author: HOOVER, PJ.

text:
    CTI of Northeast Wisconsin, LLC, Plaintiff-Appellant, v. Larry Herrell and Kris Herrell, individually and d/b/a Concrete Technology of Wisconsin, Defendants-Respondents.
    Court of Appeals

      No. 02-1881.

      Submitted on briefs November 25, 2002. —
    Decided December 17, 2002.

    2003 WI App 19
    (Also reported in 656 N.W.2d 794.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of George Burnett, Sara E. Ramaker, and Liebmann, Conway, Olejniczak & Jerry, S.C. of Green Bay.
    On behalf of the defendants-respondents, the cause was submitted on the brief of J. Steven Heil and Gonyo Law Office of Berlin.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. CTI of Northeast Wisconsin, LLC, appeals a summary judgment and order dismissing its case against Larry and Kristine Herrell and their company, Concrete Technology of Wisconsin (collectively, the Herrells). CTI contends that the trial court erred when, without notice to the parties, it converted the Herrells' motion to dismiss into a motion for summary judgment pursuant to Wis. Stat. § 802.06(2)(b). We agree with CTI that the statute requires notice of conversion and an opportunity to present countervailing evidence. Because CTI received neither, we reverse the summary judgment and order and we remand for further proceedings.

Background

¶ 2. Following CTI's filing and service of an amended complaint against the Herrells, the Herrells filed a motion to dismiss the complaint for failure to state a claim. See Wis. Stat. § 802.06(2)(a)6. The Her-rells did not file an answer. The court set a briefing schedule for the motion to dismiss. The Herrells filed their brief, basing their legal arguments on § 802.06, which deals with judgments on the pleadings. To this brief, the Herrells attached an affidavit signed by Kristine.

¶ 3. In its response brief, CTI challenged the appropriateness of an affidavit if the Herrells' challenge was limited to the sufficiency of the pleadings. CTI also informed the court that if a motion for summary judgment were pursued, it would submit evidence to contradict Kristine's affidavit. However, CTI told the court it did not submit any of that evidence with its response because it believed such evidence was inappropriate on a motion designated and prosecuted strictly as one to dismiss the complaint pursuant to Wis. Stat. § 802.06(2).

¶ 4. The court issued its decision based on the briefs without a hearing. After the court considered Kristine's affidavit, it converted the motion to dismiss into one for summary judgment. Because CTI had not produced a countervailing affidavit, the court accepted the facts set forth in Kristine's affidavit as true and granted the summary judgment to the Herrells. CTI appeals.

Discussion

¶ 5. We must determine whether Wis. Stat. § 802.06(2)(b) requires, the court to give notice to parties that it is converting a motion to dismiss into one for summary judgment. Statutory construction is a question of law that we review de novo. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). If the terms of the statute are clear and unambiguous, we apply them as written without any further inquiry into their meaning. State v. Charles R.P., 223 Wis. 2d 768, 771, 590 N.W.2d 21 (Ct. App. 1998). Here we must determine the meaning of the latter half of Wis. Stat. § 802.06(2)(b), which states in pertinent part:

If on a motion asserting the defense described in par. (a) 6. to dismiss for failure of the pleading to state a claim upon which relief can be granted . . . matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by s. 802.08. (Emphasis added.)

We conclude that § 802.06(2)(b) requires the court to notify parties of its intent to convert a motion to dismiss for failure to state a claim to one for summary judgment.

¶ 6. Conversion of a motion to dismiss into a motion for summary judgment is not required under Wis. Stat. § 802.06(2) (b). If matters beyond the pleadings are submitted on a motion to dismiss for failure to state a claim, the trial court must then determine whether it should consider these additional matters. See Wis. Stat. § 802.06(2)(b). If the court excludes them, the court will proceed to analyze the motion based only on the pleadings and not extraneous information. See id. If, however, the court does not exclude the supplemental matters, it shall treat the motion to dismiss as a summary judgment motion. Id. When treating the motion as one for summary judgment, the court shall give all parties "reasonable opportunity to present all material made pertinent to such a motion by s. 802.08." Id.

¶ 7. The Herrells argue that CTI had a reasonable opportunity to present countervailing material because receipt of Kristine's affidavit put CTI on notice. In other words, the Herrells essentially argue that because every person is presumed to know the law, CTI should have known that the court could convert the Herrells' motion to dismiss. See Putnam v. Time Warner Cable, 2002 WI 108, ¶ 13 n.4, 255 Wis. 2d 447, 649 N.W.2d 626.

¶ 8. This argument would be more persuasive if conversion were required any time additional information was submitted beyond the pleadings. However, conversion is left to the trial court's discretion. Until and unless the court notifies the parties it will not exclude "matters outside of the pleadings" and will therefore treat a motion as one for summary judgment, the parties will be uncertain of their rights and responsibilities. Thus, we conclude that when a court converts a motion to dismiss for failure to state a claim into a motion for summary judgment pursuant to Wis. Stat. § 802.06(2)(b), the court must notify the parties and provide them a reasonable opportunity to present material made pertinent by Wis. Stat. § 802.08.

¶ 9. In Neylan v. Vorwald, 124 Wis. 2d 85, 95, 368 N.W.2d 648 (1985), our supreme court stated that a dismissal order for failure to prosecute entered without notice to the parties precluded the opportunity to be heard and, as such, violated the fundamentals of due process. Similarly, where a trial court fails to notify parties it is converting a motion to dismiss into one for summary judgment, the court precludes the parties' statutory opportunity to be heard by submission of pertinent information. This, too, violates due process.

16]

¶ 10. Notice is required because without it, parties may not realize their right or obligation to respond. What constitutes a reasonable opportunity to respond, however, will vary from case to case. See Little v. Streater, 452 U.S. 1, 5-6 (1981) (a meaningful opportunity, as part of constitutional due process, is flexible and calls for such procedural protections as the particular situation demands). Thus, because sometimes parties do respond without prompting from the trial court, they may occasionally be precluded from arguing a lack of notice or opportunity to reply. In Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 286-87, 531 N.W.2d 357 (1995), for example, the party claiming error did not file a motion but submitted the affidavit that triggered the conversion under Wis. Stat. 802.06(2) (1991-92). In Schopper v. Gehring, 210 Wis. 2d 208, 216, 565 N.W.2d 187 (Ct. App. 1997), the appellant submitted his own affidavit as part of a reply and never suggested that he could produce additional, relevant evidence if given an opportunity. In both these cases, although the court never notified the parties of its conversion, the parties claiming error in conversion had already asserted their right to respond.

¶ 11. CTI never submitted any extraneous information that might somehow preclude it from arguing that it was denied an opportunity to be heard. In fact, CTI, in its brief to the trial court, noted at least twice that affidavits were improper on an application prosecuted strictly as a motion to dismiss. CTI also indicated that it had countervailing evidence available, but it declined to submit the evidence because it viewed the motion to dismiss as a procedurally premature time to present such information. The trial court did not err by making a conversion; it erred by failing to notify the parties it intended to do so. The failure to notify the parties deprived them, particularly CTI, of their due process right to submit material relevant to a summary judgment motion under Wis. Stat. § 802.08. Accordingly, we reverse the summary judgment and order.

¶ 12. On remand, the trial court may proceed in one of two ways. The court may decide to exclude Kristine's affidavit and consider the Herrells1 motion to dismiss without conversion. Alternatively, if the court decides to convert the Herrells' motion into one for summary judgment, it must notify both parties and provide them an opportunity to present additional information pursuant to the summary judgment procedures in Wis. Stat. § 802.08.

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

       The trial court first ordered summary judgment be granted to the Herrells. CTI appealed. We dismissed the appeal on jurisdictional grounds because the trial court's order was not final. See Radoff v. Red Owl Stores, 109 Wis. 2d 490, 493-94, 326 N.W.2d 240 (1982). Subsequently, the court issued an order dismissing the case and CTI now appeals from that order.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The Herrells also alleged in their motion to dismiss that CTI failed to join a necessary party, see Wis. Stat. § 802.06(2)(a)7, and that another case was pending between the same parties, § 802.06(2)(a)10. However, neither of these subdivisions triggers § 802.06(2) (b).

       This also holds true for conversions under Wis. Stat. § 802.06(3):
      If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by s. 802.08.

       We point out that Wis. Stat. § 802.06(2)(b) specifically requires all parties have an opportunity to respond, not just a nonmoving party. While conversion may only adversely affect one party, the statute conveys rights to all parties.

       Although Wis. Stat. § 802.06(2) (1991-92) has become § 802.06(2)(b), the operative language is identical.


source: Caselaw Access Project

author: HOOVER, EJ.

license: Public Domain

text:
    In re the Marriage of: Karen M. Polakowski, Petitioner-Respondent, v. John R. Polakowski, Respondent-Appellant.
    Court of Appeals

      No. 02-1961-FT.

      Submitted on briefs November 11, 2002.—

      Decided December 17, 2002.

    2003 WI App 20
    (Also reported in 657 N.W.2d 102.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Roger A. Glenn and Glenn, Hoff & Hoff, S.C. of Appleton.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Jerome H. Block, Harvey G. Samson and Block, Seymour, Chudacoff, Samson & Liebzeit, S.C. of Appleton.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 3-13-03.

   HOOVER, EJ.

¶ 1. John Polakowski appeals an order denying his motion to enforce a stipulation for revision of maintenance payments. After obtaining an order modifying his maintenance obligation, John and his ex-wife, Karen Polakowski, negotiated further revisions. Karen indicated through her attorney that she would accept the stipulation. Karen later changed her mind and withdrew her approval of the agreement. John asked the court to find the stipulation binding under Wis. Stat. § 807.05. The trial court declined based on Karen's withdrawal of consent. Because the court correctly declined to enforce the stipulation, we affirm the order.

Background

¶ 2. John and Karen were divorced on April 14, 1999, after twenty-six years of marriage. Pursuant to a stipulation, the court ordered John to pay maintenance to Karen. In July 2001, John filed a motion for modification because Karen was living with another man with whom she was sharing expenses. The court commissioner denied the motion for modification, and John requested review by the trial court. The court subsequently modified John's maintenance obligation on January 25, 2002.

¶ 3. Following the modification order, John and Karen continued to negotiate further revisions to the maintenance order in lieu of John filing an appeal. Karen's attorney notified John's attorney in writing that Karen planned to accept John's proposed terms, but requested that John's attorney prepare and forward the stipulation. Before signing the stipulation and before John could obtain court approval, Karen withdrew her consent to the stipulation. Meanwhile, the time for John to appeal the January 25 order had expired.

¶ 4. John then filed a motion with the circuit for an order to enforce the stipulation the parties reached, citing Wis. Stat. § 807.05 as authority. The trial court, however, declined to grant the motion. John appeals.

Analysis

¶ 5. John characterizes the issue as whether it was error for the trial court to decline to enforce the stipulation that Karen's attorney agreed to. Karen suggests the issue is whether the family court can enforce a stipulation when one party has withdrawn consent. The question we face is which statute applies —Wis. Stat. § 807.05 as John would like, or the provisions of Wis. Stat. ch. 767 for which Karen argues. This is a question of law we decide independently of the trial court. Acharya v. Carroll, 152 Wis. 2d 330, 335, 448 N.W.2d 275 (Ct. App. 1989).

¶ 6. John relies on Wis. Stat. § 807.05, a rule of civil procedure stating in relevant part: "No agreement, stipulation, or consent between the parties or their attorney ... shall be binding unless ... made in writing and subscribed by the party to be bound thereby or the party's attorney." John contends that because in a letter Karen's attorney told John's attorney that Karen would agree to the proposed stipulation, this statute applies and binds Karen to the stipulation. We disagree.

¶ 7. Wisconsin Stat. § 801.01(2) states in part:

Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule. (Emphasis added.)

Wisconsin Stat. ch. 767 governs actions affecting the family. Wisconsin Stat. § 767.10(1) states in relevant part: "The parties in an action for an annulment, divorce or legal separation may, subject to the approval of the court, stipulate for. .. maintenance payments . . . ." Wis. Stat. § 767.10(1) states that in an action for divorce, parties making a stipulation for maintenance do so subject to the court's approval. We conclude that the specific language of § 767.10(1) controls stipulations in divorces; the more general language of Wis. Stat. § 807.05 does not. See State v. Taylor, 170 Wis. 2d 524, 529, 489 N.W.2d 664 (Ct. App. 1992).

¶ 8. John tries to avoid this result by arguing that his motion and the stipulation were brought after the final divorce judgment. He argues that Wis. Stat. ch. 767 applies only to the original divorce action; therefore, the stipulation he and Karen had was of a civil nature to be controlled by general rules of civil procedure. We conclude, however, that a stipulation for maintenance payments, even subsequent to a final divorce judgment, remains an action affecting the family subject to the rules of ch. 767.

¶ 9. In Norman v. Norman, 117 Wis. 2d 80, 81, 342 N.W.2d 780 (Ct. App. 1983), we held "[a] stipulation between the parties to a divorce action is only 'a joint recommendation by them to the court suggesting what the judgment, if granted, is to provide.1" Id. (citation omitted). We also concluded that such a stipulation does not rise to the level of the contract, leaving either party free to withdraw until the stipulation is incorporated into the judgment. Id. at 81-82. Norman implicitly rendered Wis. Stat. § 807.05 inapplicable to divorce actions without explaining why.

¶ 10. Our supreme court then decided Van Boxtel v. Van Boxtel, 2001 WI 40, 242 Wis. 2d 474, 625 N.W.2d 284. While Van Boxtel does not specifically explain the preclusion of Wis. Stat. § 807.05 by Wis. Stat. § 767.10(1), it clarifies why § 767.10(1) applies to stipulations in divorce actions. The supreme court wrote:

We conclude that any agreement regarding the division of property entered into between spouses after divorce proceedings have commenced is a stipulation under § 767.10(1) and is therefore subject to the approval of the court. This conclusion is dictated by the language of the statute, controlling precedent, and the public policy considerations implicated when divorcing spouses enter into agreements.

Id. at ¶ 14. The court noted Wis. Stat. § 767.255 governs the division of property and allows the trial court to consider a myriad of factors, including written agreements made before or during the marriage. See Wis. Stat. § 767.255(3)(L).

¶ 11. The petitioner in Van Boxtel argued that Wis. Stat. § 767.255(3)(L) applied broadly to agreements made during the marriage and would therefore include the agreement she sought to enforce. Id. at ¶ 17. However, the supreme court concluded that Wis. Stat. § 767.10(1) more specifically addressed agreements made after a divorce action was filed and was therefore the applicable statute. Id. The court concluded that all agreements entered into after a divorce is filed are stipulations subject to § 767.10(1). Id. at ¶ 20.

¶ 12. Likewise, Wis. Stat. § 767.26 governs a trial court's award of maintenance payments. The trial court may consider agreements made before or during the marriage regarding arrangements for financial support. Wis. Stat. § 767.26(8). However, because Wis. Stat. § 767.10(1), which allows stipulations for property division as in Van Boxtel, also allows stipulations for maintenance, we conclude that Van Boxtel applies to all stipulations made under § 767.10(1). Thus, any agreement made after the divorce action is commenced must be approved by the court.

¶ 13. This resolves John's argument that the divorce has been completed, and therefore Wis. Stat. § 767.10(1) does not apply. An action to modify maintenance is an action affecting the family, Wis. Stat. § 767.02(1)(g) and (i), and actions affecting the family are governed by ch. 767. Wis. Stat. § 767.01. In an action to revise maintenance, the court retains the same authority it had in the original divorce action. Wis. Stat. § 767.32(l)(a). This necessarily includes the authority to approve or reject stipulations. Because a stipulation under § 767.10(1) is no more than an understanding of what the parties desire and recommend to the court, a party is free to withdraw from this recommendation until it is approved by the court. See Van Boxtel, 2001 WI 40 at ¶ 26. Wisconsin Stat. § 807.05 cannot therefore be used to compel Karen's compliance.

¶ 14. John also argues that the court's refusal to enforce the stipulation based solely on Karen's withdrawal of consent was erroneous. However, "[t]he repudiation of consent to a stipulation by a party may render the stipulation non-existent. Thereafter, a court's refusal to incorporate it into the judgment cannot be said to be an erroneous exercise of discretion." Id. Thus, we cannot say the trial court erred when it refused to force Karen to honor the stipulation, even under Wis. Stat. § 767.10(1).

By the Court. — Order affirmed.

       This is an expedited appeal under Wis. Stat. Rule 809.17.

       Wis. Stat. § 807.05 provides:
      No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall he binding unless made in court or during a proceeding conducted under s. 807.13 or 967.08 and entered in the minutes or recorded by the reporter, or made in writing and subscribed by the party to be bound thereby or the party's attorney.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       John relies on Marks v. Gohlke, 149 Wis. 2d 750, 439 N.W.2d 157 (Ct. App. 1989), while Karen directs us to Laska v. Laska, 2002 WI App 132, 255 Wis. 2d 823, 646 N.W.2d 393. Neither of these cases is helpful because neither deals with any action affecting the family. Marks deals with issues surrounding a request for a partnership accounting. Marks, 149 Wis. 2d at 752. Laska involves a claim of wrongful interference with an inheritance. Laska, 2002 WI App at ¶ 3.

        Van Boxtel involved a property division agreement entered into after the divorce action was commenced. See Van Boxtel v. Van Boxtel, 2001 WI 40, ¶ 4-5, 242 Wis. 2d 474, 625 N.W.2d 284.

       Under Wis. Stat. § 767.10(1), parties to an action for annulment, divorce, or legal separation may stipulate to property division, maintenance payments, child support, family support, or legal custody and physical placement.

       The parties also debate whether the stipulation was valid under Wis. Stat. § 807.05. Because we conclude that the statute does not apply, we need not address this issue further. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938).
      Karen has asked this court to award her costs for a frivolous appeal. We decline to conclude that the entire appeal was meritless. The motion for costs is denied.


author: NETTESHEIM, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Richard A. Lange, Defendant-Appellant.
    Court of Appeals

      No. 01-2584-CR.

      Submitted on briefs October 25, 2002.—

      Decided December 18, 2002.

    2003 WI App 2
    (Also reported in 656 N.W.2d 480.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel Snyder of Park Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Kathleen M. Ptacek, assistant attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   NETTESHEIM, PJ.

¶ 1. Richard A. Lange appeals from a postconviction order denying his motion to withdraw his no contest plea to a charge of delivery of a controlled substance, party to the crime, contrary to Wis. Stat. §§ 961.41(l)(cm)l and 939.05 (1999-2000), and, alternatively, to amend his sentence to give proper credit for time served. Lange raises three issues on appeal: (1) his plea was involuntary because the plea colloquy failed to establish that he understood the elements of the charged offense and the constitutional rights he was waiving; (2) he was deprived of his constitutional right to counsel at the plea hearing; and (3) the trial court failed to provide him with proper sentence credit for time served.

¶ 2. We conclude that Lange has made a prima facie showing that the plea colloquy was inadequate because the trial court failed to ascertain that he understood the elements of the charged offense at the time of the plea hearing. We therefore reverse the judgment and order and remand for further proceedings to determine if the State can demonstrate by clear and convincing evidence that Lange's plea was nevertheless knowingly and voluntarily entered. In the event the State meets its burden at the remand proceedings, the trial court shall reinstate the judgment of conviction.

¶ 3. Lange's contention that he was denied the assistance of counsel at the plea hearing is rendered moot not only by our determination that the plea colloquy failed to comport with the requirements of Wis. Stat. § 971.08(l)(a), but also by the fact that Lange is now represented by appointed counsel for his postcon-viction proceedings. That appointment will continue on remand.

¶ 4. Because our opinion allows for the possible reinstatement of Lange's conviction, we are required to address his further claim that he was not given the proper credit against his sentence. Because the present record is unclear as to the proper amount of sentence credit to which Lange is entitled pursuant to Wis. Stat. § 973.155(1), we direct the trial court to revisit the computation of Lange's sentence credit in the event the judgment of conviction is reinstated.

BACKGROUND

¶ 5. On November 18, 1998, the State charged Lange with two counts of party to the crime of delivering cocaine base as a repeat offender and one count of party to the crime of delivery of hydrocodone as a repeat offender. The case was assigned to Fond du Lac County Circuit Judge Henry B. Buslee. The following day, the state public defender's office appointed counsel for Lange pursuant to Wis. Stat. ch. 977.

¶ 6. On April 13, 1999, three months prior to the scheduled jury trial, Lange's counsel moved to withdraw due to a breakdown in communication. Judge Buslee granted the motion, and the state public defender appointed successor counsel for Lange on April 27, 1999. On July 20, 1999, successor counsel also moved to withdraw, again due to a breakdown in communication. Judge Buslee granted this motion on July 21, 1999.

¶ 7. The state public defender declined to appoint further counsel for Lange. Therefore, on October 22, 1999, Lange filed a motion asking Judge Buslee to appoint counsel. Judge Buslee denied this request and Lange proceeded pro se.

¶ .8. At the time this case was pending before Judge Buslee, Lange had other charges pending against him in a case assigned to Fond du Lac County Circuit Judge Dale English. Lange's attorney in that case was Attorney William Mayer. In due course, Mayer negotiated a plea agreement with the State in both cases.

¶ 9. Pursuant to the plea agreement, Lange would enter a plea of no contest to one count of delivery of a controlled substance (cocaine base), party to a crime, in the case before Judge Buslee in exchange for a dismissal of the repeater allegation and the other two counts. The dismissed counts, however, would be read in for sentencing purposes. With respect to the case assigned to Judge English, Lange would enter a plea of no contest to disorderly conduct and the State would request that the remaining charges be dismissed. Finally, the parties agreed "[t]he sentencing [in the case before Judge English] would be done in front of Judge Buslee, with the consent of Judge English."

¶ 10. Consistent with the plea agreement, Lange appeared pro se in the instant case on May 12, 2000, and entered a plea of no contest to the crime of delivery of a controlled substance, party to a crime, contrary to Wis. Stat. §§ 939.05 and 961.41(l)(cm)l. In due course, and also consistent with the plea agreement, Lange appeared before Judge English and entered a no contest plea to the charge of disorderly conduct in that case.

¶ 11. On October 12, 2000, Lange appeared for sentencing in both cases before Judge Buslee. Attorney Mayer represented Lange at this proceeding. Judge Buslee sentenced Lange to ninety days' time served for the disorderly conduct offense in the case originally assigned to Judge English and seven years' imprisonment for the party to the crime of delivery of a controlled substance in the instant case. Judge Buslee determined that Lange was entitled to 153 days of credit for time served in the instant case. In due course, Judge Buslee entered judgments of convictions in both cases.

¶ 12. Following sentencing, Lange obtained appointed counsel for purposes of postconviction proceedings before Judge Buslee. On April 20, 2001, Lange's counsel filed motions for postconviction relief, but only in the instant case. Lange argued that his plea was not voluntarily and knowingly made and that he was deprived of the assistance of counsel at his plea hearing. Lange additionally argued that Judge Buslee had failed to correctly compute his sentence credit. Following a motion hearing on September 5, 2001, Judge Buslee denied Lange's request for postconviction relief in a written order dated September 10, 2001.

¶ 13. Lange appeals. We will recite additional facts as we address each appellate issue.

DISCUSSION

Plea Withdrawal

¶ 14. Lange first contends that the trial court erred in denying his motion for plea withdrawal because the plea colloquy failed to establish that he understood the elements of the offense to which he was pleading and the nature of the constitutional rights he was waiving. See Wis. Stat. § 971.08(1)(a). While there is some suggestion in the record that Lange may have been advised of the elements of the offense and the nature of the rights he was waiving prior to the plea hearing, there is no documentation to that effect and there is no indication of Lange's understanding of the elements of the offense. We therefore agree with Lange that the plea colloquy was inadequate. However, we reject Lange's contention that he was not advised of his constitutional rights.

Standard of Review

¶ 15. Whether to permit a defendant to withdraw a no contest plea lies within the sound discretion of the trial court. State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995). Postconviction plea withdrawal is permitted only to correct a manifest injustice. Id. A plea which is not knowingly, voluntarily and intelligently entered is a manifest injustice. Id. The defendant bears the burden of showing the necessity for plea withdrawal by clear and convincing evidence. See id.

¶ 16. When a defendant moves to withdraw his or her plea based on the trial court's failure to comply with the requirements of Wis. Stat. § 971.08 and State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986), the defendant must (1) make a prima facie showing that the trial court violated § 971.08 and (2) allege that he or she did not know or understand the information that the court should have provided at the plea hearing. Giebel, 198 Wis. 2d at 216 (citing Bangert, 131 Wis. 2d at 274). Whether a defendant has established a prima facie case for plea withdrawal presents a question of law that we review de novo. State v. Hansen, 168 Wis. 2d 749, 755, 485 N.W.2d 74 (Ct. App. 1992).

Elements of the Offense

¶ 17. Due process requires that a plea be knowing, voluntary and intelligent. State v. Bollig, 2000 WI 6, ¶ 47, 232 Wis. 2d 561, 605 N.W.2d 199. A plea violates due process unless the defendant has a full understanding of the nature of the charges. Id. "A defendant's understanding of the nature of the charge must 'include an awareness of the essential elements of the crime.'" State v. Brandt, 226 Wis. 2d 610, 619, 594 N.W.2d 759 (1999) (citation omitted).

¶ 18. Wisconsin Stat. § 971.08(l)(a) requires that a trial court in accepting a guilty or no contest plea must "[a]ddress the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted." Bangert outlines three methods that fulfill this obligation:

First, the trial court may summarize the elements of the crime charged by reading from the appropriate jury instructions, or from the applicable statute. Second, the trial judge may ask defendant's counsel whether he explained the nature of the charge to the defendant and request him to summarize the extent of the explanation, including a reiteration of the elements, at the plea hearing. Third, the trial judge may expressly refer to the record or other evidence of defendant's knowledge of the nature of the charge established prior to the plea hearing.

Bangert, 131 Wis. 2d at 268 (citations omitted). Here, it is undisputed that the trial court did not employ the first or second methods. However, the parties disagree as to whether the trial court's reference to the Plea Questionnaire/Waiver of Rights Form completed by . Lange is sufficient to satisfy the requirements of § 971.08(l)(a). We conclude that it is not.

¶ 19. At the plea hearing, the prosecutor represented that he would be submitting to the court the SM-32 or the Waiver of Rights Form which had an attachment outlining the State's plea agreement and the jury instructions which included a listing of the three elements of delivering a controlled substance. The trial court specifically confirmed with the prosecutor that the attachments to the Waiver of Rights Form listed "the three elements." There was no further discussion with the prosecutor or Lange regarding the elements of the offense charged.

¶ 20. However, the Waiver of Rights Form did not have the attachment represented by the prosecutor. The "Understandings" section of the Waiver of Rights Form provides, "I understand the crime(s) to which I am pleading has/have elements that the State would have to prove beyond a reasonable doubt if I had a trial. These elements have been explained to me by my attorney or as follows." Lange's signature is in the space provided and a box indicating "See Attached Sheet" is checked. However, there is no "attached sheet" and neither the transcript of the plea hearing nor any other portion of the record reveals any reference to the specific elements of the offense. Thus, the record is barren as to any explanation or detailing to Lange of the elements of the offense. We know only that the trial court and the prosecutor referred to a form that apparently listed the elements of some offense.

¶ 21. Further, while the trial court referenced the Waiver of Rights Form, the court never inquired of Lange whether he had read the form and understood the elements of the charged offense. Such a personal inquiry is required under Bangert and Wis. Stat. § 971.08(l)(a). See Bangert, 131 Wis. 2d at 266.

¶ 22. Based on the absence of any attachments to the Waiver of Rights Form or any other evidence in the record demonstrating that Lange had knowledge of the elements of the offense charged, coupled with the trial court's failure to ascertain Lange's understanding of these elements during the plea colloquy, we have no choice but to conclude that Lange has made a prima facie showing that the plea colloquy failed to meet the requirements of Wis. Stat. § 971.08(l)(a) and Bangert

Constitutional Rights

¶ 23. Lange additionally argues that the colloquy failed to advise him of his constitutional rights. We disagree. The record reflects that both the trial court and the Waiver of Rights Form advised Lange of his constitutional rights.

¶ 24. "For a waiver of constitutional rights to be valid, the plea must be based on 'an intentional relinquishment or abandonment of a known right or privilege.1 " Bangert, 131 Wis. 2d at 265 (citation omitted). A plea may be involuntary because the defendant does not understand the nature of the constitutional rights he or she is waiving. Id. at 265-66.

¶ 25. The Waiver of Rights Form included in the record sets forth each of the constitutional rights waived by Lange's entry of a no contest plea. Next to each of those rights is a check mark made by Lange indicating that he understood the rights he was waiving. With respect to the waiver of his constitutional rights, the trial court inquired of Lange:

[I]n addition to those facts on your 32-B Form, or your Waiver of Rights Form, you waive certain constitutional rights that you have, and those have been checked; the right to give up a trial, the right to remain silent, the right to testify and present evidence, and all of those things, and the Court is personally familiar with you having been in court many times prior hereto. You're familiar with those rights and know you're giving them up, is that right?"

Lange replied, "Yes, Judge."

¶ 26. We conclude that the trial court's inquiry as to Lange's understanding of his constitutional rights was sufficient to satisfy the requirements of Wis. Stat. § 971.08(l)(a). State v. Moederndorfer, 141 Wis. 2d 823, 826, 416 N.W.2d 627 (Ct. App. 1987), instructs that Bangert does not require the trial court to personally address the defendant regarding each of his or her constitutional rights. Rather, the court may refer to a portion of the record or other evidence that affirmatively exhibits the defendant's knowledge of the constitutional rights he or she will be waiving. Moederndorfer, 141 Wis. 2d at 827. The trial court did so in this case when it referred to the Waiver of Rights Form completed by Lange and its knowledge of Lange's familiarity with the legal system.

¶ 27. Unlike the procedure regarding the elements of the offense, the trial court referred to the constitutional rights listed in the Waiver of Rights Form and then questioned Lange personally to ascertain whether he understood that he would be waiving those constitutional rights by virtue of his plea. Lange responded that he did. This satisfied Bangert. See Bangert, 131 Wis. 2d at 270. We therefore reject Lange's contention that the plea colloquy was inadequate on this ground.

Remand

¶ 28. Once a defendant has made a prima facie showing that the plea was accepted without the trial court's conforming to the requirements of Wis. Stat. §971.08 and Bangert, the burden then shifts to the State "to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily, and intelligently entered." Bangert, 131 Wis. 2d at 274. The parties disagree as to whether the State has already had an opportunity to make such a showing.

¶ 29. The State argues that if Lange makes a prima facie showing for plea withdrawal, the case should be remanded to allow the State the opportunity to present evidence demonstrating that Lange's plea was knowing, voluntary and intelligent. Lange contends that to do so would give the State a "second kick at the cat." We disagree. At the postconviction hearing, the trial court heard testimony from Lange and arguments from both parties. However, the inquiry was limited to whether Lange had met his threshold burden under Bangert. Based on the trial court's finding that Lange had not met his burden, the State was not required — or provided an opportunity— to meet the shifted burden. Therefore, the State has not yet had a "first kick" as to this second level of the inquiry.

¶ 30. We therefore conclude that remand is appropriate to give the State the opportunity to do so.

The Remand Proceedings

¶ 31. As a final matter on this issue, we address the effect of Lange's plea withdrawal should the State fail to satisfy its shifted burden on remand. As noted above, Lange's plea agreement covered both the instant case and the other case then pending before Judge English. The State argues that if Lange is permitted to withdraw his plea in the instant case, the entire plea agreement should be vacated, including the case originally before Judge English. Lange disagrees. He correctly observes that the case originally before Judge English is not before us because he has not appealed from the judgment of conviction in that matter. Nevertheless, we agree with the State.

¶ 32. Wisconsin case law clearly holds that a defendant's repudiation of a portion of the plea agreement constitutes a repudiation of the entire plea agreement. See State v. Pohlhammer, 78 Wis. 2d 516, 524, 254 N.W.2d 478 (1977), on rehearing, 82 Wis. 2d 1, 260 N.W.2d 678 (1978); State v. Briggs, 218 Wis. 2d 61, 73, 579 N.W.2d 783 (Ct. App. 1998); State v. Robinson, 2002 WI 9, ¶ 47, 249 Wis. 2d 553, 574, 638 N.W.2d 564. Ordinarily, the remedy for such repudiation requires reinstatement of the original charges against the accused. Robinson, 2002 WI 9 at ¶ 48. However, no Wisconsin case has addressed that remedy when, as here, the repudiated plea agreement is encompassed by multiple judgments, some of which are not embraced by the appellant's notice of appeal. Thus, the question is whether we may extend Pohlhammer, Briggs and Robinson to this different factual setting.

¶ 33. We find the rationale of Briggs particularly helpful and persuasive. There a plea agreement resulted in a judgment of conviction for party to the crimes of attempted felony murder and armed burglary. Briggs, 218 Wis. 2d at 64. On appeal, Briggs challenged only the conviction for attempted felony murder, arguing that such a crime was unknown to the law. Id. at 64-65. The court of appeals agreed, and the court then turned to the scope of the remedy. Id. at 65-68. Briggs argued that the court should vacate the conviction for the phantom crime and leave the balance of the judgment intact. Id. at 69.

¶ 34. The court of appeals rejected this argument. After reviewing the statutes governing a criminal appeal, the court concluded, "Section 809.30 does not describe appeals from portions of judgments or orders, nor does it indicate that the defendant may limit the scope of our review of a judgment or order from which appeal is taken." Id. at 70. The court also said, "Further, to construe § 809.30, Stats., in a manner that would restrict our jurisdiction to only a portion of the judgment, would undercut the finality of the appellate procedure." Id. at 71.

¶ 35. The court of appeals also observed that the judgment was the product of a plea bargain "where the resulting convictions were both part of the same agreement." Id. Noting that "a conviction of one crime was not sufficient to satisfy the interests of the State, causing the convictions within the judgment to be interconnected," the court concluded:

[W]hen a criminal appeal is taken from a conviction resulting from a plea bargain, it brings before us all of the judgment or order appealed from, even when the appellant attempts to limit our review to only a portion of the judgment or order by the way in which the notice of appeal is stated.

Id.

¶ 36. We see no reason why the same logic should not apply to the instant case where the convictions covered by a plea agreement are recited in multiple judgments of convictions as opposed to a single judgment of conviction. All of the convictions stemmed from a singular, global plea agreement and thus were "interconnected" within the meaning of Briggs. The multiple convictions could have been entered in a single judgment of conviction, which would clearly allow us to apply Briggs. Commonsense dictates that jurisdictional bars should rest on substantive and meaningful principles, not on the ministerial and artificial choice as to how the judgments of conviction were clerically entered.

¶ 37. Therefore, if the State fails to satisfy its shifted burden under Bangert at the remand proceedings, the trial court is authorized to vacate both judgments of conviction and to reinstate the original charges alleged against Lange in both cases.

Assistance of Counsel

¶ 38. Lange additionally contends that the trial court improperly deprived him of his constitutional right to counsel at the plea hearing. We conclude that this issue is rendered moot not only by our determination that the plea colloquy was inadequate but also by the subsequent appointment of postconviction counsel. That appointment will continue on remand until such time as the court terminates it. See Wis. Stat. Rule 809.85 ("[a]n attorney appointed by a lower court in a case or proceeding appealed to the court shall continue to act in the same capacity in the court until the court relieves the attorney"); see also Roberta Jo W. v. Leroy W., 218 Wis. 2d 225, 240, 578 N.W.2d 185 (1998).

Sentence Credit

¶ 39. Our opinion carries the prospect that Lange's conviction will be reinstated. Therefore, we must address Lange's challenge to the trial court's calculation of sentence credit for time served.

¶ 40. Wisconsin Stat. § 973.155, which governs sentence credit, provides in relevant part that "[a] convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed." Sec. 973.155(l)(a). This includes "custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 304.06(3) or 973.10(2) placed upon the person for the same course of conduct as that resulting in the new conviction." Sec. 973.155(l)(b).

¶ 41. Whether a defendant is entitled to sentence credit pursuant to Wis. Stat. § 973.155 is a question of law which we review de novo. State v. Rohl, 160 Wis. 2d 325, 329, 466 N.W.2d 208 (Ct. App. 1991). In order to receive sentence credit, an offender must establish: (1) that he or she was in "custody"; and (2) that the custody was in connection with the course of conduct for which the sentence was imposed. State v. Dentici, 2002 WI App 77, ¶ 5, 251 Wis. 2d 436, 643 N.W.2d 180.

¶ 42. The parties do not dispute that Lange was "in custody" during the period for which he is seeking credit. See id. Lange was arrested for the charges in this case on November 18,1998, and he remained in custody thereafter to the date of his sentencing. At his initial appearance, Lange's counsel indicated that Lange was already also in custody on a hold in another matter. Lange's parole on that matter was revoked on November 29, 1999. Lange completed his sentence on that matter on January 8, 2000.

¶ 43. At issue is whether Lange was in custody "in connection with the course of conduct for which the sentence was imposed." See id. Lange argues that he was in custody in connection with this case for a period of 654 days as opposed to the 153 days credited him by the trial court. Lange reasons that he is entitled to credit for the period from his arrest in this matter on November 18, 1998, until sentencing on October 12, 2000, "less the time between revocation of his parole and the completion of his sentence after revocation." Thus, consistent with the holding in State v. Boettcher, 144 Wis. 2d 86, 87, 423 N.W.2d 533 (1988), Lange concedes he is not entitled to duplicative credit for the time he served on his parole revocation.

¶ 44. That leaves us with the remaining period of Lange's incarceration. The court accepted the State's representation at sentencing that Lange was entitled to only 153 days of sentence credit. At that time, Lange registered an objection with the trial court but was not provided an opportunity to explain his position. There is no documentation or other evidence in the record as to how the State arrived at its calculation. Nor did the court provide any reasoning on the record for accepting the State's calculations over Lange's objection.

¶ 45. The State contends that Lange has failed to carry his burden of showing that he is entitled to additional sentence credit for time served. See State v. Villalobos, 196 Wis. 2d 141, 148, 537 N.W.2d 139 (Ct. App. 1995). However, even accepting the State's argument that Lange is not entitled to sentence credit for the time preceding his parole revocation (November 18, 1998 until November 24, 1999), we are left without proper explanation from either party or the trial court as to the period between his completion of his sentence on the other matter on January 8, 2000, and his sentencing in this case on October 12, 2000. Given the history of this case and the significant liberty interests involved, we decline to visit this failure, which dates back to the sentencing hearing, solely on Lange. See State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 29, 236 Wis. 2d 473, 487, 613 N.W. 2d 591 ("An appeal or writ seeking relief from a judgment of conviction or sentence implicates the core liberty interest of the defendant.").

¶ 46. Without the benefit of documentation as to the State's calculations or the trial court's reasoning, we lack sufficient evidence to make a determination as to the proper sentence credit due Lange. Therefore, in the event that Lange's plea is ultimately deemed valid, it will be necessary on remand for the trial court to hold a hearing to determine Lange's sentence credit prior to reinstating the judgment of conviction.

CONCLUSION

¶ 47. We conclude that Lange has made a prima facie showing for plea withdrawal. We therefore reverse the judgment of conviction and order denying postcon-viction relief. We remand for further proceedings to determine if the State can satisfy its shifted burden under Bangert to show that Lange's plea was knowingly and voluntarily entered. If the State fails in meeting that burden, the trial court is authorized to vacate both judgments of conviction and to reinstate the original charges against Lange. If the State satisfies its shifted burden, the trial court is authorized to reinstate the judgment of conviction challenged on this appeal. In that event, however, the trial court is directed to revisit the issue of sentence credit due Lange.

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

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Although Mayer had negotiated the plea agreement for Lange, he did not appear for Lange at the plea hearing because he was not appointed to represent Lange in this case.

       Although the parties' briefs do not so state, apparently Judge English approved the plea agreement which provided that Judge Buslee would conduct the sentencing in both cases.

       Wisconsin Stat. § 971.08(1) provides in relevant part:
      (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
      (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
      ft)) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.

       SM-32 refers to the Criminal Jury Instruction Committee's special material relating to the acceptance of guilty pleas.

       The three elements of the offense of delivering a controlled substance (in Lange's case cocaine base) contrary to Wis. Stat. § 961.41(1) are: (1) the defendant delivered a substance; (2) the substance was cocaine base; and (3) the defendant knew or believed that the substance was cocaine base. See Wis JI — Criminal 6020.

       The State appéars to concede that Lange satisfied the second prong for a prima facie showing — that he alleged he did not know or understand the information that the court should have provided at the plea hearing. See State v. Giebel, 198 Wis. 2d 207, 216, 541 N.W.2d 815 (Ct. App. 1995). This is confirmed by Lange's testimony:
      Q. At the time that you entered this plea on May 12, 2000, did you understand what the State would have to prove with respect to this party to the crime allegations?
      A. No. I know very little to nothing about criminal law and my constitutional rights.
      Q. Before you and I [postconviction counsel] spoke, after you had already been convicted of this offense, before that time, had anyone ever explained to you what the State would have to prove under the party to the crime statute.
      A. No. At no time nobody [sic] did.

       The Plea Questionnaire/Waiver of Rights Form includes a section entitled, "Constitutional Rights." Prior to listing the constitutional rights, it provides: "I understand that by entering this plea, I give up the following constitutional rights." Following the list of constitutional rights, it provides: "I understand the rights that have been checked and give them up of my own free will."

       We note that in support of his argument that he was not advised of his constitutional rights, Lange argues that the trial court incorrectly informed him that he had a right to "give up a trial" instead of a right to have a trial. Lange does not develop this argument nor does he explain how this minor error affected his understanding of the rights already provided to him in the Waiver of Rights Form. We therefore decline to address it.

       However, when considering the appropriate remedy, the trial court must examine all of the circumstances of the case, considering both the defendant's and State's interests. State v. Robinson, 2002 WI 9, ¶ 48, 249 Wis. 2d 553, 638 N.W.2d 564.

       Wisconsin Stat. § 973.155(1) provides in its entirety:
      (l)(a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
      1. While the offender is awaiting trial;
      2. While the offender is being tried; and
      3. While the offender is awaiting imposition of sentence after trial.
      (b) The categories in par. (a) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 304.06(3) or 973.10(2) placed upon the person for the same course of conduct as that resulting in the new conviction.

       Lange initially argues that he is entitled to 694 days of sentence credit. However, he later reduces that claim to 654 days.

       At the sentencing hearing, the State indicated to the court that Lange was "entitled to 153 days credit on 98-CF-370." Lange replied, "I was arrested on November 18, 1998, for 98-CF-370 .... I would ask the Court to credit me towards that seven year sentence .. . since the time of November 18 ...." The court interrupted Lange, stating, 'You'll get the time credit that is indicated by the District Attorney, Mr. Lange."
      If, in fact, Lange completed his sentence on the parole revocation matter on January 8,2000, and if, in fact, his custody thereafter was related only to the current matter, it would appear that Lange was entitled to more than the 153 days allowed by the trial court since the sentencing in the current matter occurred on October 12, 2000.

       We stress that we "authorize," but do not "direct," the trial court to vacate the other judgment of conviction if the court should ultimately determine that Lange's plea should be withdrawn. We do so because, as noted earlier at footnote 10, the trial court should consider the special circumstances of each case when considering the scope of the remedy. Robinson, 2002 WI 9 at ¶ 48. We see nothing in the appellate briefs which suggests that the judgment of conviction in the other case should not also be vacated if Lange ultimately prevails in his plea withdrawal request. But we leave the ultimate determination on this question to the trial court on remand.


author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Richard K. Fischer, Defendant-Appellant.

    Court of Appeals

      No. 02-0147-CR.

      Oral argument November 12, 2002. —
    Decided December 18, 2002.

    2003 WI App 5
    (Also reported in 656 N.W.2d 503.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of and oral argument by Mark S. Rosen of Rosen and Holzman, Waukesha.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Sally L. Wellman, assistant attorney general.
    Before Nettesheim, EJ., Anderson and Snyder, JJ.

       Petition to review denied 4-22-03.

   SNYDER, J.

¶ 1. Richard K. Fischer appeals from a judgment of conviction for burglary as a party to a crime, contrary to Wis. Stat. §§ 943.10(1)(a) and 939.05(1) (1999-2000). Fischer argues that the trial court erred in denying his suppression motion because he was never read his Miranda rights prior to the taking of his statements, that he unequivocally asserted his right to an attorney and that the detective's conversation with him was the functional equivalent of interrogation. We conclude that Fischer's request for an attorney was equivocal and ambiguous. Further, we conclude that the ensuing conversation between him and police detectives was not the functional equivalent of interrogation. We therefore affirm the judgment of conviction.

FACTS

¶ 2. In January 1999, while Fischer was in custody in Milwaukee county on other matters, he was being investigated for two burglaries in Brookfield, Wisconsin, at F&F Tire World and Goodyear Tire. On January 28, 1999, detective Tom Vento and another detective from the City of Brookfield Police Department arrived at an interview room at the Milwaukee county jail to interview Fischer. Vento identified himself and the other detective to Fischer and explained to him that they were there to talk to him about the Brookfield burglaries. Fischer said that Vento was the third or fourth police department to talk to him that day and he was not interested in accepting anything Vento had to say as truthful. Fischer indicated he was distrustful and skeptical of the police. Fischer explained that he was skeptical because Vento could not authorize or endorse any type of deal for him whereby the Brookfield and Milwaukee county cases would be combined. Vento informed Fischer that a deal to consolidate the Brook-field and Milwaukee county cases "wasn't going to happen" and that Vento wanted to talk to Fischer about the Brookfield cases.

¶ 3. Vento then asked Fischer if he would be willing to talk about the Brookfield cases; Fischer responded that if the officers read him his rights, he would not answer any questions and would request an attorney. Fischer said he was not sure the detectives could work out a deal for him and he did not want "to say anything that's going to get [him] in trouble until [he] find[s] out what's going on."

¶ 4. Because Vento felt the interview was "likely going to come to a very quick close," he explained to Fischer the position of the Brookfield police department. Vento informed Fischer that he was investigating two burglaries based upon evidence taken from Fischer's footwear; after preliminary comparisons of the footwear he was wearing on the night he was arrested in Milwaukee county and evidence taken from the scene of the Brookfield crimes, Vento was "fairly confident" Fischer was responsible for the burglaries and "it shouldn't become a surprise to him" if he were charged in Waukesha county for these burglaries. Fischer then began to ask Vento questions, about the specifics of the burglaries.

¶ 5. Fischer asked Vento where the Brookfield police had found his shoe prints. Vento told Fischer that at Goodyear, there was an impression of a shoe where the plexiglass had been kicked in. Fischer then called Vento a liar, stating that the plexiglass was never kicked in but, in fact, had been pushed in with his hand and that the footwear impression would have come from his shoe when he stepped inside the building. Vento then told Fischer he was not sure whether the plexiglass had been kicked in or stepped on but only knew there was a footwear impression similar to his shoes that would be sent to the crime lab for a comparison.

¶ 6. Fischer then asked Vento what had been reported missing from the burglaries. Vento informed Fischer that some property had been taken from a car parked in the parking lot and from inside Goodyear, including a television and some stereo equipment. Vento then explained to Fischer that if Fischer was responsible for the crimes, "what typically helps in these types of cases ... is to make victims feel less like victims. And one of the ways to do that is to get some of the property back." Fischer denied responsibility for the property taken from the car and then asserted that, hypothetically, if he were responsible, he would not be able to return any of the property because it would have been sold for drugs. Fischer further stated that a second person had been there.

¶ 7. Fischer then asked what had been reported missing from the burglary at F&F Tire World. Vento informed Fischer that some tools had been reported stolen. Fischer responded, saying he doubted that the person reporting the crime was being truthful because no tools were taken, that "he had all of his own tools with the receipts and could show a proper purchase, and he had no reason to take tools."

¶ 8. Vento and Fischer then talked extensively about Fischer's drug habit and how Fischer was hoping to get some help for this out of the criminal proceedings. At several points during the meeting, Vento told Fischer that since he had already provided some information, he should just "get a statement on the record and put this to rest." Fischer then expressed concern for being treated fairly and declined to provide an official statement; Fischer did not want his rights read to him because he would then ask for an attorney. Fischer also indicated he was tired of talking, he wanted to consult with an attorney and he wanted Vento to come back the next day. Fischer named an attorney and asked to call Vento the following day. Vento informed Fischer that "if he made a phone call it wouldn't be accepted because our building doesn't accept collect calls and that if he wanted to continue this he should have the attorney call."

¶ 9. Near the end of the conversation, Fischer also indicated that during the Goodyear burglary, he saw an officer responding as he was leaving. Vento asked Fischer what he was referring to and Fischer indicated that at Goodyear, he had seen a female officer coming across Bluemound Road from Brookfield Square shopping mall. Vento informed Fischer that he would be notified of any referral of charges, that the detectives might come back to see him or that Fischer's attorney should call them. The entire meeting took about an hour and one-half and during that entire time Fischer was never advised of his Miranda rights.

¶ 10. On October 18, 1999, Fischer was charged with two counts of burglary as a party to a crime. Fischer filed a motion to suppress the statements he provided to Vento, alleging that he was not properly provided with his Miranda warnings. The suppression motion was denied.

¶ 11. On September 7, 2000, Fischer pled no contest to the Goodyear burglary and the other burglary count was dismissed and read-in for sentencing. On November 9, 2000, Fischer was sentenced to eighteen months in prison, consecutive to any other sentences, and was denied sentence credit. Fischer appeals.

DISCUSSION

¶ 12. The first issue before us concerns the sufficiency of Fischer's invocation of the right to counsel. This is a question of constitutional fact we review under a two-part standard. State v. Jennings, 2002 WI 44, ¶ 20, 252 Wis. 2d 228, 647 N.W.2d 142. We must uphold the trial court's findings of historical or evidentiary fact unless they are clearly erroneous. Id. However, we independently review the trial court's application of constitutional principles to those facts. Id. The legal sufficiency of a defendant's invocation of the right to counsel is determined by the application of a constitutional standard to historical facts. Id. at ¶ 25.

¶ 13. Fischer argues that when he told the police that if they read him his rights, he would not answer any questions and would request an attorney, he was clearly and unequivocally demanding an attorney. We disagree.

¶ 14. The constitutional standards applicable to the case at hand originate from Miranda v. Arizona, 384 U.S. 436 (1966), Edwards v. Arizona, 451 U.S. 477 (1981), and Davis v. United States, 512 U.S. 452 (1994), and were thoroughly discussed in Jennings, 2002 WI 44 at ¶¶ 26-36. In Miranda, the United States Supreme Court recognized the right to the presence of counsel during custodial interrogation to safeguard the right against compulsory self-incrimination under the Fifth and Fourteenth Amendments. Jennings, 2002 WI 44 at ¶ 26.

¶ 15. In Edwards, the Supreme Court held that the police must immediately cease questioning a suspect who clearly invokes the Miranda right to counsel. Jennings, 2002 WI 44 at ¶ 26. The Edwards Court concluded that "it is inconsistent with Miranda and its progeny for the authorities, at their instance, to rein-terrogate an accused in custody if he has clearly asserted his right to counsel." Jennings, 2002 WI 44 at ¶ 26 (citing Edwards, 451 U.S. at 485). While the Edwards Court recognized "a bright-line, no-further-questioning rule applicable to clear and unequivocal requests for counsel during custodial interrogation, it did not address the subject of requests for counsel that were not so clear and unequivocal. Thirteen years later it did so, in Davis." Jennings, 2002 WI 44 at ¶ 27.

¶ 16. In Davis, the Supreme Court held that a suspect must clearly and unambiguously request counsel in order for the Edwards rule to apply. Jennings, 2002 WI 44 at ¶ 29. "If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Id. (citing Davis, 512 U.S. at 459).

¶ 17. The Davis Court emphasized that this inquiry is an objective one. Jennings, 2002 WI 44 at ¶ 30. "Although a suspect need not 'speak with the discrimination of an Oxford don,' he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. (citing Davis, 512 U.S. at 476). Any lower standard would alter Miranda safeguards into entirely illogical impediments to legitimate police investigative activity. Jennings, 2002 WI 44 at ¶ 30.

¶ 18. The Davis Court declined to extend Edwards to require officers to stop questioning a suspect when he or she makes any reference to an attorney and further refused to require officers to ask clarifying questions to resolve an ambiguous reference to counsel. Jennings, 2002 WI 44 at ¶ 31. While recommending clarification as good police practice, the Davis Court was "unwilling to create a third layer of prophylaxis to prevent police questioning when-the suspect might want a lawyer." Jennings, 2002 WI 44 at ¶ 31 (citing Davis, 512 U.S. at 461). In Davis, during the course of questioning, the defendant stated, "Maybe I should talk to a lawyer"; the Davis Court ruled that this was not a clear and unequivocal request for counsel. Jennings, 2002 WI 44 at ¶¶ 28, 31 (citing Davis, 512 U.S. at 462).

¶ 19. Applying Davis and Jennings here, we conclude that Fischer's statement to detectives that if the officers read him his rights he would not answer any questions and would request an attorney is sufficiently ambiguous or equivocal such that a reasonable officer in light of the circumstances would have understood only that Fischer might be invoking the right to counsel. See Jennings, 2002 WI 44 at ¶ 36. Fischer's request was conditional, as it depended upon something that had not yet happened but might happen in the future. His Miranda rights had not yet been read to him and thus he was not yet requesting counsel. A conditional and futuristic request for counsel is a statement that a reasonable officer in light of the circumstances would have understood only that Fischer might be invoking the right to counsel, see Jennings, 2002 WI 44 at ¶ 36, and thus is not a clear and unequivocal request for counsel.

¶ 20. Which circumstance logically leads to the next question: were the detectives required to read Fischer his Miranda rights? Fischer argues that Vento's conversation with him was the functional equivalent of interrogation because Vento's purpose was to obtain information. Fischer argues that because this was a custodial interrogation and he was not read his Miranda rights, any incriminating statements were involuntary and therefore should have been suppressed. We disagree and conclude that the conversation was not the functional equivalent of interrogation requiring the reading of Miranda rights.

¶ 21. The Fifth Amendment to the federal Constitution provides that no "person . . . shall be compelled in any criminal case to be a witness against himself." State v. Cunningham, 144 Wis. 2d 272, 276, 423 N.W.2d 862 (1988). In Miranda, the Supreme Court established that the State may not use a suspect's statements stemming from custodial interrogation unless the State demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Cunningham, 144 Wis. 2d at 276. Included among those safeguards are the now-familiar Miranda warnings. Cunningham, 144 Wis. 2d at 276.

¶ 22. Determining whether a custodial interrogation occurred is the first step in determining whether statements were obtained in violation of Miranda because Miranda warnings need only be administered to individuals who are subjected to custodial interrogation. State v. Armstrong, 223 Wis. 2d 331, 344-45, 588 N.W.2d 606 (1999). The State must establish by a preponderance of the evidence whether a custodial interrogation took place. Id. at 345.

¶ 23. Custodial interrogation generally means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. State v. Hookings, 86 Wis. 2d 709, 716, 273 N.W.2d 339 (1979). Here, it is undisputed that Fischer was in custody at the time of the meeting between him and the detectives. The question remaining, then, is whether Fischer was interrogated by the detectives.

¶ 24. The United States Supreme Court clarified Miranda in Rhode Island v. Innis, 446 U.S. 291 (1980), by further defining "interrogation." Cunningham, 144 Wis. 2d at 276. The Innis Court held that interrogation includes not only express questioning of a suspect but also conduct or words that are the "functional equivalent" of express questioning. Cunningham, 144 Wis. 2d at 277. An accused may be interrogated without a single question by police. State v. Price, 111 Wis. 2d 366, 372, 330 N.W.2d 779 (Ct. App. 1983).

¶ 25. The generally accepted statement of the Innis test is that the "functional equivalent" of express questioning is "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Cunningham, 144 Wis. 2d at 278 (citing Innis, 446 U.S. at 301). This language implies an objective foreseeability test, i.e., whether an objective observer could foresee that the officer's conduct or words would elicit an incriminating response. Cunningham, 144 Wis. 2d at 278. Said another way, could the police officer's conduct or speech have reasonably had the force of a question on the suspect? Id.

¶ 26. The Innis Court qualified the objective foreseeability standard by stating that "any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect." Cunningham, 144 Wis. 2d at 278 (citing Innis, 446 U.S. at 302 n.8). An officer's specific knowledge about the suspect may indicate that the officer should have known his or her conduct or words would have had the force of a question on the suspect. Cunningham, 144 Wis. 2d at 278.

¶ 27. Thus, the Innis test reflects both an objective forseeability and the police officer's specific knowledge of the suspect. Cunningham, 144 Wis. 2d at 278. The Innis test can be summarized as follows: if an objective observer (with the same knowledge of the suspect as the police officer) could, on the sole basis of hearing the officer's remarks or observing the officer's conduct, conclude that the officer's conduct or words would be likely to elicit an incriminating response, that is, could reasonably have had the force of a question on the suspect, then the conduct or words constitutes interrogation. Cunningham, 144 Wis. 2d at 278-79.

¶ 28. Again, on appeal the trial court's findings of evidentiary or historical fact will not be upset unless they are clearly erroneous. Id. at 281-82. The determination of whether the facts of the case satisfy the legal standard articulated in Innis is a question of law we review independently of the trial court. Cunningham, 144 Wis. 2d at 282.

¶ 29. Here, there is nothing in the record to indicate that the detectives had any specific knowledge of Fischer or of any unusual susceptibility to questioning he might have had. The detectives entered the room, identified themselves, and explained to Fischer that they wanted to talk to him regarding the Brook-field burglaries. Fischer indicated he had talked to police all day and was skeptical and distrustful of the detectives. Fischer said he wanted to arrange some sort of deal to consolidate the Brookfield burglaries and the Milwaukee charges. Vento informed Fischer that a deal was not going to happen and that he wanted to talk to him about the Brookfield burglaries.

¶ 30. Fischer then informed Vento that if the detectives read him his rights, he would not answer any questions and would request an attorney. Vento felt the interview was going to end and as he was preparing to leave, he told Fischer there was sufficient evidence to charge him, specifically Fischer's shoe print at the scene of one of the burglaries, and "it shouldn't become a surprise to him" if he were charged in Waukesha county.

¶ 31. Fischer then began to ask Vento questions about the specifics of the burglaries. Fischer asked how the police obtained his shoe prints; Vento told Fischer that at Goodyear, there was an impression of a shoe where plexiglass had been kicked it. Fischer then denied kicking the plexiglass in but instead asserted that he had pushed the plexiglass in and the foot impression must have come from his shoe when he stepped inside.

¶ 32. Fischer then asked what had been reported missing. Vento informed him a television, some stereo equipment and some tools. Fischer then denied taking the tools and stated that, hypothetically, he would not be able to return any of the stolen property because it had been sold for drugs. Despite being asked several times, Fischer declined to provide an official statement or put anything on the record.

¶ 33. In essence, the entire exchange consisted of Fischer asking Vento about the evidence against him, and Vento merely responding to Fischer's questions, after which Fischer would implicate himself.

¶ 34. Innis did not adopt a per se rule that whenever a law enforcement officer confronts a suspect with incriminating evidence, or verbally summarizes the State's case against the suspect, the officer engages in the functional equivalent of express questioning. Cunningham, 144 Wis. 2d at 282. The decision in each case turns upon the facts of each case. Id. at 274 n.l.

¶ 35. We must keep in mind the purpose of Miranda and Innis; these decisions were designed to prevent law enforcement officers from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. Cunningham, 144 Wis. 2d at 283. Vento's conduct and words in this case do not implicate this purpose.

¶ 36. We conclude that under the unusual circumstances of this case, Vento's words and conduct in merely responding to Fischer's questions regarding the evidence against him in the two robberies are not interrogation under the Innis test. We conclude that an objective observer would not, on the sole basis of hearing Vento's words and observing his conduct, conclude that Vento's answers to Fischer's direct questions about the evidence against him would be likely to elicit an incriminating response from Fischer.

¶ 37. However, near the end of the exchange, Vento did admittedly engage in express questioning of Fischer when he asked him about seeing a female police officer as Fischer was leaving Goodyear. The State concedes that Fischer's response, that he had seen a female police officer coming across Bluemound Road, was in direct response to Vento's question and should have been suppressed. However, we conclude that the failure to suppress this statement was harmless error.

¶ 38. The test for harmless error is "whether there is a reasonable possibility that the error contributed to the conviction. A reasonable possibility is a possibility sufficient to undermine our confidence in the conviction." State v. Jones, 2002 WI App 196, ¶ 49, 257 Wis. 2d 319, 651 N.W.2d 305 (citation omitted). In making this determination, we must consider the entire record. Id.

¶ 39. Fischer's statement, provided in response to a direct question from Vento, came near the end of Vento and Fischer's encounter; prior to that statement, Fischer had made many incriminating statements, none of which were provided during express questioning or its functional equivalent. Fischer asked how the police obtained his shoe prints. After receiving a response to the question, Fischer admitted he had pushed the plexiglass in and the foot impression must have come from his shoe when he stepped inside. Fischer then asked what property had been reported missing and after receiving a response to his question, denied taking some of the property, thereby implicitly incriminating himself with regard to the remaining property. In addition, Fischer informed Vento that, hypothetically, he could not return any of the stolen property because it had been sold for drugs.

¶ 40. The failure to suppress Fischer's one comment about seeing the female officer was harmless error. We conclude that there is no reasonable possibility that the error contributed to the conviction. There was sufficient evidence to convict Fischer absent this statement.

CONCLUSION

¶ 41. We reject Fischer's arguments that he unequivocally asserted his right to an attorney and the detective's conversation with him was the functional equivalent of interrogation, concluding that Fischer's request for an attorney was equivocal and ambiguous and that the ensuing conversation between him and police detectives was not the functional equivalent of interrogation. We therefore conclude that the trial court properly denied the suppression motion. We affirm the judgment of conviction.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

         Miranda v. Arizona, 384 U.S. 436 (1966).