author: SNYDER, J.

text:
    Katherine A. Goggins, Plaintiff-Appellant, v. Rogers Memorial Hospital Incorporated, a Wisconsin Corporation, Defendant-Respondent.
    Court of Appeals

      No. 03-1087.

      Oral argument March 30, 2004.

    Decided May 26, 2004.

    2004 WI App 113
    (Also reported in 683 N.W.2d 510.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of David E. Lasker and Danielle L. Carne of Shneidman, Hawks & Ehlke, S.C., Madison. There was oral argument by David E. Lasker.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Sarah J. Elliott and Daniel T Dennehy of von Briesen & Roper, S.C., Milwaukee. There was oral argument by Sarah J. Elliott.

    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 9-1-04.

   SNYDER, J.

¶ 1. Katherine A. Goggins appeals from an order for summary judgment in favor of Rogers Memorial Hospital Incorporated. Goggins claims relief under Wisconsin's public policy exception to the employment-at-will doctrine, and contends that the trial court erred when it determined that the facts presented did not support her claim. Goggins further contends that the court improperly characterized her claim as one for retaliatory discharge, governed by the Department of Workforce Development under Wis. Stat. § 146.997 (2001-02), which deprives the court of subject matter jurisdiction. We agree that Goggins. is not limited to administrative remedies provided by the DWD, but disagree with her assertion that she has stated a claim for wrongful discharge. Accordingly, we affirm the order for summary judgment in favor of Rogers.

FACTS

¶ 2. Goggins worked as a registered nurse in the Residential Eating Disorder (RED) program at Rogers beginning in 1997. At the time Goggins was hired, Dr. Thomas Holbrook was medical director for the RED program, and Dr. David Moulthrop, Ph.D., was president and CEO of Rogers.

¶ 3. When Dr. Moulthrop joined Rogers in 1993, Dr. Holbrook was medical director for the institution. Upon taking his post as president and CEO, Dr. Moulth-rop removed Dr. Holbrook from his position as Rogers' medical director. As grounds for Dr. Holbrook's removal, Dr. Moulthrop cited the fact that Dr. Holbrook had just married a former patient. Dr. Moulthrop stated that he felt Dr. Holbrook's marriage to a former patient would "reflect badly on the reputation of the hospital." Dr. Holbrook agreed to step down, but he later rejoined Rogers as the medical director for the RED program and remained in that position until February 2001.

¶ 4. In July 1998, a patient, referred to as Patient A in this matter, was admitted to the RED program. She continued in residential treatment at Rogers until January 25, 1999.

¶ 5. While Patient A was in residential treatment, concerns surfaced among Rogers' staff that Dr. Hol-brook was giving Patient A preferential treatment. Goggins approached Dr. Holbrook to voice her concerns about his treatment of Patient A and to inform him of the concerns circulating among the staff. Dr. Holbrook responded, "Why should I stop now?"

¶ 6. In December 1998, Goggins contacted Dr. Moulthrop about her suspicions concerning Dr. Holbrook's preoccupation with Patient A. She explained that other patients were not receiving attention from Dr. Holbrook and that Dr. Holbrook had rented a cello for Patient A. Dr. Moulthrop responded by confronting Dr. Holbrook about the allegations. Dr. Holbrook denied any inappropriate behavior, stating that Patient A's disorder required special attention.

¶ 7. Despite Patient As discharge from the RED program in January 1999, the RED program staff continued to be concerned about Dr. Holbrook's relationship with this patient. Dr. Moulthrop arranged for the RED staff to meet with Dr. Holbrook to air their concerns. In May 1999, the RED staff met with Dr. Holbrook, where Dr. Holbrook admitted he hired Patient A to edit his book but denied having an affair with her. Just prior to this meeting, Patient A had called Dr. Moulthrop to inform him that nothing improper was happening between herself and Dr. Holbrook and she wanted the rumors stopped.

¶ 8. Following the May 1999 staff intervention with Dr. Holbrook, Goggins approached Dr. Moulthrop a second time. Goggins told Dr. Moulthrop that the consensus among staff was that Dr. Holbrook had lied at the meeting.

¶ 9. Goggins went to Dr. Moulthrop a third time in December 1999. Once again she reported information told to her by the RED staff, specifically that Dr. Holbrook had been seen in public with Patient A. Goggins stated that she was concerned about the impact Dr. Holbrook's behavior was having on the reputation of the hospital. At this meeting, Dr. Moulthrop indicated that Rogers was seeking a replacement for Dr. Holbrook.

¶ 10. On April 27, 2000, Goggins submitted a request for a twenty-eight day leave of absence to begin on May 6. She indicated two reasons for her request: (1) to pursue long-standing professional goals, and (2) to bring attention to Dr. Holbrook's questionable behavior at the RED center. Prior to the start of her leave, Goggins again met with Dr. Moulthrop. Goggins requested that the RED program manager, Elizabeth Kemppainen, attend this meeting as well. Kemppainen arrived at Dr. Moulthrop's office before Goggins, and Dr. Moulthrop told Kemppainen to leave. Kemppainen recalled that Dr. Moulthrop dismissed her, saying, "[W]e don't want to be put in a position where we have to either do something or start an investigation." At this meeting, Goggins told Dr. Moulthrop that reliable sources indicated that Dr. Holbrook was living with Patient A. Goggins further stated that she believed an immediate intervention was necessary to address Dr. Holbrook's abuse of Patient A. Dr. Moulthrop indicated that he did not want anything put in writing, and he would handle the problem.

¶ 11. Goggins began her leave of absence on May 5 and filed a complaint the next day with the State Department of Regulation and Licensing, Division of Enforcement. She wrote to the medical director of Rogers, Dr. William Watson, advising him of the problems in the RED program and the fact that she had filed a complaint. In her May 12 letter to Dr. Watson, Goggins stated: "I am writing this letter because over the past year and a half no action has been taken to stop Dr. Holbrook's abuse to his patient. On June 3rd, 2000 my LOA will be over and I will need to decide to resume my position at RED or to resign." On May 16, Goggins wrote to Dr. Watson and other members of the Rogers administration, providing copies of all documents submitted with her complaint to the State.

¶ 12. On May 26, Goggins contacted Rogers' director of human resources, Renee Patterson, requesting an indefinite extension of her leave. She indicated that she had finished attending to her long-standing professional goals, but that the situation with Dr. Holbrook continued to be a problem. On June 2, 2000, one day before her leave of absence expired, Goggins again wrote to Patterson requesting an indefinite extension of her leave.

¶ 13. Patterson responded by letter dated June 13, 2000, and informed Goggins that her leave could not be extended as requested. Patterson invited Goggins to return to her position at the RED program by June 24 or to consider reassignment to a different program at the hospital.

¶ 14. Goggins did not accept the alternate position, nor did she return to work in the RED program by June 24.

¶ 15. In January 2001, Rogers requested Dr. Holbrook's resignation, to be effective February 28. The Department of Regulation and Licensing filed a formal complaint against Dr. Holbrook with the Medical Examining Board on March 21, 2001.

¶ 16. Goggins sued Rogers for wrongful discharge, arguing that the hospital's unwillingness to take action against Dr. Holbrook created an intolerable situation and constituted constructive discharge from her employment. She further argued that although her employment was at-will, Rogers' inaction violated public policy and therefore her termination was illegal under the public policy exception to the employment-at-will doctrine. Rogers moved for summary judgment, which was granted. Goggins appeals.

DISCUSSION

Standard of Review

¶ 17. When reviewing a summary judgment, we perform the same function as the trial court and review the matter de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment must be affirmed where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). When reviewing the matter, we construe all facts and reasonable inferences in favor of the nonmoving party. Strozinsky v. Sch. Dist. of Brown Deer, 2000 WI 97, ¶ 32, 237 Wis. 2d 19, 614 N.W.2d 443. If a determination of law will conclude the case, summary judgment should be granted. Northwest Eng'g Credit Union v. John, 120 Wis. 2d 185, 187, 353 N.W.2d 67 (Ct. App. 1984).

Wrongful Discharge and Employment-at-Will

¶ 18. Goggins was an at-will employee of Rogers. Generally, such employees may be terminated at will, for any reason or no reason, without cause and without judicial remedy for the employee. Bammert v. Don's Super Valu, Inc., 2002 WI 85, ¶¶ 8-9, 254 Wis. 2d 347, 646 N.W.2d 365. An at-will employee may sue for wrongful discharge, however, where the discharge is contrary to a fundamental and well-defined public policy. Id., ¶ 9.

¶ 19. In asserting a wrongful discharge claim, the claimant must satisfy a two-part test: (1) the claimant must identify a fundamental and well-defined public policy sufficient to meet the narrow cause of action for wrongful discharge under the public policy exception to the employment-at-will doctrine; and (2) the claimant must demonstrate that the discharge violates that fundamental and well-defined public policy. Strozinsky, 237 Wis. 2d 19, ¶ 37.

1. The Well-Defined Public Policy

¶ 20. The starting point for our analysis is Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983). Goggins' claim relies on the public policy exception to the employment-at-will doctrine articulated by our supreme court:

A wrongful discharge is actionable when the termination clearly contravenes the public welfare and gravely violates paramount requirements of public interest. The public policy must be evidenced by a constitutional or statutory provision. An employee cannot be fired for refusing to violate the constitution or a statute. Employers will be held liable for those terminations that effectuate an unlawful end.

Id. at 573.

¶ 21. The public policy exception to employment-at-will is a closely guarded common law concept, and more often than not, courts have "emphasized the limited scope of the exception." Bammert, 254 Wis. 2d 347, ¶ 16. Substantive expansions of the public policy exception "have been few and limited in nature." Id., ¶ 15. The public policy exception has been expanded to incorporate circumstances that violate the "spirit as well as the letter" of legislative pronouncements. Winkelman v. Beloit Mem'l Hosp., 168 Wis. 2d 12, 21, 483 N.W.2d 211 (1992). More recently, in Hausman v. St. Croix Care Center, 214 Wis. 2d 655, 571 N.W.2d 393 (1997), our supreme court concluded that the "plaintiffs' compliance with an affirmative legal duty requiring them to take action to prevent abuse or neglect of nursing home residents comports with a well-defined public policy and the rationale of our public policy exception to the employment-at-will doctrine." Id. at 658-59.

¶ 22. To support her claim, Goggins points to the fundamental and well-defined public policy expressed in Hausman, where two nursing home staff members were terminated after they reported suspected neglect and abuse of patients. Id. at 659-61. The Hausman plaintiffs were fired for complying with a legal duty to report abuse and neglect. Id. Goggins argues by analogy that her actions were also driven by an affirmative statutory duty, under Wis. Stat. § 940.295(3)(a), to report suspected patient abuse or neglect. We agree that Goggins had a duty to report abuse or neglect of a patient, and that her actions comport with the public policy of protecting patients of health care facilities. See Hausman, 214 Wis. 2d at 658-59. This conclusion does not deviate from the narrow approach our courts have taken with the public policy exception, and no new public policy exception need be created in this regard.

¶ 23. There is no dispute between the parties that Rogers did respond to Goggins' reports of patient abuse and neglect. Goggins simply takes issue with the nature and extent of the response. Courts have been reluctant to "enlarge what was meant to be, and has always been, an extremely narrow exception to employment-at-will." Bammert, 254 Wis. 2d 347, ¶ 19. We therefore cautiously move our analysis to the second factor to determine whether Goggins has factually identified a public policy exception that is connected to the termination of her employment at Rogers.

2. Did Goggins' Discharge Violate Public Policy?

¶ 24. Goggins must demonstrate that she was faced with the "onerous burden of choosing between equally destructive alternatives: report and be terminated, or fail to report and be prosecuted." Hausman, 214 Wis. 2d at 669. The law requires a connection between the discharge and the public policy to establish a claim. Wandry v. Bulls Eye Credit Union, 129 Wis. 2d 37, 47, 384 N.W.2d 325 (1986).

¶ 25. We must deviate here to address a threshold issue for Goggins. An action based on a public policy exception to the employment-at-will doctrine requires a "discharge." See Brockmeyer, 113 Wis. 2d at 573. The parties here disagree as to whether Goggins resigned or was subject to "constructive discharge" by Rogers. The doctrine of constructive discharge recognizes that employers, in an attempt to avoid liability, might refrain from directly firing an employee, preferring instead to engage in conduct causing the employee to resign. Strozinsky, 237 Wis. 2d 19, ¶ 68. To demonstrate a claim for constructive discharge, Goggins must establish that conditions at Rogers were so intolerable that she felt compelled to resign. See id., ¶ 76. This "hinges on whether a reasonable person in the position of the plaintiff would feel forced to quit." Id. (emphasis added).

¶ 26. The analysis requires an "objective inquiry" into the circumstances at the time that Goggins' employment ended. See id. Record facts reveal that Patient A had been discharged from Rogers for over one year prior to Goggins' leave of absence in May 2000. Furthermore, Goggins described two reasons for taking her leave: (1) her concerns about Dr. Holbrook were not addressed to her satisfaction, and (2) she was taking time away to pursue her long-standing professional goals. She testified in her deposition that during her leave of absence she had advanced her outside professional goals by working on her business plan, talking to an attorney, and consulting with financial experts.

¶ 27. Also, when Goggins requested an extension of her leave, she knew that Rogers' written policy limited nonmedical leave to four weeks, and that she had been granted the maximum amount available. Goggins understood that failure to return at the end of her four-week leave would be considered a resignation. In her letter to Rogers' medical director on May 12, 2000, Goggins wrote: "On June 3rd, 2000 my LOA will be over and I will need to decide to resume my position at RED or to resign."

¶ 28. Nonetheless, Rogers extended Goggins' leave for an additional twenty days, while encouraging her to return. A letter from Rogers' director of human resources, Renee Patterson, dated June 13, 2000, stated:

I understand that your request is primarily due to your feelings regarding the Medical Director for the Eating Disorders program. However, given your long length of service coupled with your contribution to our residents' care, I am hoping that you will reconsider our offer for you to return to your Registered Nurse position at the Eating Disorders center.... The Hospital will continue to hold your position until June 24th. Also, I would want to bring to your attention the fact that we have a .9, second shift, RN position available on our Odyssey unit. I would welcome your application for this position, as well as any other position with Rogers, based on your interest and qualifications.

¶ 29. Furthermore, Rogers did not prohibit Gog-gins from filing a complaint with the State Department of Regulation and Licensing, a remedy which turned out to be successful. Although Goggins filed her formal complaint on May 7, Rogers continued to hold her position for her, and to offer her the option of an alternate position at the hospital, until June 24.

¶ 30. The question, again, is whether a reasonable person in Goggins' position would have felt forced to quit under these circumstances. See id. Ultimately, whether a resignation was voluntary or coerced is a question of fact reserved for the jury. Id., ¶ 72, ¶ 78. We proceed with the second portion of the analysis, recognizing that had Goggins stated a claim under the public policy exception to employment-at-will, this issue would have gone to the jury.

¶ 31. Returning to the second Strozinsky factor, Goggins must "identify a fundamental and well defined public policy and then prove that the discharge, whether constructive or express, violated that policy." Id., ¶ 69. In other words, Goggins must show that her "termination of employment" was "for fulfillment of [her] legal obligation." See Hausman, 214 Wis. 2d at 669.

¶ 32. Goggins fails to demonstrate a connection between her termination of employment and the public policy goal of protecting hospital patients from abuse and neglect. This public policy consideration arose while Patient A was at Rogers and under the care of Dr. Holbrook. At that time, Goggins fulfilled her affirmative duty to report, and Dr. Moulthrop followed up on Goggins' reports. It appears that Goggins desired swifter, stronger action by Dr. Moulthrop against Dr. Holbrook. With this, Goggins departs from the fundamental and well-defined public policy articulated in her claim. Rather than arguing that she was prevented from reporting suspected abuse, she, in effect, is asking us to dictate policy on the speed and substance of an employer's investigative response. In other words, Gog-gins does not take issue with what Rogers did to her; she takes issue with what Rogers did not do to Dr. Holbrook.

¶ 33. Goggins continued to report her concerns to Dr. Moulthrop, and she acknowledged that Rogers never asked her to stop reporting, subjected her to any disciplinary measures, or took any retaliatory action against her. We conclude that Goggins was not placed in a "report and be terminated" situation, see id. at 668-69, and that the public policy exception to the employment-at-will doctrine articulated in her claim is not connected to the termination of her employment.

Applicability of Wis. Stat. § 146.997

¶ 34. The final issue before us is Rogers' challenge to the jurisdiction of the circuit court. Under Wis. Stat. § 146.997(3), health care facilities are prohibited from taking disciplinary action against staff who report violations of law or ethical standards by their employer. Rogers argues that Goggins has essentially raised a "whistleblower" claim and is limited to recourse through the DWD. Sec. 146.997(4). We disagree. The plain language of the statute provides an employee of a health care facility with the opportunity to file a complaint with the DWD, but it is not mandatory. The statute specifically states that "any employee of a health care facility or health care provider who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of sub. (3) may file a complaint with the department." Sec. 146.997(4)(a) (emphasis added).

¶ 35. Our supreme court rejected the argument that individual civil actions for wrongful discharge are inappropriate because "the legislature has entrusted the State with the duty of deterring and punishing discharges that occur due to an employee's report of neglect or abuse." Hausman, 214 Wis. 2d at 670. The supreme court observed that "[ajbsent application of the wrongful discharge public policy exception, such an individual has no recourse to regain a former position or receive redress for a wrongful termination." Id.

¶ 36. We hold that Goggins had a right to pursue an individual civil action for wrongful discharge, and that she was not limited to administrative remedies under Wis. Stat. § 146.997.

CONCLUSION

¶ 37. We conclude that Goggins' claim for wrongful discharge under the public policy exception to the employment-at-will doctrine fails to state an actionable claim. Goggins cannot demonstrate that she was discharged in connection with a recognized public policy exception to the doctrine. Although she had an affirmative duty to report patient abuse and neglect, she was not faced with the choice to "report and be terminated, or fail to report and be prosecuted." See Hausman, 214 Wis. 2d at 668-69. Furthermore, we conclude that Goggins had a right to pursue an individual civil claim for wrongful discharge and was not limited to administrative relief under Wis. Stat. § 146.997.

By the Court. — Order affirmed.

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

       Wisconsin Stat. § 940.295(3)(a) applies to inpatient health care facilities and states:
      (a) Any person in charge of or employed in any facility or program under sub. (2) who does any of the following, or who knowingly permits another person to do so, may be penalized under par. Oí):
      1. Intentionally abuses or intentionally neglects a patient or resident.
      2. Recklessly abuses or recklessly neglects a patient or resident.
      3. Negligently abuses or neglects a patient or a resident.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    Robert V. LaCombe, Plaintiff-Appellant, Federated Mutual Insurance Company, Subrogated-Plaintiff-Co-Appellant, Medicare Parts A & B, Subrogated-Plaintiff, v. Aurora Medical Group, Inc., Charlene Karls, and The Medical Protective Company, Defendants-Respondents, Wisconsin Patients Compensation Fund, Ohio Hospital Insurance Company, ABC Insurance Company, DEF Insurance Company, and GHI Insurance Company, Defendants.
    Court of Appeals

      No. 03-2093.

      Submitted on briefs April 22, 2004.

    Decided May 26, 2004.

    2004 WI App 119
    (Also reported in 683 N.W.2d 532.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Paul V. Gagliardi of Gagliardi, O'Brien, Braden, Olson & Capelli of Salem, and Timothy J. Aiken and James C. Gallanis oí Aiken & Scoptur, S.C. of Milwaukee.
    On behalf of the defendants-respondents Aurora Medical Group, Inc., Charlene Karls, and The Medical Protective Company and defendant Ohio Hospital Insurance Company, the cause was submitted on the brief of Michael P. Malone.

    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 9-20-04.

   BROWN, J.

¶ 1. Robert V. LaCombe appeals from a judgment dismissing his medical malpractice complaint against Aurora Medical Group, Inc., Charlene Karls, D.O, and The Medical Protective Company (collectively, "Dr. Karls"). LaCombe argues that the trial court erred in denying his postverdict motion for a new trial. He claims that the jury's verdict was inconsistent because the special verdict questions regarding liability and damages were improperly formulated so as to be confusing and likewise inconsistent and, as a result, he is entitled to a new trial. We hold that because LaCombe is challenging the wording of the special verdict questions and because he failed to make a timely objection to the special verdict questions before the trial court, he has waived the issue. We therefore affirm the trial court’s denial of LaCombe's postverdict motion for a new trial and dismissal of his complaint.

¶ 2. The following facts are pertinent to this appeal. In October 2000, LaCombe filed a medical malpractice action against Dr. Karls, alleging that Dr. Karls negligently failed to perform appropriate diagnostic testing and/or obtain appropriate orthopedic consultation. He claimed that Dr. Karls' negligence caused serious injuries, including, among other permanent injuries, incomplete paraplegia due to Cauda Equina Syndrome. LaCombe timely requested a special verdict form wherein the jury was directed to answer the following questions:

Question No. 1: Was [Dr. Karls] negligent with regard to her care and treatment of [LaCombe] in December 1997?
Answer:_
(Yes or No)
Question No. 2: If your answer to Question No. 1 is "yes," then answer this question: Was such negligence a cause of the permanent injuries that are a residual of Cauda Equina Syndrome?
Answer:_
(Yes or No)
Question No. 3: What sum of money will fairly and reasonably compensate [LaCombe] for damages sustained as natural and probable consequence of Cauda Equina Syndrome ...?

¶ 3. Before submitting the case to the jury, the trial court held jury instruction and verdict conferences. At the first conference that is part of the record, the trial court inserted prefaces to the second and third special verdict questions LaCombe submitted:

THE COURT:.... You need prefaces to number two and perhaps to number three. Preface to number one, answer this only if you answer question number one "yes" and question number three should be regardless of how you answered question one or two, whatever it happens to be.

The record does not reveal any objection by LaCombe to these changes to the special verdict form. Following several discussions concerning the wording and the format of the special verdict form and the jury instructions that are not relevant to this appeal, the trial court submitted the following special verdict form to the jury:

Question No. 1: Was [Dr. Karls] negligent with regard to her care and treatment of [LaCombe] between December 12 and December 31, 1997?
Answer:_
(Yes or No)
Question No. 2: If your answer to Question No. 1 is "yes", then answer this question: Was such negligence a substantial factor in causing injury to [LaCombe]?
Answer:_
(Yes or No)
Regardless of how you answer Questions 1 and 2, answer these questions:
Question No. 3: What sum of money will fairly and reasonably compensate [LaCombe], for damages sustained as a natural and probable consequence of his injuries . ..?

When the trial court instructed the jury, it included the following pertinent instructions:

[LaCombe] sustained injuries before the treatment by Dr. Karls. Such injuries have caused and could in the future cause [LaCombe] to endure pain and suffering and incur some disability. In answering these questions on damages, you will entirely exclude from your consideration all damages which resulted from the original injury; you will consider only the damages LaCombe sustained as a result of the negligent treatment, if any, by Dr. Karls.
It will, therefore, be necessary for you to distinguish and separate, first, the natural results in damages that flow from [LaCombe's] original injuries or disease and, second, those that flow from [Karls'] negligent treatment and allow [LaCombe] only the damages naturally resulting] from the negligent treatment by Dr. Karls, if any.

The jury returned a verdict: (1) finding that Dr. Karls was negligent in treating LaCombe, (2) finding that Dr. Karls' negligence was not a substantial factor in causing injury to LaCombe, and (3) awarding over $900,000 in damages to LaCombe.

¶ 4. LaCombe filed a postverdict motion asking the court to change the answer to the causation question from "No" to "Yes" or to order a new trial on the issue of causation on the grounds that the jury's verdict was fatally inconsistent. He maintained that once the jury made a determination that Dr. Karls' negligence did not cause the injuries LaCombe suffered, the damages question should have been answered zero or, in the alternative, that given its award of substantial damages, the only appropriate answer to the causation question was "Yes." The trial court denied LaCombe's motion, reasoning that because the jury found that Dr. Karls had been negligent in her treatment of LaCombe, "it [was] entirely consistent for the jury to have answered the damage question." The court entered judgment in favor of Dr. Karls and dismissed LaCombe's complaint. LaCombe appeals.

¶ 5. As expressed at the outset, the parties dispute whether LaCombe has waived his objections to the special verdict questions by failing to raise them at the jury instruction and verdict conferences. Pursuant to Wis. Stat. § 805.13(3) (2001-02), the failure to object at the jury instruction or verdict conferences, "constitutes a waiver of any error in the proposed instructions or verdict." Id.) Gosse v. Navistar Int'l Transp. Corp., 2000 WI App 8, ¶ 19, 232 Wis. 2d 163, 605 N.W.2d 896. We have no power to review waived error of this sort. Gosse, 232 Wis. 2d 163, ¶ 19 (citing State v. Schumacher, 144 Wis. 2d 388, 408-09, 424 N.W.2d 672 (1988)). Whether the failure to object to the wording of the special verdict form in the trial court constitutes waiver is a legal question, Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980) (holding that waiver is a question of law) (superceded by Wis. Stat. § 895.52 on other grounds), which the court decides de novo. First Nat'l Leasing Corp. v. City of Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251 (1977).

¶ 6. LaCombe argues that it was entirely appropriate for him to raise his objections to the jury's inconsistent verdict in a postverdict motion. He maintains that Wis. Stat. § 805.13(3) applies only when the complaining party is challenging the wording of the verdict form itself and that his claim of error goes to the substance of the jury's verdict. While LaCombe correctly describes the waiver rule as it concerns verdict questions and jury instructions, he mischaracterizes the nature of his own objections.

¶ 7. Seif v. Turowski, 49 Wis. 2d 15, 181 N.W.2d 388 (1970); Westfall v. Kottke, 110 Wis. 2d 86, 92-94, 328 N.W.2d 481 (1983); City of West Allis v. WEPCO, 2001 WI App 226, 248 Wis. 2d 10, 635 N.W.2d 873, review denied, 2002 WI 23, 250 Wis. 2d 556, 643 N.W.2d 93 (WI Jan. 29, 2002) (No. 99-2944), are three ex-ampies of cases where the complaining party's objection related to the result of the jury's verdict and the court permitted the complaining party to raise its objection to the alleged inconsistent answers in a postverdict motion. In both Seif and Westfall, the jury did not follow the trial court's instructions and, as a result, rendered an inconsistent verdict. Seif, 49 Wis. 2d at 19; Westfall, 110 Wis. 2d at 92-94. In Seif, the jury found the defendant was negligent, that his negligence was not a cause of the accident at issue, but then contrary to jury instructions, attributed ten percent of the causal negligence to him. Seif, 49 Wis. 2d at 19. The court held that this conclusion clearly fell within the definition of an inconsistent verdict. Id. at 20. The court refused to apply the waiver rule to the defendant's objection, reasoning "[i]n those cases where, although the inconsistency is apparent upon the face of the verdict, the resolution of the inconsistency requires an extensive review of the evidence, the matter may well be considered more judiciously in motions after verdict." Id. at 21.

¶ 8. In a similar vein, in Westfall, the jury was instructed not to answer a comparative negligence question unless it first found that more than one person was causally negligent. Westfall, 110 Wis. 2d at 93. Although the jury found only one person to be causally negligent, it then answered the comparative negligence question, apportioning the negligence between two people. Id. at 91. Our supreme court held that, in such cases, if the inconsistent verdict is not rectified by resubmission to the jury with instructions to correct its error, a new trial is required. Id. at 100.

¶ 9. The holdings in Seif and Westfall make perfect sense. The juries' answers ran directly contrary to the instructions given by the trial court and thus it was their responses that created the alleged inconsistency. As the court in Seif noted, "the defect in question here is not merely in the form of the verdict but goes to its substance." Seif, 49 Wis. 2d at 22. As a result, without knowing the juries' answers, the complaining parties had no grounds or reason to object to the verdict form at the jury instruction and verdict conference. It was therefore logical for the Seif and Westfall courts to refuse to apply waiver.

¶ 10. In City of West Allis, we applied the holdings of Seif and Westfall and held that an objection based upon a five-sixths rule violation raised for the first time in motions after verdict, rather than at the time of the jury return, was not waived. City of West Allis, 248 Wis. 2d 10, ¶ 34. Plainly, an objection to a five-sixths rule violation concerns the result of the verdict and thus application of the Seif and Westfall nonwaiver rule was appropriate.

¶ 11. Westfall, Seif and City of West Allis, however, are not applicable here. In this case, LaCombe's challenge goes directly to the heart of the language the trial court inserted into the special verdict questions. The jury simply followed the instructions as outlined on the form. The jury answered question one, the negligence question, "Yes," and then, as the verdict form instructed, answered question two, the question concerning causation. After responding, "No" to question two, the jury proceeded, as directed, to answer question three, the damages question. Thus, unlike Westfall, Seif and City of West Allis, LaCombe's claim of error, that the jury answered the damages question even though it failed to find against Dr. Karls on the issue of causation, lies with the wording of the special verdict questions themselves not with the substance of the result. Unlike the claims in Westfall, Seif and City of West Allis, LaCombe's claim of error would have been evident at the jury instruction and verdict conferences. LaCombe could have requested that the trial court direct the jury to answer the damages question only after affirmatively answering the negligence and causation questions, but he chose not to do so.

¶ 12. In his reply brief, LaCombe zeroes in on a statement concerning the application of the Seif and Westfall nonwaiver rule: "Had the questions been answered differently by the jury, no violation would have occurred." City of West Allis, 248 Wis. 2d 10, ¶ 34. He reasons that the same situation is present here — if the jury had answered the questions differently, there would be no inconsistent verdict. Our statement, however, must be read in the context in which it was written:

WEPCO objected not to the wording of the verdict, but to the result of the verdict after the various dissents were considered. The five-sixths rule violation was not a result of the wording of the verdict questions themselves. Had the questions been answered differently by the jury, no violation would have occurred. Consequently, the facts here fall squarely within the Seif and Westfall rule....

City of West Allis, 248 Wis. 2d 10, ¶ 34 (third emphasis added). Thus, in keeping with Seif and Westfall, the core teaching of City of West Allis is that a party is not held to waiver where the potentially inconsistent verdict is produced by the substance of the jury's verdict as opposed to the wording of the verdict. As explained, this is not the situation here.

¶ 13. We find support for our conclusion in Gosse, a case written after Seif and Westfall, but prior to City of West Allis. There, the jury ruled against a consumer who had brought an action against a manufacturer of his new truck, claiming that his truck was a "lemon" under Wisconsin's lemon law statute. Gosse, 232 Wis. 2d 163, ¶¶ 1-2. On appeal, the consumer, who did not raise his objection until a motion after verdict, argued that the jury verdict was inconsistent and thus was grounds for a new trial. Id., ¶¶ 18, 21. The jury had answered, "Yes" to the first question on the special verdict form, which asked: "Does the vibration complained of by [the consumer] constitute a nonconformity as that term is defined [in the lemon law]?" Id., ¶ 7. The jury then answered, "No" to the second question, which asked: "Does said nonconformity substantially impair the use, safety or value of the truck?" Id. The consumer argued that these two questions were repetitive because, by definition, a "nonconformity" substantially impairs the use, value or safety of a motor vehicle, as the trial court explained in its jury instructions. Id., ¶ 18. Thus, according to the consumer, by answering 'Yes" to question one and "No" to question two, the jury had rendered an inconsistent result. Id.

¶ 14. We concluded that the consumer had waived his objection by not raising it at the jury instruction and verdict conference. Id., ¶ 21 (citing Wis. Stat. § 805.13(3)). In doing so, we rejected the consumer's attempt to rely on the nonwaiver rule articulated in Westfall. Gosse, 232 Wis. 2d 163, ¶ 21. We reasoned that unlike Westfall, the consumer's claim of error lay not with the jury's verdict, but rather with verdict questions themselves; the jury had simply followed the instructions given. Gosse, 232 Wis. 2d 163, ¶ 21.

[4]

¶ 15. A similar fate must befall LaCombe's claim of error. As is evidenced by our discussion here and in Gosse, the Seif and Westfall nonwaiver rule applies only where the complaining party objects to the result of the verdict. Here, like the consumer in Gosse, LaCombe's challenge to the special verdict questions lies in the wording of the instructions and not with the substance of the verdict. As such, the claimed error would have been apparent at the jury instruction and verdict conferences. Because LaCombe did not object to the wording of the questions on the verdict form at the conferences, he, like the consumer in Gosse, has waived his claim of error. See Wis. Stat. § 805.13(3). To hold otherwise would be to render § 805.13(3), which specifically requires parties to raise such concerns at the jury instruction and verdict conferences, meaningless.

¶ 16. Finally, LaCombe contends that Runjo v. St Paul Fire & Marine Insurance Co., 197 Wis. 2d 594, 541 N.W.2d 173 (Ct. App. 1995), dictates that we reach the merits of this case. There, the trial court directed the jury to answer the damages questions regardless of how it answered the liability questions. Id. at 598. On appeal, we reversed the trial court, holding that the verdict questions and jury instructions regarding damages were improperly formulated so as to be confusing and inconsistent and a new trial was warranted. Id. at 596. However, Runjo had objected to the form of the verdict questions and jury instructions before they were submitted to the jury. Id. at 597-98. Therefore, Runjo had preserved his objection for appeal and the question of waiver did not even arise. See Wis. Stat. § 805.13(3). Because LaCombe did not make a timely objection to the special verdict questions, Runjo is of no assistance to him.

¶ 17. Since we conclude LaCombe waived the issue, we need not reach the merits of LaCombe's claim. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed). Accordingly, we affirm the judgment dismissing LaCombe's action.

By the Court. — Judgment affirmed.

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

       We also take a moment to point out certain deficiencies in LaCombe's briefs. In his briefs, LaCombe fails to stake out a position on oral argument or on publication and his case citations in his table of authorities fail to distinguish between supreme court and court of appeals decisions. Such failures are violations of Wis. Stat. § 809.19 of the rules of appellate procedure.


author: NETTESHEIM, J.

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

      No. 03-2240.

      Submitted on briefs April 22, 2004.

    Decided May 26, 2004.

    2004 WI App 121
    (Also reported in 683 N.W.2d 522.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sandra L. Nowack, assistant attorney general.
    Before Brown, Nettesheim and Snyder, JJ.
   NETTESHEIM, J.

¶ 1. Brian W Sprang pled guilty to and was convicted of first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1) (2001-02). Sprang appeals from that conviction and from a postconviction order denying his motion for a new sentencing hearing on grounds that the State's remarks at sentencing violated the terms of his plea agreement.

¶ 2. We conclude that the prosecutor's remarks constituted a material and substantial breach of the parties' plea agreement. Although Sprang's counsel chose not to object to the prosecutor's remarks for reasonable strategic reasons, we nevertheless conclude that his counsel's acquiescence to the revised plea agreement without consulting with Sprang or gaining his consent constituted deficient performance. We further conclude that counsel's failure prejudiced Sprang. We reverse the judgment and order and remand for a new sentencing proceeding before a different judge.

FACTS

Procedural History

¶ 3. On March 8, 2002, the State charged Sprang with one count of sexual contact with a child who has not attained the age of thirteen years contrary to Wis. Stat. § 948.02(1). Following a preliminary hearing on April 1, 2002, Sprang was bound over for trial. The State subsequently issued an Information reciting an additional charge of sexual contact with a child contrary to § 948.02(1).

¶ 4. On September 10, 2002, Sprang entered a guilty plea to one count of first-degree sexual assault of a child. Sprang's plea questionnaire was accompanied by an August 27, 2002, letter from the State confirming the parties' agreement that Sprang would plead to one count of first-degree sexual assault of a child and the remaining charge of sexual assault of a child would be dismissed and read in, as would an outstanding bail jumping charge in another case. Pursuant to the agreement, the State would "recommend probation but is free to argue length, structure, terms and conditions of probation," including the length of any jail condition. At the plea hearing, the State requested both a presen-tence investigation (PSI) and a sex offender evaluation.

¶ 5. Prior to sentencing, the trial court had received both the PSI report and the sex offender assessment. Both reports disagreed with the plea agreement's sentencing recommendation and the PSI report recommended prison time. At sentencing, the court rejected the plea recommendation stating that probation with jail time "isn't going to work" and that a period of custody and extended supervision was necessary for rehabilitation. The court sentenced Sprang to a twelve-year bifurcated sentence with four years of confinement followed by eight years of extended supervision.

¶ 6. On June 26, 2003, Sprang, by his postconviction counsel, filed a Wis. Stat. Rule 809.30 motion for postconvicton relief requesting a resentencing before a different judge. Sprang contended that the State breached the plea agreement by arguing at sentencing in a manner that undermined its recommendation for probation. Sprang also raised an ineffective assistance of counsel argument based on his defense counsel's failure to object to the prosecutor's remarks. Following a postconviction motion hearing at which Sprang's defense counsel testified, the trial court denied Sprang's motion. Sprang appeals.

Prosecutor's Remarks

¶ 7. At the sentencing hearing, the prosecutor began by correctly stating the terms of the plea agreement — essentially that the State would be recommending probation. He then noted the State's receipt of the PSI report and the sexual offender evaluation and his assessment from those documents that Sprang is "certainly high risk." The prosecutor then requested that "[i]f the Court accepts the recommendation of the State and places [Sprang] on supervision, I ask the Court give him the maximum period of jail available." He additionally requested that the court impose a lengthy imposed and stayed prison sentence so Sprang, with all of his problems, would know what is going to happen if he should ever be revoked.

¶ 8. The prosecutor then went on to discuss the impact of Sprang's offense on the victim and her family and the sex offender assessment. With respect to the sex offender assessment, the prosecutor noted that Sprang's protestations of innocence to the assessor conflicted with his guilty plea and indicated that Sprang had no sense of responsibility for his conduct and no insight into his problems. Based on that assessment, the prosecutor requested supervision of an "incredibly strict nature."

¶ 9. The prosecutor then moved on to statements he said would address Sprang's character, the seriousness of his offense and the need to protect the public. The prosecutor noted that Sprang had not traditionally done well with supervision and had committed "one of the most serious offenses that the State can charge in this state" which carries "the second highest penalty that a non-enhanced felony can carry." The prosecutor noted a definite need to protect the public. He then expressed his concern about appropriate treatment while noting that the sexual offender assessment did not agree with the plea recommendation and the PSI author, after conducting a "thorough presentence," made "a recommendation referring to initial confinement in the three- to five-year range."

¶ 10. The prosecutor then explained that he had inquired of the PSI author how treatment would be run in prison and was informed that it would take six to nine months to get someone into the program and then six months to four years to complete a treatment program. He indicated that he was "pass[ing] that along to the Court for whatever help it may or may not be in terms of if the Court... chooses to send [Sprang] to prison ... or chooses to accept the plea agreement." The prosecutor then closed his remarks.

¶ 11. Sprang's counsel did not object to the prosecutor's remarks. However, he began his statements by observing that "what [the prosecutor] has said, I fear if somebody ever looks at a transcript, this might be considered a violation of the plea agreement." He then asked the prosecutor to summarize his recommendation one more time. The prosecutor declined to do so and the trial court directed the defense to move on, stating that the recommendation was clear.

DISCUSSION

¶ 12. At the outset, we briefly address the State's argument that Sprang waived his right to claim a breach of his plea agreement because his defense counsel failed to object to the prosecutor's remarks at sentencing. While the issue is waived because of defense counsel's failure to object, Sprang seeks relief via a claim of ineffective assistance of counsel based on the failure to object.

¶ 13. Before addressing Sprang's claim of ineffective assistance of counsel, we must first address whether there was, in fact, a material and substantial breach of the plea agreement. State v. Naydihor, 2004 WI 43, ¶ 9, 270 Wis. 2d 585, 678 N.W.2d 220. If we conclude that there was not a breach of the plea agreement, then defense counsel's failure to object would not constitute deficient performance. Id. We therefore turn to the primary issue on appeal — whether the State breached the terms of its plea agreement with Sprang.

Breach of the Plea Agreement

¶ 14. Our supreme court recently set forth the standards for reviewing an alleged breach of a plea agreement in Naydihor:

[A]n accused has a constitutional right to the enforcement of a negotiated plea agreement....
A prosecutor who does not present the negotiated sentencing recommendation to the circuit court breaches the plea agreement. An actionable breach must not be merely a technical breach; it must be a material and substantial breach. When the breach is material and substantial, a plea agreement may be vacated or an accused may be entitled to resentencing.
Whether the State breached a plea agreement is a mixed question of fact and law. The precise terms of a plea agreement between the State and a defendant and the historical facts surrounding the State's alleged breach of that agreement are questions of fact. On appeal, the circuit court's determinations as to these facts are reviewed under the clearly erroneous standard. Whether the State's conduct constitutes a material and substantial breach of the plea agreement is a question of law that this court reviews de novo. A breach is material and substantial when it "defeats the benefit for which the accused bargained."

Id., ¶¶ 10-11 (citing State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733).

¶ 15. Here, the parties do not dispute the terms of the plea agreement. Therefore, our discussion focuses on whether the State's conduct constitutes a material and substantial breach of the plea agreement. On this issue, we have the benefit of the supreme court's recent opinion in Naydihor.

¶ 16. In Naydihor, the defendant and the State reached an agreement similar to the one in this case— the State would recommend probation, but was free to recommend the conditions and length of probation. Naydihor, 678 N.W.2d 220, ¶¶ 3, 12. On appeal, Naydihor argued that the prosecutor's comments at sentencing constituted a material and substantial breach of the plea agreement because the prosecutor implied to the court that a harsher sentence was needed than that recommended and highlighted Naydihor's negative attributes, i.e., his history of substance abuse, the victim's substantial injuries and calling him a danger to the community. Id., ¶ 15.

¶ 17. In assessing Naydihor's claims, the supreme court looked to its decision in Williams which held that the prosecutor's comments at sentencing must "undercut the essence of the plea agreement" in order to constitute a breach. Naydihor, 678 N.W.2d 220, ¶ 17 (citing Williams, 249 Wis. 2d 492, ¶ 46). The prosecutor's comments in Williams were held to constitute such a breach because they "implied that had the State known more about the defendant [prior to reading the presentence investigation report], it would not have entered into the plea agreement." Williams, 249 Wis. 2d 492, ¶ 47. The Williams court reasoned that by adopting the information in the presentence investigation report as her own opinion, the prosecutor created the impression that she was arguing against the negotiated terms of the plea agreement. Id., ¶ 48. In assessing the prosecutor's remarks, the Williams court stated that the prosecutor's remarks "covertly implied to the sentencing court that the additional information available from the presentence investigation report and from a conversation with the defendant's ex-wife raised doubts regarding the wisdom of the terms of the plea agreement." Naydihor, 678 N.W.2d 220, ¶ 18 (citing Williams, 249 Wis. 2d 492, ¶ 50). The Williams court noted that, "Although the State is not barred from using negative information about the defendant that has come to light after the plea agreement and before the sentencing, the State may not imply that if the State had known more about the defendant, the State would not have entered into the plea agreement." Williams, 249 Wis. 2d 492, ¶ 50 (footnote omitted). Finally, the Williams court stated that the information offered by the prosecutor in Williams supported a more severe sentence of a prison term and was unnecessary to explain or support the plea agreement that the State would recommend the minimum sentence of probation. Id., ¶ 51.

¶ 18. In looking beyond Williams to other cases addressing alleged breach of plea agreements, the Naydihor court cited State v. Hanson, 2000 WI App 10, ¶ 14, 232 Wis. 2d 291, 606 N.W.2d 278, for the proposition that a prosecutor may cite aggravating factors relevant to the sentencing and to seek a sentence at the high end of an agreed upon cap, and State v. Ferguson, 166 Wis. 2d 317, 319-21, 324, 479 N.W.2d 241 (Ct. App. 1991), for its holding that a plea agreement cannot prohibit the State from informing the trial court of aggravating sentencing factors and that listing aggravating factors can be necessitated by a plea agreement in which the prosecutor agrees to recommend probation but is free to argue for the maximum allowable sentence. Naydihor, 678 N.W.2d 220, ¶¶ 19-22.

¶ 19. After examining previous case law, the Nay-dihor court concluded that the plea agreement in that case permitted the State to discuss aggravating factors and relevant behavioral characteristics of the defendant in order to justify an unusual sentencing recommendation within the confines of the plea agreement. Id., ¶ 25. The Naydihor court held that the prosecutor's statements did not insinuate a distancing from the sentencing recommendation but rather were necessary to justify ten years of highly monitored probation, including weekly random drug testing, chemical dependency assessments and counseling, and one year of jail time. Id., ¶¶ 25-26, 28.

¶ 20. In reaching its decision, the Naydihor court also noted that the State in that case, unlike the agreement in Williams, did not agree to recommend the minimum sentence; it agreed only to recommend some type of probation and dismiss one of the charges. Naydihor, 678 N.W.2d 220, ¶ 28. Also, unlike the prosecutor in Williams, the prosecutor in Naydihor made no mention of the recommendation in the PSI report or otherwise intimated that the State no longer supported the plea agreement. Naydihor, 678 N.W.2d 220, ¶ 29.

¶ 21. Turning back to Sprang's claim, we conclude that this case is more akin to Williams than Naydihor. We begin our analysis by acknowledging, under Naydi-hor, that the terms of the plea agreement, which permitted the prosecutor to argue the length and terms of probation, provided the prosecutor with substantial latitude in his presentation of negative information about Sprang in an effort to persuade the sentencing court to impose a stayed sentence and to further impose a substantial period of confinement as a condition of probation. However, unlike the prosecutor in Naydihor who never mentioned prison time, the prosecutor in this case expressly referred to the possibility of a prison setting, even going so far as suggesting the term of confinement necessary to meet Sprang's treatment needs. See Naydihor, 678 N.W.2d 220, ¶ 16.

¶ 22. Further distinguishing this case from Nay-dihor and likening it to Williams are the prosecutor's observations that (1) both the PSI and sex offender assessment reports disagreed with the probation recommendation set out in the plea agreement; and (2) Sprang was "high risk" and had not previously done well on probation.

¶ 23. "[W]hat the prosecutor may not do is personalize the information, adopt the same negative impressions as [the author of the presentence investigation report] and then remind the court that the [author] had recommended a harsher sentence than recommended." Williams, 249 Wis. 2d 492, ¶ 48 (citation and footnote omitted). While not expressly stating that he had changed his impression of Sprang, see id., ¶ 47, the prosecutor observed that he found it "troubling" that Sprang's version of the offense in the PSI report contradicted his guilty plea, that he found it clear from the PSI report and sex offender evaluation that Sprang was "high risk," and finally, that he was "concerned" that the PSI report and sex offender assessment did not agree with the plea agreement and made a recommendation of initial confinement in the three-to five-year range.

¶ 24. We conclude that the prosecutor's comments, including a recitation of the PSI recommendation for confinement, constituted a breach of the plea agreement by "insinuat[ing] that [the State] was distancing itself from its recommendation," see Naydihor, 678 N.W.2d 220, ¶ 28, and "cast[ing] doubt on... its own sentence recommendation." See Williams, 249 Wis. 2d 492, ¶ 50 (footnote omitted). In doing so, we acknowledge the State's contention that the prosecutor's remarks were merely informative in nature. Such an argument begs the question. No doubt the prosecutor's remarks were informative; however, the core inquiry is whether such "information" breached the terms of the plea agreement. Our inquiry does not turn on whether the prosecutor intended to breach the agreement, see State v. Howland, 2003 WI App 104, ¶ 31, 264 Wis. 2d 279, 663 N.W.2d 340, but rather we look to the practical effect of the prosecutor's statements. Here, that effect was to deprive Sprang of his constitutional right to the enforcement of the negotiated terms of his plea agreement. See Williams, 249 Wis. 2d 492, ¶ 37.

Waiver/Ineffective Assistance of Counsel

¶ 25. Having concluded that State breached its plea agreement with Sprang, we turn next to Sprang's claim of ineffective assistance of counsel. See Naydihor, 678 N.W.2d 220, ¶ 9. In order to prove ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that counsel's errors or omissions prejudiced the defense. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). Performance is deficient if it falls outside the range of professionally competent representation. See id. at 636. We measure performance by the objective standard of what a reasonably prudent attorney would do in similar circumstances. See id. at 636-37. Prejudice generally results when there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 642. However, "[w]here the attorney is guilty of deficient performance in failing to object to a substantial and material breach of the plea agreement, the defense is automatically prejudiced." State v. Howard, 2001 WI App 137, ¶ 26, 246 Wis. 2d 475, 630 N.W.2d 244 (citation omitted). We review de novo whether performance was deficient and prejudiced the defendant, but affirm the trial court's findings of fact unless clearly erroneous. Pitsch, 124 Wis. 2d at 633-34.

¶ 26. Sprang's defense counsel testified at the postconviction motion hearing pursuant to State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). There, he explained that at the time of the prosecutor's remarks, he was not certain that the State had violated the plea agreement. In addition, defense counsel testified that he perceived one of the prosecutor's arguments as more "informational" in nature as opposed to pressing for prison time. He also testified that in his experience he believed the sentencing judge would exercise independent judgment on the matter and would not be unduly swayed by the prosecutor's statements. Counsel also expressed concern as to which new judge would be assigned if he was to object and a new sentencing were ordered.

¶ 27. We agree with the State that defense counsel had valid strategic reasons for choosing not to object to the prosecutor's remarks. However, we have already concluded that those remarks constituted a breach of the negotiated plea agreement. When defense counsel made the decision to forego an objection, he did not consult with Sprang regarding this new development or seek Sprang's opinion in the matter. Thus, Sprang had no input into a situation where the original plea agreement, which limited the State to arguing for conditions of probation, had morphed into one in which the State could suggest that the court impose a prison sentence without probation. As such, the plea agreement to which Sprang pled no longer existed.

¶ 28. That defense counsel failed to consult Sprang as to the new agreement violates the holding of State v. Woods, 173 Wis. 2d 129, 132-33, 141, 496 N.W.2d 144 (Ct. App. 1992). There, the defendant entered into plea agreement which permitted the State to seek a two-year sentence consecutive to an existing juvenile court placement. Id. at 133. However, just prior to sentencing and without the defendant's knowledge, defense counsel and the prosecutor agreed that the State would ask for a two- to three-year consecutive sentence. Id. at 135-36. The prosecutor did so at sentencing, and the defendant's attorney did not object to the prosecutor's sentencing request, which was contrary to the plea agreement entered into by the defendant. Id. at 135. On appeal, we held that a guilty plea is a personal right of the defendant and that the defendant was entitled to withdraw his plea on grounds that defense counsel's failure to object had resulted in a renegotiated plea agreement to which the defendant was never a party. Id. at 141. We held that "a defendant's attorney cannot renegotiate the plea without the knowledge or consent of his or her client." Id.

¶ 29. Here, the strategic decision by Sprang's defense counsel to forego an objection to the State's breach of the plea agreement without consulting Sprang was tantamount to entering a renegotiated plea agreement without Sprang's knowledge or consent. It is on this basis that we conclude that defense counsel's performance was deficient. Because counsel's deficient performance involved a breach of a plea agreement, Sprang is automatically prejudiced. See Howard, 246 Wis. 2d 475, ¶ 26.

CONCLUSION

¶ 30. We conclude that the prosecutor's remarks at sentencing constituted a substantial and material breach of Sprang's plea agreement. While trial counsel's failure to object represented acceptable strategy, counsel's further failure to consult with sprang about the breach constituted ineffective assistance of counsel. Sprang was prejudiced because he pled guilty under a different plea agreement that he never ratified. As such, we conclude that Sprang is entitled to a resen-tencing before a different judge. We therefore reverse and remand for that proceeding.

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

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

       The PSI report states a recommendation of "a total sentence in the area of 8 to 10 years with a period of Initial Confinement in a range of 3 to 5 years followed by the balance on extended supervision." The sexual offender evaluation, while not making an express recommendation of prison time, notes Sprang's "high risk for reoffense" and recommends inpatient sex offender treatment.

       Sprang also requested ah additional thirty-two days of sentence credit under Wis. Stat. § 973.155. This request was granted by the trial court and is not at issue on appeal.

       While we summarize the prosecutor's remarks in the body of the decision, the prosecutor's remarks at sentencing are set forth in their entirety below:
      [PROSECUTOR]: I have received and I have reviewed the [PSI] at some length. I actually had this for about a week, I think. One comment that I made to the Court, Your Honor, is the agreement did take into account some other issues that aren't taken into account when one merely assesses for purposes of sentencing.
      The agreement takes into account the impact on the victim, other issues of proof and those — those aren't as paramount when preparing an assessment like Mr. Gayle does. I mean he tries to look at this independent of those agreements.
      What is clear, Your Honor, is that the defendant, from reading the presentence and specifically from reading the [sexual offender] evaluation by Mr. Gayle, the defendant is certainly high risk. If the Court accepts the recommendation of the State and places him on supervision, I ask the Court give him the maximum period of jail available.
      I would ask that the Court give him a very long sentence structure, and I'd ask that the Court impose and stay, rather than withhold, a sentence structure, because I think the defendant, when one looks at all the problems he has from the evaluations, this defendant needs to know what's going to happen to him.
      That said, let me point out a couple things about — about the case and its impact as it has been relayed to me. This has had a significant impact, Your Honor, on the other people involved. The mother of the victim had planned on which to be here, but her blood pressure has shot up over two hundred and she had to seek medical attention yesterday and is unable to be here, indicating that this has had an incredibly disruptive impact on her life as evidenced by what it's done to her blood pressure. The grandmother is here indicating to me — indicated this has been difficult on all the family.
      When I — when I read through the Sex Offender Assessment, Your Honor, one of the things I found troubling was that while the defendant came in here and entered a guilty plea, he then turns around and gives an account that, quite frankly, doesn't fit. It becomes contradictory, not only with the victim but with other accounts. He actually contradicts himself at points. He shows no sense of responsibility. He shows no understanding of his problem, no insight, and that does become quite troubling, and that's why any supervision that would happen would have to be of an incredibly strict nature, Your Honor.
      As to additional character of the offender, one need only look at page four to realize that trouble has been a consistent pattern —that's page four of the presentence — to realize that trouble has been a consistent pattern within Mr. Sprang's life, although I must say, as he got toward the later 90's, it was slowing down to — to a great extent, but certainly did not stop.
      Additionally, in terms of his character, he has not traditionally done well with — with supervision and has not seemed to show insight into his own problems. Obviously, looking at the seriousness of the offense, Your Honor, this is a very serious offense. It — it is one of the most serious offenses that the State can charge in this state and carries with it the second highest penalty that a non-enhanced felony can carry. That is, it's a class B felony.
      There is certainly a need to protect the public, and, hopefully, appropriate treatment can do that. There is one thing that I was concerned about, because I know that there wasn't — the presen-tence and the evaluation by Mr. Gayle do not agree with the plea agreement that was made. Ms. Czechanski, the author, did a thorough presentence and makes a recommendation referring to initial confinement in the three- to five-year range.
      I asked her a question, because I had previously been given answers to — to the question of how treatment would run within the prison, and I asked her if she could check with them to see what they would say in terms of, you know, what kinds of time frame we're looking at, Judge, and they have become even more vague than I used to get for an answer.

        What Ms. Czechanski related to me was that six to nine months to staff someone. That is, to get them into any program to figure out where they're going to send them. Treatment programs, depending on how they staff, run from six months to four years, and evidently not an ability, you know, prior to that staffing to tell you whether this is a six-month or four-month, and obviously that person needs to have a chance to be evaluated for [eh.] 980 purposes based upon this particular charge.
      I pass that along to the Court for whatever help it may or may not be in terms of if the Court, you know, chooses to send him to prison at this point or chooses to accept the plea agreement and is looking to — you know, how do we set up a structure on an imposed and stayed. I think it's relevant to both those factors. That's all, Your Honor.

       We note that State v. Naydihor, 2004 WI 43, 270 Wis.2d 585, 678 N.W.2d 220, was decided on April 15, 2004, after the parties had completed the briefing in this case.

       Nor does our inquiry turn on whether the sentencing court was influenced by the State's breach. State v. Poole, 131 Wis. 2d 359, 363-64, 394 N.W.2d 909 (Ct. App. 1986). Therefore, we do not consider the trial court's statement that it did not base its sentencing decision in this case on the State's remarks.

       We reject the State's assertion that there is no evidence in the record to suggest that Sprang and his defense counsel had not consulted at the time of the remarks or at some other point discussed trial strategy, including whether to request a substitution of judge. The transcript bf defense counsel's testimony at the postconviction hearing clearly establishes that counsel did not discuss with Sprang his decision to forego an objection to the prosecutor's remarks. Further, whether Sprang and his defense counsel had discussed a substitution of judge at a different juncture as part of a trial strategy is inapposite to whether Sprang would have chosen to proceed with the sentencing if he had been consulted.

       The defendant in State v. Woods, 173 Wis. 2d 129, 132, 496 N.W.2d 144 (Ct. App. 1992), additionally appealed on grounds that his plea was invalid because the law does not permit a sentence consecutive to a juvenile disposition. The court of appeals agreed that the defendant was entitled to withdraw his plea on that ground. Id.


author: PER CURIAM.

text:
    Lisa J. Brown, Estate of Damon L. Brown, Jr., and Damon L. Brown, Sr., Plaintiffs, Waukesha County Department of Health & Social Services, Subrogated-Plaintiff, v. MR Group, LLC, Michael Fohl, Herrell Grading Inc., a/k/a Herrell Trucking, Inc., and General Casualty Company of Wisconsin, Defendants, Ralph W. Raush, Individually and d/b/a West Avenue Real Estate, LLC, formerly d/b/a MR Group, LLC, a/k/a RWR Storage, and d/b/a All One Storage, formerly d/b/a Lake & Country Storage of Muskego, formerly d/b/a U-Lock Up Self Storage, Defendant-Appellant, Acuity, A Mutual Insurance Company, Intervenor-Respondent, West Bend Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 03-2309.

      Submitted on memoranda January 21, 2004.

      Decided May 26, 2004.

    2004 WI App 122
    (Also reported in 683 N.W.2d 481.)

      On behalf of the defendant-appellant, the cause was submitted on the memorandum oí James W. Hammes of Cramer, Multhauf & Hammes, LLP, Waukesha.
    On behalf of the intervenor-respondent, the cause was submitted on the memorandum of Michelle D. Wehnes of Simpson & Deardorff, S.C., Milwaukee.
    Before Anderson, RJ., Nettesheim and Snyder, JJ.
   PER CURIAM.

¶ 1. In this appeal, we hold that in order to confer jurisdiction on this court, a notice of appeal filed by counsel on behalf of another must contain the handwritten signature of an attorney authorized to practice law in Wisconsin. Counsel cannot delegate the duty to affix a signature on a notice of appeal to a person not authorized to practice law in Wisconsin.

¶ 2. Ralph W Raush appeals from a circuit court order denying him coverage under his insurance policy with Acuity. Raush's counsel's name appears on the notice of appeal filed in the circuit court as a handwritten signature with the initials "sad" appearing below counsel's name. The signature's appearance suggests that counsel's name was affixed by "sad." The notice of appeal might be defective for this reason. Because a defective notice of appeal implicates our jurisdiction over Raush's appeal from the Acuity order, we required the parties to file memoranda addressing our jurisdiction. We also required Raush's counsel to advise this court whether he personally signed the notice of appeal or whether "sad" affixed his name to the notice of appeal. If "sad" affixed counsel's name, we required counsel to advise whether "sad" was admitted to practice law in Wisconsin on the date "sad" affixed counsel's name to the notice of appeal.

¶ 3. In his memorandum, Raush's counsel advises that he directed "sad," his legal assistant, to affix his signature to the notice of appeal after he prepared and reviewed it. Counsel argues that because he had the legal capacity to cause the notice of appeal to be filed, the fact that he did not sign the document should be deemed a technical, not a fundamental, defect. Assuming that the technical defect can be corrected, counsel has submitted an amended notice of appeal bearing his proper signature.

¶ 4. Acuity, the insurer-respondent, argues that the notice of appeal is fundamentally defective, and therefore we lack jurisdiction over this appeal. Acuity asserts three grounds for its position: (1) counsel's failure to sign the notice of appeal is not a technical defect, (2) counsel's review of the notice of appeal does not satisfy the signature requirement, and (3) the amended notice of appeal does not confer jurisdiction.

¶ 5. To invoke this court's jurisdiction, the notice of appeal must be correctly prepared. Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 211, 562 N.W.2d 401 (1997). Whether a defect in the notice of appeal is fundamental presents a question of law which we decide independently. Town of Dunkirk v. City of Stoughton, 2002 WI App 280, ¶ 7, 258 Wis. 2d 805, 654 N.W.2d 488.

¶ 6. When a notice of appeal is not signed by an attorney when an attorney is required, the notice of appeal is fundamentally defective and cannot confer jurisdiction on this court. Jadair, 209 Wis. 2d at 211-12. A person not admitted to practice law has no authority to sign a pleading on behalf of another to invoke this court's jurisdiction. See id. at 212. A fundamentally defective notice of appeal cannot be cured by the filing of an amended notice of appeal which is not otherwise timely vis-a-vis the order or judgment appealed from. Id. at 211-12.

¶ 7. Jadair, a notice of appeal case, recognizes the importance of the Wis. Stat. § 802.05(l)(a) subscription requirement for a pleading. Jadair, 209 Wis. 2d at 211-12. Section 802.05(l)(a) requires an attorney of record to sign the pleading in the attorney's own name. Schaefer v. Riegelman, 2002 WI 18, ¶ 17, 250 Wis. 2d 494, 639 N.W.2d 715. In Schaefer, the court held that a complaint was fundamentally defective because a Wisconsin attorney permitted an attorney not admitted to practice law in Wisconsin to affix his name to the complaint. Id., ¶ 33. In holding that the complaint was fundamentally defective, the court noted that an attorney cannot delegate the § 802.05(l)(a) subscription requirement to another. Schaefer, 250 Wis. 2d 494, ¶ 19.

¶ 8. In Dunkirk, the court applied Schaefer and held that a summons and complaint signed by an attorney who was suspended from the practice of law were fundamentally defective. Dunkirk, 258 Wis. 2d 805, ¶ 18.

¶ 9. To avoid the conclusion that the notice of appeal in this case is fundamentally defective and does not confer jurisdiction on this court, Raush's counsel relies on State v. Seay, 2002 WI App 37, 250 Wis. 2d 761, 641 N.W.2d 437, review denied by State v. Tillman, 2002 WI 121, 257 Wis. 2d 116, 653 N.W.2d 889 (Wis. Sept. 3, 2002) (No. 00-3530). Based on Seay, counsel argues: (1) we have jurisdiction over the appeal notwithstanding the signature defect and (2) an amended notice of appeal with a proper signature confers jurisdiction on this court.

¶ 10. We held in Seay that the failure of a pro se litigant to sign a notice of appeal is not a fatal defect as long as the signature is later supplied. Seay, 250 Wis. 2d 761, ¶¶ 1, 10; see also Ziebell v. Ziebell, 2003 WI App 127, ¶ 8 n.2, 265 Wis. 2d 664, 666 N.W.2d 107, review denied, 2004 WI 1, 268 Wis. 2d 134, 673 N.W.2d 692 (Wis. Nov. 17, 2003) (No. 02-2552). While the notice of appeal in Seay was unsigned, in this case, the notice of appeal bears the signature of counsel affixed by counsel's legal assistant. This signature raises the specter of the unauthorized practice of law condemned in Jadair. See Seay, 250 Wis. 2d 761, ¶ 6. Counsel cannot reasonably claim that Seay applies here.

¶ 11. Counsel erroneously relies on Novak v. Phillips, 2001 WI App 156, 246 Wis. 2d 673, 631 N.W.2d 635, overruled by Schaefer, 250 Wis. 2d 494, ¶ 33, for the proposition that he should be permitted to correct the defective notice of appeal by filing an amended notice of appeal. In Novak, the court of appeals held that an attorney's rubber-stamped signature on the summons and complaint was a technical defect which could be corrected. Novak, 246 Wis. 2d 673, ¶ 24. However, the Schaefer court overruled this result and held that a rubber-stamped signature is a fundamental, not a technical, defect. Schaefer, 250 Wis. 2d 494, ¶ 33.

[W]e now overrule Novak to the extent that the court of appeals held that the subscription defect was technical rather than fundamental. As we have stated, the purpose of requiring a handwritten signature, made by the attorney of record, is not only to clarify who is accountable for an invalid claim, but also to guarantee that an attorney who is familiar with the procedural and substantive laws of this state has read the claims and has made an assessment of the claims' validity. Authorizing rubber-stamped, signatures or allowing someone who is not licensed to practice law in Wisconsin to sign a pleading runs counter to this guarantee. To hold that a failure to meet the subscription requirement is merely technical jeopardizes judicial economy, erodes attorney accountability, and lessens the essential protection that the subscription requirement affords to defendants.

Schaefer, 250 Wis. 2d 494, ¶ 33 (emphasis added).

¶ 12. Raush's counsel argues that because he had the legal capacity to draft and file the notice of appeal, Jadair and Dunkirk can be distinguished as cases in which persons not authorized to practice law in Wisconsin signed the pleading. We reject this distinction. Jadair and Dunkirk focus on the execution of the pleading, not on its preparation, and clearly state that a person not authorized to practice law should not sign a pleading on behalf of another. Jadair, 209 Wis. 2d at 211-12; Dunkirk, 258 Wis. 2d 805, ¶ 18. Counsel's argument gives short shrift to the Wis. Stat. § 802.05(l)(a) subscription requirement and potentially creates a situation where fact-finding may be required on the question of whether the attorney actually prepared the notice of appeal and engaged in the "deliberate process by which the lawyer guarantees the validity of a claim." Schaefer, 250 Wis. 2d 494, ¶ 30. This would be a poor allocation of judicial resources, and it injects unnecessary uncertainty into the filing of pleadings.

¶ 13. Regardless of counsel's legal capacity to draft the notice of appeal and cause it to be filed, the notice of appeal in this case was not signed by a person authorized to practice law in Wisconsin. Wisconsin Stat. § 802.05(l)(a) does not permit counsel to delegate to a person not authorized to practice law in Wisconsin the function of affixing counsel's signature to the notice of appeal. Schaefer, 250 Wis. 2d 494, ¶ 19. The Schaefer court's concerns regarding the § 802.05(l)(a) subscription requirement combined with the Jadair court's prohibition on the unauthorized practice of law lead us to the conclusion that the notice of appeal in this case is fundamentally defective and cannot be corrected by the filing of an untimely amended notice of appeal. See Jadair, 209 Wis. 2d at 212. We do not have jurisdiction over Raush's appeal from the order denying him coverage under his Acuity policy.

¶ 14. Although we dismiss Raush's appeal from the Acuity order, his appeal relating to West Bend Mutual Insurance Company continues.

By the Court. — Appeal dismissed in part.

       Raush also appeals from a circuit court order denying him coverage under his policy with West Bend Mutual Insurance Company. The West Bend notice of appeal is not defective, and the West Bend appeal is unaffected by this opinion.

       The notice of appeal from the July 2003 Acuity order was filed on September 2, 2003. The amended notice of appeal was filed on January 6,2004. There is no question that the amended notice of appeal was filed outside of the period for commencing an appeal. See Wis. Stat. § 808.04(1) (2001-02). Therefore, the amended notice of appeal cannot confer jurisdiction unless the original notice of appeal can be corrected. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 802.05(l)(a) provides, in pertinent part:
      Every pleading, motion or other paper of a party represented by an attorney shall contain the name, state bar number, if any, telephone number, and address of the attorney and the name of the attorney's law firm, if any, and shall he subscribed with the handwritten signature of at least one attorney of record in the individual's name .... The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the attorney's or party's knowledge, information and belief, formed after reasonable inquiry, the pleading, motion or other paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that the pleading, motion or other paper is not used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.