author: WEDEMEYER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Gwendolyn McGee, Defendant-Appellant.

    Court of Appeals

      No. 2004AP1005-CR.

      Submitted on briefs March 1, 2005.

      Decided April 12, 2005.

    2005 WI App 97
    (Also reported in 698 N.W.2d 850.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Amelia L. Bizzaro of Bizzaro Law Office, Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general by Jeffrey J. Kassel, assistant attorney general.
    Before Wedemeyer, EJ., Curley and Kessler, JJ.

       Petition to review denied 10-3-05.

   WEDEMEYER, EJ.

¶ 1. Gwendolyn McGee appeals from an order entered after the trial court denied her motion filed pursuant to Wis. Stat. § 118.15(5)(b)2 (2001-02). In that motion, McGee sought dismissal of the complaint against her, which alleged one count of failing to cause a child to attend school, contrary to Wis. Stat. §§ 118.15(1), (5) and 118.16(5) (compulsory school attendance law). The basis for the motion was that she was unable to comply with the compulsory attendance law because of the disobedience of her child. The trial court held that the motion was premature because application of the disobedience defense does not apply unless there has already been a conviction under Wis. Stat. § 118.15(5)(a). Because the trial court erroneously interpreted the statute to require a conviction before the disobedience defense applies, we reverse the order and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. On December 2, 2002, the State filed a complaint against McGee, alleging that she intentionally failed to cause her son, Jeremy, to attend school regularly during the 2001-02 school year, in violation of Wis. Stat. §§ 118.15(1), (5) and 118.16(5). The complaint alleged that Jeremy had been absent 94 out of the 168 school days, offering excuses only with respect to his absence on 10.5 of those days. The complaint further alleged that six interventions were performed or attempted, including personally notifying McGee regarding Jeremy's truancy, notifying McGee by letter, providing educational counseling to Jeremy, evaluating whether learning problems were causing the truancy, meeting with McGee at her home to discuss the truancy problem, and placing numerous phone calls to McGee to discuss Jeremy's attendance problem.

¶ 3. On March 4, 2004, McGee filed a motion requesting a pretrial evidentiary hearing pursuant to Wis. Stat. § 118.15(5)(b)2. The trial court denied the motion as premature. McGee filed a motion seeking reconsideration, which was also denied. On April 4, 2004, McGee filed a motion to stay the proceedings so that she could pursue an interlocutory appeal. The trial court granted her motion.

¶ 4. On April 9, 2004, McGee filed a petition with this court seeking leave to appeal a non-final order. The State did not oppose the motion, and this court granted the petition by written order dated April 27, 2004.

DISCUSSION

¶ 5. McGee and the State both agree that the trial court's ruling was erroneous in that the statute does not require a conviction before application of the disobedience defense contained in Wis. Stat. § 118.15(5)(b)2. The parties do, however, disagree as to the timing and characterization of the disobedience defense. McGee contends that the statute is intended to be utilized prior to trial and decided by the trial court. The State responds that the disobedience defense is an affirmative defense to be presented at trial and submitted to the jury for decision. We agree with the State's position.

¶ 6. The issue in this case involves the interpretation of statutes, a question of law that this court reviews independently. State v. Michels, 141 Wis. 2d 81, 87, 414 N.W.2d 311 (Ct. App. 1987). In interpreting statutes, we begin with the language of the statute itself. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute can be ascertained from the plain language, we need not look any farther than the statute itself. Id. "[Statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. The scope, context, and purpose of the statute can be considered in determining the plain meaning of the statute, if they can be ascertained from the statute itself, and as long as the statute is not ambiguous. Id., ¶ 48. If the statutory language is unambiguous, there is no need to consult extrinsic sources, such as the legislative history. Id., ¶ 46. A statute is ambiguous when "it is capable of being understood by reasonably well-informed persons in two or more senses." Id., ¶ 47.

¶ 7. With these standards in mind, we now set forth the pertinent portion of the statutes at issue in this case. Wisconsin Stat. § 118.15(1) provides:

(a) Except as provided under pars, (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

Section 118.15(5) provides:

(a) 1. Except as provided under par. (b) or if a person has been found guilty of a misdemeanor under s. 948.45, whoever violates this section may be penalized as follows, if evidence has been provided by the school attendance officer that the activities under s. 118.16 (5) have been completed or were not required to be completed as provided in s. 118.16 (5m):
a. For the first offense, by a fine of not more than $500 or imprisonment for not more than 30 days or both.
b. For a 2nd or subsequent offense, by a fine of not more than $1,000 or imprisonment for not more than 90 days or both.
(b) 1. Paragraph (a) does not apply to a person who has under his or her control a child who has been sanctioned under s. 49.26 (1) (h).
2. In a prosecution under par. (a), if the defendant proves that he or she is unable to comply with the law because of the disobedience of the child, the action shall be dismissed and the child shall be referred to the court assigned to exercise jurisdiction under ch. 48.

A. Conviction Requirement.

¶ 8. We address first the trial court's erroneous ruling. The trial court ruled:

The section that you cite refers to someone who's been found guilty of a misdemeanor under section (5) (a), so paragraph (b) doesn't apply unless there's already been the conviction under (5) (a), so if the defendant is convicted, then the Court can look at that next step and see if there's — if the defendant is unable to comply because of the disobedience of the child. Then the Court can dismiss the action and refer the matter to the juvenile court.
If the person is found not guilty, then the Court never has to get to that point, so I don't think that this is something that's pretried. I think that this is premature. I think there has to be a conviction under paragraph (5) (a) for paragraph (5) (b) to apply because paragraph (5) (b) starts out number 1, paragraph (a) does not apply to a person who has under his or her control a child who has been sanctioned under 49.26 (1) (h) and then number 2 says in a prosecution under paragraph (a), so I think that there has to [be] a conviction first before the Court can get to that point, so the request for the motion hearing is denied at this time as premature.

We agree with McGee and the State that the trial court's interpretation of this statute was incorrect. Our analysis starts with the plain language of the statute. The clear language of Wis. Stat. § 118.15(5)(a)l. states: "Except as provided under par. (b) or if a person has been found guilty of a misdemeanor under s. 948.45 ...." (Emphasis added.) This language clearly and unambiguously sets forth two exceptions which remove an individual from liability. The first exception directs the reader to Wis. Stat. § 118.15(5)(b), and the second exception involves a person found guilty under Wis. Stat. § 948.45.

¶ 9. Thus, the next step in the statutory analysis is to turn to Wis. Stat. § 118.15(5)(b) to see if that exception applies to this case. Paragraph (5)(b) has two parts — the first part indicates that this compulsory school attendance law does not apply to a person who has been sanctioned under Wis. Stat. § 49.26(1)(h), which involves the learnfare program. § 118.15(5)(b)l. The second part of paragraph (5)(b) absolves an individual of liability under the compulsory school attendance law if that person proves he or she is unable to comply due to the disobedience of the child. § 118.15(5)(b)2. We conclude that the language of this statute is clear. If either § 118.15(5)(b)l. or § 118.15(5)(b)2. applies, then the individual is not subject to the penalties of the compulsory school attendance law.

¶ 10. Moreover, there is nothing in the language or the context of the statute to reasonably conclude that Wis. Stat. § 118.15(5)(a) requires a conviction under paragraph (5) (a) before paragraph (5)(b) would apply. The exceptions are offered in the alternative, by use of the disjunctive "or." The only reasonable explanation based on the plain meaning of this statute is that liability will not attach under this statute if either paragraph (5)(b) applies or "if a person has been found guilty of a misdemeanor under s. 948.45...." § 118.15(5)(a). In addition, the misdemeanor conviction is in no way listed as a condition precedent before the exceptions in paragraph (5)(b) come into play. Accordingly, we conclude the trial court erred in ruling that the statute requires a conviction under paragraph (5) (a) before paragraph (5)(b) is triggered. We reverse the trial court's order to that effect and remand for further proceedings.

B. Timing and Characterization of Exception.

¶ 11. We turn now to the disputed issue in this case involving the timing and characterization of the disobedience defense provided in Wxs. Stat. § 118.15(5)(b)2. The statute is silent as to when the defendant should be given the opportunity to prove that he or she was unable to comply with the law due to the disobedience of the child. As noted above, McGee argues that the disobedience exception should be determined by the court before trial at a pretrial hearing. She suggests that this would save valuable time and resources because if the trial court finds the defendant proves disobedience, the case would be dismissed without conducting a jury trial. She also contends that the disobedience relates to an element of the offense — whether or not a defendant had control of a child, and therefore should not be construed to be an affirmative defense.

¶ 12. The State responds that McGee misunderstands the term "control of the child," that making the disobedience exception a pretrial issue would create a host of constitutional problems, and that the legislative history supports the State's interpretation that the disobedience exception should be interpreted as an affirmative defense presented during trial and submitted to the jury for determination. We agree with the State's analysis and hold that the disobedience exception in Wis. Stat. § 118.15(5)(b)2. is an affirmative defense to the charge here and thus should be presented to the fact-finder during the trial for resolution.

¶ 13. First, we agree with the State that McGee misinterprets the term "control of the child" as that term is used in Wis. Stat. § 118.15(5)(a). Although it is clearly an element of the offense, the "control" as used in the statute refers to who has the legal right, duty and responsibility to control a child, not to who actually compels a child to do something. See Bruttig v. Olsen, 154 Wis. 2d 270, 276, 453 N.W.2d 153 (Ct. App. 1989). There is a big difference between being the parent or guardian who is legally responsible for a child (legal right and duty to control), and actually being able to force a child to do something (actual ability to exercise and enforce control). As the State points out:

If McGee's construction of the statute were correct, a parent would not have a legal duty to send his or her child to school if the child were disobedient. Having a disobedient child may relieve a parent or guardian of criminal liability under § 118.15(5) for failing to cause the child to attend school regularly, but it does [not] relieve him or her of the duty to send the child to school.

¶ 14. This interpretation is supported by a related statute, Wrs. Stat. § 118.16(5), which explicitly recognizes that actions pursuant to Wis. Stat. § 118.15(l)(a) for failing to cause a child to attend school are brought against "the child's parent or guardian ...."§ 118.16(5). In harmonizing these two related statutes, see State v. Robinson, 140 Wis. 2d 673, 677, 412 N.W.2d 535 (Ct. App. 1987), we conclude that the language "person having under control a child" in § 118.15(l)(a), for the purposes of the school attendance law is a person who has the legal right and duty to control the child, that is, the child's parent or guardian.

¶ 15. Second, we agree with the State that interpreting the disobedience defense to be a pretrial issue would create a host of constitutional problems. Due process requires the State to prove beyond a reasonable doubt every element necessary to constitute the crime charged. See State v. Krueger, 2001 WI App 14, ¶ 10, 240 Wis. 2d 644, 623 N.W.2d 211, overruled on other grounds by State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 69. It would be a violation of due process to place the burden of persuasion on a defendant who would be asserting a negative defense, that is, a defense that negates a fact that the State must prove. State v. Schulz, 102 Wis. 2d 423, 429-30, 307 N.W.2d 151 (1981). McGee's argument — that the disobedience defense negates the control element of the offense— could result in such a scenario, and therefore violates due process.

¶ 16. Interpreting the disobedience exception to be an affirmative defense would not create the same due process violations. An affirmative defense does not involve an element of the offense. State v. Staples, 99 Wis. 2d 364, 376, 299 N.W.2d 270 (Ct. App. 1980). Instead, an "affirmative defense is a matter which, assuming the charge to be true, constitutes a defense to it." Id. at 376 n.4 (citation omitted). Due process does not prohibit the state from placing the burden of proving an affirmative defense on the defendant. See Moes v. State, 91 Wis. 2d 756, 768, 284 N.W.2d 66 (1979).

¶ 17. In addition, McGee's interpretation removes a factual issue from the jury, potentially violating a defendant's Sixth Amendment right to trial by jury. The Sixth Amendment requires that a jury resolve all factual disputes regarding the defendant's guilt beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476-78 (2000). To accept McGee's position, we would be permitting courts to resolve this factual issue before trial. Under the State's interpretation, the jury trial protection is preserved because the jury would resolve all factual determinations as to the defendant's guilt or innocence.

¶ 18. Based on these constitutional concerns, we conclude that the State's interpretation of the statute is the only interpretation available to avoid an unconstitutional result. See State v. Schmit, 115 Wis. 2d 657, 666, 340 N.W.2d 752 (Ct. App. 1983) (we are required to construe statute to avoid unconstitutional result).

¶ 19. Finally, to the extent that the statute is ambiguous because it does not specifically delineate a specific time for the disobedience exception, we conclude that the legislative history of Wis. Stat. § 118.15(5)(b)2. demonstrates that the statute creates an affirmative defense. Before the comprehensive revision of the compulsory school attendance law in 1967, the pertinent portions of the statute read:

40.77 Compulsory school attendance. (1)... (a) Any person having under his [or her] control a child between the ages of 7 and 16 years shall cause such child to attend some school regularly ....
(3) Penalty. Whoever violates this section ... shall be fined ... or imprisoned ... or both.. In a prosecution under this section, if the defendant proves that he [or she] is unable to comply with the law because of the disobedience of the child in question, it shall be a good defense and such child shall be proceeded against as delinquent in the manner and in the courts specified in ch. 48.

Wis. Stat. § 40.77(1), (3) (1965) (emphasis added). Thus, the plain language of the predecessor version of the law clearly indicates that the disobedience exception is a "good defense." It logically follows then that the defense would be presented at trial. The substantial revision of the compulsory school law was not intended to change the timing of the disobedience exception. Rather, the prefatory note to the 1967 Wis. Laws, ch. 92, states:

It was the primary goal of the subcommittee to make the school laws readily understandable to legislators, school boards, school administrators and the general public. In accordance with its directive, the subcommittee adhered to the following guidelines in completing its assignment:
(1) Reorganize the school laws in a more logical manner.
(2) Restate clearly the language in the various sections.
(3) Eliminate obsolete material.
(4) Remove ambiguities and conflicts.

1967 Wis. Laws, ch. 92, Prefatory Notes, 305. These purposes in no way suggest that the revision was intended to change the timing or characterization of the disobedience exception. Moreover, the prefatory note specifically states:

The subcommittee did not make substantial changes in the meaning or intent of the provisions of existing school laws. However, in the course of its work the subcommittee found it necessary to make policy determinations regarding certain provisions of existing law in order to correct omissions in the law and to reconcile conflicts between various sections. Where these changes have been made, the notes to the bill so indicate.

Id. There is no note to indicate that the revisors intended to substantively change the meaning or intent of the disobedience exception. McGee points out that the revision changed the language "it shall be a good defense" to "it shall be dismissed." We are not persuaded that this revision resulted in converting the disobedience exception from an affirmative defense to an issue decided by pretrial motion. The prefatory notes demonstrate that the intent of the new statute was to restate the prior statute and to rearrange its provisions, not to alter the substance of the law. Thus, the substance of the disobedience exception did not change when the statute was revised — the defendant was permitted to present disobedience as a defense under the old version and the defendant is permitted to follow the same procedure under the current version. We conclude that the legislative history supports our construction of the statute that the disobedience exception provides an affirmative defense to the charge of failing to cause the child to attend school regularly.

¶ 20. Based on the foregoing, we remand this matter to the trial court for proceedings consistent with this opinion. That is, McGee is free to present as a defense to the charge against her that her failure to cause Jeremy to attend school regularly was due to his disobedience. This should be presented to the fact-finder for resolution at the conclusion of the trial by special verdict.

By the Court. — Order reversed and cause remanded with directions.

       This court granted McGee's petition to appeal from a non-final order on April 27, 2004.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The elements of the crime that the State must prove for the statute to apply are: (1) that McGee had control of a child between 6 and 18 years old; and (2) that McGee failed to cause the child to attend school regularly. See State v. White, 180 Wis. 2d 203, 212, 509 N.W.2d 434 (Ct. App. 1993).

       The State notes that the affirmative defense created by Wis. Stat. § 118.15(5)(b)2. expressly and unambiguously places the burden of proof on the defendant in stating that "if the defendant proves ...." Thus, this affirmative defense is significantly different from affirmative defenses recognized in the criminal code, such as self-defense and "privilege" defenses in Wis. Stat. ch. 939 because, in these instances, the State has the burden to negate the affirmative defense. Moes v. State, 91 Wis. 2d 756, 764-65, 284 N.W.2d 66 (1979).


source: Caselaw Access Project

author: KESSLER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Tommie Thames, Defendant-Appellant.

    Court of Appeals

      No. 2004AP1257.

      Submitted on briefs January 04, 2005.

      Decided April 12, 2005.

    2005 WI App 101
    (Also reported in 700 N.W.2d 285.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Tommie Thames.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shannon Wittenberger, assistant attorney general and Peggy A. Lautenschlager, attorney general.
    Before Fine, Curley and Kessler, JJ.

       Petition to review denied 7-28-05.

   KESSLER, J.

¶ 1. Tommie Thames appeals pro se from an order denying his Wis. Stat. § 974.06 (2003-04) motion for postconviction relief. We conclude that the issues raised in Thames's motion Eire procedurally barred by the plain language of § 974.06 and under the law of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and State v. Lo, 2003 WI 107, 264 Wis. 2d 1, 665 N.W.2d 756. Therefore, we affirm the order.

BACKGROUND

¶ 2. In February 1995, approximately two months before his eighteenth birthday, Thames was charged with first-degree reckless homicide using a dangerous weapon (count one), attempted first-degree intentional homicide using a dangerous weapon (count two), and mutilating a corpse (count three), in violation of Wis. Stat. §§939.32, 939.63(l)(a)2., 940.01(1), 940.02(1), 940.11(1) (1995-96). Thames was charged as an adult. He waived a preliminary hearing, and ultimately entered a guilty plea to all charges. The trial court found Thames guilty and sentenced him to forty-five years in prison for count one, and twenty-five years for count two, consecutive to the sentence on count one. The trial court also imposed and stayed a seven-year sentence for count three and placed Thames on probation for five years, consecutive to counts one and two.

¶ 3. Thames appealed and was represented by the same attorney he had at the trial court. This court affirmed the judgment in an unpublished decision, State v. Thames, No. 1995AP3313-CR, unpublished slip op. (Wis. Ct. App. Sept. 10, 1996), review denied, 207 Wis. 2d 287, 560 N.W.2d 275 (1996). In that decision, we summarized the background facts as follows:

Thames and his friends, David Bost and Sean Rhodes, met at Rhodes's home to smoke marijuana and drink gin. Thereafter, Thames and Bost began "playing" with guns and Thames accidentally shot Bost in the head. Instead of taking Bost to a hospital, out of fear that they would be caught by the police, Thames and Rhodes put Bost in the trunk of Rhodes's car and drove around, looking for an open garage to dump the body. After Thames and Rhodes left Bost in a vacant garage, they left in the car. They returned to the garage when their car ran out of gas. When Thames and Rhodes returned, Rhodes instructed Thames to "put him [Bost] to rest." Thames shot Bost again; again in the head. Thames then burned the body.

Id. at 2.

¶ 4. The issues raised before the trial court, and in Thames's direct appeal, included whether the homicide and attempted homicide charges were multiplici-tous, and whether the court had jurisdiction over the attempted homicide (count two) where the complaint failed to allege that the victim was alive at the time of the second shot. Thames argued that he could not be convicted of attempting to kill someone who may have already been dead. We rejected his analysis in 1996. See id.

¶ 5. After losing his appeal in 1996, Thames filed a pro se motion in 1997 pursuant to Wis. Stat. § 974.06 (1997-98), seeking dismissal of count two, withdrawal of his guilty plea, and "correction" of his sentence. He alleged in support of those requests that he received ineffective assistance of appellate counsel because appellate counsel did not raise ineffective assistance of trial counsel based on several things Thames now believed trial counsel should have done. For example, Thames alleged in the 1997 motion that trial counsel had failed to obtain dismissal of count two (the attempted intentional homicide) because of failure to establish the exact time of death through the medical examiner.

¶ 6. Further, in the 1997 motion, Thames asserted, but did not factually develop, claims that there was "unconstitutional suppression of evidence by the state," that he was "being twice placed in jeopardy," and that his constitutional rights (both Wisconsin and United States) were violated. He supported these claims by alleging that his trial counsel did not "investigate and did not prepare a defense as to count two." He also claimed that the preliminary hearing did not establish evidence that the victim was alive when shot in connection with count two. He reported in his 1997 motion papers that he learned of these failings from reading the transcripts of the court proceedings.

¶ 7. The 1997 motion was denied by the trial court in a written order dated July 25, 1997. Thames appealed. He requested an extension of time to file his brief, which was granted on October 23,1997. Time was extended to December 18,1997. He did not file his brief within the extended time period. On January 13, 1998, the court of appeals, on its own motion, granted Thames another extension, until February 13, 1998. In doing so, this court explicitly advised Thames that failure to comply with the new deadline would result in dismissal of his appeal pursuant to Wis. Stat. § 809.83(2) (1997-98). Still Thames filed no brief. Finally, on February 26, 1998, this court dismissed the appeal, pursuant to § 809.83(2).

¶ 8. In March 2004, Thames filed a second pro se motion for postconviction relief pursuant to Wis. Stat. § 974.06. It is apparent from the motion, and from the language in the trial court's decision, that Thames did not inform the new judge assigned to the case about his 1997 § 974.06 motion. Nor did he disclose that his appeal from denial of that motion was dismissed because of his four months of inaction.

¶ 9. In the 2004 motion, Thames again sought to withdraw his guilty plea on the grounds that his post-conviction counsel was ineffective for failing to raise ineffective representation by his trial counsel. The alleged trial counsel inadequacies differed only slightly from the 1997 allegations of inadequacy. The 2004 allegations substantially involve the multiplicity claim as to count two, which was addressed in Thames's direct appeal. See Thames, No. 1995AP3313-CR, unpublished slip. op. at 5-7. The trial court denied the 2004 motion, without a hearing, in a written decision and order dated April 14, 2004. This appeal followed.

DISCUSSION

¶ 10. Although the trial court issued a well-reasoned opinion on the merits of Thames's 2004 Wis. Stat. § 974.06 motion, this appeal must be resolved on other grounds of which the trial court was obviously unaware: the prior filing of a § 974.06 motion. Because the trial court was unaware of the 1997 motion, it did not consider whether the issues raised in the 2004 motion were procedurally barred because Thames raised them, or could have raised them, in the 1997 motion. Whether the issues are barred is a question of law that we review de novo, see Escalona-Naranjo, 185 Wis. 2d at 175-76, and we will affirm the trial court if the court reached the correct result, even if we employ different reasoning, see Negus v. Madison Gas & Elec. Co., 112 Wis. 2d 52, 61 n.3, 331 N.W.2d 658 (Ct. App. 1983).

¶ 11. We affirm because we conclude that Thames's present claims were all raised, or could have been raised, in his direct appeal or in his 1997 Wis. Stat. § 974.06 motion. Issues that were previously adjudicated cannot be raised in a 974.06 motion. See 974.06(4); Escalona-Naranjo, 185 Wis. 2d at 181-82. Section 974.06 and Escalona-Naranjo also preclude a defendant from pursuing claims in a subsequent appeal that could have been raised in his or her direct appeal, unless the defendant provides sufficient reason for failure to raise the claims in the first instance. Lo, 264 Wis. 2d 1, 31. Lo explained:

[ A] criminal defendant [is] required to consolidate all postconviction claims into his or her original, supplemental, or amended motion. If a criminal defendant fails to raise a constitutional issue that could have been raised on direct appeal or in a prior 974.06 motion, the constitutional issue may not become the basis for a subsequent 974.06 motion unless the court ascertains that a sufficient reason exists for the failure either to allege or to adequately raise the issue in the appeal or previous 974.06 motion.

Id. (citations omitted). This is because multiple and successive attacks on the same conviction or sentence undermine the goal of finality of litigation, clog the judicial system and waste judicial resources to the detriment of other litigators. See id., 44-46.

¶ 12. We conclude that Thames's arguments are procedurally barred. Thames has raised essentially the same issues he raised in his direct appeal and in his 1997 Wis. Stat. § 974.06 motion. The fact that Thamess appeal of the trial courts order denying his 1997 974.06 motion was dismissed pursuant to Wis. Stat. § 809.83(2) (1997-98) does not change the result. When no appeal is taken, all provisions of a judgment, and the findings and conclusions upon which it is based, are conclusive and binding upon all parties to the litigation. Kriesel v. Kriesel, 35 Wis. 2d 134, 138, 150 N.W.2d 416 (1967). The result is the same where, as here, a party filed a notice of appeal but failed to file a brief after repeated extensions, resulting in a dismissal of the appeal pursuant to § 809.83(2).

¶ 13. Each of the issues raised in the 2004 § 974.06 motion were, or could have been, raised in Thames's direct appeal or in his previous § 974.06 motion, and are therefore barred. See Lo, 264 Wis. 2d 1, 31. Specifically, the current claims of ineffective assistance of trial counsel include: failure to investigate (apparently meaning the time of death so as to continue to dispute the sufficiency of the facts to support count two), failure to advise of the rights he was waiving by pleading guilty, failure to request a competency hearing, and failure to request a Miranda-Goodchild hearing. Only the last three allegations were not contained in the 1997 motion, although they clearly fall within the claims for ineffective assistance of counsel, and denial of rights guaranteed under the United States and Wisconsin Constitutions. Thames's 2004 motion provides no explanation for his failure to raise these claims in his 1997 motion.

¶ 14. In support of the new claim to suppress his confession, he tells us only that he did not waive his Miranda rights. However, the record belies this bald assertion. Thames executed a standard guilty plea questionnaire and waiver of rights form. At the guilty plea hearing, counsel explicitly addressed the issue of any potential challenge to the voluntariness of Thames's statement, noting:

I have not filed any motions on statements because of my client's indication to me - just for the record - that they were freely and voluntarily given, [that he] understood them, and was advised of his constitutional rights. I am not aware of any possible motions on this date.

If this statement was inaccurate, Thames knew it at the time of the guilty plea, at the time of his appeal, and at the time of his first Wis. Stat. § 974.06 motion. He offers no reason why he did not raise it at the guilty plea hearing, in his direct appeal or in his 1997 § 974.06 motion.

¶ 15. Likewise, in support of Thames's new claim that he was incompetent, he refers to the presentence report, which was filed July 20, 1995. The record discloses efforts by his attorney in connection with the sentencing report to have him transported to a doctor's office in July 1995 for a neuropsychological evaluation. Hence the question, if any, of his mental condition at the time of sentencing, was known to him no later than July 1995. It could have been raised in his direct appeal, and at the time of his first Wis. Stat. § 974.06 motion. He offers no reasonable explanation for the delay in raising this issue.

¶ 16. Finally, the claimed failure of Thames's trial counsel to advise him of the rights he waived by pleading guilty is precisely the type of issue that was known to Thames at the time of the first Wis. Stat. § 974.06 motion. It was not raised and Thames is therefore proeedurally barred from raising this issue.

CONCLUSION

¶ 17. The issues raised in Thames's Wis. Stat. § 974.06 motion are proeedurally barred pursuant to § 974.06(4), Escalona-Naranjo and Lo. Therefore, we affirm the trial court's order denying Thames's motion.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The judge who accepted Thames's plea and heard the original Wis. Stat. § 974.06 motion in this case was the Honorable Stanley A. Miller. The 2004 § 974.06 motion that is the subject of this appeal was heard by the Honorable Michael B. Brennan after the case was administratively reassigned following Judge Miller's death.

       Although unpublished cases may not be cited for prece-dential value in other litigation, a prior unpublished decision in this case establishes the law of the case, and the facts previously determined therein. See State v. Moeck, 2004 WT App 47, ¶ 20, 270 Wis. 2d 729, 677 N.W.2d 648 ("The law of the case doctrine is a 'longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.'") (citation omitted).

       The transcripts further disclose that he waived a preliminary hearing, and thus could hardly complain about what a hearing that was not held failed to establish.

       WISCONSIN Stat. § 974.06(4) provides:
      All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

       Wisconsin Stat. § 809.83(2) (1997-98) provided:
      Noncompliance with rules. Failure of a person to comply with a requirement of these rules, other than the timely filing of a notice of appeal or cross-appeal, does not affect the jurisdiction of the court over the appeal but is grounds for dismissal of the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.
      The only change to § 809.83(2) since 1997 added the phrase "with a court'order or” after the word "comply." See § 809.83(2) (2003-04).

       Our supreme court has recognized that dismissal of an appeal pursuant to Wis. Stat. § 809.83(2) "represents an abrupt termination of litigation and in many cases it imposes a finality to both issues and claims." State v. Smythe, 225 Wis. 2d 456, 469, 592 N.W.2d 628 (1999). Nonetheless, the sanction is appropriate where the appeal has been abandoned. See id. Thames did not appeal this court's order dismissing his appeal. Indeed, he never even mentioned the dismissal in his 2004 Wis. Stat. § 974.06 motion. We see no reason not to treat the trial court's decision on Thames's 1997 § 974.06 motion, the final decision on the merits of his motion, as binding on all parties to the litigation.

        See Miranda v. Arizona, 384 U.S. 436 (1966); State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).


author: WEDEMEYER, PJ. FINE, J.

text:
    Christopher J. Keller and Amy Keller, Plaintiffs-Respondents, v. James R. Kraft and City of Milwaukee, Defendants-Appellants.
    Court of Appeals

      No. 2004AP1315.

      Submitted on briefs March 1, 2005.

      Decided April 12, 2005.

    2005 WI App 102
    (Also reported in 698 N.W.2d 843.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Grant F. Langley, city attorney by Michael G. Tobin, assistant city attorney, Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Brian J. Henderson, Milwaukee.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   WEDEMEYER, PJ.

¶ 1. James R. Kraft and the City of Milwaukee appeal from an order denying their motion seeking summary judgment. Kraft and the City claim that the trial court should have granted summary judgment because the Kellers' case is barred by the exclusive remedy provision(s) of the worker's compensation law. Because we agree with Kraft and the City, we reverse the trial court's order and remand with directions to the trial court to grant judgment dismissing the Kellers' complaint.

BACKGROUND

¶ 2. This is the second time this case has been before us. The pertinent facts are set forth in our decision following the first appeal. See Keller v. Kraft, 2003 WI App 212, ¶¶ 2-3, 267 Wis. 2d 444, 671 N.W.2d 361. In sum, while driving his vehicle, Christopher Keller, a firefighter for the Milwaukee Fire Department, collided with Kraft, a police officer for the City of Milwaukee. Both parties were on duty at the time. Keller suffered personal injuries as a result of the accident and received worker's compensation benefits from the City of Milwaukee. Approximately two years after the accident, Keller filed suit against Kraft and the City seeking additional compensation.

¶ 3. Kraft and the City filed a motion for summary judgment on the basis that the Worker's Compensation Act was Keller's exclusive remedy because Kraft and Keller were both City of Milwaukee employees. Keller contended that his case fell under the third coemployee exception provided in Wis. Stat. § 102.03(2) (2003-04), which permits an employee to file suit "against a coemployee of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance." Id. Keller proffered section 3-23 of the Milwaukee City Charter as a local ordinance satisfying the requisites of the exception contained in § 102.03(2). The City's response was that this local ordinance did not apply because it was enacted solely to reflect the public employee indemnification requirement of Wxs. Stat. § 895.46. The trial court ruled in favor of Kraft and the City, and dismissed the Kellers' complaint. The Kellers appealed to this court.

¶ 4. During the course of the first appeal, and at oral argument, the City maintained that "ordinance section 3-23" did not apply. This court disagreed with the City's argument. In the first appeal on this matter, we reversed the trial court's grant of summary judgment and remanded for further proceedings, ruling that the Kellers' case was not barred by the exclusive remedy of the worker's compensation law because a local ordinance — section 3-23 of the Milwaukee City Charter — existed, such that the third coemployee exception of Wis. Stat. § 102.03(2) permitted the lawsuit. See Keller 1, 267 Wis. 2d 444, ¶ 18. On remand, the City filed a second motion for summary judgment, arguing to the trial court for the first time that section 3-23 of the Milwaukee City Charter was not a local ordinance as that term is used in § 102.03(2). The City filed documentation in support of its motion demonstrating that section 3-23 was a Wisconsin session law that appeared in the Milwaukee City Charter only because it is a law that affects the City. The supporting documentation revealed that this session law was never adopted by the Milwaukee Common Council as an ordinance of the City of Milwaukee. The trial court denied the motion, ruling that "as a matter of law .. . 3-23 does appear to fit the ordinance requirements as set forth in the exception under [§] 102.03(2)." The trial court, in part, relied on the Keller I case from this court, which referred to section 3-23 as a "local ordinance." Kraft and the City appeal from the trial court's order.

DISCUSSION

¶ 5. In Keller I, we did not address the issue presented in the instant appeal — whether section 3-23 of the Milwaukee City Charter is actually an ordinance. We did not address this issue because it was presumed by all parties that section 3-23 was in fact an ordinance. Subsequent to our decision in Keller I, the City conducted additional research investigating the history of section 3-23. As a result of the information discovered, the City filed a motion for summary judgment with the trial court. The City contended that its newly discovered documentation demonstrated that section 3-23 was not actually an ordinance, but rather a session law. Accordingly, the City argued that section 3-23 did not satisfy the requisite of the third coemployee exception of the worker's compensation law, Wis. Stat. § 102.03(2) and, therefore, the Kellers' lawsuit was barred by the exclusive remedy provision(s) of the worker's compensation law. The trial court rejected the City's argument and denied its motion seeking summary judgment. We hold that the trial court erred, reverse the trial court's order, and remand with directions to the trial court to grant the City's motion seeking summary judgment.

¶ 6. This case comes to us after an unsuccessful summary judgment motion. Our review of a summary judgment decision is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). This appeal turns on the interpretation of section 3-23 of the Milwaukee City Charter, which is also a question of law requiring our independent review. See generally Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978-79, 542 N.W.2d 148 (1996). Although this case does not involve the actual interpretation of the meaning of section 3-23, it involves the classification or characterization of section 3-23. This does not involve a dispute of factual questions. Rather, it involves the interpretation of undisputed facts and the application of legal principles. Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 978, 473 N.W.2d 506 (Ct. App. 1991).

¶ 7. The undisputed facts in this case are as follows. Section 3-23 was enacted by the Wisconsin Legislature as sec. 925-269m in 1913. It was then reprinted in the three-ring binder that includes the Milwaukee City Charter because it is a state law that affects city government. It was issued number 3-23 as part of the numbering and reorganization of the Charter. Since first printing, section 3-23 has always been identified as a session law, as are the many other session laws also contained in the Milwaukee City Charter.

¶ 8. It has never been voted on by the Milwaukee Common Council. It has never been "entered or recorded in any ordinance or record book," pursuant to Wis. Stat. § 889.04. The Kellers contend that its inclusion for years in the three-ring binder satisfies the requisite under § 889.04 that any matter "entered or recorded in any ordinance or record book" after three years from the date of such publication shall be conclusive proof of its adoption. We disagree. In order for a charter ordinance to be "entered or recorded," the procedures of Wis. Stat. § 66.0101 must be followed, which include a two-thirds vote of approval by the common council, publication of notices, filing of a certified copy with the secretary of state, and a sixty-day waiting period to allow a referendum petition to be filed. In order for a matter to be "entered or recorded" as a local ordinance, the provisions of section 4-06 of the Milwaukee City Charter must be followed, which include passage by an affirmative vote of the majority of the common council, signature by the attesting officers, certification by the city clerk, and publication in the official newspaper. It is undisputed that none of the requirements for either a charter ordinance or local ordinance have been met with respect to section 3-23. Thus, § 889.04 does not apply to this case.

¶ 9. Further, section 3-23 is not contained in the three-volume set published as the "Milwaukee Code of Ordinances." Rather, it is contained in a single three-ring binder, titled the "Milwaukee City Charter." Within that binder, the prefatory remarks note that the Charter contains session laws, and section 3-23 is denominated as such in a parenthetical that follows the individual section itself. The record also contains an affidavit from the director of the Legislative Reference Bureau, who attests that section 3-23 is a session law and not an ordinance. There is no evidence disputing the director's attestation. All of the undisputed facts support the City's position that section 3-23 has never been adopted as an ordinance by the City of Milwaukee. Rather, since its inception in 1913, it has always been a session law passed by the state legislature. Based on the foregoing, we can reach but one conclusion — that section 3-23 is not a local ordinance. Accordingly, if no local ordinance exists, then the third coemployee exception of the worker's compensation law does not apply to this case. Consequently, the Kellers' complaint is barred by the exclusive remedy provision(s) of the worker's compensation law.

¶ 10. The Kellers also argue that because the City did not raise the issue of the classification or characterization of section 3-23 prior to the resolution of the first appeal, it is judicially estopped from making this argument now. Although this court can understand the Kellers' frustration with the City's failure to proffer the documentation during Keller I that it presents now, we cannot conclude that judicial estoppel applies to this case. Judicial estoppel does not apply when a party takes the first position as a result of inadvertence or mistake. Closser v. Town of Harding, 212 Wis. 2d 561, 572, 569 N.W.2d 338 (Ct. App. 1997). The record demonstrates that the City's failure to assert the true classification or characterization of section 3-23 was the result of inadvertence or mistake. The City, like this court in Keller I, mistakenly presumed that section 3-23 was a local ordinance. Upon closer examination, that presumption was incorrect. Section 3-23 was never adopted by the local governing body and, therefore, as a matter of law, cannot constitute a local ordinance. Rather, the undisputed history of this section reveals that section 3-23 is a session law, and was never adopted as a local or charter ordinance. Based on the foregoing, we reject the Kellers' request to estop the City from raising the issue presented in this appeal.

CONCLUSION

¶ 11. In sum, we conclude that the undisputed evidence demonstrates that section 3-23 was never adopted by the common council or any other local legislative body as an ordinance. Rather, it was reprinted in the Milwaukee City Charter because it was a session law that affects the City. Since 1913, section 3-23 existed as a session law passed by the Wisconsin State Legislature. As such, it does not constitute a "local ordinance" as that term is used in Wis. Stat. § 102.03(2). Therefore, the third coemployee exception to the exclusive remedy provision(s) of the worker's compensation law is inapplicable to this case.

¶ 12. Accordingly, the Kellers' complaint is barred by the exclusive remedy provision(s) of the worker's compensation law. The trial court's order to the contrary is hereby reversed and this matter is remanded to the trial court with directions to grant judgment in favor of Kraft and the City, dismissing the Kellers' complaint against them.

By the Court. — Order reversed and cause remanded with directions.

FINE, J.

¶ 13. 0dissenting). Although I agree that § 3-23 of the Milwaukee City Charter is not an ordinance within the meaning of Wis. Stat. § 102.03(2), I respectfully dissent for two reasons. First, in my view, the institutional interest that finality attend judicial proceedings is not, in this case, overcome by interests of fairness. Second, I do not believe that we have the power to overrule our earlier decision in this case.

I.

¶ 14. I agree with the Majority that § 3-23 of the Milwaukee City Charter is not a City of Milwaukee ordinance for the reasons ably expressed in the Majority opinion and, also, because § 925-6a of the Statutes of 1921, reprinted as § 4-02 of the Milwaukee City Charter, specifically says so:

No city of the first class.. . shall hereafter in any manner be deemed to be operating under the provisions of Sections 925-2 to 925-294, both inclusive, unless said city shall specifically elect to come under the said sections in the manner prescribed by Sections 925-2 to 925-6, inclusive, or unless any of said sections shall contain an express provision declaring it to be applicable to cities operating under special charter, provided, however, that the term "all cities" in the general charter statute shall not be deemed to be such an express provision.

As the Majority points out, § 3-23 of the Milwaukee City Charter is merely a reprinting of § 925-269m of the Statutes of 1919, and is of general applicability:

No officer of any city, no matter how organized, shall be required to file an undertaking, or any other bond required on appeal in any court when such party has been sued in his official capacity, except in actions of quo warranto or any other kind of action involving directly the title to his office, nor shall any city officer be liable for any costs or damages, but costs or damages, if any, shall be awarded against the city.

Accordingly, by express direction of the legislature, the City of Milwaukee (a "1st class" city, Wis. Stat. § 62.05(1)(a)) is not bound by § 925-269m because it did not "specifically elect to come under" the provision.

II.

¶ 15. As the Majority notes, after we issued our earlier opinion in this case, Keller v. Kraft, 2003 WI App 212, 267 Wis. 2d 444, 671 N.W.2d 361, the City sought reconsideration from us, which we denied. It then brought another motion for summary judgment before the trial court, making the argument it makes on this appeal. The trial court denied the City's motions, essentially saying that the City had its chance during the first go-round and dropped the ball, and that it would have to live with the result. I agree.

A.

¶ 16. A trial court presented with a motion for reconsideration must balance the dual interests of "finality and fairness." Teubel v. Prime Dev., Inc., 2002 WI App 26, ¶ 19, 249 Wis. 2d 743, 755, 641 N.W.2d 461, 466. Although Wisconsin abandoned in 1929 its previously long-standing view that the law-of-the-case precluded re-examination of an allegedly erroneous legal analysis, there must be "cogent, substantial, and proper reasons," for taking a second look. McGovern v. Eckhart, 200 Wis. 64, 72-78, 277 N.W. 300, 303-305 (1929). Thus, although we must always have our eyes on the elusive goal of justice, "a motion for reconsideration is not a vehicle for making new arguments or submitting new evidentiary materials." Lynch v. Crossroads Counseling Ctr., Inc., 2004 WI App 114, ¶ 23, 275 Wis. 2d 171, 187, 684 N.W.2d 141, 148. The only reason asserted by the City for not originally making the argument it makes now is that it did what the Majority calls "additional research," Majority, ¶ 5, after our earlier decision, which was issued after oral argument. In my view, "additional research" is not the kind of showing that must be made before the law-of-the-case will give way to a re-analysis, especially by a governmental litigant, which should know the arcana under which it operates. Any other rule guts needed finality. Moreover, we hold defendants in criminal cases to that standard, State v. Lo, 2003 WI 107, ¶¶ 2-4, 14-49, 264 Wis. 2d 1, 4-5, 8-24, 665 N.W.2d 756, 757-758, 758-767 (" 'we need finality in our litigation'") (quoted source omitted), even if they are pro se, see State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 576 N.W.2d 84 (Ct. App. 1998) (challenge to revocation of parole), and I see no reason to be more lax with civil litigants. So, for that reason, I would affirm the trial court's denial of the City's second motion for summary judgment.

B.

¶ 17. There is a second reason why, in my view, we must affirm. We held in Keller that § 3-23 of the Milwaukee City Charter was an "ordinance" as that word is used in Wis. Stat. § 102.03(2). Keller, 2003 WI App 212, ¶¶ 6, 18, 267 Wis. 2d at 448-449, 454, 671 N.W.2d at 363, 366. The Majority overrules that holding. We may not overrule a published decision of our court, even one that this panel issued less than two years earlier. See Cook v. Cook, 208 Wis. 2d 166, 189-190, 560 N.W.2d 246, 256 (1997).

¶ 18. I would affirm and thus respectfully dissent.

       Kraft and the City filed a petition for leave to appeal from a nonfinal order, which this court granted on June 21, 2004.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       This section states:
      3-23. Liability When Sued in Official Capacity. No officer of any city, no matter how organized, shall be required to file an undertaking, or any other bond required on appeal in any court when such party has been sued in his official capacity, except in actions of quo warranto or any other kind of action involving directly the title to his office, nor shall any city officer be hable for any costs or damages, but costs or damages, if any, shall be awarded against the city.

       WISCONSIN Stat. § 895.46 provides, in part:
      State and political subdivisions thereof to pay judgments taken against officers. (1) (a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shah be covered by this section while acting within the scope of their agency.

       The City is authorized by the Wisconsin Legislature to print in book form any state session laws affecting the City:
      4-29. Publication of Laws. 1. The common council of the city of Milwaukee [is] hereby authorized to cause this act [ch. 184, L. 1874], together with any other acts or parts of acts of the legislature of Wisconsin relating to it, affecting said city... to be printed and published in book form, and such book shall be deemed prima facie evidence of the contents and passage, and shall be a sufficient publication of all such acts ....

       The "Forward" to the Milwaukee City Charter explains that the three-ring binder which contains the city charter also contains session laws. It further states that the session laws have been adopted by the state legislature and affect the city, but are not printed in the Wisconsin Statutes.

       The Kellers also contend that the City has the authority to remove section 3-23 from the city charter and, as a result, it would no longer affect the City. Although the City could physically remove this section from the three-ring binder, it does not have the power to repeal its effect. Rather, the power to repeal session laws belongs to the state legislature.


author: SNYDER, J.

text:
    In re the Marriage of: Timothy J. Winters, Petitioner-Respondent, v. Linda Winters, Respondent-Appellant, Adair, Garnishee.
    Court of Appeals

      No. 2004AP747.

      Submitted on briefs February 3, 2005.

      Decided April 13, 2005.

    2005 WI App 94
    (Also reported in 699 N.W.2d 229.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Carl Robert Scholz of Carl Robert Scholz, S.C., Mequon.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Thomas D. Klein and Jennifer J. Van Kirk of Peckerman & Klein, Milwaukee.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.

       Petition to review denied 8-25-05.

   SNYDER, J.

¶ 1. Linda Winters appeals from an order addressing contested child support issues. Linda and Timothy J. Winters divorced in 1993 and Linda now seeks judicial review of Timothy's child support obligation. She contends that Timothy improperly excluded investment profit when calculating his child support obligation and that he failed to set aside a certain percentage of the cash distributions from his investment for their children's post-high school education expenses. She further contends that the circuit court erred in ruling that her discovery demand exceeded the bounds of information reasonably calculated to lead to discovery of admissible evidence. The circuit court ruled in favor of Timothy. We agree and affirm the order of the circuit court.

BACKGROUND

¶ 2. In 1993 Linda and Timothy divorced. Pursuant to the marital settlement agreement, Timothy is obligated to pay 25% of his gross income as child support for his two children. At the time of the divorce, Timothy owned 200 shares of stock in Precision Color Graphics, Inc., which was awarded to him in the settlement agreement. The marital settlement agreement provided that dividends, distributions or proceeds from the sale or redemption of this stock would he divided; Timothy would receive 90%, and 5% would go to each of the parties' two children. According to the agreement, that portion of the "funds awarded to the minor children may be deposited in trust. .. for distribution to them outright at age 24, or for application to payment of tuition and room and hoard expenses for post-high school education."

¶ 3. Timothy's ownership interest in Precision Color Graphics is 10%, a minority interest. Between 1993 and 2002, Timothy reported a total of $341,018 on his tax returns as his proportionate share of Precision Color's corporate net profits. Between 1995 and 2002, Timothy reported $113,848 in cash distributions from the company. Precision Color is an S corporation, and therefore taxes are paid by the shareholders. Precision Color retains all of its earnings, distributing cash to allow shareholders to pay the tax liability created by the earnings. Pursuant to Precision Color's Stock Redemption Agreement, Timothy is permitted to sell his stock. However, as a minority shareholder, he has no power to force distribution of the retained earnings of the company.

¶ 4. In February 2002, the State filed a motion to convert Timothy's child support obligation from an income percentage to a set dollar amount. Timothy's child support obligation was converted to a fixed rate based on his employment income only. At that, time, Linda noticed the Precision Color income Timothy had reported on his 1998 to 2001 income tax returns. Linda subsequently filed an Order to Show Cause seeking to include Timothy's share of the undistributed net profits as well as the cash distributions from Precision Color when calculating his child support obligation. She further sought to compel Timothy to place 10% (5% per child) of the cash distributions he received into post-high school education accounts. In addition, Linda sought discovery of financial documents shie alleged would support her claim that Timothy was underre-porting his income for child support purposes.

¶ 5. The circuit court ruled in Timothy's favor, holding that neither the proportionate share of net profits from Timothy's investment nor the cash distributions paid to him should be considered income available for child support purposes, and that the children's share of the Precision Color proceeds should be distributed upon the final sale or redemption of the stock. The court denied Linda's request for production of financial documents other than Timothy's tax returns and his Financial Disclosure Statement. Linda appeals.

DISCUSSION

¶ 6. Linda raises several issues for our review. First, she contends that the circuit court erred when it ruled that Timothy's undistributed investment profits and the cash distributions from Precision Color were not gross income for child support purposes. Next, she argues that Timothy should be obliged to put a percentage of his Precision Color cash distributions into an educational fund for the children. Finally, Linda argues that the court's decision to quash her demand for discovery was error. We take each issue in turn.

¶ 7. Resolution of whether Timothy's undistributed income from Precision Color should be included in the child support calculation requires us to apply Wis. Admin. Code § DWD 40.02(13)(a)(9) (Dec. 2003). The application of an administrative rule to undisputed facts is a question of law that we review de novo. Weis v. Weis, 215 Wis. 2d 135, 138, 572 N.W.2d 123 (Ct. App. 1997). Section DWD 40.02(13) defines "gross income" to include salary and wages, investment income, and "[Undistributed income of a corporation, including a closely-held corporation, or any partnership, including a limited or limited liability partnership, in which the parent has an ownership interest sufficient to individu ally exercise control or to access the earnings of the business . ..Sec. DWD 40.02(13)(a)(l), (2) and (9) (emphasis added).

¶ 8. Linda contends that no published Wisconsin case discusses proper treatment of "pass-through profit-based income for child support purposes." We disagree. In Weis, we considered whether undistributed partnership profits should be included in the calculation of a payer's child support obligation. Weis, 215 Wis. 2d at 141. The facts in Weis are sufficiently similar to those presented here, and we comfortably draw the analogy.

¶ 9. In Weis, we held that two factors must be considered when undistributed company earnings are at issue. First, the court must ascertain whether the child support payer has the ability to individually control or access the undistributed earnings. Id. Second, the court must determine whether there is a valid business reason for the company's decision to retain the earnings. Id. at 141-42. If the payer has the ability to individually control or access earnings and the company has no valid reason for retaining its earnings, the undistributed income can be considered when calculating the payer's child support obligation. Id. at 142.

¶ 10. Here the parties agree that Timothy is a minority shareholder, owning a 10% interest in Precision Color. Further, the parties stipulated on the record that John Goeden, who is the majority shareholder of Precision Color, has control of the company and can choose whether or not to make any distribution of earnings to the shareholders. Nonetheless, Linda contends that Timothy is "not... constrained from obtaining his proportionate share of the company's reported earnings." She asserts that under the Stock Redemption Agreement entered into by Precision Color shareholders, Timothy has the authority to "liquidate all, or any portion, of his investment, at any time." Linda's argument erroneously equates Timothy's ability to control undistributed earnings with his ability to sell his stock.

¶ 11. Linda also argues that public policy prohibits a payer from using "financial stratagems" to hide income. That, in fact, is the concern addressed by the second Weis condition: whether the payer is using the company as a "pretext to manipulate income." Id. at 141-42. Linda does not explain how Timothy has manipulated his income, given that he has no individual control or access to the undistributed earnings. While we have no dispute with Linda's contention that public policy prohibits sheltering income to avoid child support, she presents no logical connection between Precision Color's undistributed earnings and the goals of this public policy.

¶ 12. We conclude that Timothy, in his S corporation minority shareholder status, does not have the ability to individually control or access undistributed earnings; therefore, the first Weis condition is not met. See id. at 141. Because both conditions must be present for the court to consider undistributed earnings for child support purposes, we need not address the second factor. See id. at 142.

¶ 13. Linda next argues that the cash distributed by Precision Color to its shareholders for payment of taxes on the undistributed earnings should be considered income available for child support purposes. Linda fails to set forth any legal authority for her position. She states that the "Trial Court's way of looking at the situation is legally flawed" and calls the court's decision "factually unsound" and "erroneous in several ways." In her reply brief, Linda criticizes Timothy's use of case law from foreign jurisdictions, contending that it is not instructive because she can cite to foreign jurisdictions to support her argument as well. Nonetheless, Linda never develops her position. Propositions unsupported by legal authority are inadequate, and we will not consider them. State v. Shaffer, 96 Wis. 2d 531, 545, 292 N.W.2d 370 (Ct. App. 1980). Thus, under Shaffer, our consideration of Linda's proposition ends here.

¶ 14. Linda next argues that the circuit court erred when it held that Timothy was not obligated to set aside money from the cash distributions in an educational trust for future application to the post-high school education expenses of the parties' two children. She points us to the following language in the marital settlement agreement:

Any and all dividends, distributions or proceeds of sale or redemption of [Precision Color Graphics] stock shall be divided 90% to the petitioner, Timothy J. Winters; 5% to the parties' [first] son . .. and 5% to the parties' [second] son. Said funds awarded to the minor children may he deposited in trust on their behalf, for distribution to them outright at age 24, or for application to payment of tuition and room and board expenses for post-high school education.

¶ 15. The circuit court determined that the children would share 10% of the sale proceeds upon final disposition of Timothy's interest in Precision Color stock. This issue requires us to interpret the language of the marital settlement agreement, which is a contract and subject to de novo review. Taylor v. Taylor, 2002 WI App 253, ¶ 7, 258 Wis. 2d 290, 653 N.W.2d 524. When the language is unambiguous, we construe the contract as it stands and need not resort to extrinsic evidence to construe its meaning. Id. A marital settle-xnent agreement is ambiguous if it is reasonably susceptible to more than one meaning. Id.

¶ 16. Linda posits that the phrase "dividends, distributions or proceeds" includes distributions Precision Color made to Timothy to cover his tax liability. Timothy responds that the emphasis should be on the phrase "proceeds of sale or redemption." He argues that "dividends" and "distributions" are terms generally associated with C corporation investors, and that the parties had contemplated a division only upon "sale or redemption" of the stock. We conclude that both interpretations are reasonable and therefore the language is ambiguous as to the terms "dividends, distributions or proceeds of sale or redemption."

¶ 17. For two reasons, we hold that Timothy's interpretation of the language is appropriate. First, we consider the nature of the property at issue. See Washington v. Washington, 2000 WI 47, ¶ 29, 234 Wis. 2d 689, 611 N.W.2d 261. Timothy's investment has demonstrated a pattern of growth that was facilitated by cash distributions to pay his tax liability on his Precision Color earnings. We agree with the circuit court's observation that it would serve the children "in the long run to have that investment continue to grow." Second, if the language of the contract is ambiguous, we construe the ambiguity against the drafter. Dieter v. Chrysler Corp., 2000 WI 45, ¶ 15, 234 Wis. 2d 670, 610 N.W.2d 832. Here, Linda's attorney drafted the marital settlement agreement. Accordingly, we hold that the terms of the marital settlement agreement require Timothy to divide the proceeds of his Precision Color stock upon sale or redemption of the shares.

¶ 18. Finally, Linda contends that the circuit court erred when it limited her requests for discovery of Timothy's financial information to tax returns and his Financial Disclosure Statement. A trial court's decision whether to order discovery is vested in its sound discretion. Borgwardt v. Redlin, 196 Wis. 2d 342, 350, 538 N.W.2d 581 (Ct. App. 1995). The burden to demonstrate an erroneous exercise of discretion rests with the appellant. See Fanshaw v. Medical Protective Ass'n, 52 Wis. 2d 234, 240, 190 N.W.2d 155 (1971).

¶ 19. Wisconsin Stat. § 804.01(2)(a) (2003-04) states that a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action" as long as "the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Linda contends that she pursued financial disclosure on the grounds that Timothy appeared to be "living well beyond his alleged means, as reported in his Financial Disclosure Statement." She argues that the documents sought may explain the "apparent discrepancy" between Timothy's financial disclosure and his life-style.

¶ 20. In her pursuit, Linda sought discovery of almost every conceivable financial document, including, but by no means limited to: cancelled checks, checkbooks, and statements from every bank, credit union, or savings and loan at which Timothy held any interest in an account from 1998 to the present; records of all income received from any source since 1994; an itemization of all cash receipts and cash disbursements since 1994; records of his children's and stepchildren's bank or trust accounts; records of life insurance policies, mortgages or real estate deeds held by him; and the total annual cost of private or parochial schools attended by his stepchildren. The circuit court observed that the issues at hand were limited to Timothy's Precision Color earnings and that all but a few of the requests were irrelevant and not reasonably calculated to lead to discoverable information. Upon our review of the record facts, the issues as framed by Linda, the confínes of Wisconsin's discovery statute, and the circuit court's reasoning, we find no error in the court's holding.

CONCLUSION

¶ 21. We conclude that Timothy does not have the ability to individually control or access Precision Color's undistributed earnings; therefore, the circuit court did not err when it refused to consider undistributed earnings for child support purposes. See Weis, 215 Wis. 2d at 141-42. Moreover, Precision Color's cash distributions to Timothy were made to allow him to pay his tax liability on the Precision Color net earnings and were appropriately excluded from the child support calculation. We further conclude that the terms of the marital settlement agreement award the children 10% (split evenly) of the proceeds upon Timothy's sale or redemption of his Precision Color stock. Finally, we conclude that Linda's request for discovery exceeded the bounds of that information reasonably calculated to lead to admissible evidence and the circuit court properly denied the request as to all irrelevant documents.

By the Court. — Order affirmed.

       All references to Wis. Admin. Code § DWD 40.02(13) are to the Wisconsin Administrative Register, December 2003, No. 576.

       Linda directs us to Grohmann v. Grohmann, 189 Wis. 2d 532, 525 N.W.2d 261 (1995), where our supreme court held that undistributed income from a valid grantor trust should be used in calculating child support when the support payer is the grantor of the trust. Id. at 539. Linda argues that the court's logic in Grohmann applies here. However, Grohmann did not address undistributed earnings of a business, which is the crux of the issue presented here.

       In Weis v. Weis, 215 Wis. 2d 135, 141, 572 N.W.2d 123 (Ct. App. 1997), we reviewed the standards for calculating child support obligations, under Wis. Admin. Code § HSS 80.02(13)(g). Wisconsin Admin. Code ch. HSS 80 has since been renumbered ch. DWD 40. Register, July 1999, No. 523, CR. 98-130 (eff. Aug. 1, 1999). The relevant language considered by the Weis court has not changed.

       Timothy argues that Precision Color's cash distributions to cover taxes is not income, but rather is a return of his basis and a reduction of his capital in the corporation. Further, Timothy argues that his ability to pay child support is not augmented by the cash distributions, which pay his tax liability from the Precision Color investment. Because the issue presented has not been specifically addressed under Wisconsin law, Timothy offers case law from other states to support his position. See In re Marriage of Brand, 44 P.3d 321, 330 (Kan. 2002) (where there was no indication that the payer spouse had manipulated income for purposes of avoiding support obligations and where the payer did not have the ability to control distribution of corporate assets, retained earnings and distributions for tax liability on those earnings need not be considered in support calculation); Fennell v. Fennell, 753 A.2d 866, 868 (Pa. Super. Ct. 2000) (the income calculation should reflect the actual available financial resources rather than the often fictional financial portrait produced by federal tax laws); McHugh v. McHugh, 702 So. 2d 639, 642 (Fla. Dist. Ct. App. 1997) (rejecting the contention that a cash distribution to a shareholder to pay corporate tax liability should be included in child support calculation).


text:
    State of Wisconsin, Plaintiff-Respondent, v. Frederick W. Prager, Defendant-Appellant.
    Court of Appeals

      No. 2004AP843-CR.

      Oral argument February 22, 2005.

      Decided April 13, 2005.

    2005 WI App 95
    (Also reported in 698 N.W.2d 837.)

      On behalf of the defendant-appellant, there were briefs and oral argument by Daniel P. Fay, Pewaukee.
    On behalf of the plaintiff-respondent, there was a brief by William L. Gansner, assistant attorney general, and Peggy A. Lautenschlager, attorney general. There was oral argument by William L. Gansner.

    Before Anderson, EJ., Nettesheim and Snyder, JJ.
   SNYDER, J.

¶ 1. Frederick W. Prager appeals from an amended judgment of conviction, specifically challenging the sentence imposed by the circuit court. Prager argues that the circuit court improperly applied the new factor analysis to resentence him. We agree that there was no new factor upon which to base a modified sentence. Accordingly, the amended judgment of conviction and sentence of the circuit court are reversed. We remand with directions for the circuit court to reinstate the original judgment of conviction, sentence, and probation placement with conditions.

FACTS AND PROCEDURAL BACKGROUND

¶ 2. The facts are undisputed. On March 10, 2003, Prager pled guilty to one count of repeated sexual assault of the same child contrary to Wis. Stat. § 948.025(1) (2003-04). Two additional counts were dismissed, with the provision they would be read in at sentencing. At the time of the conviction, Prager was seventy years old and faced a maximum of sixty years in prison. The State agreed to recommend a fourteen-year sentence: seven years of incarceration followed by seven years of extended supervision. Prager retained the right to argue at sentencing and the circuit court ordered a presentence investigation report (PSI).

¶ 3. Prager's attorney submitted a letter to the circuit court on April 21, 2003, which accompanied an independent treatment report, a letter from Prager's wife, and additional letters of support. In that letter, Prager's attorney recommended a stayed fourteen-year sentence, with equal prison and extended supervision time, and an initial twelve months in jail with Huber privileges, followed by fifteen years of probation with certain conditions. It was also noted that if Prager went to prison, the income from his small engine repair business as well as his social security income would cease and, as a result, his wife and other family members would suffer.

¶ 4. On May 1, 2003, the circuit court convicted Prager and imposed and stayed a fourteen-year sentence with four years of initial incarceration and ten years of extended supervision. The court then ordered a fourteen-year period of probation with numerous conditions attached. The court stated that the offer of probation during the term of the stayed sentence was a direct result of Prager's representations that his wife needed him "from a physical standpoint, from an emotional standpoint, and from an economic standpoint." The circuit court signed the judgment of conviction with the attending sentence on May 9, 2003.

¶ 5. On May 7, 2003, the State moved for reconsideration of Prager's sentence, contending that Prager had misrepresented his wife's economic circumstances and the hardship his imprisonment would cause her. Specifically, the State alleged that Prager's $300,000 farm had been transferred by quitclaim deed to Mrs. Prager fifty-five days after his initial appearance in court.

¶ 6. At the reconsideration motion hearing on June 13, 2003, the circuit court rejected the State's argument and ruled that Prager had not made a fraudulent misrepresentation to the court, but that ownership of the farm was a new factor that "had it been known to the Court at the time of sentencing, would have been a significant factor in terms of the sentencing scheme." The court decided that the original sentence "must be set aside and ... declared void." The court directed that a new PSI be prepared and instructed that it "is to correct or add to, explain the prior information that was contained in the original report, but is not to duplicate it." The court directed the PSI author to "try to get detailed statements, impact statements, from .. . the victim or victims [and their families] so that we really have somewhat of a comprehensive picture that is going to be supplied in terms of the [PSI]." The court indicated a particular interest in "knowing the [victims'] views ... because I believe that there was quite a divergence. Be nice to have that information plus the medical information plus the economic information."

¶ 7. On September 19, 2003, Prager was resen-tenced. The circuit court imposed a ten-year sentence, three years in prison followed by seven years of extended supervision. Prager appeals.

DISCUSSION

¶ 8. The State, rather than Prager, sought modification of Prager's sentence. After the original sentencing, the State sought resentencing under State v. Jones, 2002 WI App 208, 257 Wis. 2d 163, 650 N.W.2d 844, review denied, 2003 WI 126, 265 Wis. 2d 416, 668 N.W.2d 557 (WI Aug. 13, 2003) (No. 2001AP2969-CR), arguing that Prager "misinformed the Court as to the ownership of the farm" and that this misrepresentation influenced the circuit court's sentence. The circuit court rejected the State's contention, stating that Prager's "nondisclosure of the ownership interest does not rise to the level of information referred to in the Jones cáse and is not a fraudulent misrepresentation."

¶ 9. The circuit court then broadened the issue beyond the scope of the State's motion and embarked on a new factor analysis. See State v. Crochiere, 2004 WT 78, ¶ 13, 273 Wis. 2d 57, 681 N.W.2d 524 (a circuit court has the power to modify a sentence upon the showing of a new factor, if that new factor warrants sentence modification). In the end, the court reduced rather than increased Prager's sentence; however, the practical impact was harsher because the court neither stayed the sentence nor placed Prager on probation.

¶ 10. Prager presents two issues for our consideration. First, he contends that his Fifth Amendment right to be free from double jeopardy was violated when the circuit court imposed a second punishment for the original offense. Second, Prager argues that there was no new factor to justify resentencing. We take these issues in reverse order because the new factor analysis is dispositive. We need not reach the merits of Prager's double jeopardy argument because we reverse on other grounds. See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997).

¶ 11. A new factor must be "highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties." Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). "The trial court cannot reduce or increase a sentence upon its reflection that the sentence imposed was harsh or inadequate." State v. Wuensch, 69 Wis. 2d 467, 479, 230 N.W.2d 665 (1975); see also State v. Johnson, 158 Wis. 2d 458, 467, 463 N.W.2d 352 (Ct. App. 1990).

¶ 12. We recognize the deference accorded a sentencing court and, as a general rule, we do not interfere with a sentencing court's exercise of discretion. See State v. Gallion, 2002 WI App 265, ¶ 26, 258 Wis. 2d 473, 654 N.W.2d 446, aff'd, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. Here, however, the threshold question is whether a new factor exists. In this we owe no deference to the circuit court as it presents a question of law and our standard of review is de novo. See State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989). A party must demonstrate the existence of a new factor by clear and convincing evidence. State v. Franklin, 148 Wis. 2d 1, 9-10, 434 N.W.2d 609 (1989). We have characterized a new factor as "an event or development which frustrates the purpose of the original sentence." State v. Champion, 2002 WI App 267, ¶ 4, 258 Wis. 2d 781, 654 N.W.2d 242 (citation omitted).

¶ 13. Here, the circuit court's express purpose for staying Prager's sentence and placing him on probation was to protect the existing victims without creating new victims: specifically, Prager's wife, daughter, and grandsons, who rely on him emotionally and financially. During arguments at sentencing, Prager raised the special financial circumstances of his case. He stated that if sent to prison his social security and medicare benefits would terminate, including those that flow through him to his wife. He also asked the court to keep him in the community so that he could care for his wife, who has epilepsy. Taking this into consideration, the court made its purpose clear, stating:

I have come to the conclusion after reading and then rereading that if I put you in prison, I will create more victims and I don't think that that's what the Court should do. So I am going to impose a sentence on you and I am going to stay it and then I'm going to give you the option of going on probation ....
I was persuaded and gave a lot of credence to the representations to the Court which indicate that your wife really needs you from a physical standpoint, from an emotional standpoint, and from an economic standpoint .... [T]he two guiding principles here for this Court in imposing a stayed sentence on you are, number one, and I don't want to create more victims than you have created and I am very concerned about your wife, and then, secondly, you yourself have represented that she is in need of you and so hopefully that's the way it will work out.

¶ 14. To support resentencing, the quitclaim deed —the only new factor alleged here — must be highly relevant to the sentence. See Rosado, 70 Wis. 2d at 288. The farm was a peripheral matter at the original sentencing, as the only discussion regarding the farm was in the context of a probation condition that Prager no longer reside there.

¶ 15. We turn to the circuit court's rationale upon resentencing to determine whether the quitclaim deed was indeed highly relevant. There, the court noted that Mrs. Prager's interest in the farm as marital property was approximately $150,000. It characterized Mrs. Prager's interest as a "significant sum of money" and observed that she was "economically with respect to the farm not dependent on Mr. Prager." The court .did not, however, explain how this information was new or highly relevant to the original sentencing scheme or to the resentencing. The court also noted that Mrs. Prager did not wish to sell, but would rather continue to collect the rents from the farm to cover the real estate taxes, insurance, and upkeep of the property and to provide a source of income for herself. Again, the court did not explain how Mrs. Prager's financial options had changed as a result of the quitclaim deed. In short, the relevance of the new factor was not evident in the court's rationale.

¶ 16. "There must be some connection between the factor and the sentencing — something which strikes at the very purpose for the sentence selected by the trial court." Michels, 150 Wis. 2d at 99. Here, the quitclaim deed's potential financial ramifications are largely absent from the circuit court's rationale upon resentencing:

I am no longer persuaded that probation is appropriate. The extent of the harm caused to the victims is now known to the Court and was not previously. The financial and supportive impact of removing the defendant from the community and his wife is not as initially understood based on information now supplied to the Court. One of the positives referred to by [Prager's therapist] as a predictor that there would be success and treatment and also a lack of recidivism in the future was the defendant's supportive network of family. This is incorrect. The defendant is estranged from his sons. And rather than the totally supportive wife, the wife is now conflicted, confused as to the full impact of the events that have become clearer to her.

¶ 17. Further, the court's concluding comments reveal that its focus was not on the new financial information:

I want to be very candid with you. I really did not — how should I put this — when it came to the impact of this on the victims, there was a vacuum of information and one could take what was available as information, and there were a number of scenarios one could draw from the information then available, that was the first [PSI]. Now the second [PSI] just totally pre-empts and it's now known the depth of what we're dealing with insofar as these victim children are concerned.

¶ 18. Our supreme court has stated that a sentencing court "should not reduce a sentence on 'reflection' alone or simply because it has thought the matter over and has second thoughts. It must base its modification on 'new factors' brought to its attention." Johnson, 158 Wis. 2d at 467 (quoting State v. Macemon, 113 Wis. 2d 662, 668, 335 N.W.2d 402 (1983)). We have stated that a change of heart by the sentencing court is not a new factor supporting resentencing. See id. Further, resentencing is not required every time a victim or anyone else addressing the sentencing court has a change of heart. Id.

¶ 19. It is well established that a circuit court should consider all relevant information at resentenc-ing. State v. Naydihor, 2002 WI App 272, ¶¶ 27-28, 258 Wis. 2d 746, 654 N.W.2d 479, aff'd, 2004 WI 43, 270 Wis. 2d 585, 678 N.W.2d 220. Here, the circuit court considered all of the appropriate sentencing factors, including: the gravity of Prager's offense, his character and rehabilitative needs, and protection of the public. See Gallion, 258 Wis. 2d 473, ¶ 26. However, when resen-tencing based upon a new factor, the court's rationale must clearly reflect the high relevance of the new factor. "There must be some connection between the factor and the sentencing — something which strikes at the very purpose for the sentence selected by the trial court." See Michels, 150 Wis. 2d at 99. Given the circuit court's extensive commentary and express interest in factors other than the quitclaim deed and its impact on the economic well-being of Prager's family, we conclude that there was only a minimal connection between the factor and the court's resentencing. For this reason, we are convinced that no new highly relevant factor exists. See Rosado, 70 Wis. 2d at 288.

¶ 20. As stated earlier, we do not reach the merits of Prager's double jeopardy argument because our new factor analysis disposes of the appeal. See Castillo, 213 Wis. 2d at 492. Nonetheless, we observe that Prager was subject to a final judgment of conviction and sentence imposed on May 1, 2003, and signed on May 9, 2003. The circuit court subsequently set aside the conviction and declared the sentence void, raising concerns about whether the court's resentencing was in fact the modification of an existing sentence or the imposition of a second conviction and sentence for the original offense. The Fifth Amendment's Double Jeopardy Clause protects against multiple punishments for the same offense. United States v. DiFrancesco, 449 U.S. 117, 120, 129 (1980).

CONCLUSION

¶ 21. We conclude that the new information concerning the quitclaim deed did not constitute a highly relevant new factor that "strikes at the very purpose for the sentence selected." See Michels, 150 Wis. 2d at 99. Further, "[t]he trial court cannot reduce or increase a sentence upon its reflection that the sentence imposed was harsh or inadequate." Wuensch, 69 Wis. 2d at 479; Johnson, 158 Wis. 2d at 467. The circuit court did not make a clear connection between the quitclaim deed and either sentence in its rationale; therefore, the only reasonable conclusion is that Prager's resentencing was based on reflection. Accordingly, the amended judgment of conviction and sentence of the circuit court are reversed. We remand with directions for the circuit court to reinstate the original judgment of conviction, sentence, and probation placement with conditions.

By the Court. — Judgment reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       At the initial appearance on September 4, 2002, Prager informed the circuit court that he owned a 150-acre farm in Racine county. In the original PSI, dated April 22, 2003, Prager described a prior bankruptcy without a loss of the farm. He also explained that they rent the farm out to a neighbor. In the second PSI, dated September 9, a more comprehensive picture of the Pragers' financial situation was included. The investigator used 2002 real estate property tax information and 2002 federal tax returns to identify the Pragers' assets and income. The investigator reported that
      [t]he Prager family's financial situation is strained as the result of the current case .... There is no mortgage on the farm property and it has a value of [$]300,000.00 according to the property tax assessment of 2003 .... The farm property was transferred into the name of [Mrs.] Prager [by quit]claim deed on March 17, 2003 putting the property in her name. Both the defendant and his wife stated that they were advised by their first attorney that this would be a wise thing to do as Mrs. Prager would then have the authority to make decisions regarding the property on her own.

       We note that the overwhelming majority of cases dealing with a new factor analysis are prompted by a defendant's motion rather than the State's. As a result, most Wisconsin case law on the new factor analysis addresses principles and policies associated with a defendant's attempt to reduce the sentence. See, e.g., Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975); State v. Franklin, 148 Wis. 2d 1, 434 N.W.2d 609 (1989); State v.

        Hegwood, 113 Wis. 2d 544, 335 N.W.2d 399 (1983); State v. Michels, 150 Wis. 2d 94, 441 N.W.2d 278 (Ct. App. 1989); State v. Crochiere, 2004 WI 78, 273 Wis. 2d 57, 681 N.W.2d 524.

       Although neither party argues the impact of marital property law, presumably, Mrs. Prager would have had the same interest in the marital asset had the title been held by Prager himself or both spouses jointly.

       In the second PSI, the investigator reported that the victims' parents felt Prager "received a slap on the hand at his sentencing, the girls are not happy at all.... There was a price to pay. It was not paid. The girls said why did we go through all of this, for nothing." The victims had similar reactions to the original sentencing. One stated, "The justice system is stupid .... I think that [Prager] should be in prison for what he did to me." The other echoed the sentiment, stating, "The first sentence [Prager] got was like a bad vacation, it was wrong." The investigator described the victims' anger as "palpable."

       A similar concern may be raised regarding Prager's probation placement. In State v. Sepulveda, 119 Wis. 2d 546, 560, 350 N.W.2d 96 (1984), our supreme court held that a circuit court may use a new factor to invoke its power to modify the terms of probation under Wis. Stat. § 973.09(3)(a). Here, Prager's probation was not modified; rather, it was abandoned upon resentencing. This was done despite the undisputed fact that Prager had not violated any of the conditions of probation. Prager's resentencing served to revoke his probation without any finding of probable cause. Revocation of probation is an administrative, not judicial, procedure pursuant to Wis. Stat. § 973.10(1) and (2).