author: BROWN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Stanley A. Samuel, Defendant-Appellant.

    Court of Appeals

      No. 99-2587-CR.

      Oral argument October 4, 2000.

    Decided December 27, 2000.

    2001 WI App 25
    (Also reported in 623 N.W.2d 565.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Robert R. Henak of Henak Law Office, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lara M. Herman, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Lara M. Herman.

    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review granted.

      Petition to cross-review denied.

   BROWN, P.J.

¶ 1. This is a case where the State introduced into its case-in-chief a prior statement of a hostile prosecution witness who then claimed that the statement was a product of government coercion. She asserted that she was compelled to tell a lie in order to implicate the defendant, Stanley A. Samuel, as the perpetrator of a second-degree sexual assault upon her. The issue is whether Samuel had standing to object to the admission of that prior statement on grounds that the witness's statement was coerced. We conclude that he did and thus reverse the trial court's order to the contrary. Our decision necessitates a reversal of all Samuel's convictions, at least for the time being, for reasons we will explain in the opinion. We remand with specific directions which we will also detail. Samuel also raises sufficiency of the evidence issues relating to the interference with child custody and abduction convictions, but we hold the evidence was sufficient.

¶ 2. Samuel was convicted of the following charges: interfering with child custody contrary to WlS. Stat. § 948.31(2) (1997-98), abducting another's child contrary to WlS. Stat. § 948.30(l)(a) and second-degree sexual assault of a child contrary to WlS. STAT. § 948.02(2), all as a repeat offender. The convictions grow out of the following facts: On January 26, 1996, Tisha L., age fifteen at the time, left Oshkosh in a car driven by Samuel, age forty-six at the time. The pair first traveled to Milwaukee for a few weeks and then left Wisconsin until March 9,1997, when police in Missouri stopped them. They were both then returned to Wisconsin where Tisha gave birth to a daughter on March 10,1997. Samuel is the father of the child.

WITNESS'S ALLEGEDLY INVOLUNTARY STATEMENT

¶ 3. We will only relate those facts necessary to the first issue at this point. The facts relating to the other two convictions will be discussed later. Two days after the birth of Tisha's daughter, March 12, 1997, a nonsecure detention hearing was held. At that hearing, Tisha's father, Peter, was given custody of Tisha and the Winnebago County Department of Social Services was given custody of her child.

¶ 4. On the same day, an intake conference took place, the purpose of which was to determine where the baby should be temporarily placed pending a March 15 hearing to determine permanent placement. An intake worker, the corporation counsel, a social worker and Tisha's attorney were present during the entire conference. Peter, his girlfriend Catherine and a police officer were in attendance during the latter half of this conference. Tisha did not receive temporary placement at this conference. It is at this conference where Tisha claims that the police and the government employees threatened her with the loss of her baby unless she helped them prosecute Samuel. Tisha, claims that to get her baby, she lied to the police and told them what they wanted to hear — namely, that she and Samuel had sex while in Wisconsin. Samuel brought a motion to suppress the statement prior to trial and the court held an evidentiary hearing on the matter. Following is an account of the evidence taken at that hearing.

¶ 5. Tisha testified that during the intake conference, she was asked a number of questions, among them being who she had sex with, when and where. She refused to answer these questions because she felt that they were irrelevant to the issue of her baby's placement. Tisha claimed that in response, she was told "countless times" that if she did not cooperate, she would not get her child back. Catherine testified that someone at the intake conference told her "if they saw some cooperation, they would consider giving the baby back [to Tisha]." Tisha testified that she was told she had to give a statement to the police before the March 15 hearing to determine the baby's permanent placement.

¶ 6. Tisha further testified that although she was never directly told "to give Samuel up, get him in trouble," she was indirectly told to do so. Tisha stated that she thought she was not given temporary custody of her baby at the conclusion of the intake conference precisely because she refused to tell the authorities what they wanted to hear. But after discussing the situation with her father, Tisha decided that she would "say whatever they deemed worthy . . . what they thought happened, or just whatever they wanted" in order to get her child back.

¶ 7. Tisha then testified that as instructed, she made an appointment to speak with the police officer the next day, March 13. At this conference, in which the social worker was also in attendance, Tisha told the officer that she had sex with Samuel in Wisconsin before she was sixteen. Tisha went on to testify, however, that she and Samuel actually did not have sex for the first time until April 1996 when they were no longer in Wisconsin. She told the court that she was coerced into making a false statement because she thought that this is what she needed to do to get her baby back.

¶ 8. Peter also testified at the motion to suppress hearing. He said that he spoke to the social worker after the intake hearing. The social worker told him that the police needed to know where and when Tisha and Samuel had sex. He testified that he conveyed this information to Tisha. Peter acknowledged that, during the intake conference itself, he did not hear any direct threats made by the authorities if Tisha did not cooperate. The social worker also testified and denied telling Peter that the police needed to know where and when Tisha and Samuel had sex.

¶ 9. After hearing the evidence, the trial court declined to decide whether Tisha's statement had been coerced. Instead, the trial court ruled that Samuel had no standing to raise the issue. The trial court reasoned that the exclusionary rule allowing for suppression of involuntary statements before trial is a prophylactic rule designed to deter Fifth Amendment concerns where it has been alleged that the defendant has personally been a victim of illegal government activity. Since it was not the defendant's statement that was allegedly coerced, the trial court concluded that Samuel could not assert the constitutional rights of others. The trial court further reasoned that when a witness claims that a prior statement was the result of coercion by the police, it is up to the jury or finder of fact in each individual case to decide whether the witness's claim is credible.

¶ 10. At trial, the State called Tisha to the witness stand in its case-in-chief. After Tisha denied that she and Samuel had sex in Wisconsin while she was fifteen years old, the State submitted into evidence her prior statement. When asked about the statement, Tisha denied that it was true and claimed that it was coerced. Samuel called a number of witnesses who testified regarding the circumstances of the allegedly coerced statement. The jury found Samuel guilty, inter alia, of second-degree sexual assault, which includes sexual intercourse with a minor under the age of sixteen. Samuel then appealed and made the trial court's ruling on the motion to suppress one of the issues in his appeal.

¶ 11. In his brief to this court, Samuel claimed that the trial court had given too narrow an interpretation of the Fifth Amendment. He agreed that individuals who are not personally the victims of illegal government activity generally cannot assert the constitutional rights of others. However, he argued that a violation of another's rights may rise to the level of a violation of a defendant's rights to a fair trial when the government seeks a conviction through the use of evidence obtained by coercion. Thus, a defendant has standing to assert a Fifth Amendment right to due process as a valid objection to the introduction of statements extracted from a nondefendant by coercion or other inquisitional tactics. The issue, he maintained, is whether the government's investigatory methods would result in a fundamentally unfair trial. He argued that such motions are also viable under the Fourteenth Amendment's Due Process Clause. He maintained that he has standing to raise Tisha's claim of having given a coerced statement because, as a matter of the truth-finding process of American jurisprudence, all coerced statements are inherently unreliable. This is so whether the statements are extracted from a defendant or whether they come from the mouth of a witness. He contended that the duty of the court is to keep out of evidence all statements obtained by illegal means so as to avoid infecting the process which, he maintained, is particularly a Fourteenth Amendment concern.

¶ 12. In its response brief, the State asserted that standing was "questionable," but maintained that we did not have to reach the issue because, here, it was clear that Tisha's statement was not coerced. The State pointed out that nowhere is there any direct evidence that the police or its agents told Tisha she would not get her baby unless she gave a statement saying that Samuel had sex with her in Wisconsin when she was fifteen. The State argued that Tisha's "beliefs" as to what she needed to do to get her baby back were conclusions that she alone drew. Finally, the State argued that even if we did not accept the State's view of the facts, since the Fourteenth Amendment speaks to due process, Samuel's due process was not denied to him because he had the opportunity to bring out the circumstances surrounding Tisha's statement to the jury.

¶ 13. We heard oral argument on the issue. At oral argument, Samuel maintained the same position that he had in his brief. The State's position shifted ever so slightly. Whereas, before, the State maintained that standing was "questionable," it now conceded that Samuel had standing to raise the issue as a Fourteenth Amendment concern and that it could be heard under the rubric of prophylactic suppression of evidence before trial. However, the concession was based on one condition — a major one. Only if the statement was the product of "torture or extreme coercion" was a prophylactic remedy indicated. In cases where there was perhaps evidence of some lesser degree of coercion, however, the State continued to maintain that a defendant had no standing to raise the issue as a "suppression" motion. Rather, much like the trial court had ruled, if the witness complained that the statement made was untruthful because it had been coerced, the jury or the fact finder had the responsibility of determining the truth. So, in this case, where Tisha's complaint of coercion could not be considered to be the product of "torture" or "extreme" coercion, Samuel could make it an issue, but he had to make it an issue with the jury. Since Samuel did make it an issue with the jury and the jury still found him guilty of second-degree sexual assault, his claim had to fail.

¶ 14. This is an issue of first impression in Wisconsin, but not in other jurisdictions. We begin our discussion with the approach adopted by the Tenth Circuit. In two cases, Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir. 1997), and United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999), the judges of that circuit laid down the rule in its jurisdiction. The courts first observed that the issue was not whether the defendant's Fifth Amendment rights had been violated. See Gonzales, 164 F.3d at 1289. They wrote that, obviously, the manner in which the statement was obtained does no violence to the defendant, but to the witness. See id. Therefore, the courts reasoned that it was not the manner in which the statement was obtained that was at issue. See id. Rather, it was the fact that the State was actually going to use the allegedly coerced statement in a trial that was at issue. See id. The judges of the Tenth Circuit reasoned that if it is true that coerced statements are inherently unreliable, as the law has so found, then it was a violation of due process for the State to be using inherently unreliable evidence to make its case. See Clanton, 129 F.3d at 1157-58. In the view of the Tenth Circuit, the issue at stake was the integrity of our judicial system. See id. The judges thought that integrity would be undermined if the State were allowed to build its case against a defendant using evidence obtained through illegal police methods. See id.

¶ 15. Connecting the use of illegal police methods to the Fourteenth Amendment is not a new proposition. As far back as Jackson v. Denno, 378 U.S. 368, 385-86 (1963), the United States Supreme Court wrote:

It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner deemed coercive, but also because of the "strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will" . . . and because of the "deep-rooted feeling that the police must obey the law while enforcing the law...."

Id. (citations omitted) (emphasis added).

¶ 16. Of course, the Jackson case involved a defendant's allegedly coerced confession, not a witness's allegedly coerced statement. But Jackson nonetheless demonstrates that the Fourteenth Amendment is a consideration in deciding whether to employ the prophylactic rule of suppression as a remedy for police conduct which crosses the line. See id. The Tenth Circuit judges so noted. See Clanton, 129 F.3d at 1157-58.

¶ 17. Having decided that the Fourteenth Amendment forbids the use of coerced confessions, the next step for the Tenth Circuit judges was to decide whether the Fourteenth Amendment also forbids the use of coerced statements of witnesses. The Clanton court wrote that a coerced witness's statement is just as unreliable as a coerced defendant's statement. See id. at 1158. Moreover, the government's use of coerced statements to make its case is just as antithetical to our notions of decency and fair play when it is a witness's statement as when it is a defendant's statement. In either case, use of the statement infects the integrity of the judicial system. The Clanton court stated that "methods offensive when used against an accused do not magically become any less so when exerted against a witness." Id. (citation omitted).

¶ 18. Thus far, we doubt that the State would argue with any part of the Tenth Circuit's rationale we have recited. Indeed, as we have stated above, the State concedes that the defendant has a Fourteenth Amendment due process right to ask that a witness's statement be suppressed as a prophylactic measure on grounds that it was coerced. And other federal circuits agree.

¶ 19. But, as we have previously stated, the State departs from the Tenth Circuit in one crucial aspect. The State contends that the right to a prophylactic remedy when a nondefendant witness is involved exists only if the coercion used was "torture" or was otherwise "extreme." The State seems to assert that there is a different standard for coercion when a nondefendant is involved than with a defendant. The State relies on these jurisdictions. See United States v. Merkt, 764 F.2d 266, 273-75 (5th Cir. 1985) (A defendant has standing to object to the admission of a coerced witness's statement, but suppression is not appropriate as a prophylactic measure where the coercion is not so egregious.); United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984) (Due process is implicated when the government seeks a conviction through the use of evidence obtained by extreme coercion or torture.); Bradford v. Johnson, 354 F. Supp. 1331 (E.D. Mich. 1972) (Under normal circumstances, credibility is an issue a jury can determine; however, the Fourteenth Amendment is violated when a witness's confession obtained by torture is admitted against the defendant.), aff'd, 476 F.2d 66 (Mich. Ct. App. 1973).

¶ 20. We respectfully disagree with those courts. Our response to those courts is exactly like the response of the Gonzales court. We quote it in full:

We reject the government's argument that a non-defendant witness' statement that incriminates a defendant is subject to suppression only if the statement was the product of torture or extreme coercion beyond the level of coercion required for suppression of a defendant's own confession. As we noted in Clanton, "methods offensive when used against an accused do not magically become any less so when exerted against a witness. . . ." Consequently, the standard for determining whether a statement was voluntary is the same whether we are dealing with a defendant or a third party witness.

Gonzales, 164 F.3d at 1289 n.1 (citation omitted).

¶ 21. Thus, we hold that the standard for determining whether a nondefendant witness's statement was voluntary is the same test that we use when determining whether a defendant's statement is voluntary. That test is spelled out in State v. Clappes, 136 Wis. 2d 222, 401 N.W.2d 759 (1987). There, the court wrote about the factors which must be considered. We recite them here.

The relevant personal characteristics of the confessor include his age, his education and intelligence, his physical and emotional condition, and his prior experience with the police. These factors must be balanced against the police pressures and tactics which have been used to induce the admission, such as the length of the interrogation, any delay in arraignment, the general conditions under which the confessions took place, any excessive physical or psychological pressure brought to bear on the declarant, any inducements, threats, methods or strategies utilized by the police to compel a response, and whether the individual was informed of his right to counsel and right against self-incrimination.

Id. at 236-37 (citations omitted).

¶ 22. We also think it is appropriate to cite Lynumn v. Illinois, 372 U.S. 528 (1963). In that case, an oral confession was made by the defendant only after police told her that state aid would be cut off and her children would be taken from her unless she confessed. See id. at 533. The United States Supreme Court held that this was a coerced statement in violation of due process. See id. at 537. We also cite United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981). There, the court wrote:

We think it clear that the purpose and objective of the interrogation was to cause Tingle to fear that, if she failed to cooperate, she would not see her young child for a long time. We think it equally clear that such would be the conclusion which Tingle could reasonably be expected to draw from the agent's use of this technique. The relationship between parent and child embodies a primordial and fundamental value of our society. When law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit "cooperation" they exert the "improper influence" proscribed by Malloy.

Tingle, 658 F.2d at 1336.

¶ 23. We conclude that the trial court's order holding that Samuel had no standing to move to suppress Tisha's statement is in error. We reverse the order. As a consequence, we must also reverse the conviction for second-degree sexual assault. We remand this case to the trial court for a hearing to determine if Tisha's statement was voluntary. We realize there has already been an evidentiary hearing to determine this issue. And we also realize that the trial court did not make a finding at that time because of its decision regarding standing. An easy course of action would be to remand with directions that the trial court review the record and make findings of fact based on the cold record. But we will not order that. The trial judge who originally heard the motion is now retired and a new judge must be afforded the opportunity to hear and see the witnesses and judge their demeanor and credibility. We therefore remand with directions that there be a new fact-finding hearing to determine whether Tisha's statement was voluntary.

¶ 24. The trial court shall use the same factors that are outlined in Clappes. Since one of those factors is any "threats, methods or strategies" used by the government to compel a response, the trial court must also be mindful of Lynumn and Tingle. The key to whether Lynumn and Tingle should be applied will be whether the trial court finds that the cooperation required of Tisha included giving a coerced statement that Samuel had sex with her in Wisconsin when she was fifteen. If the trial court so finds, then it shall order a new trial on the second-degree sexual assault charge and the statement will not be admitted at this trial. If the trial court finds that the government did not compel Tisha to inculpate Samuel in return for custody of the baby, it shall reenter the judgment of conviction for second-degree sexual assault.

¶ 25. Before we leave this particular issue, we address whether this error should also result in the reversal of Samuel's convictions for interfering with parental custody and for abduction. His claim is that the statement so tainted Tisha's credibility with the jury that the jury could very well have disbelieved her testimony relating to these other two charges as well as the sexual assault charges. We agree. We will explain why this is so in the following passages.

INTERFERENCE WITH CUSTODY

¶ 26. Samuel argues that there was insufficient evidence to convict him of interfering with child custody. Evidence to support a conviction is insufficient if, considering the evidence in a light most favorable to the verdict, no reasonable jury could be convinced that the defendant was guilty beyond a reasonable doubt. See State v. Koller, 87 Wis. 2d 253, 266, 274 N.W.2d 651 (1979).

¶ 27. The Interfering with Custody statute explains three different ways in which a person interferes with custody of the parents: causing a child to leave, taking a child away, or withholding a child for more than twelve hours. See Wis. Stat. § 948.31(2). Here, Samuel was charged under the "causing a child to leave" alternative, but the instruction submitted to the jury was the "taking the child away" alternative. A conviction can only stand if the evidence at trial was sufficient to convict on the theory presented to the jury. See State v. Wulff, 207 Wis. 2d 143, 152, 557 N.W.2d 813 (1997). Thus, our review is limited to determining whether Samuel took Tisha away from her parent.

¶ 28. The evidence is that Tisha was living with her mother. The mother testified that on January 29, 1996, she came home between 5:00 and 5:30 a.m., fell asleep for an hour, and then awoke at 6:30 a.m. to see if the children were up for school. The mother testified that Tisha was not in her room and several things were missing, including a blanket and a suitcase. When Tisha did not come home that evening, the mother called the police. The mother testified that she did not see Tisha again until March 1997, and that she did not give Samuel permission or consent to take Tisha from her.

¶ 29. Tisha testified that her mother had kicked her out of the house. Tisha further testified that she and Samuel agreed that he would come and pick her up and she would leave with him, which she did. Tisha's mother denied that she kicked Tisha out of the house or told Tisha that she had been kicked out of the house.

¶ 30. Interference with child custody requires evidence that a person either caused a child to leave, took the child away or withheld the child for more than twelve hours "without the consent of the parents." Samuel's claim at trial was that since Tisha was kicked out of the house, her leaving was not without the consent of the mother. Tisha's testimony supported that theory, but the jury — by finding Samuel guilty of interfering with child custody — obviously rejected Tisha's account in favor of the mother's. The bottom line here is that Tisha's prior inconsistent statement — the statement she claims was coerced — may have affected her credibility before the jury. The jury heard her tell one story to the police and a different story in court. If the trial court eventually rules that the prior statement was in fact coerced and is inadmissible at a future trial for sexual assault, then the interfering with child custody conviction must be reversed and a new trial ordered as well. This is because Tisha's credibility with respect to the interfering charge could well have been held in low esteem by the jury after hearing the conflict between her prior statement and her statement in court. Consequently, for this reason, the interference with child custody charge is reversed. It may be reentered if the trial court finds that the prior statement was not the product of illegal police coercion.

¶ 31. But we still have the issue of whether the interfering with child custody conviction must be reversed because the evidence is insufficient. That is a different issue and we now address it.

¶ 32. Samuel's argument begins with a request that we look to the complete statute relating to interference with child custody. When we do that, he believes we will see that each of the three alternatives in the statute speaks to different acts. Samuel terms the difference as being the "moving force" at work within the three alternatives. The way Samuel sees it, the first alternative, "takes away," involves the situation in which the defendant takes a child away from his or her home or parents. The moving force under that provision, as demonstrated by the verb "takes," is the defendant.

¶ 33. The second alternative is where the defendant "causes the child to leave." Here, the child is not "taken" but leaves on her or his own accord, although the defendant contributed to the decision by persuasion or otherwise. The use of the verb "leave" demonstrates a focus on the willful act of the child.

¶ 34. According to Samuel, the jury must have found that Tisha willfully left of her own accord without the consent of her mother. Samuel is bound by that finding. Nonetheless, Samuel contends that the important point here is that it was Tisha's voluntary decision to leave. Therefore, she was not "taken" by Samuel. Samuel may have "contributed" to her decision to leave, but the "cause to leave" alternative was not given to the jury. Samuel belittles the State's argument that the "takes away" theory requires only that she was physically present in the home when Samuel arrived and took her. In Samuel's view, Tisha had already left the home the minute she was out the door. Therefore, Tisha had already severed herself from the custody of her mother independent of any action by Samuel. Her driving off with Samuel occurred after she independently severed custody from her mother. Therefore, Samuel was not involved in any "taking away" from custody.

¶ 35. We do not buy Samuel's argument. What Samuel is really asking us to do is to hold that Tisha's objective act in physically and mentally closing the door to her home defines the point at which custody was actually severed. His statutory construction analysis puts an element into the "takes away" alternative that does not exist — that a person may be guilty of taking away a child only if the child has not willfully decided to leave. We will not add words to the statute that are not there.

¶ 36. It makes more sense to construe the statute in the manner suggested by the State. That analysis is as follows: The term "takes away" is not a technical term. The word "take" is defined as "remove." WEBSTER'S Third New International Dictionary 2330 (1993). "Away" is defined as "from one's possession." Id. at 152. In the context of WlS. STAT. § 948.31(2), which uses the phrase "takes a child away... from the child's parents," the "takes away" refers to the defendant removing the child from the parents' possession. "Takes away" or removes from one's possession suggests some sort of "physical manipulation" or "physical removal" of the child from the parents.

¶ 37. The "cause to leave" alternative also involves nontechnical words. "Cause" is defined as "brings about an effect or . . . produces or calls forth a resultant action or state." Webster's Third New International Dictionary 356 (1993). "Leave" is defined as "desert," "abandon" and "go away or depart from." Id. at 1287. Thus, "causing a child to leave" his or her parents means being responsible for or to bring about a child abandoning, departing or going away from his or her parents. "Causes to leave" suggests some sort of mental manipulation of the child, as opposed to physical manipulation. A defendant causes a child to leave his or her parents by doing things to persuade the child to leave. For example, if a defendant lives in California, meets a girl over the internet and encourages her to come to California so she can become a model, and if the girl does go to California because of the defendant's persuasion, the defendant has caused her to leave her parents.

¶ 38. We adopt the State's construction. So long as the defendant has had a hand in physically removing the child from the parents' possession, the defendant has taken the child away. This physical removal can be accomplished by driving the child away in a vehicle. The act of asportation means more than just shutting the door behind you. Driving away in a vehicle is part of the continuous act of physical removal. Samuel was directly involved in facilitating Tisha's physical removal by driving her away from the house and from the area. The evidence is sufficient.

ABDUCTION

¶ 39. Samuel also contends that the evidence was insufficient for the jury to convict him of abduction pursuant to WlS. Stat. § 948.30(l)(a). The statute reads that any person who, for any unlawful purpose, "takes a child who is not his or her own by birth or adoption from the child's home or the custody of his or her parent" is guilty of abduction. Samuel makes the same argument with respect to this statute that he made regarding the interference with child custody statute. He says that he did not physically take Tisha from her mother; Tisha left of her own accord or was thrown out. Under either scenario, the physical custody was at an end by the time Samuel became involved. For the same reasons that we rejected Samuel's argument relating to the interference conviction, we reject this one. Samuel was directly involved in Tisha leaving her mother's home and was directly involved in facilitating the removal by physically driving her away from the house and the area. As a result, Samuel removed Tisha from her mother's control, and therefore, took Tisha from her mother's custody. The evidence is sufficient to sustain a conviction for abduction.

¶ 40. However, for the same reasons that we are constrained to reverse for the moment, the interference with child custody conviction, we must also reverse and remand this abduction conviction. Samuel's defense at trial was that he could not have abducted Tisha from the mother's custody if the mother had already voluntarily relinquished custody. As we pointed out before, while Tisha claimed she was kicked out, the mother claimed that Tisha left without consent. The jury obviously believed the mother. It could be that the jury's assessment of Tisha's credibility relating to the abduction charge was affected by the admission of Tisha's prior inconsistent statement implicating Samuel in having had sex with her in Wisconsin when she was fifteen. Thus, whether the abduction conviction is reentered will depend upon the trial court's factual findings on remand.

CLAIM OF DENIAL OF DUE PROCESS AT SENTENCING

¶ 41. Finally, Samuel contends that he was denied due process at sentencing because the court considered psychological evidence contained in a sealed document for the CHIPS proceeding concerning Tisha. He complains that he was not a party to the proceeding, had no access to the report and therefore had no way to rebut it. He contends that the report prejudiced him at sentencing because the court commented on how Samuel's actions had resulted in Tisha requiring long-term counseling and perhaps treatment in the future. The State argues waiver and Samuel responds that waiver is inappropriate because he had no idea that the evidence was germane to the sentencing until the trial court began its remarks while imposing sentence. He also argues that because the State did not argue waiver at the postconviction stage, it is prohibited from raising it now.

¶42. We accept the State's waiver argument. First, just because the trial court was in its "imposing sentence" phase, that did not prevent Samuel from objecting. He had as much right to object then as at any other time during the proceeding. Second, while we acknowledge that there are times when we will reject the State's waiver argument if it was not made at the postconviction stage, there is no iron-clad rule. A waiver analysis depends, in part, not on whether an issue was raised at the postconviction stage, but on whether the trial court could have taken some type of preventive action had the issue been timely raised. We agree with the State that had the issue been timely raised before the sentencing court, a solution could likely have been arrived at.

¶ 43. A waiver assessment also depends upon whether we should reach an issue because it is important to the integrity of the result. Here, we are convinced that the issue Samuel raises is of little consequence. As the State points out, evidence of how Tisha's experience has affected her was not really "secret" evidence. The trial court told Samuel that the report said Tisha had counseling needs and showed disrespect for authority. This was not. news to Samuel. He already had ample evidence of Tisha's disrespect for authority. Had Samuel disagreed with the assessment that Tisha needed counseling because of this, he could easily have voiced his disagreement when the trial court referred to it. The issue is waived.

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

      A11 references to the Wisconsin Statutes are to the 1997 — 98 version.


source: Caselaw Access Project

author: BROWN, P.J. SNYDER, J. NETTESHEIM, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. John D. Williams, Defendant-Appellant.
    Court of Appeals

      No. 00-0535-CR.

      Submitted on briefs October 2, 2000.

    Decided December 27, 2000.

    2001 WI App 7
    (Also reported in 624 N.W.2d 164.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John A. Pray of the Frank J. Remington Center, University of Wisconsin Law School, Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James H. McDermott, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review granted.

   BROWN, P.J.

¶ 1. The issue in this case is whether the prosecutor violated her agreement to recommend probation and jail time for John D. Williams. We hold that she violated the agreement when she told the court she now had a negative impression of Williams based on information acquired subsequent to the plea agreement, adopted the same negative impressions expressed by the presentence investigation (PSI) writer and then gratuitously informed the court that the PSI writer recommended prison. The plea agreement was breached, the sentence is vacated and we remand for a new sentencing hearing.

¶ 2. Williams pled guilty to one count of failure to pay child support. As part of the plea agreement, the State agreed to recommend that Williams receive three years of probation, with the condition that he pay current support plus all arrearages, and serve sixty days in jail. But at the sentencing hearing, the prosecutor made the following comments, which we believe are important enough to repeat in full:

Judge, I believe that when Mr. Williams entered his plea that we had told the Court that we would be recommending a presentence investigation. And that we would be recommending that sentence be withheld for a period of three years — I am sorry, that he be placed on probation for a period of three years, that he pay arrearages and pay current child support. And then as a condition of the probation he be incarcerated in the county jail for a period of 60 days.
After reading through the presentence, it appears that I think I can best describe my impression of this defendant as manipulative and unwilling to take any responsibility. I have had an occasion to speak with Ms. Valerius [Williams's former wife]. And she has indicated things that she will be presenting to the Court. But it was quite a contrast speaking with her and reading and learning about Mr. Williams.
Judge, when she speaks to you you are going to learn about a mother who has done everything she can for her daughter, has taken on the obligation, the responsibilities of raising a child, and had to do it on her own because [Williams] has done everything to completely do the opposite. He has taken on no real meaning in terms of creating a relationship. And you will learn of some of that later on. It's quite frankly disheartening and saddening to know that someone could have a daughter now who is 18....
[A]nd with all the opportunities to have a relationship, denied that. And it hasn't been because the mother has denied it[;] it is the defendant himself. He always had free access and chose . . . not to have a relationship. When we create life we have to take on the responsibility. You will also learn there was a time where through the Child Support Agency there were many efforts to get Mr. Williams to pay child support. We are talking about a nominal amount of money he was ordered to pay, $50 a week. I don't think any of us think that that's extravagant. That's just minimal. And he was working at a job earning $14 an hour, had health insurance, but yet never included his daughter on it. And you are going to learn of some health problems that the daughter has that the health insurance certainly would have been of great assistance.
When speaking with [Ms. Valerius], she informed me that at one point when she remarried to a very caring person who took on Mr. Williams' daughter as his own, and when they wanted to adopt her, Mr. Williams refused to give up his rights, but yet he wouldn't call, he didn't write, he didn't see, he wouldn't even pay the support for the daughter. It just is very frustrating to think that someone could completely walk away and be so uncaring about a child.
The presentence writer, we had a conversation on June 8th with her. She had indicated she would be in court, but I don't see that she has arrived. She had made a few comments that I will relay to the Court. Mr. Sisley had informed her that the defendant had claimed he had no means to contact an attorney before sentencing. She had indicated that she was aware that the defendant has a cell phone, and the defendant had been driving all around and has access to a vehicle. He has been arrested for operating while suspended in the past. And her last point was that if the defendant had told her, his agent, he could have used her phone to contact an attorney. She reiterated to Mr. Sisley that it was her belief that the defendant needs to go to prison. (Emphasis added.)

¶ 3. At this point, Williams objected on the grounds that these comments violated the plea agreement. The court agreed and then the prosecutor denied that the comments violated the agreement. Again, we will relate her comments:

I am in no means suggesting that I am asking the Court to adopt the agent's recommendation. I believe that the sentencing court should have all information necessary. And I am just merely relaying it. She had indicated she would be here, and that was the information she had given us. So again, I will reiterate, Judge, we are standing by our recommendation, and I have not changed that, and that's why I started off by saying we were recommending the three years probation.

¶ 4. The court did not thereafter issue a ruling on the objection but proceeded with the rest of the hearing. Williams's former wife then testified at some length about the lack of a relationship that Williams had with his daughter. At the conclusion of the hearing, the sentencing court indicated that it had read the PSI and stated that it is not often that it sentences contrary to a joint recommendation, but was going to do it here. The court sentenced Williams to eighteen months in prison.

¶ 5. Whether the prosecutor violated the terms of a plea agreement is a question of law that we review de novo. See State v. Ferguson, 166 Wis. 2d 317, 320-21, 479 N.W.2d 241 (Ct. App. 1991). A defendant has a constitutional right to have a negotiated plea agreement, which he or she relied on, enforced. See State v. Knox, 213 Wis. 2d 318, 321, 570 N.W.2d 599 (Ct. App. 1997).

¶ 6. In State v. Poole, 131 Wis. 2d 359, 389 N.W.2d 40 (Ct. App. 1986), this court discussed the problem with a prosecutor making negative comments at sentencing based on information acquired after the plea agreement. In that case, the prosecutor had agreed to recommend a fine for a burglary. See id. at 360. At sentencing, the prosecutor stood by that recommendation, but also pointed out that she was now aware of new information — that the defendant's probation was revoked in a separate case — but the agreement was entered into "before we knew of the other instances." See id. The Poole court cited several cases from other jurisdictions as part of its analysis and then wrote:

A comment which implies reservations about the recommendation ’taint[s] the sentencing process' and breaches the agreement.
We conclude that a prosecutor may not render less than a neutral recitation of the terms of the plea agreement. The recommendation in the case at hand fell below that standard. The prosecutor's comments implied that circumstances had changed since the plea bargain, and that had the state known of the other instances of defendant's misconduct, they would not have made the agreement they did.

Id. at 364. Poole indicates that while the prosecutor may inform the court about negative information acquired about the defendant after the plea agreement, if relevant to sentencing, the prosecutor may not imply that he or she has subsequently changed his or her mind about the plea.

¶ 7. We recognize that there is a fine line between presenting information to the court for its education and presenting information in a way that implies that the prosecutor has second thoughts about the agreement. Many courts have discussed the difficulty in discerning when the line is crossed such that the recommendation is no longer neutral. Some of these cases were discussed in Poole. These jurisdictions have construed comparable plea agreements liberally to favor the defendants. As stated by the Minnesota Supreme Court in State v. Witte, 245 N.W.2d 438, 439 (1976):

Although the issue is not free from doubt, since it can be argued that the prosecutor presented information, not his personal recommendation, we think that in close cases plea agreements should be construed in favor of defendants. This practice best serves the important interest in fair, honest, and open plea bargaining as an integral part of the criminal justice system.

We agree with these jurisdictions and adopt the view that in close cases, the agreements should be construed in favor of the defendants.

¶ 8. A close reading of the above passage from Witte delineates a difference between presenting information that the prosecutor is not only free to do, but has a duty to do and making this information his or her "personal recommendation." We see this language as instructive. When a prosecutor has gathered negative information about the defendant, we should look at how the prosecutor used this information. In other words, we should look closely at whether the prosecutor used this information to imply a personal recommendation.

¶ 9. In this case, the line was crossed. The prosecutor had no need to discuss the PSI or Valerius's testimony. The court already had the PSI in its possession; Valerius was present in court and was planning on testifying about her views. In short, the prosecutor did not need to provide any information. The court either already had the information or was about to get it.

¶ 10. Furthermore, the prosecutor did not discuss what she learned from the PSI or Valerius as a neutral commentator. She began her remarks by stating: "After reading through the presentence, it appears that I think I can best describe my impression of this defendant as manipulative and unwilling to take any responsibility." (Emphasis added). By this beginning, the prosecutor was informing the court that the after-acquired information affected her impressions of Williams. So, what followed after this opening remark was not a neutral account of after-acquired information provided for the benefit of the court. It was instead an explanation by the prosecutor as to why she now had a different take on Williams's character. Likewise, when discussing Valerius's testimony, the prosecutor was equally opinionated:

It's quite frankly disheartening and saddening to know that someone could have a daughter now who is 18 ....
[A]nd with all the opportunities to have a relationship, denied that. And it hasn't been because the mother has denied it[;] it is the defendant himself. He always had free access and chose . . . not to have a relationship. When we create life we have to take on the responsibility....
... It just is very frustrating to think that someone could completely walk away and he so uncaring about a child. (Emphasis added.)

¶ 11. We are convinced that the prosecutor's remarks showed that she now had second thoughts about the plea agreement based on what she now knew about Williams's character. Thus, her statement a short while later, that the PSI writer has recommended prison, takes on added significance. This is especially so since the PSI writer had formed the same impressions for the same reasons and had recommended prison. The prosecutor made the impressions relied upon by the PSI writer her own, and she crossed the line when she went on to say how the PSI writer recommended prison. We cannot separate the prosecutor's newly held personal impressions of Williams from her gratuitous remark that the PSI writer recommended prison — gratuitous because the court already had the PSI in its possession and presumably knew the writer's recommendation. We are satisfied from the totality of the sentencing hearing remarks made by the prosecutor that the prosecutor was making the PSI recommendation her own.

¶ 12. We reiterate that a prosecutor is not required to advocate for a bargained sentence enthusiastically, see Poole, 131 Wis. 2d at 364, and may inform the court about the character of the defendant, even if it is negative. See Ferguson, 166 Wis. 2d at 324. But what the prosecutor may not do is personalize the information, adopt the same negative impressions as the PSI writer and then remind the court that the PSI writer has recommended a harsher sentence than recommended. That is what happened here.

¶ 13. We discuss one other issue before closing. The State argues that Williams did not properly object to the prosecutor's statements. Trial counsel must object to errors with such specificity that the trial court and opposing counsel have an opportunity to remedy the defect. See Champlain v. State, 53 Wis. 2d 751, 758, 193 N.W.2d 868 (1972). We conclude that Williams's attorney objected with sufficient clarity to alert the trial court. In response to the prosecutor's extended remarks, Williams's attorney stated:

[T]he state seems to be undercutting its recommendation to the Court by relaying things that are not the state's position, they are an agent's position. ... [I]t seems to me that the state is in essence . . . undermining the recommendation that was put out and which Mr. Williams entered a plea-[B]ut I think if it gets to the point where the state is basically saying we want to change our recommendation, or we think the Court should without saying so, I think that's certainly something that is a problem.

It is clear that Williams's attorney was objecting because he thought that the prosecutor had breached the plea agreement by adopting the agent's position and was implying a change in her recommendation. This is made all the more evident by the fact that the trial court recognized it as an objection and initially agreed with Williams's attorney. The objection was sufficient. That Williams's counsel did not repeat his objection when the prosecutor replied that she was in fact abiding by the agreement is of no moment. The objection was out there, the court understood it to be so and that is all that is necessary. Objections need not be made with technical precision. They need to relay the proper information to the court. This objection passed muster.

¶ 14. We make one other comment. The State claims that the prosecutor's reply that she was not changing her recommendation salvaged the breach. We disagree. Just because the prosecutor says there was no breach does not make it so.

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

SNYDER, J.

¶ 15. (concurring). The dissent begins by acknowledging that a prosecutor has a duty to honor a plea agreement. It then notes that when a prosecutor has a duty to convey relevant information to the sentencing court, such a duty must be balanced against the duty to honor a plea agreement. The dissent concedes that this is a "close case" and that the prosecutor must walk a "fine line" in balancing the two duties, see State v. Hanson, 232 Wis. 2d 291, 302, 606 N.W.2d 278 (Ct. App. 1999), review denied, 234 Wis. 2d 177, 612 N.W.2d 733 (Wis. Apr. 26, 2000) (No. 99-0120-CR), and then worries that the majority opinion will frustrate a prosecutor's duty to convey relevant information to the sentencing court about the crime, the victim or other factors bearing on the sentence simply because the information is unfavorable to the defendant. The dissent's worry is misplaced.

¶ 16. This case is not about unfavorable information being withheld from the sentencing court. This case is about the sentencing court sustaining John D. Williams's objection to the prosecutor's breach of duty to honor the plea agreement, and the later excusal of that breach because the postconviction court determined that the prosecutor did not intend to breach the agreement. The record is silent as to the need for or any concern about a "relevant sentencing information balancing" test.

¶ 17. Much is made here of whether Hanson, State v. Ferguson, 166 Wis. 2d 317, 479 N.W.2d 241 (Ct. App. 1991), or State v. Poole, 131 Wis. 2d 359, 389 N.W.2d 40 (Ct. App. 1986), are informative or provide guidance in this case. I conclude that none of those cases are so factually or procedurally similar to this case that they can provide assistance in resolving the appellate issue raised by the record events herein established. In general, it is fair to say that Wisconsin law concerning what constitutes a plea agreement breach entitling a defendant to relief is in disarray.

¶ 18. The relevant record events are undisputed. On March 16, 1999, the plea agreement calling for a probation/jail time recommendation was placed upon the record by the State, and Williams entered a plea of guilty. The trial court then ordered a presentence investigation report (PSI) on its own motion. Corrections Agent Sue Zernzack prepared and filed her PSI on May 27, 1999, opining that county jail confinement would not have a satisfactory impact on Williams and that only a prison setting would provide the necessary structure, and recommending a medium term of incarceration. The prosecutor, Sandy A. Williams, apparently troubled by the PSI contents and its prison recommendation, told the sentencing court that her office had then met with a victim witness, Roberta Valerius, who attended the sentencing hearing and addressed the court. The prosecutor stated that her office met with Zernzack on June 8, 1999, and that Zernzack provided opinions and comments extraneous to, but in support of, the PSI and "reiterated ... that it was [Zernzack's] belief that [Williams] needs to go to prison." The sentencing hearing occurred on June 30, 1999.

¶ 19. During the sentencing proceeding, the prosecutor solicited an affirmation from Valerius that Valerius was a good mother and that Williams was a bad father. In addition, the prosecutor related information allegedly obtained from the PSI author that emphasized and further supported the PSI prison recommendation. Williams's defense counsel objected to the prosecutor's comments as breaching the plea agreement and the following exchange occurred:

[DEFENSE ATTORNEY]: Judge, I am just going to object here. The state seems to be undercutting its recommendation to the Court by relaying things that are not the state's position, they are an agent's position. [Agent Zernzach's] comments are in the P.S.I. And I have at a certain point... to object. But it seems to me that the state is in essence ... undermining the recommendation that was put out and which Mr. Williams entered a plea. So I guess I am just calling — raising an objection here and seeing where we are going with this. Because it seems to me that obviously the state can make its argument, but I think if it gets to the point where the state is basically saying we want to change our recommendation, or we think the Court should without saying so, I think that's certainly something that is a problem.
THE COURT: I agree.

¶ 20. At that point the prosecutor related that "if I indicated anything other than what our recommendation is" that the court could look at the PSI itself, that she was just relaying information that Zernzach had provided the prosecution after the PSI was filed, and that she was merely relating "information that has come to light since the presentence was filed." The trial court, apparently unimpressed with the State's suggestion that it was only exercising its duty to provide relevant sentencing information, did not address the prosecutor's response and did not perform a relevant sentencing information balancing exercise or otherwise respond to the prosecutor's remarks. The defense's breach objection remained sustained in the sentencing hearing record.

¶ 21. The court did, however, revisit its plea agreement breach ruling at the postconviction hearing, where it concluded that "taken in that context when [the prosecutor] goes on to explain it, it's clear that [the prosecutor] wasn't advocating a change in the recommendation. That was not her intent." (Emphasis added.) The postconviction court did not address, or apparently see any compelling need to address, the relevant sentencing information balancing test. The postconviction court denied sentence relief to Williams on the basis that the plea agreement breach was not a breach because the prosecution did not intend to breach. That holding lacks support in the law and is erroneous.

¶ 22. Williams has a constitutional right to the enforcement of a negotiated plea agreement, see State v. Smith, 207 Wis. 2d 258, 271, 558 N.W.2d 379 (1997), and "[t]he state may not accomplish 'through indirect means what it promised not to do directly,' i.e., convey a message to the trial court that a defendant's actions warrant a more severe sentence than that recommended." Ferguson, 166 Wis. 2d at 322. The Poole, Hanson and Ferguson decisions do not address judicial excusal of a previously acknowledged prosecution plea agreement breach, unintended or otherwise. The State does not cite to any case that supports the proposition that a breach may be cured by a lack of intent on the part of the violating party. I am satisfied that no such case law exists. If prosecutors desire to avoid the dissent's proverbial "potted plant" model, they can do so by not negotiating pleas and entering into plea agreements that they then must honor.

¶ 23. The confusion attending plea agreement violations in Wisconsin is evident in the postconviction testimony of Williams's trial counsel. In response to a question about his decision to object to the prosecutor's comments as violating the plea agreement, Williams's attorney, Wilfred P. de Junco, a seasoned and capable defense counsel, responded that he was not sure at the time of the objection if there had been a breach of the plea agreement, but that he "thought it was safer to raise an objection and to try to clarify the issue." The trial court, however, was sure of the breach and responded accordingly. The trial court never changed its ruling that a breach occurred at sentencing, but concluded postconviction that the breach was excused because it was not intended by the prosecutor. The record is silent as to the propriety of or need for the sentencing information balancing test urged by the dissent. The ongoing confusion concerning the breach of Wisconsin plea agreements is further highlighted by this district's issuance of an unusual, three-legged opinion.

¶ 24. While I have some sympathy with the dissent's concern about the continued integrity of the plea bargaining process, I disagree that the facts in this case can result in an unwarranted sentencing "clam up" restriction. The prosecutor not only has a right but a duty to provide information to the sentencing court. Moreover, there is nothing wrong with the prosecutor providing his or her opinion of the defendant's character, even if negative, to the sentencing court so long as the opinion is used to support the recommendation. See Ferguson, 166 Wis. 2d at 324-25 (recognizing prosecutor's task to attempt to convince the court of the appropriateness of the recommendation). But it makes no sense to allow the prosecutor to render an opinion that appears to argue against his or her own negotiated recommendation. Here, in the majority view, the prosecutor did just that. The prosecutor's remarks cannot be interpreted to support a recommendation for probation with sixty days in jail.

¶ 25. The majority opinion correctly concludes that a case involving a prosecution plea agreement violation should favor the defendant. That result is not unreasonable given the benefit derived by the State in obtaining a defendant's waiver of constitutional rights, a conviction without trial, its knowledge and understanding of the agreement it negotiated, and its duty to honor that agreement. Given the constitutional protections that a defendant surrenders to obtain such an agreement, and the lack of legal certainty in Wisconsin as to when the duty to honor a plea agreement is violated, each case must be addressed on its own merits and a defendant should be entitled to the benefit of his or her bargain.

¶ 26. I respectfully concur that Williams is entitled to a resentencing with the full benefit of the plea agreement that he bargained for and from which he expected to benefit.

NETTESHEIM, J.

¶ 27. (dissenting). The majority opinion reduces the prosecutor to the proverbial "potted plant" at a sentencing hearing under this kind of plea agreement. For that reason, I respectfully dissent.

¶ 28. As the majority concedes, the law permits a prosecutor in this kind of setting to convey information to the sentencing court which is unfavorable to a defendant so long as the prosecutor abides by the plea agreement. See State v. Hanson, 232 Wis. 2d 291, 302, 606 N.W.2d 278 (Ct. App. 1999), review denied, 234 Wis. 2d 177, 612 N.W.2d 733 (Wis. Apr. 26, 2000) (No. 99-0120-CR). I contend that the prosecutor's sentencing statements represented a proper balance between her duty to honor the plea agreement and her duty to convey relevant information to the sentencing court. Therefore, I disagree with the majority's holding that the prosecutor's sentencing statements violated the terms of the plea agreement.

¶ 29. Hanson is informative to this case both on its law and on its facts. In Hanson, the plea agreement required the State to cap its sentencing recommendation at ten years. See id. at 293. In the course of her sentencing remarks, the prosecutor stated that the State was standing by the plea agreement. However, the prosecutor then added:

Having said that, this is an extremely violent case. This is an individual who constitutes a clear and present danger, not only to the two women who have been in intimate relationships with the Defendant, but also to the community at large. I urge the Court to consider all of the information that has been presented to the Court, in fashioning a sentence that is both fair to the Defendant and to the victim.

Id. at 296.

¶ 30. In assessing whether these statements constituted a breach of the plea agreement, we looked to the entire sentencing proceeding to get "the true flavor" of the prosecutor's remarks. We held that the prosecutor's "[h]aving said that" remark, followed by her negative impressions regarding the defendant, did not breach the plea agreement. See id. at 303. In conducting that exercise, we harmonized the concomitant duties of the prosecutor to abide by the plea agreement and to present relevant sentencing information to the court even if the information is unfavorable to the defendant. See id. at 301-02.

¶ 31. State v. Ferguson, 166 Wis. 2d 317, 479 N.W.2d 241 (Ct. App. 1991), is also informative. There, the State promised to argue for an imposed and stayed sentence. At the sentencing when arguing for a substantial sentence, the prosecutor spoke at some length about the severity of the offense, using terms such as "perverted," "worst of all crimes," "the sickest case that I have seen," and referred to the defendant as "sleaze." See id. at 319-20. Only after these highly charged comments did the prosecutor recite the State's request for an imposed and stayed sentence. The defendant argued that the prosecutor's inflammatory language violated the plea agreement. See id. at 321. The court of appeals disagreed:

The plea agreement in this case did not prohibit the state from informing the trial court of aggravating sentencing factors. Nor could it. At sentencing, pertinent factors relating to the defendant's character and behavioral pattern cannot "be immunized by a plea agreement between the defendant and the state." Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559, 562 (1980). A plea agreement which does not allow the sentencing court to be apprised of relevant information is void as against public policy. State v. McQuay, 154 Wis. 2d 116, 125-26, 452 N.W.2d 377, 381 (1990) (quoting Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186, 190 (1976), writ of habeas corpus granted, 450 F. Supp. 575 (E.D. Wis. 1978).

Ferguson, 166 Wis. 2d at 324.

¶ 32. Here, the very first words spoken by the prosecutor were an accurate and complete recital of the plea agreement followed by the State's sentencing recommendation which was in accord with the agreement:

Judge, I believe that when Mr. Williams entered his plea that we had told the Court that we would be recommending a presentence investigation. And that we would be recommending that sentence be withheld for a period of three years — I am sorry, that he be placed on probation for a period of three years, that he pay arrearages and pay current child support. And then as a condition of the probation he be incarcerated in the county jail for a period of 60 days.

¶ 33. Later, after the prosecutor had made her other sentencing comments about Williams, she concluded her remarks, stating:

[W]e are standing by our recommendation, and I have not changed that, and that's why I started off by saying we were recommending the three years probation. We had placed that on the record when the defendant entered his plea, and again today at sentencing.

¶ 34. This case is stronger on its facts than Hanson or Ferguson. Unlike Hanson, where the prosecutor's sentencing recommendation was immediately followed by the qualifying phrase, "[hjaving said that," here the prosecutor's subsequent statement was not introduced with any qualifying language suggesting sub silentio that the prosecutor was no longer adhering to the plea agreement. And unlike Ferguson, where the prosecutor's sentencing recommendation did not come until after the prosecutor had spoken about the depravity of the defendant's conduct, here the prosecutor set out the State's compliance with the plea agreement in explicit and unambiguous terms at the very outset of the proceeding and then reaffirmed it at the conclusion of her remarks.

¶ 35. This case is not governed by State v. Poole, 131 Wis. 2d 359, 389 N.W.2d 40 (Ct. App. 1986). There, new information about the defendant came to light after the plea and before sentencing. The prosecutor said her recommendation was made "before we knew of the other instances. But that is our agreement." Id. at 360. The court held that the "state's use of qualified or negative language in making the sentence recommendation" breached the agreement. Id. at 364. As I have noted, the prosecutor's recital of her sentencing recommendation in this case was not couched in qualifying terms. It is also important to note that Poole does not bar the State from using negative information that has come to light after the plea and before the sentencing. Rather, the impropriety lies in the prosecutor's recital of the sentencing recommendation accompanied by the simultaneous recital of qualifying or negative language by which the State distanced itself from its own agreement. See id.

¶ 36. Here, the prosecutor twice confirmed the plea agreement without accompanying qualifying language suggesting that the agreement did not mean what it said. And since the law allows a prosecutor to convey relevant negative information about a defendant under such a plea agreement, I conclude that the prosecutor's sentencing statement represented the "neutral recitation" required by the law. See id. at 362. The trial court also saw it that way in its postconviction ruling. I would uphold the court's ruling.

¶ 37. However, my misgivings about the majority opinion go deeper than my disagreement with the result. A sentencing constitutes a critical phase of a criminal proceeding. See State v. Anderson, 222 Wis. 2d 403, 411, 588 N.W.2d 75 (Ct. App. 1998). A prosecutor is an officer of the court and holds a "quasi-judicial" office. See State v. Neuser, 191 Wis. 2d 131, 139, 528 N.W.2d 49 (Ct. App. 1995). Agreements by prosecutors not to reveal relevant information to the sentencing judge are against public policy and cannot be respected by the courts. See Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186 (1976), writ of habeas corpus granted, 450 F. Supp. 575 (E.D. Wis. 1978). At sentencing, pertinent factors relating to the defendant's character and behavioral pattern cannot be immunized by a plea agreement between the defendant and the State. See Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980).

¶ 38. The majority opinion runs afoul of these principles. Until today, plea agreements of this type did not violate public policy because they did not "silence" a prosecutor. But under the majority's interpretation, and particularly under its "close case goes to the defendant" rule, prosecutors are now schooled to remain silent if they have relevant sentencing information that is unfavorable to the defendant. Or, if they choose to speak, they risk violation of the "close case" rule. I see no need for the majority's adoption of the "close case" rule. The cases to date (whether close or not) have addressed each situation on its own facts and its own merits. That approach has served the law well, and I see no need to change it.

¶ 39. Also until today, prosecutors were entitled to offer their unfavorable personal opinions or impressions regarding a defendant under this kind of plea agreement. But now, in this nonsupport case, the majority makes the startling conclusion that it was somehow improper for the prosecutor to state that Williams, by his manipulative and irresponsible conduct, had intentionally failed to support his child or to establish any kind of relationship with her. I conclude that it was self-evidently proper for the prosecutor to speak to these failures on Williams's part and to label them "disheartening and saddening."

¶ 40. But the majority holds that these statements were improper because they implied a "personal recommendation" as to the proper sentence. Majority at ¶ 8. As with the majority's "close case" rule, the majority's bar against the prosecutor's opinion or impression of a defendant is inconsistent with current law. Surely, the prosecutor's statements in Hanson that the crime was "extremely violent" and that the defendant represented "a clear and present danger" were her impressions or opinions. See Hanson, 232 Wis. 2d at 296. The same must be said of the prosecutor's highly charged statements in Ferguson ("perverted," "sickest case" and calling the defendant "sleaze"). Ferguson, 166 Wis. 2d at 319-20. And even in Poole where the court held that the prosecutor's remarks violated the plea agreement, the court did not say that a prosecutor could not venture a negative opinion or impression regarding a defendant. See Poole, 131 Wis. 2d at 364.

¶ 41. This new prohibition fashioned by the majority will frustrate the flow of important and relevant information to a sentencing court about the defendant, the crime, the victim or other factors bearing on the sentence. That is not the current law, and it is not wise policy for future law.

¶ 42. I also disagree with the majority's condemnation of the prosecutor's remarks offered in support of the victim. Among other rights, article I, section 9m of the Wisconsin Constitution assures that a victim have "the opportunity to confer with the prosecution" and "the opportunity to make a statement to the court at disposition." Who more likely to represent a victim at a sentencing hearing and to make a statement on the victim's behalf than the prosecutor? Moreover, a victim is not bound by a plea agreement and is entitled to seek a disposition different than that agreed to between the parties. Here the prosecutor clearly indicated in this phase of her remarks that she was speaking to the victim's position, not to the State's obligation under the plea agreement.

¶ 43. The majority also seems to say that because the victim was present and spoke for herself, the prosecutor was off limits in speaking for her. But I see nothing in the constitutional or statutory provisions covering victim rights which bars such procedure. Moreover, in many cases, the victim may be unable to deliver an articulate statement because of nervousness, fear or intimidation. Putting aside the victim's constitutional and statutory rights, commonsense dictates that the prosecutor should be allowed to speak for the victim under all circumstances.

¶ 44. Finally, the majority opinion deals a setback to the plea bargaining process. The majority opinion requires the prosecutor to either "clam up" at the sentencing hearing or risk violation of the "close case" rule if information unfavorable to a defendant is divulged. Faced with that Hobson's choice, prosecutors will understandably be reluctant to enter into these kinds of plea agreements in the first instance. This is unfortunate because all concerned — the prosecution, the courts, and, most importantly, defendants — will lose the benefits of this process.

¶ 45. I have no particular quarrel with calling this case a "close case." I believe we said as much in Hanson when we observed that a prosecutor walks a "fine line" under this kind of plea agreement when conveying unfavorable sentencing information about a defendant. See Hanson, 232 Wis. 2d at 302. But I do not agree that a "close case" should translate into an automatic holding that such statements constitute a breach of the plea agreement.

¶ 46. For these reasons, I respectfully dissent.

         See United States v. Brown, 500 F.2d 375, 377 (4th Cir. 1974); Miller v. State, 322 A.2d 527, 529 (Md. 1974); People v. Barajas, 26 Cal. App. 3d 932, 936-37 (Cal. Ct. App. 1972); People v. Eck, 197 N.W.2d 289, 289—90 (Mich. App. 1972); Wood v. Commonwealth, 469 S.W.2d 765, 766 (Ky. Ct. App. 1971); Clancy v. Coiner, 179 S.E.2d 726, 731 (W. Va. 1971); Commonwealth v. Alvarado, 276 A.2d 526, 528-29 (Pa. 1971).

       The prosecutor's negative remarks support a prison sentence, not probation. Had the recommendation been for a prison sentence, the remarks would have supported the recommendation.

       The prosecutor told the sentencing court that she believed that the State recommended a PSI at the plea hearing. However, when the plea court raised the question of ordering a PSI, the prosecutor replied, "It's up to the Court. We hadn't discussed it, Judge." A PSI was not a part of the plea agreement.

       The solicitation is apparent from the following record:
      [THE PROSECUTOR]: Judge, when [Ms. Valerius] speaks to you you are going to learn about a mother who has done everything she can for her daughter, has taken on the obligation, the responsibilities of raising a child, and has had to do it on her own because the father of that child has done everything to completely do the opposite. He has taken on no real meaning in terms of creating a relationship. And you will learn of some of that later on. It's quite frankly disheartening and saddening to know that someone could have a daughter now who is 18, correct?
      MS. VALERIUS: M-hm.

       The prosecutor told the sentencing court that Zernzach indicated on June 8 that she would attend the sentencing, but her appearance is not noted in the record.


author: NETTESHEIM, J.

text:
    Reuben Adams, Plaintiff-Appellant, v. Phillip G. Macht, Defendant-Respondent.
    Court of Appeals

      No. 00-0782.

      Submitted on briefs October 13, 2000.

    Decided December 27, 2000.

    2001 WI App 10
    (Also reported in 623 N.W.2d 215.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief oí Reuben Adams, pro se.
    On behalf of the defendant-respondent, the cause was submitted on the brief oí James E. Doyle, attorney general, and Jody J. Schmelzer, assistant attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   NETTESHEIM, J.

¶ 1. Reuben Adams appeals from a circuit court order dismissing his complaint following the court's finding the Wisconsin Resource Center's (WRC) policy prohibiting former employees from visiting the institution to be reasonable and based on legitimate security concerns. The court's finding was in response to this court's earlier remand of the case for such a determination. In our earlier unpublished opinion, we held that WRC's enactment of such a policy was not prohibited by statute. See Adams v. Macht, No. 98-3643, unpublished slip op. (Wis. Ct. App. Sept. 29, 1999). Because the evidence in the record established that the WRC's policy was reasonably related to legitimate security, rehabilitation and treatment concerns, we affirm the order of the circuit court.

FACTS

¶ 2. The facts of this case are undisputed. Adams is a patient committed to the WRC pursuant to WlS. STAT. ch. 980 (1997-98). Adams initiated this action against the director of the WRC, Phillip G. Macht, for declaratory and injunctive relief after the WRC instituted a policy prohibiting former employees from visiting the institution. This policy had the effect of precluding visits from the mother of his child — a former employee of the WRC. Adams based his argument on the patients' rights section contained in WlS. STAT. ch. 51 that declares that patients shall "[b]e permitted to see visitors each day." WlS. STAT. § 51.61(l)(t). Adams moved for summary judgment and Macht moved for dismissal for failure to state a cause of action.

¶ 3. In its original decision, the circuit court dismissed Adams's complaint finding that while the statute allowed patients to have visitors every day, it did not preclude the institution from placing reasonable limits on who may visit. On appeal, this court upheld the circuit court's interpretation of the statute. However, giving Adams's pro se complaint a liberal construction, we discerned an additional issue that the circuit court did not address — Adams's claim that the application of the policy was arbitrary, unreasonable and not based on a legitimate security concern. See Adams, slip op. at 2-3. We remanded for the circuit court to address this further issue, and it has done so.

¶ 4. In the current decision, the circuit court again dismissed Adams's complaint. The circuit court held that it could not substitute its judgment for that of the WRC administration as to the necessity of the policy. The circuit court relied on the affidavits of Macht and the security director of the WRC, Mario Canziani, to support the policy. Finding that there were legitimate security concerns involved, the circuit court concluded that the policy is not arbitrary or unreasonable, and represents a valid exercise of institutional authority. Adams again appeals.

DISCUSSION

¶ 5. Because of our earlier opinion in this matter, the only remaining issue before us is whether the WRC's policy is "arbitrary and unreasonable and not based on a legitimate security concern." Id. at 3. As to the circuit court's holding, we review the policy de novo because the circuit court's decision upon remand was based entirely upon documentary evidence. See Racine Educ. Ass'n v. Racine Bd. of Educ., 145 Wis. 2d 518, 521, 427 N.W.2d 414 (Ct. App. 1988) (no special deference to trial court findings when based on documentary evidence). But despite our de novo review, we value a trial court's decision on the matter at issue. See Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993).

¶ 6. But our standard of review of a governmental policy relating to the administration of the facility is a different matter. We begin by addressing the nature of the WRC facility and its residents. Persons civilly committed under WlS. Stat. ch. 980 are patients, not prisoners, and the WRC is a treatment facility and not a prison. That being said, we must recognize that administrators of ch. 980 treatment facilities face many of the same safety, environmental and rehabilitation concerns that confront administrators of prisons. For that reason, we will look to the case law dealing with challenges to prison regulations for assistance on this standard of review question.

¶ 7. In Lomax v. Fiedler, 204 Wis. 2d 196, 209, 554 N.W.2d 841 (Ct. App. 1996), this court adopted the "reasonably related" standard when reviewing prison-imposed restrictions on inmates' rights. We inquired whether the prison's actions were "reasonably related" to legitimate penological objectives. See id. In deciding upon this standard, Lomax relied upon the United States Supreme Court opinions in Turner v. Safley, 482 U.S. 78 (1987), and Thornburgh v. Abbott, 490 U.S. 401 (1989). See Lomax, 204 Wis. 2d at 201. Citing to those two cases, Lomax noted that while prisoners retain the benefit of their constitutional rights, such rights "must necessarily be limited by considerations relating to ' "the inordinately difficult undertaking" that is modern prison administration." Lomax, 204 Wis. 2d at 205 (quoting Thornburgh, 490 U.S. at 407 (citation omitted)). This is necessarily so because "[t]he legislature has delegated the task of running the state's prisons to the Department of Corrections, not to the courts." Lomax, 204 Wis. 2d at 205. The courts' sole function is "to determine whether the challenged actions strike a reasonable, constitutionally permissible, balance between the rights of prisoners and legitimate concerns of prison administration and security." Id. And such actions should only be overturned if "they are so remote from, and unconnected to, any legitimate correctional or penological interests as to be arbitrary or irrational." Id. at 222 (citing Turner, 482 U.S. at 89-90).

¶ 8. Because the safety, environmental and rehabilitation concerns in the prison setting are similar to those in a WlS. STAT. ch. 980 facility setting, we adopt the "reasonably related" standard for purposes of reviewing the policy at issue in this case. Thus, we look to whether the visitation restriction regulation is reasonably related to legitimate safety, rehabilitation and treatment objectives.

¶ 9. The WRC policy in question was instituted through an internal memorandum issued by Macht on October 22, 1997, to his deputy administrator for the division of care and treatment facilities. The memo cited violations of the WRC's policy prohibiting fraternization as the impetus for prohibiting former employees from visiting the institution. The memo also pointed to the risk posed by former employees due to their formal and informal knowledge of institution procedures — including security measures — and their ability to pass such information on to current patients. The memo further noted that the prohibition of visitation by former employees was in keeping with "accepted security practices of other institutions housing inmates and high risk patients deemed to be 'sexually violent predators.'" In noting that such visits were "counter-therapeutic," the memo went on to say:

Patients committed to WRC have been found to be at substantial risk to commit additional acts of sexual violence and manipulation. When staff are successfully manipulated and cross the boundaries, the patient is not without culpability. When an ex-staff person requests to visit, the patient and victim's distortions are reinforced. Treatment seeks to reduce reliance on distortions, and it is difficult to challenge such manipulative behavior when the institution consciously or unconsciously fails to actively address the constructs of continued psychopathic behavior by acquiescing to such visits.

¶ 10. In addition to Macht's memo, the record also contains affidavits from Macht and Canziani laying out the reasons for implementing the WRC's policy prohibiting visitation by former employees. Both affidavits begin by setting out each individual's expertise by indicating his length of service in corrections. Macht has worked in corrections since 1965, serving as the director of the WRC since 1986. Canziani has been the security director at the WRC since 1996 and has worked in corrections since 1991. In his affidavit, Macht notes that the primary goal of the WRC is "to provide the patients with treatment and to protect the public" and that "[a]ll decisions that affect patients are based on security, management and treatment."

¶ 11. In laying out the dangers presented by allowing former employees to visit the WRC, Canziani stated that visitation necessarily increases the WRC's exposure to contraband and other breaches of security. Echoing Macht's memo, Canziani also stated that former employees' knowledge of security procedures and any flaws therein creates a significant risk of escape or other safety problems. In addressing the issue of fraternization, Canziani reported that the effect of such problems is a blurring of the appropriate boundaries between staff, inmates and patients. Furthermore, in concluding that such visitation poses a serious risk to institutional security, Canziani noted that "[p]eople in love or compromised in any other way frequently demonstrate poor judgment" and that "[p]ast corrections history nationwide has shown a number of these individuals have smuggled in contraband/weapons and assisted escapes." Canziani also stated that fraternization affects staff morale and, if left unchecked, diminishes the institution's ability to prevent future incidents. Finally, Canziani observed that compromised former employees may be able to influence their former coworkers who are still employed and that a general prohibition is necessary due to the difficulty in determining the nature of the relationship between the patient and the former employee.

¶ 12. Applying the facts of this case to these general principles, Canziani recited that: (1) the former employee involved was academy trained and well versed in the WRC's security practices; (2) the former employee has a child with Adams; (3) the former employee was terminated for suspected fraternization with an inmate at another institution; (4) the former employee admitted to sending Adams photocopied material from her training manual; and (5) security practices at the WRC have not changed since the former employee was trained. Thus, in Canziani's opinion, the former employee poses a "continuous threat [to the] security of the institution."

¶ 13. Remembering our deferential standard of review, this court is satisfied that the WRC's policy is reasonably related to legitimate security, rehabilitation and treatment concerns. See Lomax, 204 Wis. 2d at 201. The memo that instituted the policy and the affidavits of Macht and Canziani amply support our conclusion. Thus, this is precisely the type of administrative decision in which courts should defer to the professional expertise of administrators of prisons or treatment facilities.

¶ 14. Before concluding, we note that in addition to his challenge to the validity of the rule, Adams makes a related argument that the blanket application of the WRC policy sweeps too broadly and should be applied only when the facts of a specific case dictate its imposition. However, even if the WRC's rule was limited and tailored in the fashion that Adams requests, we would nonetheless conclude that the rule was properly applied under the facts of this case because the relationship between Adams and the former employee threatens institutional security.

CONCLUSION

¶ 15. Creation of a policy such as the one in question here is within the professional expertise of the WRC administrator, and we accord deference to that determination. And because the evidence establishes that the policy is reasonably related to the legitimate security, rehabilitation and treatment concerns of the WRC, we uphold the application of the rule to the institution as a whole and to Adams specifically.

By the Court. — Order affirmed.

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

       Prior to commencing this action in the circuit court, Adams exhausted his administrative remedies.

      Macht states in his affidavit that the WRC is a secure treatment facility housing both Department of Corrections inmates and Division of Health and Family Services patients.


author: HOOVER, P.J.

text:
    In the Matter of the Appeal of Ballot Recount: Walter V. Lee, Petitioner-Respondent-Cross-Appellant, v. David Paulson, Respondent-Appellant-Cross-Respondent, Thomas Stordahl, Sharon Schiebel, James Beistle, Delores Patterson and Janet Moore, Respondents.
    Court of Appeals

      No. 00-1626.

      Submitted on briefs November 20, 2000.

    Decided December 27, 2000.

    2001 WI App 19
    (Also reported in 623 N.W.2d 577.)

      On behalf of the respondent-appellant-cross-respondent, the cause was submitted on the briefs of William Thiel and Weld, Riley, Prenn & Ricci, S. C., of Eau Claire.
    On behalf of the petitioner-respondent-cross-appellant, the cause was submitted on the briefs of Jason Whitley and Novitzke, Gust & Sempf of Amery.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   HOOVER, P.J.

¶ 1. David Paulson appeals a circuit court order that excluded two votes cast in his favor in the April 4, 2000, election for county supervisor. The exclusion of these votes resulted in a tie vote between Paulson and Walter Lee. Paulson argues that the two votes were improperly excluded. Lee cross-appeals, arguing that the circuit court correctly removed the two votes and that additional votes should also be excluded. We do not reach the circuit court's decision to exclude two votes cast in Paulson's favor because Lee prevails on other grounds. Specifically, we conclude that five identified absentee ballots for Paul-son were issued without written applications, contrary to WlS. STAT. § 6.86(l)(ar). The statutes mandate that these absentee votes may not.be included in the certified election result. See WlS. Stat. § 6.84(2). Therefore, Lee wins the election regardless whether the circuit court correctly excluded two votes.

¶ 2. The canvass board concluded that the vote resulted in 161 votes for Paulson and 159 votes for Lee. The board had already reduced the votes cast in favor of Paulson by one because he had witnessed one absentee voter's affidavit. Subtracting four additional absentee ballot votes from Paulson's total in accordance with our decision creates a majority for Lee (Lee 159 votes, Paulson 157 votes). The election is resolved on this basis. We therefore reverse and remand with directions for the circuit court to modify the order accordingly.

BACKGROUND

¶ 3. Lee appealed to the circuit court, arguing that the board should have deducted additional votes from Paulson, including all of the absentee ballots lacking written applications. The circuit court held a hearing pursuant to WlS. STAT. § 9.01(7) and issued an order that excluded one absentee ballot cast in favor of Paulson from the certified election results. It also excluded one vote that the town clerk cast on behalf of another voter. The circuit court concluded that the vote was a tie (Lee 159 votes, Paulson 159 votes) and that the winner should be chosen by lot according to Wis. Stat. § 5.01(4)(a). Both Paulson and Lee appeal the circuit court's order.

STANDARD OF REVIEW

¶ 4. Wisconsin Stat. § 9.01(8) provides the standard of review:

The court shall set aside or modify the determination if it finds that the board of canvassers or chairperson has erroneously interpreted a provision of law and a correct interpretation compels a particular action. If the determination depends on any fact found by the board of canvassers or chairperson, the court may not substitute its judgment for that of the board of canvassers or chairperson as to the weight of the evidence on any disputed finding of fact. The court shall set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence.

¶ 5. This case requires us to interpret WlS. STAT. § 6.86(l)(ar), which provides in relevant part:

[T]he municipal clerk shall not issue an absentee ballot unless the clerk receives a written application therefor from a qualified elector of the municipality. The clerk shall retain each absentee ballot application until destruction is authorized under s. 7.23 (l).

¶ 6. Statutory construction presents a question of law this court reviews de novo. Wisconsin Fin. Corp. v. Garlock, 140 Wis. 2d 506, 515, 410 M.W.2d 649 (Ct. App. 1987). The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. County of Columbia v. Bylewski, 94 Wis. 2d 153, 164, 288 N.W.2d 129 (1980). In determining legislative intent, first resort must be to the language of the statute itself. Id. If the meaning of the statute is clear on its face, this court will not look outside the statute in applying it. WEPCO v. PSC, 110 Wis. 2d 530, 534, 329 N.W.2d 178 (1983). We will consider the parts of a statute in relation to the whole and to related sections. Elliott v. Employers Mut. Cas. Co., 176 Wis. 2d 410, 414, 500 N.W.2d 397 (Ct. App. 1993).

DISCUSSION

¶ 7. Wisconsin Stat. § 6.84(2) mandates that WlS. STAT. § 6.86(l)(ar) be strictly construed:

Notwithstanding s. 5.01 (1), with respect to matters relating to the absentee ballot process, ss. 6.86, 6.87 (3) to (7) and 9.01(l)(b) 2. and 4. shall be construed as mandatory. Ballots cast in contravention of the procedures specified in those provisions may not he counted. Ballots counted in contravention of the procedures specified in those provisions may not be included in the certified result of any election. (Emphasis added.)

Section 6.84(2)'s strict construction requirement, applicable to statutes relating to the absentee ballot process, is consistent with the guarded attitude with which the legislature views that process. WISCONSIN Stat. § 6.84(1) provides that absentee ballot voting

must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses.

While voting is a constitutional right, voting by absentee ballot is considered a privilege "exercised wholly outside the traditional safeguards of the polling place." Id.

¶ 8. By its plain terms, WlS. Stat. § 6.86(l)(ar) requires an elector to apply for an absentee ballot in writing. This is mandatory under WlS. STAT. § 6.84(2). Because none of the absentee voters in the Town of Black Brook filed written applications, as the board concluded and the parties do not dispute, those absentee ballots must be removed from the certified election results.

¶ 9. Two absentee votes have been affected by either the board or the circuit court decisions. The board reduced Paulson's vote by one for witnessing the absentee voter's affidavit, although the actual ballot remained in the box. Also, the circuit court reduced Paulson's vote by one when it removed Eric Paulson's absentee vote for failure to properly complete the affidavit, although his actual ballot remained in the box. Paulson concedes that if all the absentee bállots are for one candidate, then the court need not resolve which two of the absentee ballots were already discounted.

¶ 10. Both parties agree that these five disputed absentee ballots can be identified because they have only one set of initials by the town clerk. The other ballots have two sets of initials. The ballots in the record show that all five Black Brook absentee ballots were cast in Paulson's favor. Therefore, all of them must be removed from Paulson's tally.

¶ 11. We begin with the board's final count. The board concluded that the vote resulted in 161 votes for Paulson and 159 votes for Lee. If we disregard one absentee ballot for the one that resulted in a reduction of Paulson's votes at the board review, removing four absentee votes from Paulson's total results in a majority for Lee (Lee 159 votes, Paulson 157 votes). The election is resolved on this basis. We therefore, reverse and remand with directions to modify the order accordingly.

¶ 12. Because this issue is dispositive of the appeal, we need not address other issues raised. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983). Further, the vote is decided without resolving the trial court's decision, which removed two votes from Paulson. Paulson's appeal is denied and Lee's cross-appeal is granted in part.

By the Court. — Order affirmed in part; reversed in part and cause remanded with directions. Costs to Lee.

      All references to the Wisconsin Statutes are to the 1997 — 98 version.

       Because we resolve the case on the grounds of absentee ballot applications, we do not address whether an additional vote should be subtracted from Paulson as a "penalty" for witnessing the absentee voter's affidavit under WlS. Stat. § 6.87(7).

       Wisconsin Stat. § 9.01(7) provides:
      (a) The court with whom an appeal is filed shall forthwith issue an order directing each affected county or municipal clerk or board to transmit immediately all ballots, papers and records affecting the appeal to the clerk of court or to impound and secure such ballots, papers and records, or both. The order shall fix a place and a time for the hearing within 5 days of the order either in open court, at chambers or before a referee. The order shall be served upon each affected county or municipal clerk or board and all other candidates and persons who filed a written notice of appearance before any board of canvassers involved in the recount. A reference may be ordered upon any question. At the assigned time and place, the matter shall be summarily heard and determined and costs taxed as in other civil actions.
      (b) The appeal shall be heard by a judge without a jury. Within 10 days after an appeal is filed, the appellant shall file a complaint enumerating with specificity every alleged irregularity, defect, mistake or fraud committed during the recount. The appellant shall file a copy of the complaint with each person who is entitled to receive a copy of the order under par. (a). The court shall promptly require an answer from the other parties to the appeal. The court shall hold a hearing on the matter within 15 days of the date that the answer is filed. Those provisions of chs. 801 to 806 which are inconsistent with a prompt and expeditious hearing do not apply to appeals under this section.

       The circuit court excluded an absentee vote cast by Eric Paulson, Paulson's son, because it concluded that the affidavit was not properly witnessed.

       The town clerk testified that he was assisting the voter as permitted by WlS. STAT. § 6.82. However, the circuit court concluded that the voter did not meet the statutory prerequisites for assistance.

       No one argues that WlS. Stat. § 6.875(6), as referenced in an omitted portion of WlS. STAT. § 6.86(l)(ar), is applicable to this case. WISCONSIN STAT. § 7.23(l)(f) provides for safekeeping of absentee voter applications for at least 22 months.

       As stated earlier, the ballot was not withdrawn; the board merely reduced Paulson's vote by one.