underlying crime.

¶ 14. We agree with Hauk that there is no substantive difference between "committing a crime" and "engaging in criminal activity." One who engages in criminal activity is by definition also committing a crime. We disagree, however, that the State must obtain a conviction for the underlying crime in order to prove that the defendant violated the bail jumping statute. In essence, Hauk's contention is that if the State wants to obtain a conviction for violating a bond by committing a crime, it must charge the defendant with both bail jumping and the underlying crime. Not only would such a requirement encourage multiple charges for the same conduct, but it is also unsupported by Wis. Stat. § 969.03(2). Hauk's bond does not prohibit her from being convicted of a crime but rather required her not to commit any crimes.

588

¶ 15. Hauk nonetheless contends that a conviction was required, relying on State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), and State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993). In Hansford, the supreme court reversed a conviction for obstructing an officer because the defendant was denied his right to a jury trial under art. I, § 7 of the Wisconsin Constitution. Hansford, 219 Wis. 2d at 243. Hansford had also been charged with and convicted of bail jumping because he was on bond at the time he was arrested for obstructing, and one of his requirements was to not commit any crimes. Id. Although Hansford waived his right to a jury on this charge, the supreme court nevertheless reversed this conviction as well because "the bail jumping conviction was premised solely upon the Defendant's obstructing conviction." Id. at 245 (emphasis added).

¶ 16. Hansford does not, as Hauk suggests, hold that a conviction for the underlying crime is a prerequisite to finding that a defendant has violated a term of his or her bond by committing a crime. Rather, the circuit court in Hansford had based its finding that the defendant was guilty of bail jumping entirely on the jury's finding that the defendant was guilty of obstructing. Id. at 244-45. When the supreme court reversed the obstruction conviction, it left no evidence to support the bail jumping conviction. The court explained: "Absent a finding that the Defendant committed a crime, the State has not proved beyond a reasonable doubt an element of the bail jumping charge." Id. at 245. Because in Hauk's case there was a finding that she committed a crime — solicitation—Hansford does not apply.

¶ 17. In West, the defendant was released on bail in Wisconsin on the condition that she not commit any crimes. West, 181 Wis. 2d at 794. While released, however, she was charged with and convicted of theft in Ohio. Id. Subsequently, the State of Wisconsin charged her with bail jumping. Id. West argued that she did not violate her bond because she had not committed any crimes in Wisconsin. Id. at 795. Applying a dictionary definition of "crime," we concluded that prosecutions for bail jumping were not limited to Wisconsin crimes, but could also be predicated on crimes committed in other states. Id. at 795-96.

¶ 18. In arguing that West requires a conviction for the underlying crime, Hauk relies on one sentence: "We therefore conclude that when West was charged and convicted in Ohio of theft, she committed a 'crime' and intentionally violated an express condition of her bond." Id. at 797. We disagree that this sentence supports Hauk's position. Like Hansford, West acknowledges only that a conviction is one way in which the State can prove that the defendant committed a crime; it does not hold the converse, namely, that a conviction for the underlying crime is necessary to prove that the defendant violated the bond.

¶ 19. We therefore conclude that as long as there is evidence sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that a defendant intentionally violated his or her bond by committing a crime, that evidence is not required to be in the form of a conviction for the underlying crime.

3. Corroboration of Hauk's Confession

¶ 20. In Wisconsin, as in the federal courts, there is a common law rule that "conviction of a crime may not be grounded on the admission or confessions of the accused alone." State v. Verhasselt, 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978); see also Opper v. United States, 348 U.S. 84 (1954). Rather, there must be corroboration of a "significant fact" in order to sustain a conviction. Schultz v. State, 82 Wis. 2d 737, 753, 264 N.W.2d 245 (1977). "Such corroboration is required in order to produce confidence in the truth of the confession." Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962).

¶ 21. Hauk argues that all of the evidence relied upon by the State consists of extra-judicial statements that she made to either Detective Miller or her friend Guevara and therefore there was insufficient evidence to convict her. The State contends that the corroboration rule for confessions applies only to statements made to the police, and that Hauk's confession at the police station was sufficiently corroborated by the statements she made to Guevara and the telephone conversation that she had with Guevara that was overheard by Miller.

¶ 22. No Wisconsin case has explicitly decided whether the corroboration rule applies to all extrajudicial statements made by the accused or only those made to the police. On its face, the rule as it is stated in Verhasselt and other cases does not make a distinction based on to whom the statement is made. In at least one case, however, the supreme court has implied that the context of the admission or confession was relevant. See Triplett v. State, 65 Wis. 2d 365, 222 N.W.2d 689 (1974). In Triplett the defendant confessed to the police that he had been involved in the murder of a police officer. Id. at 366. He was later tried and convicted of first-degree murder. Id. at 367. On appeal, the defendant argued that there was insufficient evidence corroborating his confession to support a conviction. Id. The court disagreed, noting that there was "corroboration of many significant facts." Id. at 372. Among the corroborating evidence discussed by the court was testimony by a "fellow prison inmate" who testified regarding conversations he had with the defendant in which the defendant admitted that he had committed the murder. Id. The court further noted that the inmate's testimony was "itself sufficient" to corroborate the defendant's confession. Id.

¶ 23. Hauk asserts that the language in Triplett is not controlling because the court also relied upon other evidence, including a gun found in the defendant's car, and a witness who saw the defendant leaving his apartment with a gun near the time of the murder and then return a few hours saying that he had just "killed a pig." Id. at 372-73. Therefore, Hauk argues, the statement by the court that the inmate's testimony was "itself sufficient" was dicta because it was not essential to the determination of the issue. See State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996). Even assuming, however, that the court's statement is dicta, it nevertheless expresses the view of the supreme court and we believe that we should follow it unless there are compelling reasons to do otherwise.

¶ 24. The primary rationale for the corroboration rule is that it helps to insure the reliability of the confession. See Holt, 17 Wis. 2d at 480. But the rule does not assume that all confessions are unreliable. If this were the case, then there would be no exceptions to the rule. The supreme court has held, however, that the rule does not apply when a confession is made in court. See Mularkey v. State, 199 Wis. 269, 271-72, 225 N.W. 933 (1929). Further, most jurisdictions are in agreement that no corroboration is required when an admission is made before the crime was committed. See Warszower v. United States, 312 U.S. 342, 347 (1941); Castillo v. State, 614 P.2d 756, 759 (Alaska 1980); State v. Saltzman, 44 N.W.2d 24, 28-29 (Iowa 1950); State v. Pietrzak, 41 P.3d 1240, 1245-46 (Wash. Ct. App. 2002). This suggests that the context of the confession is important. In explaining why it was requiring corroboration for a confession, the Supreme Court explained:

Confessions may be unreliable because they are coerced or induced .... Moreover, though a statement may not be "involuntary" within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation — whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past.

Smith v. United States, 348 U.S. 147, 153 (1954). The Court then held that the corroboration rule applies when "the admission is made after the fact to an official charged with investigating the possibility of wrongdoing." Id. at 155.

¶ 25. This discussion makes clear that the main concern behind the corroboration rule is that an accused will feel "coerced or induced" when he or she "is under the pressure of a police investigation" and make a false confession as a result. Concerns about police pressure are not implicated, however, when, as in Hauk's case, a confession is made to a friend before a police investigation was even initiated. Although there is always a possibility that an individual will falsely confess to a crime, the Supreme Court instructed in Smith that the rule's "application should be scrutinized lest the restrictions it imposes surpass the dangers which give rise to them." Id. at 153.

¶ 26. In our view, applying the corroboration rule in this case would not serve the purposes for which the rule was created. We therefore conclude that because Hauk's statements were made to a friend before there was a police investigation, the corroboration rule does not apply to those statements. Cf. United States v. Simmons, 923 F.2d 934, 954 (2d Cir. 1991) (holding that rule does not apply to statements made to co-conspirators); United States v. Raymond, 793 F.2d 928, 931 (8th Cir. 1986) (holding that rule does not apply to admissions made before arrest). We also conclude that Guevara's and Miller's testimony provided sufficient evidence to corroborate Hauk's confession to the police.

4. Sufficiency of the Evidence that Hauk Unequivocally Indicated that She Intended Murder Be Committed

¶ 27. The crime ultimately submitted to the jury was solicitation. Under Wis. Stat. § 939.30, an individual commits solicitation when, "with intent that a felony be committed, [he or she] advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent."

¶ 28. Relying on the jury instruction for solicitation, Hauk contends that the State failed to prove that she "unequivocally" intended that the ex-boyfriend be murdered. The jury instruction defines "unequivocally" as meaning that "no other inference or conclusion can reasonably and fairly be drawn from the defendant's acts." Wis JI — Criminal 550 (Rel. No. 39-4/2001). Hauk asserts that this definition is unusual in that it requires the jury to draw all reasonable inferences in favor of the defendant. Further, she argues that if we conclude that there is any reasonable inference that she did not unequivocally intend that murder be committed, we must reverse the conviction.

¶ 29. Hauk is incorrect with respect to both of her contentions. First, there is nothing unusual about requiring the jury to make reasonable inferences in favor of the defendant. As we have noted above in ¶ 12, the jury is required in all criminal cases to exclude every reasonable hypothesis of the defendant's innocence before returning a guilty verdict. But Hauk again confuses the standard for the jury and the standard of appellate review. The jury must draw all reasonable inferences in favor of the defendant, but we must make all reasonable inferences in favor of the jury's decision. See State v. Page, 2000 WI App 267, ¶ 9, 240 Wis. 2d 276, 622 N.W.2d 285, review dismissed, 2001 WI 15, 241 Wis. 2d 213, 626 N.W.2d 809 (Feb. 14, 2001) (No. 99-2015-CR). We are aware of no Wisconsin case that has applied Hauk's proposed standard of review, and Hauk has not cited to any. Rather, in our examination of the cases reviewing whether the State sufficiently proved the defendant acted unequivocally under the solicitation and attempt statutes, courts have not deviated from the general standard of review. See, e.g., State v. Stewart, 143 Wis. 2d 28, 31, 420 N.W.2d 44 (1988); State v. Cartagena, 99 Wis. 2d 657, 665, 299 N.W.2d 872 (1981).

¶ 30. Hauk concedes that a jury could reasonably conclude that she intended to have her ex-boyfriend killed. We therefore reject Hauk's contention that there was insufficient evidence for the jury to find that she committed solicitation.

B. Jury Trial Waiver

¶ 31. The jury in Hauk's trial never determined several of the elements of bail jumping. Specifically, pursuant to a stipulation, the jury never determined whether Hauk had been charged with a felony or misdemeanor, whether she was released from custody on bond, or whether she intentionally failed to comply with the terms of the bond. Rather, the jury found only that Hauk committed the crime of solicitation. Hauk contends that her right to a jury trial under the Sixth Amendment to the United States Constitution and article I, § 7 of the Wisconsin Constitution was violated because she never validly waived her right to have the jury determine all the elements of the crime. Alternatively, she argues that the circuit court's colloquy was defective. We agree with Hauk that she never waived her right to a jury trial, and therefore do not determine whether there was an adequate colloquy.

¶ 32. The State first suggests that the analysis regarding whether a defendant has waived the right to a jury is different depending on whether the defendant completely waives the right to a jury trial or only partially does so. We disagree that this is a meaningful distinction. The right to a jury trial includes the right to have a jury determine each element of the crime. United States v. Gaudin, 515 U.S. 506, 522-23 (1995); State v. Villarreal, 153 Wis. 2d 323, 326, 450 N.W.2d 519 (Ct. App. 1989); see also State v. Gordon, 2002 WI App 53, ¶¶ 44-45, 250 Wis. 2d 702, 641 N.W.2d 183, review granted, 2002 WI 48, 252 Wis. 2d 148, 644 N.W.2d 685 (Apr. 22, 2002) (No. 01-1679-CR). Further, defendants retain this right " 'no matter how overwhelming the evidence.'" State v. Harvey, 2002 WI 93, ¶ 20, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)). Therefore, whether Hauk waived her right to have the jury determine all the elements of the crime or only some of them, the waiver analysis is the same.

¶ 33. The State also argues that the waiver analysis is affected by whether the defendant gave up a jury trial in lieu of a determination by the circuit court or whether the defendant stipulated to the elements. Specifically, the State suggests that the requirements regarding jury waiver may not apply when a defendant enters a stipulation. We do not see the logic of this argument. Whether the defendant agrees to a circuit court determination of one or more elements or whether there is a stipulation, the defendant has still given up his or her right to have a jury determine all of the elements of the crime. If anything, courts should be more vigilant, not less, to insure a knowing and voluntary waiver when the defendant gives up the right to have any fact finder determine elements of the crime than when the trier of fact shifts from jury to judge. See State v. Bangert, 131 Wis. 2d 246, 265-66, 389 N.W.2d 12 (1986). Regardless, we see no reason why waiver requirements should not apply equally to all jury waivers.

¶ 34. In arguing that Hauk did waive her jury right, the State points to the stipulation. The problem with the stipulation, however, is that it was signed by Hauk's attorney only, and not by Hauk herself. The supreme court has held that the waiver must be made personally on the record by the defendant. State v. Livingston, 159 Wis. 2d 561, 569, 464 N.W.2d 839 (1991); see also State v. Grant, 230 Wis. 2d 90, 95, 601 N.W.2d 8 (Ct. App. 1999). The stipulation is therefore insufficient.

¶ 35. The State also relies on the following interaction between the court and Hauk:

COURT: Okay. Miss Hauk you have the right to have the jury determine every element of the offense of bail jumping beyond a reasonable doubt. Your attorney has offered to stipulate to a few of the elements. (1) that you were charged with a felony; (2) that you were released on a bond; and (3) that if the jury finds that you either conspired or solicited this hit, or this attempted murder plot, then the court would not submit the other element that I mentioned and simply find you guilty. If the jury found that you did not engage in this solicitation or conspiracy, whatever it turns out to be, then you would be acquitted. Is that something that you are still interested in?
MS. HAUK: Yes, Your Honor.

¶ 36. We do not believe that Hauk's reply of "Yes, Your Honor" "clearly indicate [s her] willingness and intent to waive [her] right to a jury trial." State v. Moore, 97 Wis. 2d 669, 671, 294 N.W. 2d 551 (Ct. App. 1980); see also Livingston, 159 Wis. 2d at 569 ("The record must clearly demonstrate the defendant's personal waiver."). Although the court informed Hauk that she had a right to have a jury determine all the elements, the court never asked Hauk if she wanted a jury trial or wished to waive it. Therefore, no waiver occurred. Moore, 97 Wis. 2d at 672 (holding that there is no waiver when court informs defendant of right to a jury trial but does not ask if he or she wants to waive it). The question that the court asked Hauk, "Is that something you are still interested in?" is equivocal. Immediately before the court asked this question, it had discussed several different issues, including that Hauk had the right to a jury and that she would be acquitted if the jury found that she did not commit a crime. It is therefore not clear as to what Hauk was agreeing she was "interested in." Further, although the court did refer to the stipulation, and it could therefore be inferred both that Hauk agreed to the stipulation and also that she waived her right to a jury, "the personal waiver may not be inferred or presumed." Livingston, 159 Wis. 2d at 569-70. We therefore conclude that Hauk did not validly waive her right to have the jury determine the elements of the crime.

¶ 37. With respect to the appropriate remedy, when a defendant has waived the right to a jury but the colloquy was deficient, the remedy is an evidentiary hearing to determine whether the waiver of the right was knowing, intelligent and voluntary. State v. Anderson, 2002 WI 7, ¶ 25, 249 Wis. 2d 586, 638 N.W.2d 301. However, "where a defendant has not made a jury waiver that is personal and otherwise valid in terms of statutory and case law, the proper remedy is a new trial and not a postconviction hearing to ascertain whether the waiver was constitutionally valid." Livingston, 159 Wis. 2d at 573. Because there was no valid jury waiver, Hauk is entitled to a new trial in which the jury determines each element of the crime.

C. Sentence Modification on Second Bail Jumping Conviction

¶ 38. Because we have concluded that Hauk is entitled to a new trial on the jury waiver issue, we need not address whether the circuit court had authority to approve the stipulation or whether Hauk's right to effective assistance of counsel was violated. The only remaining issue relates to the second bail jumping conviction. After Hauk was convicted of bail jumping, she failed to appear at her sentencing hearing. As a result, the State charged Hauk with another count of bail jumping, and she pleaded no contest. She ultimately was sentenced to four years in prison for the first bail jumping conviction (No. 99-CR-43) and to five years in prison for the second bail jumping conviction (No. 99-CR-167), to run concurrently with the first conviction.

¶ 39. Hauk argues that if her first bail jumping conviction is reversed, this will be a "new circumstance" providing grounds for modification of the sentence for her second bail jumping conviction. We construe Hauk's argument as one seeking sentence modification based upon a new factor.

¶ 40. To obtain sentence modification based upon a new factor, the defendant must demonstrate by clear and convincing evidence that there is a fact relevant to the imposition of the sentence and unknown to the trial court at the time of sentencing either because it was not then in existence or because it was unknowingly overlooked by all of the parties. State v. Koeppen, 2000 WI App 121, ¶ 33, 237 Wis. 2d 418, 614 N.W.2d 530. In addition, the defendant must show that the new fact or facts work to frustrate the purpose of the original sentence. State v. Marshall, 2002 WI App 73, ¶ 22, 251 Wis. 2d 408, 642 N.W.2d 571, review denied, 2002 WI 109, 254 Wis. 2d 262, 648 N.W.2d 477 (May 21, 2002) (No. 01-1403-CR). Whether a set of facts constitutes a new factor is a question of law that we review independently of the circuit court. Id. at ¶ 21.

¶ 41. There is no question that the reversal of Hauk's conviction in case No. 99-CR-43 is "new" in the sense that it was not in existence at the time Hauk was sentenced for case No. 99-CR-167. Further, we conclude that Hauk's conviction and sentence in case No. 99-CR-43 was highly relevant in the circuit court's determination of the sentence in case No. 99-CR-167.

¶ 42. The circuit court's sentencing of Hauk to a five-year concurrent sentence for the bail jumping conviction in case No. 99-CR-167 strongly suggests that Hauk's conviction for case No. 99-CR-43 was relevant to the sentence. Had the circuit court wanted Hauk to serve five years in prison independent of the first conviction, the court could have imposed a consecutive sentence. Further, before imposing sentence in case No. 99-CR-167, the court considered "the fact that you are currently serving a four-year prison sentence." The court also stated that "this is part of an episode in your life that is connected, even though it is a separate crime and consecutive sentences would be allowable, because it is your first time through the prison system it will be concurrent." When part of the underlying basis for a sentence no longer exists, this may frustrate the purpose of the sentence and modification may be appropriate. See State v. Norton, 2001 WI App 245, ¶¶ 13-16, 248 Wis. 2d 162, 635 N.W.2d 656 (holding that revocation of probation in another case was a new factor when circuit court had believed during sentencing that probation would not be revoked and considered this fact in imposing sentence); State v. Verstoppen, 185 Wis. 2d 728, 741, 519 N.W.2d 653 (Ct. App. 1993) (noting that acquittal of charge which formed the basis for probation revocation was a new factor for the purpose of sentence modification of sentence for underlying crime).

¶ 43. The existence of a new factor does not automatically entitle Hauk to a reduced sentence for the conviction in case No. 99-CR-167. See State v. Hegwood, 113 Wis. 2d 544, 546, 335 N.W.2d 399 (1983). Rather, the decision to modify a sentence based on a new factor is left to the sound discretion of the circuit court. State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989). We therefore remand to the circuit court to exercise its discretion regarding whether to modify Hauk's sentence in case No. 99-CR-167.

CONCLUSION

¶ 44. We conclude that the State presented sufficient evidence to prove that Hauk violated the terms of her bond by committing the crime of solicitation. However, because Hauk did not waive her right to have a jury determine each element of bail jumping, we reverse and remand for a new trial in case No. 99-CR-43. Finally, because we conclude that the reversal of Hauk's conviction constitutes a new factor, we remand case No. 99-CR-167 to permit the circuit court to exercise its discretion in determining whether the new factor justifies sentence modification.

By the Court. — Judgments and orders affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The State did not call Thomas to testify.

       We concluded that in the context of a bond condition not to commit any crimes, "crime" meant "an offense against the social order ... that is dealt with by community action rather than by an individual or kinship group." State v. West, 181 Wis. 2d 792, 796, 512 N.W.2d 207 (Ct. App. 1993). We question whether this is the definition that the legislature intended courts and juries to apply in determining whether a defendant has violated a condition of release by committing a crime. WISCONSIN Stat. § 939.12 defines "crime" as "conduct which is prohibited by state law and punishable by fine or imprisonment or both." Although the definition of crime in Wis. Stat. § 939.12 applies explicitly only in chs. 939 to 948 and 951, see Wis. Stat. § 939.22(6), we view this definition as instructive of legislative intent in related contexts. See State v. Sveum, 2002 WI App 105, ¶ 10, 648 N.W.2d 496, review denied, 2002 WI 111 (July 26, 2002) (No. 01-0230); see also State v. Mando Enters., Inc., 56 Wis. 2d 801, 203 N.W.2d 64 (1973).
      Even assuming, however, that West was correct in applying a dictionary definition, we disagree that the definition chosen was "the most common and appropriate." State v. Curiel, 227 Wis. 2d 389, 405, 597 N.W.2d 697 (1999). An "offense against the social order" could potentially include civil forfeitures (which are not crimes under Wis. Stat. § 939.12), or even conduct that is not prohibited by law but considered socially unacceptable. It could also potentially exclude conduct that is considered a crime under Wis. Stat. § 939.12. In general, the definition in West provides little guidance for fact finders in determining whether behavior is a crime. More importantly, defendants who are on bond have no objective method of determining whether their conduct is an "offense against the social order" and thus such a definition could raise questions of due process.

       Although the standard in Wisconsin and federal courts is not identical, both agree that a defendant's confession must be corroborated to sustain a guilty verdict. Neither the United States Supreme Court nor the Wisconsin Supreme Court has ever held that the corroboration rule is required by the State or federal constitutions.

        But see State ex rel. Washington v. Schwarz, 2000 WI App 235, 239 Wis. 2d 443, 620 N.W.2d 414, review denied, 2001 WI 43, 242 Wis. 2d 545, 629 N.W.2d 784 (Mar. 6, 2001) (No. 00-0004). In Washington, the department of corrections revoked Stanley Washington's parole based on an uncorroborated statement, made to a member of his relapse prevention group, that he committed another sexual assault. Id. at 446-47. On appeal, we appeared to assume that the corroboration rule applies even to statements made to private citizens. See id. at 452-53. We never decided this issue, however, because we concluded that the rule did not apply in the context of probation revocation proceedings. Id. at 454.

       A number of courts have questioned the continuing viability of this rationale after Miranda v. Arizona, 384 U.S. 436 (1966), which requires officers to inform suspects in custody, among other things, that they have the right to remain silent. See, e.g., United States v. Dickerson, 163 F.3d 639, 641 n.2 (D.C. Cir. 1999).

       The meaning of "unequivocally" in the solicitation and attempt statutes is the same. Wis JI — Ckiminal 550.

       The State relies on State v. Benoit, 229 Wis. 2d 630, 600 N.W.2d 193 (Ct. App. 1999), for both of its arguments. The holding in Benoit, however, applies only when "the jury is instructed on the element [s]." Id. at 640. Because the jury in Hauk's trial was not instructed on any of the elements of bail jumping, Benoit is not controlling.

       Because this case considers whether there was a valid jury waiver rather than an erroneous jury instruction, we do not engage in a harmless error analysis. Compare State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991) (reversing and ordering a new trial without performing a harmless error analysis after concluding that there was no jury waiver) and State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989) (same) with State v. Tomlinson, 2002 WI 91, ¶ 64, 254 Wis. 2d 502, 648 N.W.2d 367 (concluding that harmless error analysis applies when the State is relieved of its burden to prove an element of the crime as the result of an erroneous jury instruction).

        We also note that because we have concluded that the State produced sufficient evidence that Hauk committed a crime, a new trial rather than dismissal is the proper relief. See State v. Perkins, 2001 WI 46, ¶ 47, 243 Wis. 2d 141, 626 N.W.2d 762.

       We leave it to the discretion of the circuit court to determine whether to reconsider sentencing immediately or to wait until the resolution of case No. 99-CR-43.


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Matthew Tyler, Petitioner-Appellant,  v. John Bett, Respondent-Respondent.
    Court of Appeals

      No. 01-2808.

      Submitted on briefs February 12, 2002.

    Decided August 1, 2002.

    2002 WI App 234
    (Also reported in 652 N.W.2d 800.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Matthew Tyler, pro se.

      On behalf of the respondent-respondent, the cause was submitted on the brief of Elizabeth C. Stone, assistant attorney general, and James E. Doyle, attorney general.
    Before Roggensack, Deininger and Lundsten, JJ.

       Petition to review denied 10-21-02.

   DEININGER, J.

¶ 1. Matthew Tyler appeals an order denying his motion to reconsider the dismissal of his petition for certiorari review of a prison disciplinary committee decision. The circuit court dismissed his petition because it was filed after the expiration of the forty-five-day period for commencing actions for certio-rari review under Wis. Stat. § 893.735 (1999-2000). Tyler claims that he is entitled to have the filing deadline extended under the "mailbox rule" announced in State ex. rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409 (Shimkus I). He also claims that he is entitled to "special consideration in meeting the filing deadline" because of the lack of legal resources and assistance available to him in prison.

¶ 2. We affirm the circuit court's order because the "mailbox rule" tolls the statutory filing deadline only after a prisoner deposits for mailing a petition that is complete, in proper form and accompanied by the required filing fee or fee-waiver documents. We also reject Tyler's claim that the alleged inadequacy of legal resources and assistance available to prison inmates provides grounds for tolling of the statutory deadline.

BACKGROUND

¶ 3. A prison disciplinary committee found that Tyler violated prison rules and imposed sanctions for the violation. Tyler appealed to the institution's warden, who affirmed the committee's decision on May 8, 2001. Tyler also unsuccessfully sought relief through the institution's Inmate Compliant Review System (ICRS). See State ex rel. Smith v. McCaughtry, 222 Wis. 2d 68, 70, 586 N.W.2d 63 (Ct. App. 1998) ("[A] prisoner may not obtain certiorari review of [a prison disciplinary action] until the ICRS completes review of any claimed procedural errors."), modified in part, State ex rel. Hensley v. Endicott, 2001 WI 105, 245 Wis. 2d 607, 629 N.W.2d 686.

¶ 4. The Department of Corrections issued a final decision dismissing Tyler's ICRS complaint on May 17, 2001. Tyler agrees that this is the date when he had exhausted his administrative remedies, and accordingly, the date on which the forty-five-day period for bringing an action for certiorari review of the disciplinary action commenced. Absent any tolling, July 2, 2001, thus became the last date for Tyler to file his petition with the circuit court.

¶ 5. Tyler avers that he sent his petition for certiorari review, as well as disbursement requests for the filing fee and for postage, to the institution "business office" on June 16, 2001. The Dane County Clerk of Circuit Court received the petition on June 29, 2001. A staff attorney for the circuit court returned the materials to Tyler the same day for "failure to meet state filing requirements," and informed him as follows:

To begin, the filing fee is $124.00, not $89.00. Additionally, you must provide all documents provided by the administrative agency to you. This includes (but is not limited to) the underlying conduct report, which was not included, your request for witnesses, the denial of witnesses, and the adjustment committee's decision.
You may attempt to file again when you provide the required documentation.

Tyler received the letter and his returned petition on July 5, 2001.

¶ 6. Tyler avers that he again sent his petition, together with all required documents and a disbursement request for the proper fee, to the institution business office on July 13, 2001. The record contains a delivery receipt indicating that the clerk of circuit court received Tyler's resubmitted petition on July 18, 2001, but the petition was not date-stamped by the clerk's office until July 23, 2001.

¶. 7. The circuit court concluded that Tyler's cer-tiorari action was filed beyond the statutory forty-five-day deadline and it dismissed Tyler's action for failure to state a claim under Wis. Stat. § 802.05(3)(b)4. Tyler moved for reconsideration on the grounds that he was entitled to tolling of the filing deadline under the rule announced in Shimkus I. The trial court disagreed and denied Tyler's motion for reconsideration. Tyler appeals.

ANALYSIS

¶ 8. We review de novo a circuit court's dismissal for failure to state a claim, accepting as true the facts alleged in the petition or complaint and the reasonable inferences drawn from those facts. Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995). We are asked in this appeal to determine whether Tyler's petition was timely filed under Wis. Stat. § 893.735(2), which may require us to consider certain facts that are not alleged in the petition. See Shimkus I, 2000 WI App 238 at ¶ 3 n.2 (considering other items in the appellate record to determine when certain acts were done).

¶ 9. As we have noted, a prisoner wishing to have judicial review of a prison disciplinary action must petition for certiorari review within forty-five days "after the cause of action accrues." Wis. Stat. § 893.735(2). (See footnote 1.) The forty-five-day period begins on the date the prisoner receives "actual notice" of a final decision or disposition regarding his or her requests for administrative relief from the disciplinary action. Id. Tyler concedes that the statutory filing period commenced on May 17, 2001 and expired on July 2, 2001. He argues, however, that he is entitled to tolling of the forty-five-day filing period under the "mailbox rule" announced in Shimkus I from June 16th, the date he first placed his petition "in the prison mailbox," through July 5th, the date he received the petition back from the clerk of court, a period of nineteen days. The filing deadline would thus be extended from July 2 to July 21, 2001, and in Tyler's view, the clerk's receipt of the petition on July 18, 2001, along with all necessary documents and the proper filing fee, thus constituted a timely filing of his action.

¶ 10. In order to decide whether Tyler may avail himself of the "mailbox rule" on the present facts, we briefly review our decision in Shimkus I, as well as several decisions which have followed it. The petitioner in Shimkus I mailed his petition for certiorari review twelve days before the filing deadline, but for unexplained reasons, the clerk of court did not receive the petition until three days past the forty-five-day deadline. Shimkus 1, 2000 WI App 238 at ¶ 3. Finding the Supreme Court's reasoning persuasive, we adopted a "mailbox rule" similar to that announced in Houston v. Lack, 487 U.S. 266 (1988). Shimkus I, at ¶¶ 13-14. Specifically, we held that "when a prison inmate places a certiorari petition in the institution's mailbox for forwarding to the circuit court, the forty-five-day time limit in Wis. Stat. § 897.735(2) is tolled." Id. at ¶ 14.

¶ 11. We have applied the prison mailbox/tolling rule to several other filing requirements relating to prisoner actions, and the supreme court has adopted the rule for petitions for review filed by prisoners. We concluded in State ex rel. Steldt v. McCaughtry, 2000 WI App 176, 238 Wis. 2d 393, 617 N.W.2d 201, that once the court receives the documents from the prisoner to make a determination of indigence, "the time taken by the court to determine whether the prisoner must pay any fees before proceeding is out of the prisoner's control," and therefore "the forty-five-day deadline is tolled once the clerk of court receives the petition for a writ of certiorari, the request for a fee waiver, the affidavit of indigency, and the certified copy of the prisoner's trust account statement." Id. at ¶ 17.

¶ 12. Similarly, we concluded in State ex. rel. Locklear v. Schwarz, 2001 WI App 74, 242 Wis. 2d 327, 629 N.W.2d 30, that the forty-five-day deadline is tolled while a prisoner who timely requests a "three-strikes certification" from the Department of Justice, which is required of prisoners seeking fee waivers, awaits its receipt. Id. at ¶ 28. And, based on the same loss of control rationale, we have also applied the tolling rule to the period between a request for and the receipt of a prisoner's trust account statement, another item required of prisoners seeking waiver of fee prepayment. State ex. rel. Walker v. McCaughtry, 2001 WI App 110, ¶ 16, 244 Wis. 2d 177, 629 N.W.2d 17. We summarized in Walker how the tolling rule should be applied to the various requirements a prisoner seeking fee waivers must meet:

[T]he tolling begins when the documents over which prisoners have control have been mailed, and all of the documents over which prisoners have no control have been requested. The time begins running again when those documents are within the prisoner's control, such as when a prisoner receives a DOJ certification for forwarding to the court. By requiring prisoners to submit documents under their control within a designated period, the prisoner is treated equitably and the legislative intent is fulfilled.

Id. at ¶ 18 (citation omitted).

¶ 13. The supreme court discussed our rationale and conclusions in the foregoing cases in Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292. The court embraced the mailbox/tolling rule and applied it to the thirty-day period for filing a petition for review with the supreme court under Wis. Stat. § 808.10. Id. at ¶ 24. The court noted that the rule allows for tolling of a statutory filing period but that it "will not excuse a pro se prisoner who ultimately fails to pay filing fees, address the petition properly, or otherwise comply with filing requirements." Id. at ¶ 27. The court also explained "that the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing." Id. at ¶ 32 (emphasis added). In other words, a prisoner's submission of an incorrect or defective petition would not trigger application of the rule.

¶ 14. This court also emphasized in Shimkus I that the tolling rule cannot operate to cure defects in a prisoner's submissions. We noted in the final paragraph of the opinion that "other defects in the filing, such as the failure to pay the required fee, or establish a right of waiver of the fee, may nonetheless result in [a petition's] rejection by the court." Shimkus I, 2000 WI App 238 at ¶ 14. Earlier in the opinion we noted that "under our holding, even though a prisoner's certiorari action may be timely with respect to the § 893.735(2) time limit, the court may still decline to allow the action to proceed if the fee and other requirements of §§ 801.02 and 814.29 are not met." Id. at ¶ 9.

¶ 15. The tolling rule is thus limited in scope, and a prisoner must submit proper documents and comply with statutory fee or fee-waiver requirements in order to obtain the benefit of the rule. The fatal flaw in Tyler's request for application of the tolling rule to his petition is that he did not place all of the required documents and a disbursement request for the proper filing fee "in the prison mailbox" until July 13, 2001. By then, the forty-five-day filing period had already expired, and tolling of the period from July 13th, to the clerk's file-stamping of the petition on July 23, 2001, cannot save Tyler's petition. In his first submission on June 16th, Tyler forwarded an inadequate filing fee and he did not enclose the necessary documents required under Wis. Stat. § 801.02(7)(c). Tyler is not entitled to have the period from June 16th to July 5th tolled because, even though the items he submitted were "out of his control" during that period, they did not constitute a complete and proper submission to the court.

¶ 16. To hold otherwise, that is, to allow Tyler the benefit of tolling for the period after he submitted an incomplete petition and an insufficient fee, would be to reward his carelessness by giving him extra time to remedy matters that were within his control, which is contrary to the rationale for the tolling rule. Indeed, if the rule were that tolling applies to any submission, no matter how inadequate, an incentive would be created for prisoners to intentionally submit insufficient materials in order to gain additional time to submit proper petitions, thereby circumventing the forty-five-day deadline the legislature deemed adequate to accomplish the task. See Walker, 2001 WI App 110, ¶¶ 17-18 (explaining that, under the tolling rule, prisoners must still "comply with the deadline to the extent they have control over the relevant documents," lest they be given an advantage "over other litigants, contrary to legislative intent.").

¶ 17. Finally, we briefly address Tyler's contention that he is entitled to "special consideration in meeting the filing deadline because he was faced with obstacles beyond his control which interfered with the processing of his petition." He essentially claims that he should be entitled to have the statute tolled because he did not have access to adequate legal resources and assistance at the institution where he is incarcerated. We do not agree that the tolling rule of Shimkus I and its progeny may be employed as an ad hoc remedy for alleged inadequacies in prison legal resources.

¶ 18. We acknowledge that limitations on the access to legal resources and assistance undoubtedly impact the ability of pro se prisoners to properly file legal actions. We also acknowledge that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). To that end, Wis. Admin. Code § DOC 309.155(3) provides that "[e]ach institution, except correctional centers and the Wisconsin resource center, shall maintain a law library and make legal materials available to inmates at reasonable times and for reasonable periods." Moreover, the Department of Corrections "shall make reasonable efforts to ensure that adequate legal services are available to indigent inmates." Section DOC 309.155(4).

¶ 19. We conclude, however, that inmates' claims that they have been denied the constitutional right of access to the courts, or that the department is not meeting its obligations under the Wis. Admin. Code § DOC 309.155 are appropriately addressed through the Inmate Complaint Review System. The complaint review system permits prisoners to challenge specific violations of their rights ’and inadequacies in prison conditions or services. See Wis. Admin. Code § DOC 310.01(2)(a), (h) (Objectives for the inmate complaint review system include allowing "inmates to raise . . . significant issues regarding rules [and] living conditions," and to "raise civil rights grievances.").

¶ 20. By contrast, the judicially-created mailbox/tolling rule is far more limited in scope. The rule addresses only the disability inmates are under in meeting statutory filing deadlines because they must rely on the actions of others, who are beyond their control, in submitting necessary documents to the courts. We conclude that the continued vitality of the rule depends on its being confined to serving its intended purpose. The efficacy of the rule depends on the ability of courts to easily resolve factual questions regarding who did what and when in relation to the mailing, receipt and processing of documents intended for court filing. See Nichols, 2001 WI 119 at ¶ 27; Shimkus I, 2000 WI 238 at ¶ 6. The rule was not intended to spawn, nor can it support, open-ended inquiries into the adequacy of prison legal resources, or discretionary judgments as to whether certain facts and circumstances warrant relief from statutory deadlines while others do not.

CONCLUSION

¶ 21. For the reasons discussed above, Tyler was not entitled to have the period for filing his certiorari petition tolled, and we affirm the order of the circuit court denying reconsideration of its dismissal of Tyler's petition.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Wisconsin Stat. § 893.735(2) provides in part as follows:
      An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition.
      Subsection (3) of the statute provides that "an action seeking a remedy available by certiorari is commenced at the time that the prisoner files a petition seeking a writ of certiorari with a court."

       The forty-fifth day, July 1, 2001, was a Sunday, thus extending the filing deadline to Monday, July 2. See Wis. Stat. § 990.001(4)(b).

       We have recently held that a prisoner's right to procedural due process is violated when a circuit court dismisses sua sponte a prisoner's petition for certiorari review for failure to state a claim under Wis. Stat. § 802.05(3)(b)4, without prior notice and the opportunity to be heard. State ex rel. Schatz v. McCaughtry, 2002 WI App 167, 256 Wis. 2d 770, 650 N.W.2d 67, review granted, (Wis. Sep. 26, 2002) (01-0793). Tyler has not raised the due process issue in this appeal, but we note that the circuit court gave Tyler "a meaningful opportunity to be heard," id. at ¶ 14, when it considered his motion for reconsideration, and his affidavit and memorandum brief in support of the motion.

       Subsequently, in State ex rel. Shimkus v. Sondadle, 2000 WI App 262, 240 Wis. 2d 310, 622 N.W.2d 763 (Shimkus II), we concluded that "when an inmate wishes to invoke [the Shimkus i] tolling rule, the inmate must present proof, by affidavit or other evidentiary submission, of the date on which he or she placed the certiorari petition in the institution mailbox." Id. at ¶ 2. Tyler provided such an affidavit in support of his motion for reconsideration.

         See Wis. Stat. §§ 801.02(7)(d) and 802.05(3)(c).

       In State ex. rel. Locklear v. Schwarz, 2001 WI App 74, ¶ 22, 242 Wis. 2d 327, 629 N.W.2d 30, we listed what a prisoner who requests a waiver from prepayment of fees must do:
      In order to obtain waiver of prepayment of costs and fees, an indigent prisoner must submit an original and one copy of the following papers:
      (1) The Prisoner's Petition/Affidavit of Indigency; Wis. Stat. § 814.29(lm)(a)l;
      (2) A certification from the Department of Justice regarding the number of litigation dismissals the prisoner has accumulated; Wis. Stat. §§ 801.02(7)(d) and 802.05(3)(c);
      (3) A certified prison/jail trust account statement for the past six months; § 814.29(lm)(b)2;
      (4) An authorization allowing the custodial institution to forward payments from the prisoner's trust account to the clerk of court's office; § 814.29(lm)(c)2; and
      (5) All documentary evidence of exhaustion of administrative remedies; § 801.02(7)(c). This documentary evidence of exhaustion of administrative remedies is considered part of the initial pleading and must be attached to all copies of the petition. Id.

      The absence of any one of these requirements can lead to the court's rejection of the petition.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Scott G. Zuniga, Defendant-Appellant.

    Court of Appeals

      No. 01-2806-CR.

      Submitted on briefs June 20, 2002.

    Decided August 14, 2002.

    2002 WI App 233
    (Also reported in 652 N.W.2d 423.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Chad G. Kerkman of Kerk-man Law Offices, S.C., of Twin Lakes.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Alan Lee, assistant attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 11-12-02.

   BROWN, J.

¶ 1. Scott G. Zuniga appeals from a judgment of conviction and an order denying his motion for resentencing. He asserts that the State willfully breached his plea agreement by failing to present the negotiated sentencing recommendation. He now seeks specific performance of the plea agreement. In our view, at a bond hearing which occurred prior to sentencing, the parties agreed to amend the sentencing proposal to allow the State to offer a harsher sentence if Zuniga engaged in misconduct during his release. At the sentencing hearing, the State alleged that Zuniga had indeed violated the conditions of release and that additional charges had been filed against him. The State then recommended prison rather than probation. Under these circumstances, the State's new sentencing recommendation was clearly within the scope of the amended plea agreement. We affirm the judgment and order.

¶ 2. Zuniga agreed to plead guilty to operating a motor vehicle without the owner's consent and second-degree recklessly endangering safety. The State agreed to dismiss and read in the violation of a restraining order. On the charge of operating a vehicle without the owner's consent, the State offered to recommend eighteen months of incarceration, one year of extended supervision, both stayed, and four years of probation. On the charge of recklessly endangering safety, the State agreed to recommend one year of incarceration, and one year of extended supervision, consecutive to the other charge and again stayed, with four years of probation and six months in the county jail as a condition of probation. At the hearing on December 11, 2000, the State presented the plea agreement and Zuniga pled guilty to both charges.

¶ 3. On December 18, 2000, Zuniga and counsel appeared at a bond hearing requesting that Zuniga be released on signature bond. Zuniga's counsel argued that "Mr. Zuniga would like an opportunity to prove to your Honor that he can behave himself." He asked that a condition of bond require Zuniga not to consume alcohol and, in addition, require periodic monitoring through random urinalysis. Trial counsel further stated:

[I]f your Honor gives him the opportunity to be released on bond with a signature bond, [Zuniga] can come before your Honor on sentencing date and the argument for probation, I think, will carry that much more weight. Of course, Mr. Zuniga also understands that if he is released on bond and if he screws up, the argument for imprisonment then becomes a greater argument and gives Mr. Zuniga, I think, the incentive to comply with the requirements that may be set up.

¶ 4. The prosecutor responded that releasing Zuniga into the community without addressing his alcohol dependency and mental health issues would "simply set[] Mr. Zuniga up for failure." Nevertheless, the trial court accepted Zuniga's assurances concerning his behavior while out on bond and explicitly referenced the State's plea agreement and the impact his behavior could have on the sentencing recommendation.

THE COURT: Mr. Zuniga, you've already pled to some charges that could result in you going to prison. The recommendation of the State is going to be not prison, but probation. You could certainly change their minds by screwing up while you're out on bond. Do you understand that?
MR. ZUNIGA: Yes, I do.

The court then granted Zuniga's request for release with the condition that he not consume any alcohol or controlled substances and that he submit to random urinalysis.

¶ 5. On January 24, 2001, after entry of his plea and release on bond and before sentencing, Zuniga was charged with criminal damage to property, disorderly conduct and bail jumping, all as a habitual offender. At sentencing on February 12, 2001, the State acknowledged its original offer to recommend an imposed and stayed sentence and probation. The State then informed the court that it considered Zuniga's conduct while out on bond to be a change of circumstances which relieved the State from its obligation to recommend probation. On the charge of recklessly endangering safety, the State recommended an enhanced sentence of two years of incarceration and two years of extended supervision. On the charge of operating a vehicle without consent, the State recommended two years of incarceration, with two years of extended supervision, stayed, and four years of probation.

¶ 6. Zuniga's counsel objected to the State's failure to comply with the negotiated plea agreement and requested to withdraw the plea. The court denied the request, stating that it had advised Zuniga that it was not required to follow the recommendation of the State and noting that the presentence investigation writer recommended a harsher sentence than that requested by the State. The court sentenced Zuniga to four-year terms on each charge to run concurrently, consisting of two years of confinement and two years of extended supervision.

¶ 7. Zuniga then filed a postconviction motion for resentencing based on his claim that the State had breached the plea agreement. The court denied the motion and Zuniga now appeals.

¶ 8. In State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, the supreme court set forth the standards of review in breach of plea agreement cases. The court concluded that the terms of the plea agreement and the historical facts of the State's conduct that allegedly constitute a breach of a plea agreement are questions of fact. Id. at ¶ 2. Whether the State's conduct constitutes a breach of a plea agreement and whether the breach is material and substantial are questions of law. Id.

¶ 9. The State asserts that the issue in this case is whether Zuniga's misconduct between the plea and the sentencing breached the plea agreement. It relies on State v. Windom, 169 Wis. 2d 341, 351, 485 N.W.2d 832 (Ct. App. 1992), for the proposition that a post-plea change of circumstances can provide a justifiable basis for the prosecutor to refuse to make the agreed-upon recommendation. We do not agree that Windom is applicable to this case.

¶ 10. In Windom, we relied on State v. Pascall, 358 N.E.2d 1368, 1369 (Ohio Ct. App. 1972), for the proposition that a subsequent conviction excuses the prosecutor from recommending probation at resentenc-ing. Windom, 169 Wis. 2d at 351-52. However, we were careful to note in Windom that the State had fulfilled its duty under the plea agreement by remaining silent at the original sentencing hearing, and the scope of the plea agreement was limited to the original hearing. Id. Thus, the issue in Windom was not whether changed circumstances justify a prosecutor's failure to make the agreed-upon recommendation; it was whether, after the State honored its promise to not make a sentence recommendation, it was bound by that plea agreement when the defendant was resentenced for later violating his probation. We held that the defendant's commission of a new crime and the resulting probation revocation constituted a "new factor" warranting the prosecutor's change in position at the resentencing. Id. at 350-51. In this instance, we are reviewing the State's obligation under a plea agreement for the original sentence, not a subsequent and separate sentence hearing as in Windom. The case is inapposite.

¶ 11. In addition, we are not persuaded that the holding in Windom permits a prosecutor to unilaterally retreat from a plea agreement whenever a defendant engages in criminal misconduct after pleading. According to the State's understanding of the law, when a defendant breaches the plea agreement between the plea taking and sentencing, the defendant's plea remains on the table while the State is relieved from performing the promise that induced the plea. That is incorrect. Our supreme court has instructed that when a breach is material and substantial, the remedy is to vacate the plea agreement and the guilty plea, placing both parties to the agreement back to their preagreement positions. See State v. Rivest, 106 Wis. 2d 406, 414, 316 N.W.2d 395 (1982). They can then either negotiate a new agreement or proceed to trial.

¶ 12. Zuniga argues that "[t]here would be manifest impropriety in unilaterally allowing the State to escape from the obligation it undertook in the plea agreement without a Court finding." Zuniga is correct that once the defendant enters a plea, an evidentiary hearing is necessary to determine whether a breach of the agreement has occurred before the State may be permitted to withdraw from it. See State v. Paske, 121 Wis. 2d 471, 473-74, 360 N.W.2d 695 (Ct. App. 1984). Zuniga's reliance on this rule is misplaced, however, because the plea agreement ultimately reached in this case was not one which obligated the State to recommend an imposed and stayed sentence with probation but rather one which allowed the State to recommend an enhanced sentence if Zuniga violated the conditions of his release while on bond. In other words, we view the intervening bond hearing, which occurred after Zuniga entered his plea and before sentencing, as functionally an amendment to the plea agreement. As the record makes perfectly clear, the trial court was very careful to warn Zuniga that if it granted him bail and he "screwed up" while out on the streets, the State would be free to change its sentencing recommendation based upon his misconduct. Zuniga acknowledged and agreed to this provision which we view as an amendment to the plea agreement.

¶ 13. We find support for this approach in Paske. In that case, the prosecutor changed its position at the sentencing hearing based upon the defendant's escape from prison while he was awaiting sentencing. Paske, 121 Wis. 2d at 473. Under the new agreement, the prosecutor offered to make no sentence recommendation rather than adhere to its earlier recommendation of an eleven-year ceiling. Paske accepted the offer. Id.

¶ 14. On appeal, we rejected Paske's attempt to enforce the original agreement. We stated that the crucial inquiry in that case was whether the defendant was fully and fairly apprised of the consequences of his ultimate choice as to his pleas. Id. at 474. "It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired." Id. We then noted that the State's proposed modification to the executory contract was unequivocally consented to by Paske when he reaffirmed his earlier pleas and spurned the State's offer not to oppose any requested withdrawal of the pleas. Id. at 475. We find persuasive the following language in Paske:

Under these circumstances, Paske's ultimate bargain with the state was not for a plea recommendation with a ceiling of eleven years but rather for no recommendation. The circumstances surrounding this modification of the plea agreement violate no standards of fairness or decency nor any factors bearing upon due process. Paske's ultimate pleas were in no sense induced by the prosecution's withdrawn offer. Paske clearly opted to take his chances under the terms of the modified plea agreement.

Id. at 475.

¶ 15. Zuniga fully participated in the bond hearing, wholly aware that if he prevailed in obtaining release, the State would seek a longer sentence if he thereafter engaged in misconduct. Based on this record, we conclude that the parties effectively modified the plea agreement by making the State's obligation conditional upon Zuniga's good behavior while in the community. In proceeding under these circumstances, Zuniga "opted to take his chances under the terms of the modified plea agreement." Id.

¶ 16. We are cognizant that a sentencing court may not participate in a plea agreement. Williams, 2002 WI 1 at ¶ 24. In this instance, the trial court suggested the modification to the plea agreement in response to Zuniga's motion. The parties voluntarily agreed to the modification. No consensus exists as to what constitutes judicial participation. Sarah N. Welling, Victim Participation in Plea Bargains, 65 Wash. U. L.Q. 301, 317 n.73 (1987). In State v. Wolfe, 46 Wis. 2d 478, 488, 175 N.W.2d 216 (1970), the supreme court considered the impropriety of judicial participation in plea bargaining and stated that the vice of such judicial participation is that it destroys the voluntariness of the plea. It is true that in this case the suggestion to modify the agreement came from the bench, but the record does not show that the suggestion destroyed the voluntariness of Zuniga's plea. The suggestion was neither threatening nor coercive, but was intended to motivate Zuniga to behave while out on a signature bond. Indeed, Zuniga himself persuaded the court that if he behaved upon release he could then appear at sentencing and argue for probation with "much more weight." Under these circumstances, the parties may consent to an amendment to the plea agreement suggested by the trial court without raising a question of fundamental fairness. See id. at 488.

¶ 17. In sum, we reject the State's argument that because Zuniga engaged in misconduct between entry of the plea and sentencing, the State was excused as a matter of law from fulfilling its promises under the agreement. Instead, we determine that under the particular facts of this case the plea agreement was amended by the parties during the bond hearing. The circumstances surrounding this amendment of the plea agreement violate no standards of fairness or decency nor any factors bearing upon due process. See Paske, 121 Wis. 2d at 475. Zuniga was fully cognizant of the risks inherent in his request for release and the terms under which his request was granted. Zuniga's participation in the amended plea agreement was freely and voluntarily made and was not the product of any violation of due process, and while the sentence meted out by the trial court did not comport with the terms of the original plea agreement, it fully comported with the agreement as amended.

By the Court. — Judgment and order affirmed.

       By comparison, in State v. Scott, 230 Wis. 2d 643, 647, 602 N.W.2d 296 (Ct. App. 1999), the State advanced a modified sentencing proposal which afforded the State the ability to recommend a significantly longer sentence. Scott accepted the new proposal. Id. He subsequently sought resentencing on the grounds that his trial counsel provided ineffective assistance by failing to advise him that he had the right to seek enforcement of the original plea agreement under which he entered his no contest pleas. We rejected the State's attempt to rely on State v. Paske, 121 Wis. 2d 471, 360 N.W.2d 695 (Ct. App. 1984), to justify its change of position at sentencing:
      The differences between Paske and the present case are palpable, and consequently, we reject the State's reliance on the Paske case. Prior to sentencing, Paske conspired to escape from jail and was found guilty of that offense after the original plea agreement had been reached .... In the instant case.. . [o]nce Scott and the State reached an agreement and the no contest pleas were entered, Scott did nothing to contravene, violate or breach the agreement. Thus, Scott had a constitutional right to seek enforcement of the plea agreement.

        Scott, 230 Wis. 2d at 663-64 (emphasis omitted).

       In State v. Wolfe, 46 Wis. 2d 478, 487, 175 N.W.2d 216 (1970), the court held that the trial judge did not participate in negotiations by convening a pre-plea conference with the parties where the judge allegedly agreed to rely on a presentence investigation report for sentencing.

       Threatening a defendant by intimating that a greater sentence will be meted out if the defendant goes to trial and is found guilty than if he or she pleads guilty has been condemned as being coercive. Rahhal v. State, 52 Wis. 2d 144, 151, 187 N.W.2d 800 (1971).


text:
    Heidi Praefke, Plaintiff-Appellant, v. American Enterprise Life Insurance Co. and Julie Gray, Defendants-Respondents.
    Court of Appeals

      No. 01-2916.

      Submitted on briefs June 7, 2002.

    Decided August 14, 2002.

    2002 WI App 235
    (Also reported in 655 N.W.2d 456.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John P. Higgins of Guttorm-sen, Hartley, Guttormsen & Wilk, LLP, of Kenosha.
    On behalf of the defendant-respondent American Enterprise Life Insurance Co., the cause was submitted on the brief of David E. Celebre of Kenosha.
    On behalf of the defendant-respondent Julie Gray, the cause was submitted on the brief of Donal M. Demet of Demet & Demet, S.C., of Milwaukee.

      Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 10-21-02-.

   BROWN, J.

¶ 1. Heidi Praefke appeals from a grant of summary judgment in favor of American Enterprise Life Insurance Co. (American Enterprise) and Julie Gray. Praefke alleges that American Enterprise failed to act in good faith by refusing to disburse certain annuities to Praefke as the sole beneficiary. Gray and American Enterprise claim that Praefke became the sole beneficiary to these accounts and other funds as a result of unlawful self-dealing while acting as power of attorney for a mutual friend, Betty Glasslein. They assert that the power of attorney did not authorize Praefke to make gratuitous transfers of Glasslein's assets to herself or her family and that by doing so, Praefke breached the fiduciary duties she owed to Glasslein as attorney-in-fact. Praefke responds that she did not breach her fiduciary duty of loyalty because the power of attorney agreement grants her the authority to make gratuitous transfers to herself and others. Alternatively, Praefke argues that if the power of attorney agreement does not clearly grant such broad authority, she can prove by evidence extrinsic to the agreement that the gratuitous transfers were made in accordance with Glasslein's express oral wishes. Pursuant to Alexopoulos v. Dakouras, 48 Wis. 2d 32, 179 N.W.2d 836 (1970), we determine that Praefke lacked authority to make gifts to herself because the agreement did not contain express written authorization. Furthermore, because the power of attorney did not expressly authorize Praefke to make gifts to herself, extrinsic evidence of Glasslein's intent to allow such gifts is not admissible. We affirm the grant of summary judgment in favor of Gray and American Enterprise.

¶ 2. Praefke was Glasslein's attorney-in-fact under a durable power of attorney executed on April 26, 1996. Glasslein had been a friend of Praefke's mother, Irmgard Wiemer, since 1953. Approximately one year after Glasslein executed the power of attorney, she was diagnosed with an Alzheimer's type of dementia.

¶ 3. Following the diagnosis of dementia, Praefke as attorney-in-fact changed the payable on death beneficiary designations on most of Glasslein's assets to herself. On March 19, 1998, she executed a customer service request form to change the beneficiary designation on a $60,000 annuity contract naming herself the sole beneficiary. Prior to the change, Praefke was a co-beneficiary with Glasslein's former neighbor, Gray. On April 5, 1997, Praefke executed a customer service request form to change the beneficiary designation on a $75,000 annuity contract naming herself the sole beneficiary. Prior to the change, the proceeds were payable to Gray and another neighbor, Duane Paul. In addition, on May 1, 1997, Praefke as attorney-in-fact established a $50,000 insurance investment account with Putnam Investment Services. Praefke was named the sole beneficiary of the account. The source of the funds used to establish this account was a TCF Bank savings account that had belonged to Glasslein. Finally, Praefke made cash gifts out of Glasslein's checking account to herself ($10,000), Wiemer ($7500), Gray ($5000) and Gray's son ($2000).

¶ 4. After Glasslein's death on February 18, 2000, Praefke made claim to American Enterprise for the proceeds of the annuity accounts. After an investigation, American Enterprise refused to disburse the proceeds unless Praefke would: (1) obtain a waiver from Gray as the former beneficiary, or (2) provide a court order directing payment to her, or (3) consent to turning the claim over to the court as an interpleader. Praefke did not agree to this proposal.

¶ 5. Thereafter, Praefke brought suit against American Enterprise to collect under the annuities, naming Gray as a defendant. Gray counterclaimed seeking to undo the Putnam account and the gifts. The trial court granted summary judgment to Gray and American Enterprise on the basis that Praefke had violated her fiduciary duty of loyalty to Glasslein by engaging in self-dealing.

¶ 6. On appeal, Praefke asserts that the durable power of attorney's broad grant of authority includes the authority to make gifts to herself and others. In addition, she asserts a disputed factual issue exists as to whether Glasslein orally requested and authorized the self-dealing transactions engaged in by Praefke.

¶ 7. We review summary judgment determinations de novo, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (1999-2000). The construction of a power of attorney presents a question of law that we review de novo. See Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990).

¶ 8. As a preliminary matter, we observe that Glasslein executed this document at a time when her capacity to do so was unchallenged. Indeed, no one has questioned the adequacy of the document except to the extent that it was used to make gifts and to self-deal. In addition, Praefke has stipulated that the instrument does not contain specific language that states the agent may make gifts or has gifting powers.

¶ 9. We begin our discussion with a review of the nature of the principal and attorney-in-fact relationship. It is a well-established tenet of agency law that an attorney-in-fact has a fiduciary obligation to the principal. Alexopoulos, 48 Wis. 2d at 40. The agent's duty is to act solely for the benefit of the principal in all matters connected with the agency, even at the expense of the agent's own interest. Bank of Cal. v. Hoffmann, 255 Wis. 165, 171, 38 N.W.2d 506 (1949). In addition, the powers of the attorney-in-fact are strictly construed and are interpreted to grant only those powers that are clearly delineated or specified. See First Nat'l Bank of Omro v. Bean, 141 Wis. 476, 480, 124 N.W. 656 (1910).

¶ 10. The outcome of this case is controlled by Alexopoulos, 48 Wis. 2d at 40-41. In that case, the attorney-in-fact was given a broad power to perform all acts that the donor of the power could perform. Id. at 35. The attorney-in-fact concluded that the power was tantamount to a gift because he had the same authority to dispose of assets that the principal had were he present. Id. at 40. The court rejected this "bizarre" argument based on the fiduciary nature of the relationship. Id. The court stated that unless the power of attorney specifically allows the agent to gift property to himself or herself, or contains an "unlimited or unbridled" gifting power, the agent lacks authority to make gratuitous transfers. Id. at 41. Simply stated, Alexopoulos stands for the proposition that in the principal-agent relationship, a general authority to deal with assets is not sufficient to exculpate an attorney-in-fact from a charge of self-dealing. See State v. Hartman, 54 Wis. 2d 47, 56-57, 194 N.W.2d 653 (1972) (discussing Alexopoulos).

¶ 11. Praefke argues that Alexopoulos is inapplicable because in that case the claim was made by the estate on behalf of the deceased principal against the fiduciary. Here, Praefke notes that the counterclaim is by a third party, Gray, against the fiduciary. Praefke contends that she owes no fiduciary duty to Gray or any third parties. Instead, under Alexopoulos, the duty is owed only to the principal. Praefke reasons that Gray has failed to show that her actions harmed the principal.

¶ 12. Praefke misses the basic policy concern underlying Alexopoulos and related law that forbids self-dealing. That concern is not linked to any duty an agent may have to third parties, but is primarily addressed to the potential for fraud that exists when an agent acting pursuant to a durable power of attorney has the power to make gifts, especially after the principal becomes incapacitated. A fiduciary will not be allowed to feather his or her own nest unless the power of attorney specifically allows such conduct. In short, where the .fiduciary argues that the power of attorney allowed for self-dealing, that power must be specifically authorized in the instrument.

¶ 13. We have also considered that Alexopoulos does state that self-dealing may be allowed where there is an "unlimited or unbridled power of disposition." Alexopoulos, 48 Wis. 2d at 41. Here, the power of attorney document did contain broad language in that it authorized Praefke "to do and perform everything for the purpose of.. . managing, conveying. . . my property, real as well as personal... as fully as I could do and perform if personally present." However, we observe that the power of attorney in Alexopoulos had similar language and the supreme court still determined that the fiduciary had breached his duty. Id. at 40-41. Therefore, we conclude that Alexopoulos governs this case.

¶ 14. Praefke next asserts that Glasslein made statements allegedly modifying the terms of the written agreement. She offered the trial court two affidavits in support of her position, one from Wiemer, her mother, and her own. The trial court excluded the Wiemer affidavit because Praefke had failed to include Wiemer as a witness pursuant to the scheduling order. Praefke does not seek review of this order and therefore we do not consider the Wiemer affidavit on appeal.

¶ 15. Thus, the only evidence left to consider is Praefke's own self-serving affidavit in which she alleges that Glasslein requested her as attorney-in-fact to make the beneficiary changes to the American Enterprise annuities. In this affidavit, she also claims that the funds used to establish the Putnam investment account were certificates of deposit worth $50,000 previously purchased by Glasslein and payable on death to Praefke.

¶ 16. We have already established in this case the bright-line rule that an attorney-in-fact may not make a gift to himself or herself unless there is an explicit intent in writing from the principal allowing the gift. Relying on Minnesota Stoneware Co. v. McCrossen, 110 Wis. 316, 322, 85 N.W. 1019 (1901), Gray argues that extrinsic evidence of the principal's oral authorization to allow such gifts is inadmissible. Minnesota Stoneware involved an unauthorized conveyance of real estate under a simple power of attorney. Id. The supreme court held that "[a] power to sell and convey real estate can no more be extended or changed by parol than can a conveyance of real estate." Id. To the extent that the case before us involves an alleged oral amendment to a durable power of attorney authorizing the transfer of assets that are not real estate, a question of first impression presents itself.

¶ 17. We note that courts in other jurisdictions are divided on the question of whether they will accept evidence of oral authorization to make gifts when the instrument creating the power of attorney does not specifically grant such power. One case stands unequivocally for the proposition that an oral authorization will not permit an attorney-in-fact to make gifts of the principal's assets and that is Kunewa v. Joshua, 924 P.2d 559 (Haw. Ct. App. 1996). The court in Kunewa offers compelling reasons for the rule prohibiting extrinsic evidence:

WThen one considers the manifold opportunities and temptations for self-dealing that are opened up for persons holding general powers of attorney — of which outright transfers for less than value to the attorney-in-fact [himself or] herself are the most obvious — the justification for such a flat rule is apparent. And its justification is made even more apparent when one considers the ease with which such a rule can be accommodated by principals and their draftsmen.

Id. at 565 (citation omitted). See also Fender v. Fender, 329 S.E.2d 430, 431 (S.C. 1985) (rejecting purported oral authorization to make gifts in order to avoid fraud and abuse); Estate of Swanson v. United States, 46 Fed. Cl. 388, 392 (2000) (applying California law to conclude that a power of attorney may only be altered or expanded by another writing), aff'd, 2001 WL 569137 (Fed. Cir. May 25, 2001).

¶ 18. We believe the interest of justice supports the application of this rule. A durable gifting power is a particularly dangerous power in that it survives the principal's personal ability to monitor its exercise. According to one commentator, the current widespread financial exploitation of the elderly is directly attributable to durable gifting powers and their inherent potential for fraud and abuse. Hans A. Lapping, License to Steal: Implied Gift-Giving Authority and Powers of Attorney, 4 Elder L.J. 143, 167 (1996). This commentator has called the abuse of powers of attorney an "invisible epidemic" because the victims, who are usually elderly and infirm, may be unaware of what is happening or too embarrassed or frightened to assert their rights. Id.

¶ 19. In addition, people of advanced age, especially those who are isolated and dependent, commonly tell friends and family what they believe those individuals want to hear to promote harmony and companionship. It would be imprudent for this court to allow Glasslein's alleged statements to Praefke to negate Glasslein's formal expression of her intent as embodied in the power of attorney agreement. Glasslein could have ensured that Praefke would receive the bulk of her assets by drafting a power of attorney that explicitly authorized self-dealing. That she did not do so is perhaps more telling of her true intent than any alleged statements to Praefke.

¶ 20. In closing, we hold that an attorney-in-fact may not make gratuitous transfers of a principal's assets unless the power of attorney from which his or her authority is derived expressly and unambiguously grants the authority to do so. As a corollary to this bright-line rule, extrinsic evidence of the principal's intent to allow such gifts is not admissible. The power of attorney in this case did not grant such power to Praefke. The affidavit in which Praefke claims she had oral authority to make gratuitous transfers may not be considered by the trial court. Thus, we conclude that by making the unauthorized gratuitous transfers to herself and others Praefke breached her fiduciary duty of loyalty to Glasslein. Gray is entitled to her fractional interest in the American Enterprise annuities, the Putnam investment fund and in the property constituting the gifts. These amounts are set forth in the trial court's summary judgment decision. Praefke does not challenge the trial court's calculations on appeal. The grant of summary judgment in favor of American Enterprise and Gray is affirmed.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       The power of attorney in Alexopoulos v. Dakouras, 48 Wis. 2d 32, 40, 179 N.W.2d 836 (1970), authorized the agent to receive "for me and in my name, place and stead ... all sums of money" owed to the principal and to "deal in any property" and "transact... business of what nature and kind soever." The supreme court refused to equate this broad power with an unrestricted power of disposition that would allow self-dealing. Id.

       American Enterprise and Gray argue that this affidavit, which also claims Glasslein was in full use of her mental faculties when she requested the change in beneficiaries, is contradicted by deposition testimony showing that all of the transactions took place after Glasslein became incapacitated and she could therefore not have authorized or thereafter ratified them. The trial court apparently agreed with American Enterprise and Gray, stating that "[t]he transactions all occurred after it was established Betty Glasslein was suffering from diseases which made her incompetent." Praefke asserts that the trial court's summary judgment decision is based upon the disputed material fact regarding Glasslein's competency. However, our holding that an attorney-in-fact may not self-deal based upon oral authorization renders moot the issue of Glasslein's competency to provide such authorization.

       The court in Kunewa v. Joshua, 924 P.2d 559, 565 (Haw. Ct. App. 1996), recognized that several other jurisdictions have adopted a similar rule, such as Alaska, New York and Florida. In addition, the Internal Revenue Service requires that all powers of attorney explicitly grant gift-giving powers if the principal wants the gifted property to be excluded from his or her estate. See Hans A. Lapping, License to Steal: Implied Gift-Giving Authority and Powers of Attorney, 4 EldeR L.J. 143, 145 (1996). However, the position set forth in Kunewa and adopted by the Internal Revenue Service is not universally accepted. Even cases which accept the general rule that the authority to make gifts must be explicitly set out in the instrument will at the same time consider other evidentiary and factual circumstances apart from the language in the instrument in deciding whether the attorney-in-fact was authorized to make a gift. See Lapping, supra, at 160-63 (discussing cases that allow extrinsic evidence of the principal's intent and noting that such cases are a minority position).

       Praefke raises claims of estoppel and bad faith. Because Praefke is not entitled to the funds as sole beneficiary under the annuity contracts, American Enterprise did not act in bad faith by refusing to disburse the funds nor can it be estopped from denying Praefke's claim.