author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Larry A. Tiepelman, Defendant-Appellant.

    Court of Appeals

      No. 2004AP914-CR.

      Submitted on briefs September 7, 2004.

      Decided July 14, 2005.

    2005 WI App 179
    (Also reported in 703 N.W.2d 683.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne L. Hagopian, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lara M. Herman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, PJ., Vergeront and Lundsten, JJ.

       Petition to review granted 12-14-05.

   LUNDSTEN, J.

¶ 1. The question here is whether a sentencing judge violated a defendant's right to due process by relying on inaccurate information. Tiepel-man complains that his sentencing judge acted under the mistaken belief that Tiepelman had over twenty prior convictions, when in fact he had nine convictions. Tiepelman does not dispute his underlying conduct; rather, he argues that he is entitled to resentencing because several instances of his criminal conduct did not, as the sentencing judge mistakenly believed, result in convictions. We agree with the trial judge that there was no prejudicial reliance on inaccurate information and, therefore, no due process violation.

Background

¶ 2. Sentencing in this case arose from a 1996 conviction of theft by false representation as a repeater. Tiepelman initially received a withheld sentence and probation, but his probation was revoked and he was returned for the sentencing that is at issue here.

¶ 3. In passing sentence, the judge discussed appropriate sentencing factors, including the severity of Tiepelman's offense, the need to protect the public, and Tiepelman's character. When discussing Tiepelman's character, the judge, relying on a presentence report, said the following:

Mr. Tiepelman, at the time of the commission of this offense, had a long pattern of similar offenses — or at least offenses of dishonesty, theft, false pretenses, et cetera. I counted something over twenty prior convictions at the time of the commission of this offense back in 1995. They include numerous issuance of worthless checks, they include other forgeries, thefts by false representation, several — more than one forgery, looks like a couple of forgeries, couple of thefts by false representation, theft in a business setting, again, worthless checks. A well-established pattern of criminal behavior dealing with theft and false representation, issuance of worthless checks, prior to the commission of this offense.

(Emphasis added.) The judge also observed that Tiepel-man had a history of assaultive offenses, referring to Tiepelman's "conviction" for battery, "conviction" for violating a no-contact provision, and various bail and bond violation "convictions" relating to no-contact provisions. The judge sentenced Tiepelman to twelve years in prison, four years less than the available maximum.

¶ 4. Although the presentence report was accurate, the judge's recitation of Tiepelman's criminal history was in error. The judge "counted something over twenty prior convictions," but the report shows that only nine of Tiepelman's offenses resulted in convictions. Tiepelman did not point out the error during sentencing, but filed a postconviction motion seeking resentencing. In that motion, Tiepelman argued that the trial judge violated Tiepelman's right to due process because the judge relied on a mistaken view of Tiepelman's criminal record.

¶ 5. The same judge who sentenced Tiepelman presided over the postconviction hearing. At the post-conviction hearing, Tiepelman confirmed that he had not disputed and was not disputing the factual description of the conduct underlying the offenses listed in the presentence report. Thus, Tiepelman conceded that he was not disputing those facts for purposes of his post-conviction motion. The trial judge acknowledged that his reference to "over twenty prior convictions" was wrong. The judge candidly admitted that he did not recall whether he had misspoken or if he had a mistaken belief as to the correct number of convictions. However, the judge concluded that he had not relied on a material inaccuracy because Tiepelman conceded the pertinent underlying conduct, both at sentencing and at the postconviction hearing. The judge explained that he was looking at Tiepelman's "well-established pattern of criminal behavior" and that such behavior was not disputed. The judge denied Tiepelman's motion for resentencing, and Tiepelman appeals.

Discussion

¶ 6. Tiepelman argues that the sentencing judge violated Tiepelman's right to due process because the judge imposed sentence based, in part, on an erroneous understanding of Tiepelman's criminal record. In State v. Groth, 2002 WI App 299, 258 Wis. 2d 889, 655 N.W.2d 163, we summarized the framework used to address such claims: Id., ¶¶ 21-22; see also State v. Littrup, 164 Wis. 2d 120, 132, 473 N.W.2d 164 (Ct. App. 1991).

A defendant has a due process right to be sentenced based on accurate information. State v. Johnson, 158 Wis. 2d 458, 468, 463 N.W.2d 352 (Ct. App. 1990) (citing United States v. Tucker, 404 U.S. 443, 447 (1972)). Whether a defendant has been denied the due process right to be sentenced based on accurate information is a "constitutional issue" presenting "a question of law which we review de novo." State v. Coolidge, 173 Wis. 2d 783, 789, 496 N.W.2d 701 (Ct. App. 1993).
A defendant who asks for resentencing because the court relied on inaccurate information must show both that the information was inaccurate and that the court relied on it. Id. The defendant carries the burden of proving both prongs — inaccuracy of the information and prejudicial reliance by the sentencing court — by clear and convincing evidence. Id. See also State v. Littrup, 164 Wis. 2d 120, 132, 473 N.W.2d 164 (Ct. App. 1991). Once a defendant does so, the burden shifts to the State to show that the error was harmless. State v. Anderson, 222 Wis. 2d 403, 410-11, 588 N.W.2d 75 (Ct. App. 1998). An error is harmless if there is no reasonable probability that it contributed to the outcome. Id. at 411.

¶ 7. Thus, Tiepelman had the burden of showing, by clear and convincing evidence, both the inaccuracy of some information and that the sentencing judge preju-dicially relied on the inaccurate information. In light of the sentencing judge's admission that he could not recall whether he misspoke or instead acted under a misapprehension of Tiepelman's conviction record, the State concedes that Tiepelman has met his burden of showing an inaccuracy in some of the sentencing information. The dispositive issue here is the second prong: Did Tiepelman meet his burden of showing prejudicial reliance? We agree with the trial judge that Tiepelman failed to meet this burden.

¶ 8. Tiepelman argues that the sentencing judge placed particular weight on Tiepelman's character. He claims the sentencing judge held a negative view of his character because the judge incorrectly believed that Tiepelman had been convicted of offenses for which he had not actually been convicted. Tiepelman points out that the judge said that Tiepelman's character, including the danger he posed to the public, was one of the most significant sentencing factors. We conclude, however, that the record supports the trial judge's view that it was Tiepelman's prior conduct that mattered, not the number of his prior convictions.

¶ 9. Conviction information is normally used by sentencing judges simply as one means of determining whether a defendant has previously engaged in criminal conduct. If, for example, a defendant admits to three prior bank robberies, but only one of those robberies resulted in a conviction — perhaps because of a plea agreement — the sentencing judge typically considers the defendant's actual behavior, not the number of convictions, when assessing his or her character and dangerousness. It is the defendant's prior behavior that logically informs a judge of the defendant's character or propensity to commit crimes, not whether that behavior is proven at sentencing by means of a conviction record. Here, the trial judge said as much: "I believe that the . .. sentencing of [Tiepelman] in this case was based on his entire history, and I don't believe that the fact, whether he was convicted or not of the particular offenses bore such significant weight with [me] .. .." Shortly after that statement, the judge said: "I think that [I] was more looking at a well-established pattern of criminal behavior dealing with thefts and misrepresentation ...." Thus, the record here satisfies us that the sentencing judge did not prejudicially rely on the number of convictions, but instead relied on Tiepelman's pattern of conduct.

¶ 10. We note that this case is similar to State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998). In Lechner, even though the sentencing court specifically-referred to the presentence investigation report containing inaccuracies as to the number of previous convictions, the supreme court concluded that the sentencing court did not rely on that inaccurate information in imposing Lechner's sentence. Id. at 419-23. The sentencing court's focus was on Lechner's past record of offenses and history of undesirable behavior, not on the particular number of convictions. See id. at 422.

¶ 11. Tiepelman relies on Groth and State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998), but both of those cases are easily distinguished. In both Groth and Anderson, the sentencing court relied on highly material facts that the defendant disputed. See Groth, 258 Wis. 2d 889, ¶¶ 16-19, 27-34 (defendant disputed factual basis for prosecutor's statement, relied on by sentencing court, that defendant had beaten pregnant women); Anderson, 222 Wis. 2d at 405-07, 409-10 (in the context of a discussion on ineffective assistance of counsel, defendant disputed allegations of child sexual abuse in a presentence investigation report on which the sentencing court relied).

¶ 12. Finally, Tiepelman, relying on United States v. Tucker, 404 U.S. 443 (1972), argues that it does not matter whether he admitted the underlying criminal conduct. In Tucker, error occurred when a sentencing-court relied on prior convictions because those convictions were obtained in violation of the defendant's right to counsel under Gideon v. Wainwright, 372 U.S. 335 (1963). Tucker, 404 U.S. at 444-45, 447. Tiepelman makes the following argument based on Tucker-.

Nor does it matter, as both the lower court and state contend, that Mr. Tiepelman did not contest the facts underlying the dismissed charges. Neither did Tucker. In fact, at sentencing Tucker had personally admitted the facts underlying the convictions which years later were found to have been obtained in proceedings in which he was denied counsel. Tucker, 404 U.S. at 444. The supreme court held that the fact that two of the three prior offenses had not resulted in valid convictions, contrary to the sentencing court's belief, entitled the defendant to resentencing. Id. at 447-49. Tucker's admission of the facts underlying the offenses made no difference. Tucker, like Mr. Tiepelman and Townsend, was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Id. at 447.

(Footnote added.) Thus, according to Tiepelman, this case is just like Tucker, where the defendant's prior behavior was not disputed, but the sentencing court acted under a misapprehension about the number of convictions that resulted from that behavior. Tiepelman's comparison, however, ignores a key circumstance in Tucker that is not present here.

¶ 13. The Supreme Court in Tucker lacked confidence that the sentencing court would have imposed the same sentence, not because of the wrongful convictions per se, but because those convictions caused Tucker to serve a lengthy term of unconstitutional imprisonment. The Tucker Court reasoned that if the sentencing court had realized that Tucker unconstitutionally served a long prison sentence under harsh conditions, the sentencing court might have had a different view of the appropriate sentence. This is evident from the Court's analysis:

[I]f the trial judge . .. had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would then have been dealing with a man who, beginning at age 17, had been unconstitutionally imprisoned for more than ten years, including five and one-half years on a chain gang. We cannot agree with the Government that a re-evaluation of the respondent's sentence by the District Court even at this late date will be either "artificial" or "unrealistic."

Tucker, 404 U.S. at 448-49 (footnotes omitted; emphasis added). Obviously, the circumstance that the Tucker Court was concerned about is not present here. Moreover, Tiepelman offers no reason why a sentencing judge's view of the character of a defendant or of the fairness of the sentence imposed might be affected by a mistake solely regarding whether undisputed criminal conduct resulted in a conviction.

¶ 14. Accordingly, we conclude that Tiepelman has failed to show that the sentencing judge prejudi-cially relied on inaccurate information in sentencing him. We affirm the judgment of conviction and the order denying Tiepelman's motion for resentencing.

By the Court. — Judgment and order affirmed.

       Waiver is not an issue we address in this decision. At sentencing, neither Tiepelman nor his counsel pointed out the trial judge's mistaken references to "convictions." However, the State does not argue waiver. In one recent case we suggested, without deciding, that a defendant's due process challenge to sentencing based on inaccurate information might not be amenable to waiver. See State v. Groth, 2002 WI App 299, ¶¶ 25-26, 258 Wis. 2d 889, 655 N.W.2d 163. But other cases assume or suggest otherwise. See State v. Leitner, 2001 WI App 172, ¶¶ 41-42, 247 Wis. 2d 195, 633 N.W.2d 207, aff'd, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341; State v. Samuel, 2001 WI App 25, ¶¶ 41-43, 240 Wis. 2d 756, 623 N.W.2d 565 (Ct. App. 2000), rev'd on other grounds, 2002 WI 34, 252 Wis. 2d 26, 643 N.W.2d 423; State v. Johnson, 158 Wis. 2d 458, 470, 463 N.W.2d 352 (Ct. App. 1990) (relying on Handel v. State, 74 Wis. 2d 699, 704, 247 N.W.2d 711 (1976)).

       We observe that the State does not argue that the sentence in this case may he affirmed on the basis that the sentencing judge, who also presided over the postconviction hearing, effectively communicated at the postconviction hearing that the information at issue did not affect the sentence he imposed. We would not take such an assertion by the judge at face value, see Groth, 258 Wis. 2d 889, ¶ 28, but our analysis of the record in this case reveals that, here, such an assertion would have been credible. Courts in a number of federal circuits have concluded that when the same judge presides at the postconviction hearing and at sentencing, and determines that a sentence would be the same even with corrected information, the defendant has received a sufficient resentencing remedy. See Reynolds v. United States, 528 F.2d 461, 461-63 (6th Cir. 1976); Crovedi v. United States, 517 F.2d 541, 543-44, 546-47 (7th Cir. 1975); McAnulty v. United States, 469 F.2d 254, 255-56 (8th Cir. 1972). Here, the trial judge did not expressly say that the sentence would be the same even with corrected information, but the judge's decision arguably implies as much. In any event, we need not, and do not, rely on cases such as Reynolds, Crovedi, and McAnulty because we conclude that Tiepelman has failed to show that the sentencing judge prejudicially relied on inaccurate information.

       It is of no consequence here, but we observe that Tiepel-man is inaccurate when he asserts that Tucker personally admitted his previous criminal behavior at sentencing. Rather, as the dissent in Tucker explains, Tucker admitted this behavior during cross-examination at trial. United States v. Tucker, 404 U.S. 443, 449-51 (1972) (Blackmun, J., dissenting).


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

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

      No. 2004AP3014-CR.

      Submitted on briefs April 20, 2005.

      Decided July 14, 2005.

    2005 WI App 191
    (Also reported in 704 N.W.2d 324.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark A. Eisenberg, Eisenberg Law Offices, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory M. Weber, asst, attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, PJ., Dykman and Vergeront, JJ.
   VERGERONT, J.

¶ 1. The issue on this appeal is whether Ted Urdahl's federal and state constitutional right to a speedy trial was violated. After the dismissal of the charges initially filed against Urdahl, he was convicted in this action of possession of five grams or less of cocaine with intent to deliver within 1000 feet of a park in violation of Wis. Stat. §§ 961.41(lm)(cm)l and 961.49(2)(a) (2003-04), and fleeing an officer in violation of Wis. Stat. § 346.04(3). He appeals the circuit court's order denying his motion for dismissal of the charges in this action on the ground that the delay in bringing him to trial violated his right to a speedy trial under the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution.

¶ 2. We conclude the time period from the dismissal of the charges initially filed against Urdahl to the filing of the complaint in this action is not counted for purposes of analyzing Urdahl's speedy trial claim. For the reasons we explain in the opinion, we do not decide whether the time period from Urdahl's arrest to the dismissal of the charges initially filed should he included in our analysis, but for purposes of this opinion, we assume it should be. With the relevant time period thus established, and applying the four-part balancing test of Barker v. Wingo, 407 U.S. 514, 530 (1972), we conclude there was no violation of Urdahl's constitutional right to a speedy trial.

BACKGROUND

¶ 3. On April 16, 2001, the State filed two criminal complaints against Urdahl. One charged him with possession of five grams or less of cocaine with intent to deliver, possession of 500 grams or less of THC with intent to deliver, and possession of drug paraphernalia; the other complaint charged him with fleeing an officer while operating a motor vehicle. All charges arose out of incidents occurring on April 13, 2001, and it appears from the complaints that Urdahl was arrested on that date. Urdahl made his initial appearance on April 16, 2001, in both cases, and the court entered an order for a preliminary hearing to be held on April 26, 2001. The preliminary hearing was rescheduled for May 16, 2001, and then for July 25, 2001, with both delays resulting from requests by Urdahl's counsel for continuances. On June 25, 2001, the State asked for a continuance because a material witness would be on vacation on July 25, 2001. The preliminary hearing was rescheduled for August 8, 2001. On that date the State's witnesses did not appear and the court dismissed the complaints.

¶ 4. The State filed the complaint that began this action on October 3, 2001. This complaint charged Urdahl with possession with intent to deliver five grams or less of cocaine within 1000 feet of a park and possession of drug paraphernalia. The information later added the THC and fleeing charges, as well as a charge of tax stamp violation for the THC under Wis. Stat. § 139.95(2). All charges arose out of the April 13, 2001 incidents.

¶ 5. The initial appearance took place on October 15, 2001, and the court ordered a $500 personal appearance bond. Urdahl and his counsel waived the requirement that the preliminary hearing be held within twenty days of the initial appearance. The preliminary hearing was scheduled for November 29, 2001. It was continued until December 6, 2001, because defense counsel had a previously scheduled trial on November 29. At the preliminary hearing the court found probable cause to believe Urdahl had committed a felony. The arraignment took place on December 19, 2001, at which time the court entered various pretrial and scheduling orders.

¶ 6. On January 3, 2002, Urdahl through counsel filed a number of motions. On January 21, 2002, the court issued a notice of a status conference for March 20, 2002. Urdahl through counsel filed a motion on March 11, 2002, seeking relief from the scheduling order to allow him to file a motion to dismiss the tax stamp charge. On March 25, 2002, the court issued a notice of hearing for May 23, 2002, but, on defense counsel's motion, the court set a new hearing date, August 13, 2002. At that hearing the court ruled from the bench on two of the motions. The court deferred a ruling on the motion relating to other acts evidence until it read a report; and it deferred a ruling on the tax stamp motion until that motion was properly filed and served and the attorney general had a chance to respond. The court issued a written decision on the deferred motions on January 31, 2003. Urdahl through counsel asked for the opportunity to be heard on the two motions that were the subject of the written decision, and that hearing took place on April 30, 2003, with the court reaffirming its written decision denying the motions.

¶ 7. The record shows no activity between April 30, 2003 and September 26, 2003, when the court scheduled a jury trial for December 19, 2003. On December 17, 2003, the court heard and granted Urdahl's motion to discharge his attorney and to continue the trial date so that he could find a new attorney. Urdahl's new counsel filed a notice of retainer on December 30, 2003, and on January 6, 2004, the court issued a notice scheduling the trial for March 10, 2004.

¶ 8. On January 12, 2004, Urdahl through his new counsel filed the motion to dismiss the complaint because of a violation of his right to a speedy trial. The court heard the motion on January 30, 2004. The court found that the delay was not due to any fault of the district attorney's office, that the district attorney's office did not intentionally delay the case to Urdahl's detriment, and that most of the delay was caused by Urdahl's first counsel and by the court's calendaring difficulties, the latter being the result of a lack of resources.

¶ 9. On February 20, 2004, Urdahl appeared with counsel and stipulated to the factual basis for the cocaine charge (without the enhancer for the park) and the fleeing charge, and the court found him guilty of the two charges. On the cocaine charge, the court withheld sentence and placed him on probation for seven years, and on the fleeing charge the court sentenced him to one year in the county jail with work-release privileges and electronic monitoring.

ANALYSIS

¶ 10. On appeal, Urdahl argues that the circuit court erred in denying his motion for dismissal of the charges because there was, he asserts, a violation of his constitutional right to a speedy trial. Whether a defendant has been denied his constitutional right to a speedy trial presents a question of law, which this court reviews de novo, while accepting any findings of fact made by the circuit court unless they are clearly erroneous. State v. Leighton, 2000 WI App 156, ¶ 5, 237 Wis. 2d 709, 616 N.W.2d 126.

¶ 11. Both the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution guarantee an accused the right to a speedy trial. In order to determine whether an accused's right to a speedy trial has been violated under the Federal Constitution, we use the four-part balancing test established in Barker, 407 U.S. at 530, and we use the same test under the Wisconsin Constitution. Day v. State, 61 Wis. 2d 236, 244, 212 N.W.2d 489 (1973). We consider (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530. The right to a speedy trial is not subject to bright-line determinations and must be considered based on the totality of circumstances that exist in the specific case. Id. Essentially, the test weighs the conduct of the prosecution and the defense and balances the right to bring the defendant to justice against the defendant's right to have that done speedily. Id. The only remedy for a violation of the right to a speedy trial is dismissal of the charges. Id. at 522.

A. Length of Delay

¶ 12. The first factor — the length of delay — has two roles. First, it is a triggering mechanism used to determine whether the delay is presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 651-52 (1992). Generally, a post-accusation delay approaching one year is considered to be presumptively prejudicial. State v. Borhegyi, 222 Wis. 2d 506, 510, 588 N.W.2d 89 (Ct. App. 1998). If the delay is presumptively prejudicial, the length of delay is one factor in the four-part balancing test. Doggett, 505 U.S. at 652. As one of the four factors in the balancing test, the court considers "the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. This latter inquiry is significant to the speedy trial analysis because ... the presumption that pretrial delay has prejudiced the accused intensifies over time." Id. (citations omitted).

¶ 13. The parties here disagree on the length of delay because they have differing views on when the right to a speedy trial attaches on the facts of this case. Urdahl asserts that under Borhegyi, 222 Wis. 2d at 511, the right attached when he was arrested on April 13, 2001. His position is that we begin counting the length of delay from that date and include the period from the dismissal of the first complaints on August 8,2001, until the filing of the complaint beginning this action on October 3, 2001. According to Urdahl, after the first two complaints were dismissed, he was in the same position as he was from April 13 until April 16 — he had been arrested but charges had not yet been filed. Urdahl arrives at a total time of thirty-two months — from his April 13, 2001 arrest until December 19, 2003, the date on which, the trial was scheduled to begin.

¶ 14. The State's primary position is that Urdahl's right to a speedy trial in this action did not attach until the filing of the complaint in this action on October 3, 2001. The State relies on United States v. MacDonald, 456 U.S. 1, 7-9 (1982), in arguing that when charges are dismissed, the right to a speedy trial no longer attaches after the dismissal. The State's alternative position is that, if we reject October 3, 2001, as the date from which to compute the delay and begin with Urdahl's arrest on April 13, 2001, we must nonetheless exclude the time between the dismissal of the first complaints and the filing of the complaint that initiated this action. This result is required by MacDonald, the State asserts, because during that time Urdahl was not under arrest or in custody and not subject to any criminal prosecution, but, instead, was in the same position as if the first two complaints had never been filed.

¶ 15. Borhegyi does not resolve the question when Urdahl's right to a speedy trial attached. In Borhegyi, the defendant was arrested for arson and criminal damage to property on August 26, 1995, and was charged with these offenses in a criminal complaint filed December 28, 1995. Borhegyi, 222 Wis. 2d at 508. The trial occurred on January 30-31,1997. In responding to the defendant's contention that he was denied his right to a speedy trial, the State argued that the right did not attach until the filing of the criminal complaint on December 28, 1995. We rejected this argument, stating that the right attached when he first officially became the accused, which was the date of his arrest. Id. at 511. Thus, the issue we decided was whether the right to a speedy trial attached at the time of arrest or when the complaint was filed after the arrest. Because there was no dismissal and refiling of the charges, we did not address the question whether, if there were, the length of delay would still be calculated from that arrest.

¶ 16. MacDonald does resolve at least part of the issue in this case. In MacDonald the United States Army charged a captain with three murders in May 1970 and dismissed those charges in October 1970. MacDonald, 456 U.S. at 4-5. In January 1975, a grand jury returned an indictment in a civilian proceeding that charged that same individual with those same three murders. Id. The issue before the Court was whether the time between the dismissal of the military charges and the indictment in the civilian proceeding should be considered in determining whether the delay in bringing the defendant to trial violated his right to a speedy trial. Id. at 3. The Court concluded it should not be. Id. at 9-10.

¶ 17. The Court first observed that in United States v. Marion, 404 U.S. 307, 313 (1971), it had held that the speedy trial clause of the Sixth Amendment "does not apply to the period before the defendant is indicted, arrested or otherwise officially accused ... MacDonald, 456 U.S. at 6. "Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending." Id. at 7 (citation omitted and footnote added).

¶ 18. The Court then stated: "Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause." Id. at 7. The Court arrived at this conclusion by identifying the interests served by the Speedy Trial Clause and reasoning that they were not implicated after charges were dismissed:

Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.
The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitation. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.
Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Marion, where the defendants had been subjected to a lengthy investigation which received considerable press attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending.

Id. at 7-8 (citations and footnotes omitted).

¶ 19. Urdahl distinguishes MacDonald based on the reason for dismissal: there the investigating officer concluded the charges were not true, MacDonald, 456 U.S. at 10 n.12, whereas in this case the State's witnesses did not appear at the preliminary hearing. This distinction is important, contends Urdahl, because it was clear to him when the initial charges were dismissed that they would be refiled, and thus he was in the same position he was in between his arrest and the filing of the initial charges. However, when the charges were dismissed, Urdahl was not under arrest, and he was not re-arrested. He was thus not in custody, and he was not under any bond or bail conditions. He was "free to go about his affairs," in the words of the MacDonald Court, 456 U.S. at 10, as if no charges had been brought. We do not read the Court's analysis in MacDonald as turning on uncertainty over whether the charges would be refiled, but, rather, on the lack of legal constraints on an individual's personal liberty after charges are dismissed.

¶ 20. We conclude that, under MacDonald, the time period between the dismissal on August 8, 2001, of the initial charges against Urdahl and the filing of the complaint on October 3, 2001, is not included in determining whether his constitutional right to a speedy trial was violated.

¶ 21. We next consider the time period between Urdahl's arrest on April 13, 2001, and the dismissal of the first two complaints on August 8, 2001. The Court in MacDonald did not directly address the time period between the initial charges and their dismissal, presumably because the Court of Appeals' ruling that was the subject of the appeal did not concern that time period. Id. at 1. The State does not fully develop its argument on this point, but its position appears to be that, if the right to a speedy trial ceases at the time the initial charges are dismissed, then it necessarily follows that the time period relevant to the right to a speedy trial on the refiled charges cannot include the time period before the dismissal of the initial charges. (We will use as shorthand the term "predismissal time period," meaning the time period between the first arrest, complaint, or indictment and the dismissal of those charges.) Neither the State nor Urdahl discusses any cases that have addressed whether or not, in light of MacDonald, courts are to consider the predismissal time period in analyzing whether there was a speedy trial violation with respect to refiled charges.

¶ 22. Our own research discloses that there is a conflict in other jurisdictions on this issue. A number of courts read MacDonald, as does the State, to compel the conclusion that the predismissal time period is not included in analyzing whether there was a speedy trial violation with respect to the refiled charges, at least where the State dismissed the charges in good faith. Some of these cases do not expressly differentiate between the predismissal time period and the time period between the dismissal and the second arrest or filing, but hold that both periods are excluded. See United States v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992); United States v. Pajari, 715 F.2d 1378, 1384 (8th Cir. 1983). Others do expressly address the predismissal time period and conclude it is also excluded. United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir. 1988); United States v. Pullen, 721 F.2d 788, 791 (11th Cir. 1983); State v. Henson, 643 A.2d 432, 438 (Md. App. 1994).

¶ 23. In contrast, some jurisdictions conclude that MacDonald did not resolve the issue and decide that the predismissal time period should be included. United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988) (included if the State voluntarily dismisses the charges); State v. Adams, 585 A.2d 853, 855-56 (N.H. 1991) (following Colombo); State v. Brazell, 480 S.E.2d 64, 70 (S.C. 1997). See also Beriy v. State, 93 P.3d 222, 231-32 (Wyo. 2004) (date of original arrest is controlling, though usually the time between dismissal and recharging is excluded; here it is not excluded because defendant was retained in custody).

¶ 24. We are reluctant to decide which approach to follow in the absence of fuller briefing by the parties, and we are satisfied that we need not make that decision in this case. As we explain in considering the second Barker factor — the reason for the delay — at most two weeks of the predismissal time period would be counted against the State, even if we were to decide that the predismissal time period should initially be included in determining the length of delay. We will therefore assume without deciding that we do include the predismissal time period.

¶ 25. Adding the four predismissal months to the approximately twenty-six and one-half months from the filing of the complaint on October 3, 2001, to the scheduled trial date of December 19, 2003, results in a total of thirty and one-half months. Because this is greater than one year, we presume prejudice. We therefore analyze the remaining three factors, and then discuss how we weigh all four factors.

B. Reasons for Delay

¶ 26. When considering the reasons for the delay, courts first identify the reason for each particular portion of the delay and accord different treatment to each category of reasons. A deliberate attempt by the government to delay the trial in order to hamper the defense is weighted heavily against the State, while delays caused by the government's negligence or overcrowded courts, though still counted, are weighted less heavily. Borheygi, 222 Wis. 2d at 512 (citing Barker, 407 U.S. at 531). On the other hand, if the delay is caused by something intrinsic to the case, such as witness unavailability, that time period is not counted. State v. Ziegenhagen, 73 Wis. 2d 656, 668, 245 N.W.2d 656 (1976) (citing Barker, 407 U.S. at 531, 534). Finally, if the delay is caused by the defendant, it is not counted. Norwood v. State, 74 Wis. 2d 343, 354, 246 N.W.2d 801 (1976).

¶ 27. With respect to the first complaints, Urdahl's counsel requested two continuances of the preliminary hearing. Thus, the period from the originally scheduled preliminary hearing on April 26, 2001, until the second rescheduled hearing on July 25, 2001, is not counted. The reason for the third continuance, to August 8, 2001, was the unavailability of a witness for the State on the rescheduled date. Thus, the period from July 25 to August 8 is not counted. We are left with the time between the arrest on April 13, 2001, and the originally scheduled preliminary hearing on April 26, 2001. To the extent this time period can be considered a delay at all, it is due to the court's calendar and thus is not weighted heavily against the State.

¶ 28. The time period from the filing of the complaint initiating this action, October 3, 2001, until the preliminary hearing on December 6, 2001, was approximately two months. But for Urdahl's waiver and requests for continuance, the preliminary hearing would presumably have been held within twenty days of the initial appearance on October 15, 2001, or by November 4, 2001. Thus we do not count the approximately one month from November 4, 2001 to December 6, 2001, but only the one month from October 3, 2001 to November 4, 2001. To the extent that one month between the filing of the complaint and (what would have been) a timely preliminary hearing can be considered a delay at all, it is in this case attributable to the court's calendar and so is not weighted heavily against the State.

¶ 29. The time period from December 6, 2001 until April 30, 2003 — approximately seventeen months —was taken up with resolving a number of motions filed by Urdahl, the first of which Urdahl filed on January 3, 2002. The status conference scheduled for March 20 was apparently removed from the calendar because of Urdahl's motion for relief from the scheduling order, and a hearing was then scheduled for May 23, 2002. This approximately two-month period between March 20, 2002 and May 23, 2002, should not be counted because it was due to Urdahl's request for relief from the scheduling order. The period of somewhat over two and one-half months from May 23, 2002 to August 13, 2002, should not be counted because that was due to a defense request for a continuance of the May 23 hearing. Of the approximately five and one-half months from the hearing on August 13, 2002, until the written decision was issued on January 31, 2003, at least forty days were due to the fact that Urdahl had not yet technically filed the motion and had not served it on the attorney general and the court therefore established time periods for doing so. The remainder of the five and one-half months were due to the court's heavy schedule, attributable to the State but not weighted heavily against it.

¶ 30. It appears from the transcript of the April 30, 2003 hearing that the court acknowledged that it had issued the January 31, 2003 written decision on the two motions without giving Urdahl the opportunity to present additional argument as anticipated. Thus, the time period from the date of the written decision until the April 30, 2003 hearing is counted against the State, but it is not weighted heavily. In summary, no more than eleven and one-half months from December 6, 2001 until April 30, 2003, is attributable to the State, and no portion is weighted heavily.

¶ 31. The trial was not scheduled until December 19,2003, due to the court's congested calendar. Thus, the approximately seven and one-half months from April 30, 2003 to December 17, 2003, when Urdahl moved to discharge his attorney and continue the trial date, is counted against the State, but is not weighted heavily.

¶ 32. In summary, considering the predismissal time period, hut not the time between dismissal and the filing of this complaint, and subtracting delays caused by Urdahl and by the unavailability of witnesses, there are at most approximately twenty and one-half months that are counted against the State. However, since the delays during that time period were due to the court's calendar, the reason for delay is not heavily weighted against the State.

C. Request for a Speedy Trial

¶ 33. Urdahl did not assert his right to a speedy trial until he filed his motion to dismiss on January 12, 2004 — after the trial had been scheduled and continued at his request and more than twenty-seven months after the complaint in this action was filed. Although Urdahl is correct that the Court in Barker stated that a defendant has "no duty to bring himself to trial" because that is the State's duty, Barker, 407 U.S. at 527, the Court also stated: "We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532.

D. Prejudice

¶ 34. Courts consider the element of prejudice with reference to the three interests that the right to a speedy trial protects: prevention of oppressive pretrial incarceration, prevention of anxiety and concern by the accused, and prevention of impairment of defense. Ziegenhagen, 73 Wis. 2d at 671. The third interest is the most significant because "the inability of a defendant [to] adequately . . . prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532. While prejudice is an important factor in the analysis, it is not necessary that a defendant show prejudice in fact in order to establish a speedy trial violation. Leighton, 237 Wis. 2d 709, ¶ 25.

¶ 35. Urdahl was not incarcerated but was released on bail during both court actions. Thus the first interest is not implicated. He did, no doubt, experience anxiety from having the charges hanging over him during the proceedings. The second interest is therefore implicated. However, without more than the bare fact of unresolved charges — which exists in every criminal case — we view the prejudice to the second interest as minimal.

¶ 36. As for impairment of his defense, Urdahl asserts that "[i]t is unlikely that the alleged co-conspirator, an individual named Manny, was still around" by December 19, 2003, the scheduled trial date. Urdahl does not describe what steps, if any, he took to attempt to locate Manny and does not state that he would have called Manny as a witness at trial. We therefore consider Urdahl's argument that his defense was impaired to be too speculative to show prejudice on this ground.

E. Balancing of the Factors

¶ 37. Balancing all four factors, we conclude that Urdahl's right to a speedy trial was not violated. The twenty and one-half months attributable to the State is certainly a long period of time, but not extraordinarily long, and no part is weighted heavily against the State because it was due to the court's congested calendar. Balanced against that length of time is Urdahl's failure to assert his right to a speedy trial until after the trial was scheduled, which we weigh heavily against his claim that his right to a speedy trial was violated. See Barker, 407 U.S. at 531-32. In addition, Urdahl's requests for continuances "significantly diminish the weight of [his] demand for a speedy trial." State v. Williams, 2004 WI App 56, ¶ 41, 270 Wis. 2d 761, 677 N.W.2d 691 (citation omitted). Finally, he has shown only minimal prejudice. Accordingly, the circuit court correctly denied Urdahl's motion to dismiss this complaint.

By the Court. — Judgment affirmed.

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

       This reason for the dismissal of the first two complaints is asserted in Urdahl's motion to dismiss the complaint in this action for a speedy trial violation. The State does not dispute this and, therefore, we accept it as true for purposes of this appeal.

       Because the court reporter lost her notes of the January 30, 2004 hearing on Urdahl's speedy trial motion, there is no transcript of that hearing. The court held a hearing on September 20, 2004, at which the parties repeated their arguments on the motion and the court repeated its ruling. The transcript of this hearing is in the record.

       The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Article I, section 7 of the Wisconsin Constitution provides in part that "the accused shall enjoy the right... in prosecutions by indictment, or information, to a speedy public trial."

       In State v. Borhegyi, 222 Wis. 2d 506, 511-12, 588 N.W.2d 89 (Ct. App. 1998), the State suggested that some portion of the time Borhegyi was incarcerated between his arrest and the filing of the complaint was related to charges other than those in the complaint. However, because we could not determine from the record what portion, if any, that was, we declined to consider whether incarceration for unrelated charges might affect the date on which the right to a speedy trial attached.

       The defendant had been honorably discharged from the Army and so was charged the second time in a civilian proceeding. United States v. MacDonald, 456 U.S. 1, 5 n.3 (1982).

       Under the Due Process Clause, the defendant must demonstrate that he or she suffered actual prejudice as a result of the delay and must show that the government caused the delay for an improper purpose. State v. Blanck, 2001 WI App 288, ¶ 22, 249 Wis. 2d 364, 638 N.W.2d 910.

       Although the Seventh Circuit in United States v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992), does not address the predismissal time period separately from the time period between the dismissal and second arrest, it does expressly state, after citing to MacDonald, that "for purposes of Sixth Amendment analysis, the delay prior to Roller's second arrest... [was] irrelevant" and addresses only the delay beginning with the second arrest. Koller, 956 F.2d at 1413. In a later unpublished decision, United States v. Aguilar, No. 92-3623, 1993 WL 410850, at *2 (7th Cir. Oct. 14, 1993), the court expressly states that the period "between [the defendant's] first arrest and the return of the present indictment is not relevant for purposes of our Sixth Amendment analysis," citing MacDonald, Koller, and United States v. Ashford, 924 F.2d 1416, 1419 (7th Cir. 1991).

       We consider the scheduled trial date to be the end point of the relevant time period because Urdahl does and the State appears to agree.


author: CURLEY, J.

text:
    Sherri Korntved and Amanda Howell, a minor, by her Guardian ad Litem, Arthur E. Beck, and her mother, Plaintiffs-Appellants, v. Advanced Healthcare, S.C., and Midwest Medical Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 2004AP1604.

      Submitted on briefs May 5, 2005.

      Decided July 19, 2005.

    2005 WI App 197
    (Also reported in 704 N.W.2d 597.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs oí Arthur E. Beck and Katherine L. Williams of Beck, Chaet & Bamberger, S.C., of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Mary K. Wolverton of Peterson, Johnson & Murray, S.C., of Milwaukee.
    Before Fine, Curley and Kessler, JJ.
   CURLEY, J.

¶ 1. Sherri Korntved and Amanda Howell, Korntved's daughter, appeal from the trial court's grant of partial summary judgment in favor of Advanced Healthcare, S.C., and Midwest Medical Insurance Company. Korntved contends that there were material facts in dispute as to whether Advanced Healthcare's employee, Lu Ann Howell, was acting within the scope of her employment when she accessed and released Amanda Howell's and Sherri Korntved's medical records and allegedly violated Wis. Stat. §§ 146.82 and 895.50 (2003-04), and as such, summary judgment on those claims was improperly granted. Because there was no genuine issue of material fact as to whether Lu Ann was acting within the scope of her employment at the time Advanced Healthcare moved for summary judgment, we affirm.

I. Background.

¶ 2. After discovering that Lu Ann Howell, the wife of Amanda Howell's father, Jeremy Howell, who was employed as a lab technician by Advanced Healthcare, had allegedly accessed Korntved's and Amanda's medical records, and disclosed information contained in those records to Jeremy, Korntved filed a complaint against Advanced Healthcare listing several claims: (1) breach of confidentiality of patient health care records; (2) breach of the right of privacy; (3) breach of physician-patient privilege; (4) breach of contract; (5) negligent supervision and/or hiring and/or training; and (6) failure to maintain the standard of care under HIPAA.

¶ 3. Advanced Healthcare subsequently moved for partial summary judgment asserting, inter alia, that it cannot be held liable for Lu Ann's actions as they were committed outside the scope of her employment. Though Advanced Healthcare conceded that Lu Ann did access the medical records, it argued that she was not acting within the scope of her employment with Advanced Healthcare when she did so. It insisted that, pursuant to the recognized standard for determining whether an employee's acts were within the scope of employment, Lu Ann's actions could not be considered within the scope of her employment. Advanced Healthcare has an express policy, which it attached to its motion, forbidding the access of patients' medical records for non-work related purposes. Although Advanced Healthcare recognized that the employee's intent must be considered when determining whether her actions were within the scope of employment, it insisted that Lu Ann accessed the records for her own gain, and although "serving the employer" need not be the sole purpose for her conduct to be considered within the scope of employment, her actions also did not benefit Advanced Healthcare in any way: "On the contrary, Advanced Healthcare was damaged by [her] indiscretions. As Advanced Healthcare did not benefit from [her] actions nor did [it] authorize such actions, [it] should not be held liable for her willful, intentional and criminal actions under Wis. Stats. § 146.84(2)."

¶ 4. Korntved essentially argued that in determining whether Lu Ann was acting within the scope of her employment, and thus whether Advanced Healthcare could be held liable for her actions, a factual issue remained as to Lu Ann's intent when she accessed the records:

Ms. Howell had access to patient records, and was required to access records, as a part of her employment at Advanced Healthcare. The mere fact that Ms. Howell accessed the particular records is not as a matter of law beyond the scope of employment, because if it was, it would have been clear from the facts that Ms. Howell was acting far beyond her authorized limits. In fact, Advanced Healthcare addressed their concern regarding this very issue in its "Employee Newsletter on Confidentiality[.]" In the newsletter, Advanced Healthcare acknowledges that "it is not uncommon for employees ... to become curious about the well-being of a patient who is a co-worker, family member, friend or acquaintance." Advanced Healthcare's concern suggests that Ms. Howell's conduct was not far outside the type of conduct employees generally engage in. While the conduct is prohibited, Advanced Healthcare acknowledges that improper access occurs, which suggests that it is not outside the scope of employment as a matter of law.

Korntved argued that the mere fact that an act was not authorized or that it was prohibited does not take it out of the scope of employment — "even though Advanced Healthcare prohibited looking at patient medical records for personal reasons, Ms. Howell's actions are not outside the scope of employment as a matter of law. In fact, [she] was doing something that was indeed part of her employment and something which she had to do as part of her job." Accordingly, Korntved insisted that determining whether Lu Ann was acting within the scope of her employment requires a determination of intent, which generally presents a question of fact. Korntved reasons that here, the mere possibility that Lu Ann may have had some personal interest in the records does not, as a matter of law, take the action outside the scope of employment. Specifically, Korntved argued, in response to interrogatories, that Advanced Healthcare conceded it is possible that Jeremy Howell could have requested the record, and as such, Lu Ann's intent is a question of fact to be determined at trial.

¶ 5. In granting Advanced Healthcare's motion for partial summary judgment, the trial court held, in relevant part:

[T]he crux of those ... charges[ — patient confidentiality and privacy — ] is that this woman was acting in the ... scope of her employment.
Absent her acting within the scope of her employment, we don't have a basis upon which to go after the employer. We have, perhaps, a basis upon which to go after the actor, but not the employer.
I think Olson is instructive, and reading from Olson, it states, in its entirety, there's no requirement that serving the employer must be the employee's only purpose or even the employee's primary purpose.
Rather, an employee's conduct is not within the scope of his or her employment if it is too little actuated by a purpose to serve the employer, or if it is motivated entirely by the employee's own purposes.
The Olson Court also said, conduct of a servant is not within the scope of employment if it is different in kind from that authorized, or beyond the authorized time or space limits, or too little actuated by the purpose to serve the master.
And here we — For the purposes of this hearing, I am accepting that this employee did transfer this information, which was held confidentially by the employer, and transferred it to a person who did not have a right to see that information, for the purposes of this proceeding only.
As I understand the plaintiffs argument, they want the fact that she has the right to access information to be the connecting issue that makes it within the scope.
Looking at the facts in this case, there's no indication that Luann Howell was intending to benefit her employer in any way by accessing this information or by disclosing the records, if, in fact, that's what she did.
She signed an express policy that forbid her to take these actions. She was, in numerous documents, advised of — that this was not within the scope of her employment and this was not an acceptable activity that she could engage in for any purpose.
And the fact that she did so, presuming that she did so, only hurts her employer.
There's absolutely no benefit that can come to — It can end up that they're in court like they are today, and the obvious negatives are before us.
I see no way that the Court can, based on these facts, find that she's acting within the scope of her employment, and the Court does so find.

(Underlining in original.) Korntved filed a motion for reconsideration, which was subsequently denied. The other counts were resolved in various ways, and the sixth count of the complaint was eventually tried to a jury. Korntved now appeals the trial court's grant of summary judgment with respect to the first two counts of the complaint.

II. Analysis.

¶ 6. On appeal, Korntved argues that the trial court acted "prematurely and precipitously in granting Advanced's motion for summary judgment," ignoring discovery responses that "clearly stated that Advanced did not know whether or not Lu Ann Howell accessed Amanda Howell's records at the request of Amanda's father, Jeremy Howell, but that access [to] Amanda Howell's records could have been authorized by Jeremy Howell." Korntved insists that "[t]hese responses, taken together with Korntved's testimony, clearly establish that there were material facts in dispute with respect to the issue of whether or not Lu Ann Howell acted within the scope of her employment or believed she was doing so." She contends that "[w]hat was not known at the time the summary judgment motion was heard was whether Lu Ann Howell was authorized to access or thought she was authorized to access or disclose this information by [sic] Jeremy Howell," and thus whether she was acting within the scope of her employment.

¶ 7. Both parties agree that the dispositive issue with regard to these two claims is whether Lu Ann was acting within the scope of her employment, because Advanced Healthcare cannot be held liable otherwise. They disagree, however, on whether this determination constituted a genuine issue of material fact.

¶ 8. In an appeal from the entry of summary judgment, this court reviews the record de novo, applying the same standard and following the same methodology required of the trial court under Wis. Stat. § 802.08. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987); Wright v. Hasley, 86 Wis. 2d 572, 579, 273 N.W.2d 319 (1979).

¶ 9. In Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983), we set out the methodology to be applied in evaluating a summary judgment motion:

Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. If the complaint... states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense [that] would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.
Summary judgment methodology prohibits the trial court from deciding an issue of fact. The court determines only whether a factual issue exists, resolving doubts in that regard against the party moving for summary judgment.

Id. (citations omitted).

¶ 10. Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact[.]" Wis. Stat. § 802.08(2). However, the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991) (citation omitted; emphasis in original). Thus, "[a] factual issue is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (citation omitted).

¶ 11. In determining whether an employee was acting within the scope of his or her employment, "[t]he test is whether the servant has stepped aside from the business of his [or her] principal to accomplish an independent purpose of his [or her] own, or whether he [or she] was actuated by an intent to carry out his [or her] employment and to serve his [or her] master." Linden v. City Car Co., 239 Wis. 236, 239, 300 N.W 925 (1941).

Much of the analysis of whether an employee acts within the scope of employment focuses on the employee's intent at the time. Thus, an employee acts within the scope of his or her employment as long as the employee is, at least, "partially actuated by a purpose to serve the employer." On the other hand, an employee does not act within the scope of his or her employment if the employee does something that "is different in kind from that authorized [by the employer], far beyond the authorized time or space limits [established for the employment], or too little actuated by a purpose to serve the" employer.

Stephenson v. Universal Metrics, Inc., 2001 WI App 173, ¶ 10, 247 Wis. 2d 349, 633 N.W. 2d 707 (citations omitted; emphasis added; alterations in original).

¶ 12. Although we have noted that "whether an employee acts within the scope of his or her employment is generally a fact issue to be decided by a jury[,]" and "question[s] of intent can rarely be resolved by the court as a matter of law[,]" id., ¶ 14 (emphasis added), "generally" and "rarely" do not mean "always" and "never." When there is no genuine issue of material fact, even if the concern is whether an employee was acting within the scope of her employment, summary judgment may be proper.

¶ 13. Here, there is no genuine issue of material fact. The materials presented and cited in support of and in opposition to the motion for summary judgment reveal no genuine issue of material fact as to whether Lu Ann was acting within the scope of her employment when she accessed the medical records. There is nothing in the record, as of the time of the summary judgment motion, to support an inference that Lu Ann was attempting to benefit or serve her employer when she accessed the medical records. What was in the record, however, was Advanced Healthcare's confidentiality policy, a copy of which had been signed by Lu Ann as a condition of her employment, delineating the proper methods for the access and release of medical records, and identifying the only individuals with authority to do so. Specifically, the confidentiality policy provides, in part:

• Records and related information must be protected and respected, and they should not be accessed, altered, reviewed, shared, or discussed, except as required by your business responsibilities.
• Only open or look into a file, whether written, electronic, or computer-based, when it is necessary as a part of your business responsibilities. Do not look at information for curiosity, or because someone asks you to do so when it is not within your responsibilities; this applies even for yourself, relatives, friends, and neighbors. Instead, use the appropriate Access Guidelines (see below).

(Emphasis in original.) Under the title "Access Guidelines," the policy provides, in part:

• In order to access any patient information, you must follow appropriate authorization procedures. (Emphasis in original.)
• Patients, including AH employees and their families and friends, who want to review or receive copies of any medical information about them, must make arrangements through the Medical Information Department. Even if you have access to this information on your computer, you may not copy and provide patient records unless you are a representative of Medical Information Department with these job duties.

(Footnote omitted; emphasis in original.) As such, it is quite clear that, unless done via the Medical Information Department or in accordance with direct business responsibilities, access to and release of medical records is clearly prohibited — regardless of whose information it is or who wants the information. There is nothing in the record to suggest that Lu Ann was a representative of the Medical Information Department. Moreover, the record shows that, in a response to an interrogatory, Advanced Healthcare indicated that it had no reason to believe that Lu Ann would have had a clinical need to access the records for her work.

¶ 14. While Korntved makes much of Advanced Healthcare's alleged "concession" that Jeremy could have requested Amanda's record, and the potential effect of such a request on the determination of Lu Ann's intent with regard to whether she was acting within the scope of her employment, Korntved fails to appreciate that the ultimate burden of establishing that Lu Ann was acting within the scope of her employment was hers, and she did not present any evidence in connection with the summary judgment motion that could arguably establish or suggest that Lu Ann believed that she was acting within the scope of her employment. Korntved does not point to any affidavits, deposition testimony, or evidence establishing or attempting to establish what Lu Ann believed she was doing when she accessed the records or why she did so. Korntved cannot rely on interrogatory responses allegedly indicating that Advanced Healthcare did not know whether Jeremy requested the records to establish a genuine issue of material fact. The Advanced Healthcare confidentiality policy undisputedly and expressly states that accessing records for non-work purposes is prohibited, and any release of information must be made via the Medical Information Department, and without any evidence in the record as to Lu Ann's motivation with regard to her actions, there cannot be a genuine issue of material fact as to whether she was acting within the scope of her employment. That is, there is nothing from which to invoke a reasonable inference that could lead a trier of fact to conclude that Lu Ann was acting within the scope of her employment when she accessed the record. Advanced Healthcare made a prima facie case for summary judgment by showing a defense that would defeat its liability for the breach of confidentiality and privacy claims — Lu Ann was not acting within the scope of her employment when she accessed the records — and Korntved failed to provide any affidavits, deposition testimony or evidence suggesting otherwise to establish a genuine issue of material fact. On the face of the record, Lu Ann's actions were " 'too little actuated by a purpose to serve [her]' employer." See Stephenson, 247 Wis. 2d 349, ¶ 10 (citation omitted).

¶ 15. While Lu Ann's actions were truly lamentable, and Korntved may have a viable claim against her individually, Advanced Healthcare cannot be held liable for her actions when they fall outside the scope of her employment. Accordingly, we affirm.

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 146.82(1) (2003-04) provides, in part:
      Confidentiality. All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient.

       Wisconsin Stat. § 895.50 (2003-04) provides, in part: "Right of privacy. (1) The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief...."

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

       "HIPAA" refers to the Health Insurance Portability and Accountability Act of 1996, and is mentioned only as a part of the factual background of the complaint and is otherwise irrelevant to this appeal, as Korntved subsequently conceded that there was no HIPAA violation.

       Since Korntved is appealing only the grant of summary judgment with regard to her claims of breach of patient confidentiality and breach of the right to privacy, we will limit the background and discussion to the arguments related thereto.

       Korntved cited to interrogatory responses that were allegedly part of the trial court record, but were not attached to the summary judgment motion, and do not appear to have been included in the appellate record (other than as a photocopied exhibit attached to Korntved's motion for reconsideration on the trial court level). Other interrogatory responses have been included in different portions of the appellate record.

       The amended complaint also indicates that Korntved and her daughter received treatment at Advanced Healthcare's Menomonee Falls clinic, while Lu Ann worked in Advanced Healthcare's Mayfair office, and that at no time did Korntved or her daughter have any form of nurse or caregiver relationship with Lu Ann.

       While Korntved cites, in a footnote, that Lu Ann testified at trial, which was held after the summary judgment motion was granted, that she was acting at the request of her husband, and thought that she was complying with a legitimate request, such testimony is irrelevant to determining whether summary judgment was properly granted. Citations to trial testimony are not properly before this court on appeal. See Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146 Wis. 2d 568, 573, 431 N.W.2d 721 (Ct. App. 1988) ("We address [motions for summary judgment] on the record as it existed when they were decided by the trial court, not on a record expanded by the testimony at trial.").

       Advanced Healthcare also indicated, in responding to interrogatories, that it had found no written consent for such a request.