author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Daniel J. Raymonds, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant-Appellant, v. Daniel J. Raymonds, Respondent-Respondent.
    Supreme Court

      No. 97-1440-D.

      Submitted on briefs September 7, 2000.

    Decided October 26, 2000.

    2000 WI 116
    (Also reported in 618 N.W.2d 521.)

      For the complainant-appellant there were briefs by Gene B. Radcliffe, Black River Falls.
    For the respondent-respondent there was a brief by Gerald P. Boyle, Bridget E. Boyle and Boyle, Boyle & Smith, S.C., Milwaukee.
   PER CURIAM.

¶ 1. The Board of Attorneys Professional Responsibility (Board) appealed from the recommendation of the referee that Attorney Daniel J. Raymonds receive a private reprimand and that his continued practice of law be conditioned for one year on his quarterly reporting to the Board of his handling of his client trust account in response to his professional misconduct. That misconduct consisted of overdrawing his client trust account, which resulted in at least one check written on it being dishonored when presented for payment, commingling personal funds in his trust account, failing to reconcile the trust account on a monthly basis, which resulted in an unexplained shortfall in the funds he held in trust, and misrepresenting to the Board the source and amount of funds he borrowed and deposited in the trust account in order to cover bank service charges that had been paid with funds held in trust and to cover the shortfall. The Board argued that the seriousness of Attorney Raymonds' misconduct warrants a 90-day suspension of ids license to practice law and the imposition of conditions in addition to that recommended by the referee in order to ensure Attorney Raymonds' compliance with the trust account rules.

¶ 2. We determine that the 90-day license suspension and imposition of the conditions urged by the Board are the appropriate disciplinary response to the nature and extent of Attorney Raymonds' misconduct established in this proceeding. While not reaching the level of withdrawing funds of clients and others held in trust and converting them to personal use, Attorney Raymonds knowingly permitted his bank to deduct trust account funds belonging to clients and third persons in payment of bank service charges on that account over an extended period. His failure to maintain records of his trust account activity required by our rules resulted in overdrafts on that account and contributed to an unexplained $100,000 shortfall in the account, which he attempted to cover by depositing borrowed funds. His misrepresentation to the Board as to the source of those borrowed funds, while of little moment, was nonetheless misrepresentation to the body charged by this court with the responsibility of promoting and enforcing the high standards of professional conduct we require of those we license to represent others in our legal system.

¶ 3. Attorney Raymonds was admitted to practice law in Wisconsin in 1981 and practices in Milwaukee. He has not been the subject of prior discipline other than the temporary license suspension we imposed in the course of the instant proceeding for his failure to comply with an order of the referee for an audit of his trust account to determine if harm to clients or his own personal gain had resulted from his commingling of funds in his trust account, the return of a trust account check for insufficient funds, and his failure to comply with trust account record-keeping requirements. We lifted that suspension after four months in response to the referee's recommendation, which was based on an agreement between Attorney Raymonds and the Board concerning action Attorney Raymonds had taken to ensure compliance with the trust account rules.

¶ 4. The facts found by the referee in this proceeding, the Honorable Robert T. McGraw, Reserve Judge, as well as other facts of record, are not disputed by the parties in this appeal. Attorney Raymonds is a sole practitioner and employed two, sometimes three, secretaries. His practice consisted almost exclusively of the representation of parties in real estate transactions, particularly lenders. Tens of millions of dollars in closing proceeds went through his trust account, and thousands of checks were written on that account monthly.

¶ 5. In February 1995, despite having deposited sufficient funds from real estate closings to pay six separate disbursements by check from the trust account, there were insufficient funds in the account to pay those checks when they were presented for payment. The bank covered and honored five of those checks , but returned a $28,000 check with a notation that it be returned to the maker as a result of insufficient funds in the account.

¶ 6. During the Board's investigation, Attorney Raymonds asserted to Board staff that the reason for the shortfall was bank services charges and that the shortfall was in the amount of approximately $30,000. However, the service charges imposed between 1993 and 1995 accounted for only $30,000 of the shortfall; the $100,000 balance has never been explained. He also stated that no check written on his trust account ever had been returned because of insufficient funds.

¶ 7. Attorney Raymonds was aware since 1993 that the bank was imposing service charges and deducting them from his trust account, up to the time he moved it to another bank in May 1995. Thus, Attorney Raymonds allowed funds being held in trust to be used by the bank for payment of service charges for more than two years. The reason he gave for not moving the account sooner was his fear that the bank would demand payment of a $200,000 personal loan he had obtained from it.

¶ 8. After the shortfall was discovered, Attorney Raymonds borrowed $150,000 from his sister and deposited it into his trust account to cover the shortfall, thereby commingling his own funds with funds belonging to clients and third parties. It was from that deposit that the $28,000 check that had been dishonored ultimately was paid. That commingling continued when he closed the trust account in May 1995 and opened one in another bank, transferring to it the balance of approximately $21,000 of his personal funds that had not been disbursed to clients and third parties.

¶ 9. Although the referee did not cite in his report the specific Rules of Professional Conduct for Attorneys that Attorney Raymonds' misconduct violated, the Board correctly asserted that his allowing the trust account to become overdrawn on several occasions in February 1995 constituted a failure to hold property of clients or third persons in trust, thereby violating SCR 20:1.15(a). His deposit of the $150,000 loan from his sister into the trust account constituted a failure to hold property of clients or third persons separate from his own property, also in violation of SCR 20:1.15(a).

¶ 10. Attorney Raymonds' conduct also violated the following professional conduct rules. His failure to maintain complete records of trust account funds, including a monthly schedule of subsidiary client ledgers indicating the actual balance of each client's account, and his failure to reconcile his trust account checkbook with his monthly bank statements violated SCR 20:1.15(e). His trust account typically handled very large sums of money — as much as $51,600,000 in November 1993. Until 1991 or 1992, he maintained information as to amounts received from lenders and borrowers and amounts disbursed from those deposits on separate index cards for each real estate transaction. Thereafter, he used a computer program to enter receipts and disbursements such that each transaction was balanced to zero before the next transaction was entered. He did not, however, use the checkbook-balancing feature of that computer program on a monthly basis. Thus, resulting cards and records did not show each client's actual unexpended balance at the end of each month. As a consequence, when time passed before the disbursements cleared his trust account, the balance in that account was directly attributable to many different clients but not reflected on their individual records.

¶ 11. During the course of this proceeding but only after we temporarily suspended his license to practice law, Attorney Raymonds took appropriate remedial steps to prevent further trust account errors, including hiring a person to oversee the trust account and creating a system of checks and balances recommended by the auditor. He took that action in December 1999, shortly before the Board agreed to the lifting of the temporary suspension.

¶ 12. The referee concluded that Attorney Raymonds' lack of candor in the Board's investigation constituted professional misconduct, which the Board asserted was in violation of SCR 20:8.1(b) as a failure to disclose a fact necessary to correct a misapprehension known to have arisen and SCR 22.07(2) as a failure to disclose fully and fairly all facts and circumstances pertaining to an investigation. In that respect, Attorney Raymonds misled the Board concerning the amount of his own funds he deposited in his trust account, implying that it was only an amount sufficient to cover the approximately $30,000 of bank service charges, when in fact it was $150,000. He also led the Board to believe that no check written on his trust account ever had been returned for insufficient funds, when there had been at least one, in the amount of $28,463.74. He also was less than forthright with the Board when he stated that he had borrowed the $150,000 from "a family friend," when in fact it was his sister.

¶ 13. The Board asserted that the referee in effect also concluded that Attorney Raymonds engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c), by allowing bank service fees for which he was personally liable to be paid from funds of clients and others held in trust, by making misrepresentations to Board staff about the amount of his own money he deposited into the trust account, and by his repeated statement that there never had been an overdraft on his trust account.

¶ 14. As discipline for that misconduct, the referee recommended that Attorney Raymonds receive a private reprimand and be required to report to the Board quarterly for one year his continuation of the remedial trust account practices he had instituted during the course of the instant proceeding. That recommendation appeared to have been based on the referee's assessment that no client or third person suffered any loss because of Attorney Raymonds' misconduct and that Attorney Raymonds did not gain personally from it. The referee also took into account as a mitigating factor that Attorney Raymonds instituted remedial procedures to protect against farther trust account errors. The referee acknowledged, however, that Attorney Raymonds' failure to reconcile his trust account monthly "create[d] dangerous possibilities as evidenced by the unexplained $100,000 shortage in the account..and that those funds remained missing and unaccounted for.

¶ 15. In this appeal, the Board argued that the serious nature of Attorney Raymonds' professional misconduct warrants discipline more severe than that recommended by the referee. He allowed trust account funds to be used by his bank to pay service charges on that account that were his own business expense, and he did so knowingly. Moreover, he intentionally refrained from moving his trust account to another bank promptly upon learning of the deduction of service charges because he believed his current bank would demand payment of a personal loan. Even when he no longer was liable on that loan in 1994, he did not move the account until May of the following year.

¶ 16. In addition, even though aware that there would be a shortfall in his trust account, if only by virtue of the bank's deduction of service charges, Attorney Raymonds never attempted to ascertain the extent of that shortfall by balancing his checkbook or reconciling subsidiary client ledgers. Indeed, he did nothing to remedy the inevitable shortfall until one of his trust account checks was dishonored. The Board pointed to the large amount of money he borrowed to cover the unascertained shortfall as an indicia of the seriousness of his misconduct. The Board also viewed as serious misconduct his continuing the commingling of his personal funds with funds held in trust when he transferred his trust account to another institution while it held some $21,000 of his personal funds.

¶ 17. Contrary to the referee's assertions, the Board contended that some of Attorney Raymonds' clients and third persons were harmed by the misconduct and that Attorney Raymonds did gain personally from it. His trust account had a negative balance on two days in 1995, and a $28,000 check written on the account did not clear until a week after it had been dishonored. At the least, the Board asserted, that overdraft cost the payee lost interest, even if a minimal amount, as well as the additional inconvenience of redepositing the check for collection. Further, if the bank had not paid four other checks despite the overdrawn status of the trust account, additional persons would have been harmed. Moreover, Attorney Raymonds gained from his misconduct by having the funds of clients and others used to pay his own liability for bank service charges on his trust account.

¶ 18. While acknowledging the mitigating factors of Attorney Raymonds' replacement of funds prior to the Board's investigation into his conduct, his remedial steps to maintain appropriate trust account records and comply with the trust account rules, and the absence of prior discipline, the Board asserted as an aggravating factor that Attorney Raymonds' handling of his trust account and dealing with the property of clients and others was not negligent but intentional. His was a knowing failure to protect funds he held in trust. In the Board's view, the fact that Attorney Raymonds was able to borrow a substantial amount of money to cover the trust account shortfall, the amount of which he never knew, does not mitigate the serious potential for loss to which the owners of those funds were exposed. In respect to his remedial steps in trust account procedure, the Board noted that he took those measures only after his license to practice law was suspended temporarily.

¶ 19. The Board argued that the appropriate response to Attorney Raymonds' professional misconduct is a 90-day license suspension and the imposition of the following conditions on his continued practice following the suspension. Attorney Raymonds should be required to comply fully with the trust account rules, report that compliance quarterly to the Board for a period of at least two years, provide the Board access to underlying records to corroborate those reports, and attend, with his staff, appropriate continuing legal education programs dealing with trust account procedure.

¶ 20. We agree with the Board's assessment of the seriousness of Attorney Raymonds' professional misconduct and determine that a 90-day license suspension and the imposition of the conditions proffered by the Board are the appropriate response to it. We do not, however, accept the Board's suggestion that we consider "crediting" the 90-day license suspension with that portion — 69 days — of the 131-day temporary license suspension previously imposed in the course of this proceeding during which Attorney Raymonds came into and remained in compliance with the trust account record-keeping requirements. That temporary license suspension was unrelated to the professional misconduct addressed in the disciplinary proceeding; it was imposed specifically for Attorney Raymonds' failure to comply with the referee's order for an audit of his trust account to address specified issues.

¶ 21. We are unpersuaded by Attorney Raymonds' attempt to justify the imposition of a private reprimand recommended by the referee. He minimized the seriousness of his misrepresentations to the Board by asserting that he had estimated accurately the amount of bank service charges for which he deposited borrowed funds, apparently contending that he was under no obligation to tell the Board the full amount of his own funds he deposited to cover the unascertained shortfall. His insistence on a distinction between a check returned with the notation "refer to maker" and one marked "insufficient funds" is disingenuous. So, too, is his assertion that there is "an unequivocal distinction" between his allowing bank service charges to be deducted from funds belonging to clients and others and removing funds from a trust account and converting them to his own personal or business use. To his credit, however slight, he did acknowledge that the latter is "serious misconduct."

¶ 22. It Is Ordered that license of Daniel J. Raymonds to practice law in Wisconsin is suspended for 90 days, commencing November 30, 2000, as discipline for his professional misconduct established in this proceeding.

¶ 23. It Is Further Ordered that upon reinstatement of his license to practice law, Daniel J. Raymonds comply with the conditions recommended by the Board of Attorneys Professional Responsibility in this proceeding.

¶ 24. It Is Further Ordered that within 60 days of the date of this order, Daniel J. Raymonds pay to the Office of Lawyer Regulation the costs of this proceeding, provided that in the event the costs are not paid within the time specified and absent a showing to this court in writing of his inability to pay the costs within that time, the license of Daniel J. Raymonds to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 25. It Is Further Ordered that Daniel J. Raymonds comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       SCR 20:1.15(a) provides:
      (a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account. Unless the client otherwise directs in writing, securities in bearer form shall be kept by the attorney in a safe deposit box in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The safe deposit box shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. Other property of a client or third person shall be identified as such and appropriately safeguarded. If a lawyer also licensed in another state is entrusted with funds or property in connection with an out-of-state representation, this provision shall not supersede the trust account rules of the other state.

       SCR 20:1.15(e) provides:
      (e) Complete records of trust account funds and other trust property shall be kept by the lawyer and shall be preserved for a period of at least six years after termination of the representation. Complete records shall include: (i) a cash receipts journal, listing the sources and date of each receipt, (ii) a disbursements journal, fisting the date and payee of each disbursement, with all disbursements being paid by check, (iii) a subsidiary ledger containing a separate page for each person or company for whom funds have been received in trust, showing the date and amount of each receipt, the date and amount of each disbursement, and any unexpended balance, (iv) a monthly schedule of the subsidiary ledger, indicating the balance of each client's account at the end of each month, (v) a determination of the cash balance (checkbook balance) at the end of each month, taken from the cash receipts and cash disbursement journals and a reconciliation of the cash balance (checkbook balance) with the balance indicated in the bank statement, and (vi) monthly statements, including canceled checks, vouchers or share drafts, and duplicate deposit slips. A record of all property other than cash which is held in trust for clients or third persons, as required by paragraph (a) hereof, shall also be maintained. All trust account records shall be deemed to have public aspects as related to the lawyer's fitness to practice.

       SCR 20:8.1(b) provides:
      An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
      (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

       Former SCR 22.07(2), applicable in the instant proceeding, provided:
      (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.

       SCR 20:8.4(c) provides:
      It is professional misconduct for a lawyer to:
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Charles Glynn, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Charles Glynn, Respondent.
    Supreme Court

      No. 99-2223-D.

      Filed October 26, 2000.

    2000 WI 117
    (Also reported in 618 N.W.2d 740.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that the license of Charles Glynn to practice law in Wisconsin be suspended for nine months as discipline for professional misconduct and that the suspension be made consecutive to the one-year license suspension previously imposed by the court for other professional misconduct. The misconduct established in the instant proceeding consisted of failing to act with reasonable diligence and promptness in representing clients, failing to explain matters to the extent reasonably necessary to permit two of those clients to make informed decisions regarding their representation, and failing to cooperate with the Board of Attorneys Professional Responsibility (Board) in its investigation into his conduct.

¶ 2. We determine that the professional misconduct established in this proceeding warrants the suspension of Attorney Glynn's license to practice law for nine months and that it is appropriate that the suspension be consecutive to the previous license suspension, as Attorney Glynn has not been reinstated to the practice of law following the completion of that suspension on June 14, 2000. The misconduct considered in the instant proceeding is of the same kind as some of the misconduct for which Attorney Glynn already has been disciplined, and if it had been considered in the earlier disciplinary proceeding, we would have imposed discipline in that proceeding similar to that resulting from our imposition of a consecutive nine-month license suspension in this proceeding.

¶ 3. Attorney Glynn was admitted to practice law in Wisconsin in 1991 and, prior to his license suspension that commenced June 14, 1999, practiced in Milwaukee. That suspension, which continues in effect for the reason that Attorney Glynn has not sought reinstatement of his license, was imposed for misconduct that included paying himself excessive and unauthorized fees in two guardianship matters and attempting to justify those payments by false itemized statements and by documents falsely indicating that he was reimbursing the estates for disbursements he had made to himself without court approval. Disciplinary Proceedings Against Glynn, 225 Wis. 2d 202, 591 N.W.2d 606 (1999). In the instant proceeding, Attorney Glynn stipulated to and the referee, Attorney Rose Marie Baron, made findings of fact concerning the following professional misconduct.

¶ 4. In August 1994, Attorney Glynn was appointed by the State Public Defender to represent a client in post-conviction proceedings following the client's conviction and sentence to life in prison. Attorney Glynn and the client agreed to appeal the conviction and sentence, but even though he had received the complete trial transcripts by February 1995, Attorney Glynn did not respond to many of the client's communications concerning the status of the appeal through 1997. He also did not respond timely to two letters from the State Public Defender encouraging him to contact the client, who had complained about Attorney Glynn's representation and lack of communication.

¶ 5. Attorney Glynn did not contact the client until late October 1997. Believing Attorney Glynn would continue to pursue the appeal, as the two had discussed, and hearing nothing from him after that discussion, the client again asked the State Public Defender to appoint a new attorney and filed a grievance with the Board. Although he met with the client thereafter, Attorney Glynn took no further steps on the client's behalf, and new counsel was appointed for the client. Throughout Attorney Glynn's representation, no notice of appeal was filed, and the client's right to a direct appeal thereby was jeopardized. During the Board's investigation of the matter, Attorney Glynn did not provide a written response to the client's grievance or produce his file, as the Board twice had requested.

¶ 6. In a second matter, a client retained Attorney Glynn in March 1997 to resolve a construction lien dispute. In response to the client's request, Attorney Glynn sent him a copy of a letter he purportedly had sent to opposing counsel in the matter, which letter indicated a copy having been sent to the client but which the client had not received earlier. In fact, however, opposing counsel had received no letter from Attorney Glynn.

¶ 7. When the client was served with a summons and complaint in September 1997, Attorney Glynn told him he had been in touch with opposing counsel and that he should have received the pleading. Soon thereafter, Attorney Glynn told the client he had sent opposing counsel copies of documents concerning the lien, but opposing counsel never received those documents.

¶ 8. A default judgment in the action was entered in December 1997, but Attorney Glynn did not inform his client of it when the client contacted him the following month. Indeed, Attorney Glynn then reassured the client about the progress of the matter and during one conversation said he was commencing an action against the subcontractor. Months later, the client was able to reach Attorney Glynn, after having left numerous telephone messages but having received no response, and told him he would obtain other counsel if Attorney Glynn did not handle the matter properly. Attorney Glynn again reassured the client, as he did several months later when the client finally reached him after unsuccessfully attempting to do so for three months.

¶ 9. When the client obtained other counsel in August 1998, that attorney asked Attorney Glynn to send him all of the material in the client's file as soon as possible. That attorney subsequently learned of the default judgment against the client and that Attorney Glynn had not been in contact with opposing counsel in the lien matter as he had represented to the client. Other than one telephone call shortly before receiving the April 30,1997, letter, which he did not receive until December 17 of that year, two days after the default judgment had been entered, opposing counsel had had no contact with Attorney Glynn. During the Board's investigation of the client's grievance in this matter, Attorney Glynn delivered a copy of the client's file but did not respond to subsequent requests from the Board for information in the matter.

¶ 10. A third matter concerned Attorney Glynn's representation of a client in several criminal matters pending in different counties. Attorney Glynn appeared at a scheduled plea hearing and sentencing in one of those matters on January 15, 1999, but his client was not present, which resulted in a warrant being issued for the client's arrest. After the client was arrested, he appeared in circuit court on three new criminal cases in which he was represented by a public defender. Because it was known that Attorney Glynn was representing the client in other matters pending in that court, the court attempted to contact Attorney Glynn to ascertain whether he was still representing the client. Attorney Glynn did not return any of the court's calls and did not respond to a letter from the judge.

¶ 11. The court then sent Attorney Glynn a notice scheduling the client's plea and sentencing, and when he failed to appear on that date, the court issued an order requiring Attorney Glynn to show cause why he should not be found in contempt. On the return date of that order, Attorney Glynn said that while he was in the courthouse on another matter prior to that hearing, he had attempted to see the judge to explain his failure to appear and his not responding to the court's calls and letter but did not get an opportunity to talk with the judge. Unsure of that explanation, the judge sent a copy of the transcript of that hearing to the Board, and the Board subsequently ascertained that Attorney Glynn had not made an appearance in another case in the courthouse on the day he said he had attempted to see the judge. During the Board's investigation, Attorney Glynn never provided the Board with a copy of his client's files, despite several requests to do so, and did not respond timely to two requests from the Board for information about his conduct in the client's matter.

¶ 12. The parties stipulated and the referee concluded that Attorney Glynn's action and inaction in the foregoing three matters constituted the following professional misconduct.

(a) His failure to pursue post-conviction relief diligently and timely on behalf of the client in the first matter violated SCR 20:1.3.
(b) His failure to respond to communications from that client and to requests’from the State Public Defender and his failure to provide any meaningful representation after meeting with the client in the first matter violated SCR 20:1.4(a) — a failure to keep a client reasonably informed as to the status of a matter and promptly comply with reasonable requests for information.
(c) His failure to protect the client adequately against entry of a default judgment in the contractor lien matter, knowing a lawsuit was threatened, and his failure to take necessary steps to resolve or vacate that judgment violated SCR 20:1.3.
(d) His failure to provide the client with a copy of a letter he had sent to opposing counsel, to inform the client of the status of his dealings with that counsel regarding resolution of the lien issue, and to communicate to his client about the entry of a default judgment violated SCR 20:1.4(a).
(e) His failure to appear at or make any effort to reschedule a plea and sentencing hearing violated SCR 20:1.3.
(f) His failure to respond to letters from the Board and provide documents requested in its investigation timely or at all in each of the three matters violated SCR 21.03(4) and 22.07(2) and (3).

¶ 13. As discipline for that professional misconduct, the referee recommended, as the Board and Attorney Glynn had stipulated, that Attorney Glynn's license to practice law be suspended for nine months, consecutive to the one-year suspension imposed earlier, which was to expire June 14, 2000. The referee also recommended, as the parties had stipulated, that Attorney Glynn be required to pay the costs of the instant proceeding.

¶ 14. It Is Ordered that the license of Charles Glynn to practice law in Wisconsin is suspended for nine months, commencing June 14, 2000.

¶ 15. It Is Further Ordered that within 60 days of the date of this order Charles Glynn pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Charles Glynn to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 16. It Is Further Ordered that Charles Glynn comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 17. WILLIAM A. BABLITCH and DAVID T. PROSSER, JR., JJ., did not participate.

       SCR 20:1.3 provides:
      Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.

       SCR 20:1.4(a) provides:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

       Former SCR 21.03(4), applicable to this proceeding, provided:
      (4) Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator.
      Former SCR 22.07(2) and (3), applicable to this proceeding, provided:
      (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.
      (3) The administrator or committee may compel the respondent to answer questions, furnish documents and present any information deemed relevant to the investigation. Failure of the respondent to answer questions, furnish documents or present relevant information is misconduct. The administrator or a committee may compel any other person to produce pertinent books, papers and documents under SCR 22.22.


text:
    In the Matter of Disciplinary Proceedings Against Keith E. Halverson, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Keith E. Halverson, Respondent.
    Supreme Court

      No. 00-0843-D.

      Filed October 26, 2000.

    2000 WI 113
    (Also reported in 618 N.W.2d 191.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Keith E. Halverson be publicly reprimanded as discipline for professional misconduct. That misconduct consisted of failing to act with reasonable diligence and promptness in the probate of an estate, failing to keep his client reasonably informed of the status of that matter and respond to her telephone calls, failing to inform his client and the probate court that he had been suspended from the practice of law for failure to pay State Bar dues while the estate was being probated and continuing to act in the matter while suspended, and failing to respond to the Board of Attorneys Professional Responsibility (Board) and to the district professional responsibility committee investigating his conduct.

¶ 2. We determine that a public reprimand is the appropriate disciplinary response to Attorney Halver-son's professional misconduct established in this proceeding. Notwithstanding that his misconduct is the same as that for which he previously was publicly reprimanded, its seriousness and the severity of discipline to be imposed for it are mitigated by factors discussed below.

¶ 3. Attorney Halverson was admitted to practice law in Wisconsin in 1966 and practiced in Prescott and Menomonie. He closed his law offices in 1998, and there is no indication that he currently is practicing law. He was publicly reprimanded in April 1999 for failing to keep two clients informed of the status of their legal matters and respond to their requests for information, not responding to the letter of one client terminating his representation and requesting the return of the retainer he had paid, failing to file a client's bankruptcy petition timely, although aware that the client's wages were being garnished, and not responding to letters from the Board and the district committee investigating his conduct. Disciplinary Proceedings Against Halverson, 225 Wis. 2d 215, 591 N.W.2d 821. Attorney Halverson did not file an answer to the Board's complaint, and the referee, Attorney Janet Jenkins, made findings of fact following a hearing on the Board's motion for default judgment, which Attorney Halverson did attend.

¶ 4. Attorney Halverson was retained in August 1996 to probate the estate of a client's mother. He filed the probate that month, but there was no progress and no documents were filed in the estate between May 19, 1997, and February 1998. Attorney Halverson rarely contacted the client during the administration of the estate and did not respond to numerous requests for information from the client, as well as requests to complete the probate. The estate was concluded on March 9,1998.

¶ 5. Attorney Halverson was suspended from the practice of law in Wisconsin on October 31, 1997, for failure to pay State Bar membership dues. Notwithstanding that suspension, he continued acting as attorney for the estate and made a number of filings in it up to the time it was closed. Attorney Halverson did not notify either his client or the probate court of his suspension from the practice of law.

¶ 6. Attorney Halverson did not respond to two requests from the Board to respond to the client's griev-anee concerning his conduct in the estate matter. He also did not respond to a letter from the district professional responsibility committee to which the matter had been referred for investigation.

¶ 7. On the basis of those facts, the referee concluded that Attorney Halverson engaged in the following professional misconduct:

(a) His failure to act promptly and with reasonable diligence in probating the estate violated SCR 20:1.3.
(b) His failure to provide his client with information regarding the estate matter and failing to respond to the client's letters and telephone calls constituted failure to keep his client reasonably informed of the status of a legal matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).
(c) His failure to inform his client and the court of his suspension from the practice of law while continuing to act in the estate matter violated SCR 22.26(l)(a) and (b).
(d) His continuing to represent the estate after being suspended from the practice of law for failure to pay bar association dues violated SCR 10.03(4) and (6).
(e) His failure to respond to the Board and to the district committee seeking information concerning the client's grievance constituted a failure to cooperate in the Board's investigation, in violation of SCR 21.03(4) and 22.07(2).

¶ 8. As discipline for that misconduct, the referee recommended that Attorney Halverson be publicly reprimanded. The referee observed that it stemmed from the 1999 proceeding that resulted in a public reprimand. Attorney Halverson became angry with the State Bar when that proceeding was commenced against him and largely ignored State Bar-related matters thereafter. When his license was suspended in 1997 for failure to pay membership dues, he mailed his dues to the State Bar, but they were returned to him because he had not included the $20 reinstatement fee. Attorney Halverson stated that he was unaware the dues check had been returned because he had refused to open the envelope from the State Bar containing it. He testified that he had mistakenly believed his dues had been paid and that he had been reinstated to the practice of law.

¶ 9. In respect to the probate matter, Attorney Halverson asserted that all estate assets had been disbursed, the final account had been filed, and the receipts and waivers had been sent to the heirs prior to his suspension from practice in 1997. Because he was spending time in Arizona following that suspension, he was unaware that the personal representative had been attempting to contact him. When he returned to Wisconsin, he learned that one of the heirs had not signed a receipt or waiver needed to close the estate. He obtained the necessary paper and filed it with the court, and the estate was closed. Thus, it was only his contact with the personal representative and the filing of the last document in the estate that constituted his practice of law while suspended.

¶ 10. The referee also noted that Attorney Hal-verson's failure to cooperate with the Board and the district committee in their investigation of his conduct in the estate matter resulted from his "continued disenchantment" with the State Bar. He felt he had been treated unfairly and elected to ignore those he perceived as the source of that unfairness.

¶ 11. Because his continuing to practice while suspended was the result of his initial misapprehension regarding payment of his State Bar dues and because his neglect in handling the estate was not serious, the referee determined that the public reprimand sought by the Board was the appropriate discipline to be imposed. In addition, the referee recommended that Attorney Halverson be required to pay the costs of this proceeding.

¶ 12. It Is Ordered that Keith E. Halverson is publicly reprimanded as discipline for the professional misconduct established in this proceeding.

¶ 13. It Is Further Ordered that within 60 days of the date of this order, Keith E. Halverson pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Keith E. Halverson to practice law in Wisconsin shall be suspended until further order of the court.

       SCR 20:1.3 provides:
      Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.

       SCR 20:1.4(a) provides:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

       References in this opinion to chapters 21 and 22 of the Supreme Court Rules are to the rules in effect at the time relevant to this proceeding.
      Former SCR 22.26(l)(a) and (b) provided:
      (l)(a) A disbarred or suspended attorney on or before the effective date of disbarment or suspension shall:

        1. Notify, by certified mail, all clients being represented in pending matters of the disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension.'
      2. Advise the clients to seek legal advice of the client's own choice elsewhere.
      (b) A disbarred or suspended attorney with a matter pending before a court or administrative agency shall promptly notify the court or administrative agency and the attorney for each party of the disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension. The notice must identify the successor attorney or, if there is none at the time of the notice, state the place of residence of the client of the disbarred or suspended attorney.

       SCR 10.03(4) and (6) provide:
      (4) Only active members may practice law. No individual other than an enrolled active member of the state bar may practice law in this state or in any manner purport to be authorized or-qualified to practice law. A judge in this state may allow a nonresident counsel to appear in his or her court and participate in a particular action or proceeding in association with an active member of the state bar of Wisconsin who appears and participates in the action or proceeding. Permission to the nonresident lawyer may be withdrawn by the judge granting it if the lawyer by his or her conduct manifests incompetency to represent a client in a Wisconsin court or by his or her unwillingness to abide by the rules of professional conduct for attorneys and the rules of decorum of the court.
      (6) Penalty for nonpayment of dues. If the annual dues of any member remain unpaid 120 days after the payment is due, the membership of the member may be suspended in the manner provided in the bylaws; and no person whose membership is so suspended for nonpayment of dues may practice law during the period of the suspension.

       Former SCR 21.03(4) provided:
      (4) Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator.
      Former SCR 22.07(2) provided:
      (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.


text:
    In the Matter of Disciplinary Proceedings Against Harold E. Krause, Jr., Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Harold E. Krause, Jr., Respondent.
    Supreme Court

      No. 00-0992-D.

      Filed October 26, 2000.

    2000 WI 114
    (Also reported in 618 N.W.2d 527.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that the license of Harold E. Krause, Jr., to practice law in Wisconsin be revoked as discipline reciprocal to that imposed upon him in Rhode Island for professional misconduct. On September 21, 1999, the Rhode Island Supreme Court disbarred Attorney Krause, having determined that he had engaged in 31 counts of professional misconduct, including withdrawing without court permission $25,000 from the estate of a person over whom he was appointed guardian, failing to reimburse that estate for $10,350 in excess fees he had charged, failing to segregate the ward's funds in a separate account and commingling them with his own funds, failing promptly to pay bills owed by the ward, continuing to serve as guardian after the court directed his removal, converting a portion of personal injury settlement funds belonging to a minor client, and negotiating a check for a portion of a personal injury settlement after having endorsed it on behalf of the State of Rhode Island without authorization.

¶ 2. We determine that the professional misconduct for which Attorney Krause was disbarred in Rhode Island warrants the revocation of his license to practice law in Wisconsin. In addition to that misconduct, he engaged in misconduct by failing to notify the Board of Attorneys Professional Responsibility of the Rhode Island disbarment, as required by SCR 22.25(1). In the instant proceeding, he stipulated that he has not supported any claim under SCR 22.25(5) that imposition of discipline identical to that imposed in Rhode Island is not warranted. He stipulated, in addition, to pay the costs of the instant proceeding.

¶ 3. Attorney Krause was admitted to practice law in Wisconsin in February 1970. He resides in Rhode Island and is not practicing law currently in Wisconsin. He was disciplined here previously in 1997, when we suspended his license for one year as discipline reciprocal to discipline imposed previously in Rhode Island.

¶ 4. It Is Ordered that the license of Harold E. Krause, Jr., to practice law in Wisconsin is revoked, effective the date of this order.

An attorney admitted to practice law in this state, upon being subjected to public discipline or suspended for medical incapacity in another jurisdiction, shall promptly inform the administrator of the action. Failure to furnish the notice within 20 days of the effective date of the order or judgment constitutes misconduct.

¶ 5. It Is Further Ordered that within 60 days of the date of this order, Harold E. Krause, Jr., pay to the Office of Lawyer Regulation the costs of this proceeding.

¶ 6. It Is Further Ordered that Harold E. Krause, Jr., comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin is revoked.

       Former SCR 22.25(1), applicable to the instant proceeding, provided:

       Former SCR 22.25(5), applicable to the instant proceeding, provided:
      (5) Upon the expiration of 20 days from service of the complaint issued under sub. (2), the referee shall file a report with the court recommending the imposition of the identical discipline or medical suspension unless:
      (a) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;
      (b) There was such an infirmity of proof establishing the misconduct or medical incapacity that the referee could not accept as final, the conclusion on that subject; or
      (c) The misconduct established justifies substantially different discipline in this state.


text:
    In the Matter of Disciplinary Proceedings Against Karl Grunewald, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Karl Grunewald, Respondent.
    Supreme Court

      No. 00-1212-D.

      Filed October 26, 2000.

    2000 WI 115
    (Also reported in 618 N.W.2d 188.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that the license of Attorney Karl Grünewald be suspended for one year as discipline for professional misconduct. That misconduct consisted of the following: (1) failing to act with reasonable diligence and promptness in client matters, (2) failing to keep clients informed of the status of those matters, comply with their reasonable requests for information, and explain matters to them to the extent reasonably necessary to permit them to make informed decisions regarding the representation, (3) revealing information relating to clients' representation without their consent, (4) making misrepresentations to clients, (5) failing to return client property upon termination of representation, and (6) failing to communicate to clients the basis of his fee. The referee also recommended that Attorney Grünewald be required to make restitution to the clients harmed by his misconduct and pay the costs of this proceeding.

¶ 2. We determine that Attorney Grunewald's professional misconduct established in this proceeding warrants the suspension of his license to practice law for one year. This is the third time he will have been disciplined for misconduct. By his handling of client matters considered in the instant proceeding, as well as the nature of the misconduct itself, Attorney Grüne-wald has continued to demonstrate an inability or unwillingness to meet his professional responsibilities to those who retain him to represent them and their interests and that serious discipline is necessary to protect other clients, the public, and the legal system from his continued failure to meet those responsibilities.

¶ 3. Attorney Grünewald was admitted to the practice of law in Wisconsin in 1976 and practices in Milwaukee. He has been disciplined twice previously for professional misconduct. The court suspended his license for six months in 1988 for neglect of four legal matters and failure to cooperate with the Board of Attorneys Professional Responsibility (Board) in its investigation. Disciplinary Proceedings Against Gruenwald, 141 Wis. 2d 691, 416 N.W.2d 289. In December 1988, he consented to a private reprimand from the Board for his failure to file state and federal income tax returns. The referee in the instant proceeding, Attorney Stanley Hack, made findings of fact based on the Board's complaint, as Attorney Grünewald did not file an answer or otherwise appear in the proceeding.

¶ 4. In 1990, Attorney Grünewald was retained to pursue a claim regarding the restoration of an automobile, for which the clients gave him money to pay the fee for a jury trial. Attorney Grünewald did not file that lawsuit until 1992, and over the next five years the clients received little or no information from him in response to their numerous inquiries of him about its status. When he failed to follow the court's instructions to draft a pretrial order, the judge removed the case from the trial calendar and said it would be replaced on the calendar when the parties evidenced readiness for trial.

¶ 5. Attorney Grünewald billed the clients for a number of services asserted to have been performed from mid-1990 to November 1992, but there was no further action in the clients' matter until early 1998. At some time prior to late 1997, Attorney Grünewald discussed the lawsuit with another attorney and provided her documents from the clients' file without their knowledge or consent. He misrepresented to that attorney that he had contacted the clients to obtain permission to transfer the matter to her.

¶ 6. When that attorney appeared at Attorney Grunewald's request on behalf of the clients at a hearing in October 1997 on a motion to dismiss, without a substitution of counsel having been obtained, the court sanctioned the clients for Attorney Grunewald's failure to prosecute the lawsuit by precluding a jury trial, barring witnesses other than the parties themselves, and ordering the clients to pay the defendant's attorney fees. The clients were not present at the hearing and did not learn of the motion, the hearing, or the purported substitution of counsel until two weeks later, when Attorney Grünewald told them he was reducing his law practice and gave them an envelope with the name of an attorney who could handle their lawsuit. It was then the clients learned that the court had sanctioned them for Attorney Grunewald's failure to prosecute the action.

¶ 7. Attorney Grünewald at first told the clients he would pay the defendant's attorney fees, but when he learned they were approximately $3400, he said that they were too high and agreed to pay only $1000. However, he never paid the clients any amount. The lawsuit ultimately was resolved, but the resolution reduced the clients' recovery by $3000 — the amount agreed upon as the defendant's attorney fees.

¶ 8. Attorney Grünewald and his clients never agreed to a method by which his fees for representing them in their lawsuit would be calculated. After the clients filed a grievance with the Board in August 1998, he sent them 10 separate bills, all dated October 6, 1998, covering a variety of matters and listing services dating back to 1990. None of those bills, which totaled $27,300, previously had been sent to the clients, and Attorney Grünewald never had requested payment of them previously.

¶ 9. Attorney Grünewald had been preparing income tax returns for those same clients since 1989, and they retained him to complete their 1994 and 1995 state and federal personal and corporate returns. Attorney Grünewald did not respond to most of their numerous telephone and written requests for information regarding the status of those tax returns. At times, he told them that they were almost finished and could be picked up or that he would be sending them to the clients. However, he never provided completed tax returns, nor did he complete those returns, despite many promises to do so and excuses for not doing so.

¶ 10. The clients hired a certified public accountant in November 1997 to prepare those returns, and they and the accountant made numerous requests to Attorney Grünewald for his file in the matter. Notwithstanding his representation to the accountant in early 1998 that he had the returns almost completed, when he delivered the file September 8,1998, it contained no returns that were even partially completed. As a result of Attorney Grunewald's failure to complete the returns timely, the clients were penalized $9799 by the federal and state tax authorities.

¶ 11. Based on the foregoing facts, the referee concluded that Attorney Grünewald engaged in the following professional misconduct:

(a) His doing almost nothing on the clients' claim and the lawsuit he commenced on their behalf for five years constituted a failure to act with reasonable diligence and promptness, in violation of SCR 20:1.3.
(b) His failure to provide the clients with information regarding that lawsuit and respond to their letters and phone calls violated SCR 20:1.4(a).
(c) His failure to keep the clients informed about his fees to represent them in the matter, the progress of the lawsuit, substitution of counsel in it, motions, and the court's sanction constituted a failure to explain the matter to the extent reasonably necessary to permit the clients to make informed decisions regarding the representation, in violation of SCR 20:1.4(b).
(d) Providing information regarding the representation to other counsel without the knowledge or consent of his clients violated SCR 20:1.6(a).
(e) His misrepresentations to successor counsel about having secured the clients' consent to substitution and making misrepresentations to the clients about the status of the lawsuit violated SCR 20:8.4(c).
(f) His failure to complete the clients' income tax returns violated SCR 20:1.3.
(g) His failure to answer letters and phone calls from the clients and their accountant regarding the tax returns violated SCR 20:1.4(a).
(h) His misrepresentations to the clients regarding the status of the preparation and completion of the tax returns violated SCR 20:8.4(c).
(i) His failure to return the income tax information and files to the clients upon their request violated SCR 20:1.16(d).
(j) His failure to communicate to the clients the basis for his fees in advance of performing services violated SCR 20:1.5(b).

¶ 12. As discipline for that misconduct, the referee recommended a one-year license suspension, as the Board had proposed. He recommended further that Attorney Grünewald be required to make restitution in specified amounts to the clients harmed by his misconduct and that he be required to pay the costs of this proceeding.

¶ 13. It Is Ordered that the license of Karl Grü-newald to practice law in Wisconsin is suspended for one year, commencing November 30, 2000, as discipline for professional misconduct.

¶ 14. It Is Further Ordered that within 60 days of the date of this order, Karl Grünewald make restitution to his former clients as specified in the report of the referee filed in this proceeding.

¶ 15. It Is Further Ordered that within 60 days of the date of this order, Karl Grünewald pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Karl Grünewald to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 16. It Is Further Ordered that Karl Grüne-wald comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       SCR 20:1.3 provides:
      Diligence.
      A lawyer shall act with reasonable diligence and promptness in representing a client.

       SCR 20:1.4(a) provides:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

       SCR 20:1.4(b) provides:
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

       SCR 20:1.6(a) provides:
      (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d).

       SCR 20:8.4(c) provides:
      It is professional misconduct for a lawyer to:
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 20:1.5(b) provides:
      (h) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.


author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

text:
    State of Wisconsin, Plaintiff-Respondent, v. David M. Hahn, Defendant-Appellant.
    Supreme Court

      No. 99-0554-CR.

      Oral argument September 7, 2000.

    Decided November 1, 2000.

    2000 WI 118
    (Also reported in 618 N.W.2d 528.)

      For the defendant-appellant there were briefs by Steven G. Bauer and Law Offices of Steven G. Bauer, Brownsville, and oral argument by Steven G. Bauer.

    For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

      Motion for reconsideration denied February 9, 2001. See per curiam decision published in 241 Wis. 2d 85.

   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is an appeal from a judgment of the Circuit Court for Winnebago County, Robert A. Haase, Circuit Court Judge. The appeal is here on certification from the court of appeals. Wis. Stat. (Rule) § 809.61 (1995-96).

¶ 2. The defendant, David M. Hahn, appeals his sentence of life in prison without the possibility of parole under Wisconsin's persistent repeater statute, Wis. Stat. § 939.62(2m) (1997-98), commonly known as Wisconsin's "three strikes" law. The statute provides for mandatory life imprisonment for offenders convicted of committing for a third time a statutorily specified "serious offense." The statute in issue is silent about whether the offender may challenge the validity of a prior conviction at the enhanced sentence proceeding.

¶ 3. Two questions of law are presented in this case. The first is whether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing, intelligent, and voluntary. The circuit court concluded that it had the power to examine the validity of the prior conviction on these grounds but was not required to do so.

¶ 4. We conclude that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. We further conclude, as a matter of judicial administration, that an offender may not use the enhanced sentence proceeding predicated on a prior conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. Because the defendant in the present case does not allege that a violation of his constitutional right to a lawyer occurred in the prior conviction, he may not challenge his 1994 conviction during this 1997 persistent repeater proceeding.

¶ 5. The second question of law presented is whether the persistent repeater penalty enhancer as applied to the defendant violates the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment. For the reasons set forth, we reject the defendant's Eighth Amendment challenge to Wisconsin's persistent repeater statute, Wis. Stat. § 939.62(2m).

HH

¶ 6. The relevant facts in this case are undisputed. In 1997, the Winnebago County district attorney charged the defendant under Wis. Stat. § 948.02 with two counts of sexual assault on a child. Because the defendant had two prior felony convictions for sexual assault on a child, he was subject to a life sentence without the possibility of parole under Wis. Stat. § 939.62(2m). Both prior convictions were based on the defendant's guilty pleas, the first in 1990 and the second in 1994. During the 1997 persistent repeater proceeding, the defendant sought to reopen the 1994 conviction on the grounds that his plea was not knowing, intelligent, and voluntary because the circuit court failed to inform him that the conviction could serve as a "strike" offense under the "three strikes" law. During the 1997 proceeding, the circuit court denied the defendant's motion to strike his 1994 conviction, holding that the circuit court's failure to inform the defendant during his 1994 guilty plea that the resulting conviction could later be used to sentence him as a persistent repeater did not render his guilty plea invalid.

¶ 7. The defendant pled guilty to the 1997 offenses and, on the basis of his prior convictions, was sentenced as a persistent repeater to life in prison without the possibility of parole under Wis. Stat. § 939.62(2m). The defendant appealed, arguing that the circuit court's denial of his motion to strike the 1994 conviction violated his due process rights and that his life sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment. We address each issue in turn.

¶ 8. The defendant contends that the circuit court erred by failing to strike the 1994 conviction because his guilty plea was not knowing, intelligent, and voluntary and therefore did not satisfy federal constitutional due process requirements. The defendant relies on State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), in which the offender was permitted to challenge a prior conviction in an enhanced sentence. proceeding predicated on the prior conviction on the ground that the guilty plea in the prior conviction was not knowing, intelligent, and voluntary.

¶ 9. The State argues that this court should revisit its holding in Baker in light of Custis v. United States, 511 U.S. 485 (1994), a U.S. Supreme Court decision rendered after the Baker decision. The State contends that the U.S. Supreme Court held in Custis, in contrast to this court's holding in Baker, that only a prior conviction that violates an offender's constitutional right to a lawyer may be challenged during an enhanced sentence proceeding predicated on the prior conviction.

¶ 10. We therefore examine State v. Baker, 169 Wis. 2d 49, and Custis v. United States, 511 U.S. 485.

¶ 11. In Baker, the offender used the enhanced sentence proceeding in a conviction for operating after revocation of a license to challenge two prior operating-after-revocation convictions that the State sought to apply for sentencing enhancement purposes. The offender challenged one of the convictions because the plea was allegedly not knowing, intelligent, and voluntary. Baker, 169 Wis. 2d at 58. The offender challenged the other conviction because the State allegedly obtained the conviction in violation of his constitutional right to a lawyer. Baker, 169 Wis. 2d at 58.

¶ 12. The Baker court relied on Burgett v. Texas, 389 U.S. 109 (1967), and its progeny to allow the offender to challenge both convictions.

¶ 13. Burgett had considered whether prior convictions rendered without the assistance of counsel could be used to enhance sentences for subsequent offenses. The Burgett court disallowed the use of a prior conviction in an enhanced sentence proceeding predicated on the prior conviction when the prior conviction violated Gideon v. Wainwright, 372 U.S. 335 (1963). The Burgett court declared that such a use of the prior conviction was inherently prejudicial, amounted to a new denial of the right to counsel, and should be prohibited. Burgett, 389 U.S. at 115-16.

¶ 14. In Baker, this court was faced with the question of whether to extend the holding of Burgett to prior convictions allegedly obtained in violation of a constitutional right other than the Gideon right to a lawyer. The case law was largely unsettled at that time, but a number of jurisdictions had applied the Burgett rule to a prior conviction allegedly obtained in violation of a constitutional right other than the right to a lawyer. The Baker court acknowledged, however, that "[s]ome courts have confined the application of Burgett to convictions invalid under Gideon [v. Wainwright, 372 U.S. 335 (1963)]." Baker, 169 Wis. 2d at 69.

¶ 15. The Baker court determined that the decision in Burgett rested on the principle that a prior conviction may not be used in an enhanced sentence proceeding predicated on a prior conviction if the prior conviction was allegedly obtained in violation of a constitutional right that would affect the reliability of the prior conviction. Baker, 169 Wis. 2d at 70. The Baker court viewed the question of whether a guilty plea was knowing, intelligent, and voluntary as one that affected the reliability of a conviction. As a result, the Baker court concluded that federal constitutional law prohibited a circuit court from using a prior conviction in an enhanced sentence proceeding predicated on a prior conviction when the prior conviction was based on a guilty plea that was not knowing, intelligent, and voluntary. Baker, 169 Wis. 2d at 71.

¶ 16. After Baker, the U.S. Supreme Court clarified the Burgett decision in Custis v. United States, 511 U.S. 485 (1994). In Custis, the offender asserted ineffective assistance of counsel as a challenge to the validity of a prior state conviction that was used in the offender's federal enhanced sentence proceeding under the federal Armed Career Criminal Act. The Armed Career Criminal Act is silent about the means for challenging prior convictions. The Custis court concluded that the U.S. Constitution does not require that an offender be given an opportunity to challenge a prior state conviction in a federal enhanced sentence proceeding predicated on the prior state conviction unless the offender asserts the state conviction was obtained in violation of the offender's constitutional right to a lawyer. The Custis court thus expressly limited its holding in Burgett to instances in which an offender asserts the conviction was allegedly obtained in violation of an offender's constitutional right to a lawyer. Custis, 511 U.S. at 496. Relying on long-established case law that a violation of the constitutional right to the assistance of counsel is "a unique constitutional defect," the Custis court concluded that other constitutional violations do not merit the same treatment under Burgett. Custis, 511 U.S. at 496.

¶ 17. The Custis court read the federal constitutional rights of an offender to challenge a prior state conviction in a federal enhanced sentence proceeding more narrowly than did the Wisconsin supreme court in Baker. Accordingly, we conclude that Baker should be limited to adhere to Custis: In an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer.

¶ 18. Accordingly, we conclude that the defendant in the present case has no federal constitutional right in his 1997 third strike proceeding as a persistent repeater under Wis. Stat. § 939.62(2m) to challenge the use of a prior conviction allegedly based on a guilty plea that was not knowing, intelligent, and voluntary.

¶ 19. The defendant argues that Custis is a forum case based on considerations of federalism and administrative convenience and that we should not alter our Baker decision. The defendant contends that Custis applies only to an enhanced sentence proceeding in a federal court in which a challenge is made to a prior state conviction. Unlike Custis, the defendant argues, this case involves a challenge to a prior state conviction in a subsequent state enhanced sentence proceeding.

¶ 20. In its final paragraph, the Custis court addressed whether an offender who was barred from challenging a prior state conviction in a federal enhanced sentence proceeding could challenge the predicate state conviction by another means. The U.S. Supreme Court stated:

We recognize. . .that Custis, who was still "in custody" for purposes of his state convictions at the time of his federal sentencing under § 924(e), may attack his state sentences in Maryland or through federal habeas review. . . .If Custis is successful in attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences. We express no opinion on the appropriate disposition of such an application.

¶ 21. Thus the U.S. Supreme Court expressly left open the possibility that an offender may challenge a prior state conviction in a state court proceeding or in a federal habeas proceeding and then, if successful, apply to reopen his enhanced federal sentence. Custis, 511 U.S. at 497. The Custis decision does not appear to alter an offender's right to challenge in a state court an enhanced sentence based on an unconstitutional prior state conviction.

¶ 22. The issue then becomes whether this court should, as a matter of judicial administration rather than as a matter of federal constitutional right, allow an offender to challenge a prior state conviction in an enhanced sentence proceeding on grounds other than an alleged violation of the constitutional right to a lawyer, or whether this court should require an offender to use available procedures other than the enhanced sentence proceeding to challenge a prior conviction.

¶ 23. The Custis court presents two justifications based on considerations of judicial administration and federalism to support its constitutional holding that in an enhanced sentence proceeding predicated on a prior conviction the U.S. Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer. Custis, 511 U.S. at 496-97.

¶ 24. First, the Custis court states that it would be difficult for federal courts to review a multitude of potential constitutional violations in convictions from 50 different states. While Burgett focused on the lack of a lawyer, which the U.S. Supreme Court viewed as readily apparent in the record of a conviction, extending Burgett to other constitutional violations such as ineffective assistance of counsel would require federal courts to "rummage through frequently nonexistent or difficult to obtain state-court transcripts or records that may date from another era." Custis, 511 U.S. at 496.

¶ 25. Although this justification does have merit in the context of state court proceedings, it may not apply with equal force. It is probably easier for a Wisconsin court to review a conviction entered by another Wisconsin court than for a federal court to review a state court conviction. Nevertheless, we conclude that an offender should not be permitted to challenge a prior conviction in an enhanced sentence proceeding predicated on the prior conviction except for an alleged violation of the constitutional right to a lawyer. Administrative difficulties arise when a Wisconsin circuit court reviews a prior conviction entered by another Wisconsin court; the reviewing court does not have the record of the prior conviction or of post-conviction proceedings. In addition, it seems preferable from an administrative standpoint to require all offenders to use the same procedures to review convictions, irrespective of whether the conviction becomes the basis of an enhanced penalty in a subsequent sentencing procedure.

¶ 26. Second, the Custis court justified its holding as promoting finality of judgments. A broad reading of Burgett, the U.S. Supreme Court concluded, would "undermine confidence in the integrity of our procedures" by calling into question the finality of prior convictions and by delaying penalty enhancement proceedings. Custis, 511 U.S. at 497 (quoting United States v. Addonizio, 442 U.S. 178, 184 n.11 (1979)). The U.S. Supreme Court noted that by challenging a previous state court conviction, an offender is asking the federal district court to "deprive [the state-court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t]." Custis, 511 U.S. at 497 (quoting Parke v. Raley, 506 U.S. 20, 30 (1992)).

¶ 27. The Custis court concerns about finality and delay, Custis, 511 U.S. at 497, carry weight in the state court context. The process prescribed by Custis avoids delay in an enhanced sentence proceeding and prevents an offender from using the proceeding for a tangential purpose.

¶ 28. Although these administrative considerations may weigh differently in different cases, we conclude that considerations of judicial administration favor a bright-line rule that applies to all cases. We therefore hold that a circuit court may not determine the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior conviction. Instead, the offender may use whatever means available under state law to challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding. If successful, the offender may seek to reopen the enhanced sentence. If the offender has no means available under state law to challenge the prior conviction on the merits, because, for example, the courts mever reached the merits of this challenge under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), or the offender is no longer in custody on the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence. We do not address the appropriate disposition of any such application.

¶ 29. In sum, the primary holding of Custis, to which this court is bound as a matter of federal constitutional law, is that an offender does not have a federal constitutional right to use an enhanced sentence proceeding predicated on a prior conviction as the forum in which to challenge the prior conviction except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior conviction. An offender may challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding by whatever means available under state law. If the offender succeeds, the offender may seek to reopen a sentence imposed as a persistent repeater under Wis. Stat. § 939.62(2m) if that sentence was based on the vacated conviction. Accordingly, we conclude that the defendant in this case does not have a federal constitutional right to use the 1997 enhanced sentence proceeding that was predicated on the 1994 state conviction as the forum in which to challenge the 1994 conviction because the defendant did not assert that a violation of the constitutional right to a lawyer occurred in that prior conviction.

hH I — I hH

¶ 30. We also reject the defendant's Eighth Amendment cruel and unusual punishment challenge to his life sentence under Wis. Stat. § 939.62(2m)(b). A statute is presumed constitutional and will be held unconstitutional only if it appears so beyond a reasonable doubt. The burden of establishing unconstitutionality of a statute is on the party attacking its constitutionality. State v. Borrell, 167 Wis. 2d 749, 762, 482 N.W.2d 883 (1992).

¶ 31. The defendant maintains that the gravity of his offense is not proportional to his punishment for several reasons: his sexual assault contact offenses are less serious than sexual intercourse; he is 26 years old so life imprisonment for him amounts to a greater punishment than for an older person; and his sentence is disproportionate to the sentence for a more serious crime such as first-degree intentional homicide.

¶ 32. Several decisions of the U.S. Supreme Court and this court compel the conclusion that the application of Wis. Stat. § 939.62(2m) to the defendant does not constitute cruel and unusual punishment.

¶ 33. The first principle of Eighth Amendment jurisprudence established in Rummel v. Estelle, 445 U.S. 263, 275-76 (1980), is that judgments about appropriate punishment require subjective line-drawing, which is "properly within the province of legislatures, not courts." The Rummel court recognized the validity of a state's "interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of-society as established by its criminal law. . . .[T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." Rummel, 445 U.S. at 276, 284-85.

¶ 34. The Wisconsin legislature has determined that sexual contact is a "serious felony" and that three or more violations of crimes classified as serious felonies merit lifetime imprisonment. See Wis. Stat. § 939.62(2m). Forty-seven states and the District of Columbia have enacted persistent repeater statutes, many of which require life sentences upon an offender's third offense. These persistent repeater statutes and the resulting sentences have withstood Eighth Amendment challenges.

¶ 35. The defendant asserts that application of Wisconsin's persistent repeater statute to his case imposes punishment grossly disproportionate to the severity of the crime. The U.S. Supreme Court decisions relating to the doctrine of disproportionate sentences in Eighth Amendment jurisprudence are not clear. Nevertheless, the defendant's claim must fail. In Rummel, 445 U.S. 263, the U.S. Supreme Court upheld a habitual offender's life sentence without parole based on three non-violent property crimes involving a total of $229.11. In Harmelin v. Michigan, 501 U.S. 957 (1991), the U.S. Supreme Court held that a mandatory sentence of life in prison without the possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment.

¶ 36. The case law in Wisconsin reflects a similar pattern. In State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996), the court of appeals rejected an Eighth Amendment attack on Wis. Stat. § 939.62(2m)(b), the same statute the defendant is attacking. In Lindsey, the offender violated the same statutory subsection that the defendant in the present case violated in two of his prior offenses. In State v. Borrell, 167 Wis. 2d 749, 777, 484 N.W.2d 883 (1992), this court rejected an Eighth Amendment attack on Wis. Stat. § 973.014 (1987-88), which permitted a circuit court to sentence the offender to life imprisonment with parole eligibility after approximately 35 years for first-degree murder.

¶ 37. On the basis of these cases and the circumstances of this case, we conclude that application of the persistent repeater statute to the defendant does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.

¶ 38. For the reasons set forth we affirm the judgment of the circuit court.

By the Court. — The judgment of the circuit court is affirmed.

       All subsequent references to the Wisconsin Statutes are to the 1995-96 volumes unless otherwise indicated. Section 939.62(2m) was modified by the legislature by 1997 Wis. Act 326.

       Both questions of law are determined by this court independently of the circuit court, although we benefit from the analyses of the circuit court.

       The Sixth Amendment to the U.S. Constitution guarantees the assistance of counsel. That amendment is made applicable to the states by virtue of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963).

       For examples of jurisdictions that extended Burgett v. Texas, 389 U.S. 109 (1967), to forbid the use of convictions obtained in violation of other constitutional rights, see Baker v. State, 169 Wis. 2d 49, 70 n.9, 485 N.W.2d 237 (1992).

       For examples of jurisdictions that narrowly construed Burgett v. Texas, 389 U.S. 109 (1967), to include only alleged violations of the right to a lawyer, see Baker, 169 Wis. 2d at 69 n.8.

       For other states interpreting Custis v. United States, 511 U.S. 485 (1994), as we do, see Colorado v. Padilla, 907 P.2d 601 (Colo. 1995); Kansas v. Chiles, 917 P.2d 866 (Kan. 1996); McGuire v. Kentucky, 885 S.W.2d 931 (Ky. 1994); State v. Janes, 684 A.2d 499 (N.H. 1996).

        Custis does not bar states from allowing offenders to challenge prior state convictions in state enhanced sentence proceedings. New York courts, for example, continue to allow offenders charged as persistent repeaters to challenge unconstitutional prior state convictions in the repeater proceeding. See, e.g., People v. Zeoli, 232 A.D.2d 818 (N.Y. App. Div. 1996) (trial court was required to hear offender's claim that prior plea was not knowing and intelligent, but the offender failed to meet his burden of proof). However, these challenges have a statutory basis. See N.Y. CRIM. PROC. LAW § 400.21.7(b) (Consol. 2000) ("A previous conviction in this or any other jurisdiction which was obtained in violation of the rights of the defendant under

        the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction"). The defendant in the present case asserts no statutory basis for his challenge.

       In so holding, this court joins several other jurisdictions that have had to scale back Burgett v. Texas, 389 U.S. 109, protections in light of Custis v. United States, 511 U.S. 485 (1994). See, e.g., United States v. Cordero, 42 F.3d 697, 701 (1st Cir. 1994) (prior case law about challenging prior convictions during enhanced sentence proceedings is no longer valid precedent after Custis); United States v. Killion, 30 F.3d 844, 846 (7th Cir. 1994) (because Custis describes the rule governing a challenge to a prior conviction during an enhanced sentence proceeding in narrower terms than existing Seventh Circuit case law, "[i]t may well be, therefore, that Custis has limited the exception that we carved out"); United States v. Davis, 36 F.3d 1424, 1438 (9th Cir. 1994) (Custis "seriously undermines the validity" of existing case law allowing an offender to challenge a prior conviction during an enhanced sentence proceeding).

         See, e.g., Nichols v. United States, 511 U.S. 738, 766, 114 S.Ct. 1921, 1937 (1994) (Ginsburg, J., dissenting) ("The issue [in Custis v. United States, 511 U.S. 485] was where, not whether, the defendant could attack a prior conviction for constitutional infirmity.").
      For discussions of Custis v. United States, 511 U.S. 485 (1994), and the contradictory aspects of the opinion regarding a substantive limitation on the challenge to a state conviction in a federal enhanced sentence proceeding and the forum and federalism issues in challenging a state conviction in a federal enhanced sentence proceeding, see, e.g., Alan C. Smith, Note, More Than a Question of Forum: The Use of Unconstitutional Convictions to Enhance Sentences Following Custis v. United States, 47 Stan. L. Rev. 1323 (1995); Barry W. Strike, Note, Custis v. United States: Are Unconstitutional Prior Convictions Being Used to Increase Prison Terms?, 25 Golden Gate U. L. Rev. 267 (1995).

        Custis, 511 U.S. at 497. This language has been subject to conflicting interpretations by federal courts of appeals. See, e.g., United States v. Clark, 203 F.3d 358 (5th Cir. 2000) (offender who was no longer in custody for state conviction never obtained ruling that state conviction was invalid; court allows challenge to a prior state conviction in federal court under 28 U.S.C. § 2255); Smith v. United States, 213 F.3d 291 (6th Cir. 2000), rehearing en banc granted, opinion vacated by 213 F.3d 297 (6th Cir. 2000) (offender did not challenge state conviction in state court but claimed no reasonable access to review constitutionality of state convictions; court denied relief; result compelled by existing Sixth Circuit case law, Turner v. United States, 183 F.3d 474 (6th Cir. 1999), in the absence of en banc review; en banc review granted); Pack v. Yusuff, 218 F.3d 448 (5th Cir. 2000) (applying Sixth Circuit rule that offender challenging prior state conviction must first have prior convictions vacated either through state proceedings or § 2254 proceeding and then return to challenge federal sentence before the sentencing court); Ryan v. United States, 214 F.3d 877 (7th Cir. 2000) (offender failed to exhaust state remedies and lost them; court interprets Custis to disallow collateral attack under 28 U.S.C. § 2255 "as long as convictions remain undisturbed"; divided court denied relief); United States v. Daniels, 195 F.3d 501 (9th Cir. 1999) (court denied federal habeas review of state conviction in a § 2255 proceeding unless the offender who either has not challenged state conviction or was unsuccessful in the challenge raises a Gideon claim).

        The State has advised this court that the U.S. Supreme Court has granted a petition for a writ of certiorari in Daniels v. United States, No. 99-9136, — U.S. — (2000), to review the Ninth Circuit's decision in United States v. Daniels, 195 F.3d 501 (9th Cir. 1999). The solicitor general stated the question presented on certiorari as follows: May a defendant whose sentence was enhanced under a federal recidivist provision because of prior state convictions that have not been set aside by any court challenge his federal enhanced sentence in federal court under 28 U.S.C. § 2255 based on the claim that the prior state convictions are constitutionally invalid?
      The issue presented in the Daniels case relates to procedures available to an offender in federal court, other than in the enhanced sentence proceeding, to challenge a prior state conviction. The present case relates to an offender's challenges in a state enhanced sentence proceeding to a prior state conviction. We do not consider Daniels so directly related to the present case to require us to withhold our decision pending the decision of the U.S. Supreme Court in Daniels.

       We do not address the validity of the 1994 conviction because the defendant's challenge to the 1994 conviction cannot be raised in the enhanced sentence proceeding that is the subject of this appeal. The question of whether the defendant has means available under state law to challenge the 1994 conviction in another proceeding is not before us.

       See, e.g., United States v. Kaluna, 192 F.3d 1188, 1199-1200 (9th Cir. 1999) (en banc) (upholding sentence under federal three strikes statute); McGruder v. Puckett, 954 F.2d 313, 315-17 (5th Cir. 1992) (upholding life sentence without possibility of parole for habitual offender convicted of stealing beer from a delivery truck); People v. Mershon, 874 P.2d 1025, 1030-35 (Colo. 1994) (en banc) (upholding life sentence without the possibility of parole for selling small amounts of heroin, when all predicate offenses were non-violent); People v. Dunigan, 650 N.E.2d 1026, 1031-32 (Ill. 1995) (upholding life sentence without parole based on third sexual assault conviction).

        See, e.g., Harvard Law Review Association, Supreme Court: 1990 Term Leading Cases, 105 Harv. L. Rev. 245 (1991) (noting that "[t]he fractured Harmelin [v. Michigan, 501 U.S. 957 (1991)] opinions may be difficult for lower courts to apply").