author: ANDERSON, J.

text:
    Town of Cedarburg, Plaintiff-Respondent, v. Thomas Shewczyk and Dorothy Shewczyk, Defendants-Appellants. Thomas J. Shewczyk and Dorothy C. Shewczyk, Plaintiffs-Appellants, v. Zoning Board of Appeals of the Town of Cedarburg, Defendant-Respondent.
    Court of Appeals

      No. 02-0902.

      Submitted on briefs November 7, 2002. —
    Decided December 18, 2002.

    2003 WI App 10
    (Also reported in 656 N.W.2d 491.)

      On behalf of the defendants-plaintiffs-appellants, the cause was submitted on the briefs of Mark S. Schmitt of Maier Mcllnay & Schmitt, Ltd., Grafton.
    On behalf of the plaintiff-defendant-respondent, the cause was submitted on the brief of Brad M. Hoeft and Ralph J. Huirás oí Huirás, Farrell & Antoine, S.C., Port Washington.

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

¶ 1. This is an appeal from a summary judgment order regarding three consolidated cases. Thomas J. Shewczyk and Dorothy C. Shewczyk appeal the circuit court's order enjoining them from violating a conditional use permit (CUP) issued by the Town of Cedarburg (Town) and granting forfeiture relief for each day in violation, upholding the Town's denial of their zoning permit application and upholding the Town's decision to defer the Shewczyks' Notice of Appeal before the Zoning Board of Appeals of the Town of Cedarburg (Board of Appeals) until the court had an opportunity to conduct a certiorari review of the denial of the zoning permit application.

¶ 2. The relevant facts are not in dispute. The Shewczyks own and live on a farm in the Town of Cedarburg. Among other structures, the Shewczyks' home and an "outbuilding" are located on the farm.- In 1995, the Shewczyks applied to the Town for permission to occupy the outbuilding while their house was being remodeled. The Town issued a CUR allowing such use for a period of one year. The CUP stated in relevant part:

This Specific Limited Conditional Use Permit is granted to . . . allow the temporary use of the existing ' secondary structure on the property for a limited residence under the following conditions:
• Two (2) construction plans with details showing compliance with the State Uniform Dwelling Code 1 & 2 Family Dwelling Code shall he submitted.
• Two (2) energy calculations per ILHR 20.09(4)(b) shall be submitted.
• All Building, Plumbing, Electrical, and HVAC Permits shall be applied for, issued, and fees paid.
• All plumbing shall be totally removed from inside the structure and the sanitary lateral to the septic system shall be dug up, disconnected, and capped upon the expiration of the temporary Conditional Use Permit. The sewer lateral shall be field verified prior to backfilling to guarantee disconnection by the Building Inspector or Ozaukee County Sanitarian.
• The structure will be used for living purposes for no longer than twelve (12) months or until the main residential structure is completed, whichever is sooner.
• A Sanitary Permit or approval from the Ozau-kee County Sanitarian must be given prior to occupancy of the temporary residence.
• The temporary residence must have all required rough and final inspections completed per ILHR 20.10 & (b), and an Occupancy Permit issued prior to the temporary residential structure being occupied.
This Specific Limited Conditional Use Permit shall remain in effect only as long as the property described above is used as noted herein.

¶ 3. The Shewzyks complied with the conditions of the CUP except for condition number four:

• All plumbing shall be totally removed from inside the structure and the sanitary lateral to the septic system shall be dug up, disconnected, and capped upon the expiration of the temporary Conditional Use Permit. The sewer lateral shall be field verified prior to backfilling to guarantee disconnection by the Building Inspector or Ozaukee County Sanitarian.

¶ 4. When the Shewczyks completed the remodeling of their house, they applied for a certificate of occupancy. On January 8, 1999, the Town's building inspector denied the Shewczyks' certificate of occupancy based on noncompliance because the Shewczyks had not removed the plumbing from the outbuilding.

¶ 5. In March 1999, following the denial of the occupancy certificate, the Shewczyks applied to the Town for a zoning permit to change the usage of the outbuilding to an accessory use as "servant, laborer and guest quarters, not for rent." The application was denied on April 8, 1999. The Shewczyks appealed the denial to the Board of Appeals. .

¶ 6. The issue before the Board of Appeals was whether the Shewczyks should be denied use of the outbuilding because they failed to comply with condition number four of the CUE The Town described the situation to the Board of Appeals as follows:

The residence dwelling has now been remodeled and the addition construction completed. The owners either are living in the residence dwelling or intend to move into the residence dwelling. They have requested a zoning permit which would leave the detached building in which they were living during the construction period as is, without complying with the conditions of the special use permit that require removal of the plumbing and disconnection of the septic system and sewer lateral, so that the detached building would remain as is and could be used for whatever purpose the owners desire, including that of a residence dwelling. The Building Inspector denied the ownersf] request for a zoning permit because owners failed to comply with the conditional use permit conditions stated. (Emphasis omitted.)

¶ 7. On August 25, 1999, the Board of Appeals affirmed the Town's April 8, 1999 denial of the zoning permit application and thereby denied the Shewczyks' appeal. The Shewczyks then filed a complaint (No. 99-CV-308) with the Ozaukee county circuit court seeking certiorari review of the Board of Appeals' decision.

¶ 8. After the Board of Appeals' decision and shortly before the Shewczyks filed their certiorari complaint, the Town sued the Shewczyks (No. 99-CV-276). The Town sought injunctive relief "to enjoin the unlawful use and violation of [the Town's] conditional use permit." The Town claimed that the Shewczyks "are in violation of the [Town's] zoning ordinance for each day that [they] have not removed the plumbing from inside the second building in accordance with the [conditional use] permits." The Town then asked for forfeitures pursuant to the Town's zoning ordinances of not less than $25 and no more than $500 per day for each day that the Shewczyks failed to remove the plumbing. Finally, the Town sought similar forfeitures under the Town's ordinances because the Shewczyks had "been using the principal structure since April 21, 1999, without having obtained a permit for the use" and "without obtaining a certificate of occupancy."

¶ 9. On September 16,1999, the Shewczyks filed a second application for a zoning permit for an alternative use for the outbuilding as a "lounge, game room, changing area, washroom, shower, toilet and light food preparation area." On October 12, 1999, the Town's building inspector denied this second application. On November 8, 1999, the Shewczyks appealed this denial to the Board of Appeals.

¶ 10. In response, the Town made known its position that it would defer a hearing on the Shewczyks' appeal before the Board of Appeals until a determination could be made by the circuit court in the certiorari action. On November 16,1999, the Town filed an action (No. 99-CV-373) in the circuit court requesting a declaratory judgment (1) deferring the Shewczyks appeal proceedings before the Board of Appeals until a determination by the circuit court of the pending writ of certiorari, (2) affirming the Town building inspector's October 12, 1999 denial of the Shewczyks' second request for a zoning permit, and (3) requiring the Shewczyks to comply with the fourth condition of the CUP to remove the plumbing and disconnect the sewage system in their outbuilding.

¶ 11. Additionally, in July 2000, the Town's attorney sent a letter to the Shewczyks' attorney relating the Town's position on the matter:

This letter will serve to confirm that we have consulted with the Town regarding whether the Town would permit [the Shewczyks] a hearing before the Zoning Board of Appeals, for denial of [the Shewczyks'] zoning permit to use the building as a recreational facility in addition to the uses which [the Shewczyks] [have] applied for previously.
Please be advised that the Town's position remains unchanged. It is the Town's position that [the Shewc-zyks'] proceeding before the Board of Appeals should be deferred until a determination can be made by the [circuit] court in the certiorari action of Case No. 99-CV-[3]08, because it is based primarily on the same issue as determined by the Board of Appeals in the first case. The court's review of the first case should ultimately resolve the second issue.

¶ 12. The circuit court consolidated the three actions discussed above and after hearing oral arguments on the issues, the court entered the following order on January 17, 2002:

A. In Case No. 99-CV-276Ü
(1) The Defendants are enjoined from violating the conditional use permit issued by Plaintiff, Town of Cedarburg, and the Defendants shall, within 45 days from the date of this Order, comply with the conditions set forth in the conditional use permit by removing all plumbing from inside the outbuilding structure and the sanitary lateral to the septic system shall be dug up, disconnected and capped. The sewer lateral shall be field verified prior to backfilling to guarantee disconnection by the Building Inspector of the Town of Cedarburg by said due date. The Defendants shall pay a forfeiture of $100,00 per day, plus costs, for every day after said due date while this Order [is] in effect and until the Defendants comply with the terms of this provision of the Order.
(2) Any forfeitures for Defendants' violations under this case shall be addressed by a separate order.
B. In Case No. 99-CV-308, the determination and action of the Zoning Board of Appeals of the Town of Cedarburg, upholding the Building Inspector's denial of the zoning permit application made by Thomas J. Shewczyk and Dorothy C.Shewczyk, is hereby upheld.
C. In Case No. 99-CV-373, the Court declares that deferring Defendants' Notice of Appeal dated November 8, 1999, before the Zoning Board of Appeals of the Town of Cedarburg until the Court conducts a certiorari review in Case No. 99-CV-[3]08, was not improper. The certiorari review in said Case and the subsequent zoning permit application as brought by the Defendants to use the outbuilding structure in its present physical state are subject to the same conditions of removing all plumbing inside of the structure and disconnecting the sewage system as set forth in the conditional use permit.

The Shewczyks appeal.

¶ 13. On review of a summary judgment order, we employ the same methodology set forth in Wis. Stat. § 802.08(2) (1999-2000), as do the circuit courts. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Under § 802.08(2), summary judgment shall be granted only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

¶ 14. There are three issues on appeal: First, whether the circuit court erred in enjoining the Shewc-zyks from violating the CUP issued by the Town and granting forfeitures pursuant to the zoning ordinance; second, whether the circuit court erred in affirming the Board of Appeals' denial of the Shewczyks' zoning permit application; and third, whether the circuit court erred in upholding the Town's decision to defer the Shewczyks' appeal proceedings before the Board of Appeals until after the circuit court conducted a certio-rari review of the Board of Appeals' denial of the Shewczyks' zoning permit application.

¶ 15. The first issue involves the first of the three consolidated cases. The Shewczyks argue that the Town cannot maintain an action for an injunction and forfeitures because a violation of a CUP does not constitute a violation of an ordinance. They reason that the CUP constitutes a contract and that therefore the Town's remedy for the Shewczyks' noncompliance is limited to damages for breach of that contract. We cannot agree.

¶ 16. Municipalities frequently use conditional or special use permits as a device when implementing zoning laws. 8 Eugene McQuillin, The Law of Municipal Corporations § 25.12, at 44 (3d rev. ed. 2000). Moreover, Wis. Stat. § 62.23(7)(a) vests a municipality with the authority to enact ordinances, resolutions or regulations related to the location and use of buildings. The statute easily incorporates the granting or denial of conditional use permits. In fact, in subsec. (7)(e) of this statute, municipalities are empowered to make special exceptions to the terms of a zoning ordinance. The conditional use permit issued to the Shewczyks falls under this statutory provision. This provision gives the Town the general authority to enact its CUP under the Zoning Chapter of its Code of Ordinances. In this case, the CUP was a special limited conditional use permit under sec. 10-1-11 of the Town's zoning code. This section of the zoning code provides: "Limited conditional uses authorized by Town Board resolution shall be established for a period of time to a time certain or until a future happening or event at which the same shall terminate." Town op Cedarburg, Wis., Ordinance § 10-l-ll(c)(4)a. This section further provides: "Limited conditional uses authorized by the Town Board shall not be subject to substitution with other conditional uses, either regular or limited, whether similar type or not, without Board approval. . . ." Town of Cedarburg, Wis., Ordinance § 10-l-ll(c)(4)b. In short, conditional use permits are governed by ordinances within the Town's Zoning Chapter of the Code of Ordinances. Thus, noncompliance with the terms of a CUP is tantamount to noncompliance with a Town ordinance.

¶ 17. Finally, the Town's authority to enforce municipal zoning is conferred by Wis. Stat. § 62.23(7) (f), which includes "any ordinance or regulation." Pursuant to this statutory authority, the Town's ordinance, sec. 10-1-176, provides the Town with the remedy to seek injunctive relief to enjoin violations of the Town's zoning ordinance. Since the Town is authorized to seek a statutory injunction to enjoin a violation of its zoning ordinance, there is no requirement for the Town to show irreparable injury to enforce an injunction. See Forest County v. Goode, 219 Wis. 2d 654, 682-83, 579 N.W.2d 715 (1998). Furthermore, the CUP is not a contract because it was not bargained for. Rather, the CUP was issued under an ordinance. The law provides that the Town has discretion to issue such a permit and the right to seek enforcement of it. The circuit court did not err when it granted the Town's request of an injunction and forfeitures for the Shewczyks' noncompliance with the CUP issued under the zoning ordinance. Cf. Village of Sister Bay v. Hookers, 106 Wis. 2d 474, 477, 480, 317 N.W.2d 505 (Ct. App. 1982) (where we held both that "[a] forfeiture may be imposed, to effect compliance and deter violations" and that a trial court had no power to assess less than the minimum forfeiture for a violation of a municipal zoning ordinance).

¶ 18. The second issue involves the second of the three consolidated cases. The Shewczyks filed for certio-rari review by the circuit court of the Board of Appeals' denial of their zoning permit application. On certiorari, we review the decision of the board, rather than the circuit court, and our review is limited to the record created before the board. See State ex rel. Whiting v. Kolb, 158 Wis. 2d 226, 233, 461 N.W.2d 816 (Ct. App. 1990). We will consider only whether: (1) the board stayed within its jurisdiction; (2) it acted according to law; (3) its action was arbitrary, oppressive, or unreasonable, representing its will and not its judgment; and (4) the evidence was such that the board might reasonably make the order or determination in question. See id. "The facts found by the [board] are conclusive if supported by 'any reasonable view' of the evidence, and [the court] may not substitute [its] view of the evidence for that of the [board]." Id. (citations omitted).

¶ 19. Upon our review of the . Board of Appeals' written findings, conclusions of law, and decision, we hold that the Board of Appeals acted within its authority and reasonably denied the Shewczyks' second zoning permit application based on noncompliance with the CUP issued under the Town's zoning ordinance. We agree with the Board of Appeals that mere expiration or termination of the CUP on August 31, 1998, does not absolve the Shewczyks from compliance with its terms, since the conditions were consideration for granting the CUP by the Town in the first instance. The Shewczyks may not receive the benefits of the CUP for over four years without accepting the burdens of compliance with its terms. It is clear from this record that the circuit court properly affirmed the Board of Appeals' denial of the Shewczyks' second zoning permit application.

¶ 20. The third issue involves the last of the consolidated cases: whether the circuit court erred in upholding the Town's decision to defer the Shewczyks' appeal proceedings before the Board of Appeals until after the circuit court could conduct a certiorari review of the Town's denial of the Shewczyks' first zoning permit application. This issue is readily disposed of because we deem it moot. The circuit court has completed its certiorari review, and thus, the question of whether the circuit court correctly granted relief to the Town by upholding the deferral of the Shewczyks' second request for a zoning permit until the judicial process could complete itself on the Shewczyks' first request is now a moot point given that the judicial process has completed itself. The way is now cleared for the Town to address the Shewczyks' latest zoning permit application.

By the Court. — Order affirmed.

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

       Wisconsin Stat. § 62.23(7)(a) covers city planning and provides:

        Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the council may regulate and restrict by ordinance, subject to par. (hm), the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry mining, residence or other purposes if there is no discrimination against temporary structures. This subsection and any ordinance, resolution or regulation enacted or adopted under this section, shall be liberally construed in favor of the city and as minimum requirements adopted for the purposes stated. This subsection may not be deemed a limitation of any power granted elsewhere.

       WISCONSIN Stat. § 62.23(7)(e) provides:

        Board of appeals. 1. The council which enacts zoning regulations pursuant to this section shall by ordinance provide for the appointment of a board of appeals, and shall provide in such regulations that said board of appeals may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. Nothing in this subdivision shall preclude the granting of special exceptions by the city plan commission or the common council in accordance with the zoning regulations adopted pursuant to this section which were in effect on July 7, 1973 or adopted after that date. (Emphasis added.)

       WISCONSIN Stat. § 62.23(7)(f) provides:

        Enforcement and remedies. 1. The council may provide by ordinance for the enforcement of this section and of any ordinance or regulation made thereunder. In case of a violation of this section or of such ordinance or regulation such council may provide for the punishment by fine and by imprisonment for failure to pay such fine. It is also empowered to provide civil penalties for such violation.
      2. In case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is or is proposed to be used in violation of this section or of any ordinance or other regulation made under authority conferred hereby, the proper authorities of the city, or any adjacent or neighboring property owner who would be specially damaged by such violation may, in addition to other remedies, institute appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance or use; to restrain, correct or abate such violation; to prevent the occupancy of said building, structure or land; or to prevent any illegal act, conduct, business or use in or about such premises.


source: Caselaw Access Project

author: NETTESHEIM, PJ.

license: Public Domain

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

      No. 02-1076-CR.

      Submitted on briefs November 7, 2002.—

      Decided December 18, 2002.

    2003 WI App 12
    (Also reported in 656 N.W.2d 499.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick Flanagan, of Flanagan Law Office, L.L.C., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Lara M. Herman, assistant attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   NETTESHEIM, PJ.

¶ 1. Cheiyl A. Koenig appeals from an order denying her motion to rescind a condition of her extended supervision that requires her to introduce any person she is "dating" to her supervising agent. Koenig argues that the ambiguity of the term "dating" renders the condition unconstitutionally vague. We disagree. We conclude that the statutory definition of "dating relationship" as set out in Wis. Stat. § 8l3.l2(l)(ag) provides an objective standard for enforcement and further provides Koenig with adequate notice of when she must introduce someone to her agent. We therefore affirm the trial court's order.

FACTS

¶ 2. On November 14, 2000, Koenig was charged with two counts of forgery in violation of Wis. Stat. § 943.38(1). The complaint alleged that Koenig had taken two checks from Randy Hill, a man with whom she had lived from July 2000 until September 2000. Without Hill's permission, Koenig wrote out and signed Hill's name to the checks made payable to herself in the amount of $100 each. Hill discovered the forged checks on his bank statement after Koenig had cashed them.

¶ 3. On May 15, 2001, Koenig pled guilty to forgery. The trial court withheld sentencing and placed Koenig on three years of probation. Koenig's probation was revoked on October 12, 2001. In the report supporting revocation, Koenig's agent alleged that Koenig had stolen and forged personal checks from her former boyfriend, Bruce Krueger, and her current boyfriend, Brian White. On November 16, 2001, the trial court sentenced Koenig to eighteen months' imprisonment followed by twenty-four months of extended supervision.

¶ 4. The judgment lists the conditions of extended supervision, including the condition that Koenig "introduce to her agent, immediately, any person she is dating to discuss her prior record." The trial court determined the condition to be appropriate "to protect the public from future crimes that Ms. Koenig may be inclined to commit." As to the issue of when Koenig would be considered to be "dating," the trial court stated, "I believe under the circumstances, that [the condition] could be construed in a way that would give her sufficient notice that if she is socially seeing someone that she would have to introduce that person to her agent so it would be assured that they would know . . . what she has done in the past in regard to stealing checks and forging those checks."

¶ 5. On February 11, 2002, Koenig filed a postcon-viction motion to rescind the condition of extended supervision requiring her to introduce anyone she is "dating" to her agent. Koenig challenged the condition on grounds that it is unconstitutionally vague. The trial court denied Koenig's motion in a written decision dated April 4, 2002. The trial court observed that Koenig "has habitually stolen checks from men with whom she has lived or dated. She has then forged the boyfriend's signature and cashed the check." The trial court concluded that "[t]he condition of probation puts Ms. Koenig on notice that if she begins dating, seeing someone socially of the opposite sex, she must immediately introduce that person to her supervising agent."

¶ 6. Koenig appeals.

DISCUSSION

¶ 7. On appeal, Koenig renews her constitutional challenge to the condition of extended supervision. Wisconsin Stat. § 973.01(5) authorizes the trial court to impose conditions upon a term of extended supervision. It is within the broad discretion of the trial court to impose conditions as long as the conditions are reasonable and appropriate. State v. Carrizales, 191 Wis. 2d 85, 93, 528 N.W.2d 29 (Ct. App. 1995). While rehabilitation is the goal of probation, judges must also concern themselves with the imperative of protecting society and potential victims. State v. Oakley, 2001 WI 103, ¶ 12, 245 Wis. 2d 447, 629 N.W.2d 200. "[W]hen a judge allows a convicted individual to escape a prison sentence and enjoy the relative freedom of probation, he or she must take reasonable judicial measures to protect society and potential victims from future wrongdoing. To that end — along with the goal of rehabilitation — the legislature has seen fit to grant circuit court judges broad discretion in setting the terms of probation." Id.

¶ 8. Here, Koenig does not argue that the condition of extended supervision is unreasonable or does not serve the proper objectives. Rather, Koenig argues that the condition of extended supervision, which requires her to introduce any individual she is dating to her supervising agent, is unconstitutionally vague.

¶ 9. We conclude that our decision in State v. Lo, 228 Wis. 2d 531, 599 N.W.2d 659 (Ct. App. 1999), controls this issue. The appropriate standard for our review of a vagueness challenge to a condition of extended supervision was set forth in Lo:

A probation condition is subject to a vagueness challenge in that it must be sufficiently precise for the probationer to know what conduct is required of him or her. The standards applicable to vagueness challenges to statutes are instructive on the question. The underlying basis for such a challenge is the procedural due process requirement of fair notice. A statute is unconstitutionally vague if it either fails to afford proper notice of the prohibited conduct or fails to provide an objective standard for enforcement. "In order to give proper notice, a criminal statute must sufficiently warn people who wish to obey the law that their conduct comes near the proscribed area." We will not declare a statute to be unconstitutional on vagueness grounds "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources." We have held, however, that a statute is vague if a trier of fact is forced to create and apply its own standards of culpability, rather than apply the standards prescribed in the statute.

Id. at 535-36 (citations omitted).

¶ 10. The defendant in Lo challenged as unconstitutionally vague and overbroad the trial court's imposition of a probation condition prohibiting him from having contact with "gang members." Id. at 534. Lo argued that it was not clear from the terms of probation who was or was not a gang member for purposes of complying with the condition of probation. Id. at 535. The parties in Lo agreed that the statutes provided a definition of both "criminal gang," Wis. Stat. § 939.22(9), and "criminal gang activity," Wis. Stat. § 941.38(l)(b). Lo, 228 Wis. 2d at 536. However, Lo argued that the statutes did not give adequate notice as to how he must conduct himself to meet the terms of the condition. Id.

¶ 11. Relying on the language of the statutes and a "commonsense reading of the condition," we rejected Lo's vagueness and overbreadth challenges. Id. at 536-37. We concluded that the statutes were sufficiently specific so that when coupled with the probation condition, Lo had adequate notice of the expected conduct and an ascertainable standard for enforcement. Id. We further concluded that a reasonable interpretation of the condition itself was that it requires Lo not to have contact with individuals whom he knows, or reasonably should know, are members of a gang. Id. at 539.

¶ 12. Here, Koenig represents that there is no statutory definition of "dating." However, the State points us to a recently enacted definition of "dating relationship" provided in Wis. Stat. § 813.12(l)(ag), as created by 2001 Wis. Act 109, Part B, § 519mf. That definition, pertaining to domestic restraining orders and injunctions, provides:

"Dating relationship" means a romantic or intimate social relationship between 2 adult individuals but "dating relationship" does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context. A court shall determine if a dating relationship existed by considering the length of the relationship, the type of the relationship, and the frequency of the interaction between the adult individuals involved in the relationship.

Sec. 813.12(l)(ag).

¶ 13. Like Lo, Koenig argues that the statutory-definition of "dating relationship" does not provide adequate guidance as to how to comply with the condition of extended supervision. Koenig contends that it is unclear what makes a relationship "romantic." While the statute does not define "romantic," we conclude that this does not render the condition unconstitutionally vague.

¶ 14. Based on the language of Wis. Stat. § 813.12(1)(ag), Koenig has fair and adequate notice that she must introduce to her agent any person with whom she is involved in an intimate social relationship. Not only does the statute differentiate between a "romantic or intimate social relationship" and "a casual relationship or an ordinary fraternization," but common sense would also lead one to arrive at that distinction. Therefore, when Koenig is involved in something more than a platonic relationship with someone of the opposite sex, she must introduce that person to her agent.

¶ 15. In addition, that statute provides an ascertainable standard for enforcement by clearly excluding from the definition of dating those relationships that are platonic or casual and ordinary fraternization.

CONCLUSION

¶ 16. Lo instructs that when a statutory definition is available which provides a defendant with sufficient notice as to the expected course of conduct and an ascertainable standard for enforcement, the condition is not unconstitutionally vague. Lo, 228 Wis. 2d at 536-37. Because such a definition is available in this case, we reject Koenig's challenge to the condition of her extended supervision.

By the Court. — Order affirmed.

       Wisconsin Stat. § 813.12(l)(ag) was created by 2001 Wis. Act 109, Part B, § 519mf. All other statutory references are to the 1999-2000 version unless otherwise indicated.

       On May 17, 2000, Koenig was placed on twelve months of probation for theft charges in Sheboygan county.

       We recognize that the court in State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995), was discussing conditions of probation. For purposes of review, we conclude that authority relating to the propriety of conditions of probation is applicable to conditions of extended supervision. We note that the Wisconsin legislature recently enacted an amendment to Wis. Stat. § 302.113 that will modify the right of those on extended supervision and the department to seek judicial review of conditions of extended supervision set by the court. 2001 Wis. Act 109, Part B, § 395. The amendment is effective as of February 1, 2003. 2001 Wis. Act 109, Part C, § 9459.

       We note that any challenge to the reasonableness or breadth of the condition would likely be rejected in the face of our decision in Krebs v. Schwarz, 212 Wis. 2d 127, 568 N.W.2d 26 (Ct. App. 1997). There, the defendant challenged a condition of probation on grounds of reasonableness and constitutional overbreadth. Id. at 131. The condition of probation prohibited him from entering into a "dating, intimate, or sexual relationship" with any person without first discussing it with and obtaining his agent's approval. Id. at 130 n.l. We concluded that the condition, while inconvenient, was both reasonable and not overly broad. We reasoned that the defendant was free to maintain platonic relationships with individuals and was only required to seek permission when a relationship turned intimate and/or for sexual gratification. Id. at 131.

       The following statutory definitions were considered in State v. Lo, 228 Wis. 2d 531, 536-37, 599 N.W.2d 659 (Ct. App. 1999). Wisconsin Stat. § 939.22(9) defines a "criminal gang" as
      an ongoing organization, association or group of 3 or more persons, whether formal or informal, that has as one of its primary activities the commission of one or more of the criminal acts, or acts that would be criminal if the actor were an adult, specified in s. 939.22(21)(a) to (s); that has a common name or a common identifying sign or symbol; and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
      WISCONSIN Stat. § 941.38(1) (b) defines "criminal gang activity" as
      the commission of, attempt to commit or solicitation to commit one or more of the following crimes, or acts that would be crimes if the actor were an adult, committed for the benefit of, at the direction of or in association with any criminal gang, with the specific intent to promote, further or assist in any criminal conduct by criminal gang members.

       Although this provision became effective on July 30, 2002, see 2001 Wis. Act 109, Part C, Wis. Stat. § 9309(2zz), after Koenig's sentencing on November 16, 2001, it will nevertheless provide guidance to Koenig when she is released from prison and placed on extended supervision.


author: DEININGER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Theodore J. Krawczyk, Defendant-Appellant.

    Court of Appeals

      No. 02-0156-CR.

      Submitted on briefs June 12, 2002. —
    Decided December 19, 2002.

    2003 WI App 6
    (Also reported in 657 N.W.2d 77.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John T. Wasielewski of Wasielewski & Erickson, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and James E. Doyle, attorney general.
    Before Dykman, Roggensack and Deininger, JJ.

       Petition to review denied 4-22-03.

   DEININGER, J.

¶ 1. Theodore Krawczyk appeals a judgment of conviction entered after he pled guilty to felony murder. He also appeals an order denying his postconviction motion to withdraw his plea. Krawczyk claims that he did not enter his plea knowingly, intelligently, and voluntarily because he was not informed that: (1) a conviction for felony murder requires proof that "his own conduct was a substantial factor in the death"; (2) he could not be convicted as a party to the crime of felony murder; and (3) he could not be convicted of both felony murder and the lesser-included offense of armed robbery. We conclude that the first statement is not the law and that Krawczyk's ignorance of the remaining two did not render his plea unknowing.

¶ 2. We also conclude that the trial court's remedy of vacating Krawczyk's multiplicitous conviction and sentence for the underlying crime of armed robbery is appropriate under the circumstances of this case. That is, we find no basis in the present record for us to vacate Krawczyk's remaining convictions and sentences in order to restore the parties to their pre-plea positions. Accordingly, we affirm the amended judgment of conviction and postconviction order.

BACKGROUND

¶ 3. The following factual summary is taken from the criminal complaint, which Krawczyk stipulated provided a basis for his plea. Krawczyk and three others devised a plan to rob Frank Fazio, who lived in an apartment above a restaurant. Before leaving for Fazio's residence, Krawczyk handed another man a baseball bat to use in the event Fazio did not willingly give up his money on demand. Krawczyk suspected that matters could then "get rough" and that "something bad would happen." The four men drove to Fazio's residence in the early morning hours.

¶ 4. Krawczyk and the driver waited in the car while the other two men knocked on Fazio's door. Fazio answered, and the men asked if they could come inside to use his telephone to report mechanical difficulties with their car. Fazio agreed. Once inside, the men killed Fazio by beating him with the baseball bat and by stabbing him repeatedly. The men took money, alcohol, and various other items from Fazio's residence and from the restaurant below. One of the men spread gasoline in the basement of the restaurant and ignited it. The men then gathered the stolen items and returned to the car where Krawczyk was waiting.

¶ 5. The police arrested all involved, and the State charged Krawczyk with (1) armed burglary as a party to a crime, (2) armed robbery as a party to a crime, (3) felony murder as a party to a crime, and (4) felony bail jumping, all carrying repeater enhancements. The felony murder charge alleged that Krawczyk caused Fazio's death "while committing the crime of armed robbery, as a party to the crime." Krawczyk pled guilty to these four charges, the State's only concession having been the dismissal of a fifth count, hiding physical evidence to prevent apprehension of a felon. There was no agreement as to sentencing recommendations.

¶ 6. Before entering his plea, Krawczyk reviewed with his attorney and signed a plea questionnaire. Attached to the questionnaire were copies of pattern jury instructions for the offenses to which he pled, including two on felony murder, and a copy of our opinion in' State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994), which addresses the elements of felony murder. Krawczyk told the court that he reviewed these materials with his counsel and that he understood the elements of each charge. After receiving a presentence investigation report, the court sentenced Krawczyk as follows: two concurrent prison terms of forty years for the armed robbery and armed burglary; sixty years concurrent for felony murder; and eleven years consecutive for bail jumping; for a total prison sentence of seventy-one years.

¶ 7. Krawczyk moved postconviction to withdraw his guilty pleas. He claimed, among other things, that he had entered his plea to felony murder unknowingly because he was misinformed regarding the elements of felony murder, and that he had not been told that he could not be convicted of both felony murder and the lesser-included offense of armed robbery. The court denied plea withdrawal but determined that Krawczyk should not have been convicted of both felony murder and the lesser-included offense of armed robbery. Accordingly the court ordered the judgment of conviction amended to remove the armed robbery conviction and its concurrent sentence, specifically declining to resen-tence Krawczyk on the remaining counts.

¶ 8. Krawczyk appeals the amended judgment of conviction and the order denying his postconviction motion to withdraw his guilty plea to felony murder.

ANALYSIS

[i]

¶ 9. In order to be permitted to withdraw his guilty plea, Krawczyk, having been sentenced for the offense, must establish by clear and convincing evidence that a failure to allow withdrawal will result in a manifest injustice. State v. Black, 2001 WI 31, ¶ 9, 242 Wis. 2d 126, 624 N.W.2d 363. This burden can be met by a showing that he did not knowingly, voluntarily or intelligently enter the plea. State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995).

¶ 10. Generally, we review a trial court's denial of a motion to withdraw a guilty plea for an erroneous exercise of discretion. See Black, 2001 WI 31 at ¶ 9. Here, however, the issue is not what Krawczyk knew or understood regarding the elements of felony murder, but whether the information undisputedly provided to him was legally correct. Our interpretations of the felony murder statute, and of pertinent jury instructions and case law, present only questions of law which we decide de novo. See, e.g., State v. Neumann, 179 Wis. 2d 687, 699, 508 N.W.2d 54 (Ct. App. 1993) (Whether jury instructions are a correct statement of the law is a question of law that we review de novo.).

¶ 11. Krawczyk's principal assertion in this appeal is that his plea was unknowing or unintelligent because he was misinformed regarding the elements the State must prove in order to convict him of felony murder. According to Krawczyk, Wis. Stat. § 940.03 (1999-2000) requires the State to prove more than simply that (1) Krawczyk was a party to the crime of armed robbery, and (2) the commission of the armed robbery caused Fazio's death. Relying on certain language in State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994), Krawczyk argues that the State must prove that his own, personal conduct was a substantial factor in producing Fazio's death. He claims the jury instructions and case law he reviewed with his attorney at the time of his plea gave him an erroneous understanding of the elements of felony murder, and had it not been for this misinformation, he would not have pled guilty to felony murder.

¶ 12. We note at the outset that Krawczyk makes no claim in this appeal (and he specifically disavowed at his postconviction hearing) that his trial counsel provided ineffective representation. Rather, he focuses his argument on alleged errors in the present pattern jury instructions on felony murder, and as a necessary corollary, on the questionable validity of our holding in State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994). In other words, in Krawczyk's view, even if his defense counsel erred by miscommunicating the elements of felony murder, counsel was in good company because not only she, but the criminal jury instructions committee, the trial court and this court share the same misconceptions regarding the proof required to convict a person of felony murder.

¶ 13. We thus begin our analysis of Krawczyk's claim by reviewing the allegedly erroneous jury instructions and our conclusions in Chambers. We will then consider the supreme court's analysis in Oimen, decided some two months after Chambers, to see whether the supreme court implicitly overruled Chambers.

¶ 14. Wisconsin's felony murder statute, Wis. Stat. § 940.03, provides as follows:

Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.225(1) or (2)(a), 943.02, 943.10(2) or 943.32(2) may be imprisoned for not more than 20 years in excess of the maximum period of imprisonment provided by law for that crime or attempt.

Wisconsin JI — Criminal 1030 specifies the elements of felony murder as follows:

First, that the defendant (committed) (attempted to commit) the crime of (name of felony).
Second, that the death of (name of victim) was caused by the (commission of) (attempt to commit) the crime of (name of felony).

(Footnote omitted.)

¶ 15. The instruction goes on to explain that jurors must first determine beyond a reasonable doubt that the defendant committed (or attempted to commit) the specified underlying felony. If so, they must then decide whether "the relation of cause and effect exists between the death of [the victim] and the (commission of) [or] (attempt to commit) the [specified felony]." Id. The necessary causal relationship is further defined as requiring that the completed or attempted felony "was a substantial factor in producing the death." Id. In notes accompanying the instruction, the criminal jury instructions committee explains:

"While committing or attempting to commit" is the phrase used by § 940.03 to identify the connection between the underlying felony and the death. In applying the statutory phrase in the instruction, the Committee adopted the following rationale: the defendant causes the death if he or she was concerned in the commission of the felony and the commission of the felony caused the death. This is consistent with the rationale in the Oimen and Rivera cases ....

Wis JI — CRIMINAL 1030 n.2; see also comment preceding n.l, and Wis JI — Criminal 1000, section V., Felony Murder.

¶ 16. In addition to Oimen, which we discuss below, the committee also cites our opinion in Chambers as supporting its formulation of the elements of felony murder. See Wis JI — Criminal 1030, comment preceding n.l. The defendant in Chambers was convicted of felony murder after an accomplice fatally shot a police officer during their attempted getaway from an armed burglary. Chambers, 183 Wis. 2d at 319. Chambers and the shooter fled from the officer in separate directions, and they "had no further contact or communication" before the shooting. Id. at 320. Chambers argued that the evidence was insufficient to convict him because it did not "link him to the murder" of the officer. Id. We upheld the conviction, however, concluding that the facts of the case fulfilled what we concluded were the two necessary elements for felony murder liability: (1) the defendant participated in one of the underlying felonies listed in Wis. Stat. § 940.03; and (2) a death resulted from the commission of the felony. See id. at 325.

¶ 17. We are of course bound by our holding in Chambers unless it has been overruled or modified by the supreme court. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Our discussion would thus be at an end if it were not for Krawczyk's claim that the Wisconsin Supreme Court implicitly overruled or modified Chambers in State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994). The defendant in Oimen had devised a plan to rob a particular individual at his home. Id. at 429. Oimen explained his plan to some accomplices, drove with his accomplices to the robbery scene, and remained in the vehicle while his accomplices attempted to enact his plan. Id. The plan failed when, during the course of the robbery, the intended victim grabbed a gun and fatally shot one of Oimen's accomplices. Id. at 430-31. Oimen was convicted of felony murder. Id. at 433. We affirmed the conviction in an unpublished opinion, and the Wisconsin Supreme Court granted review. Id. at 434.

¶ 18. The supreme court in Oimen, according to the Seventh Circuit, faced a "charging decision [that] catches the eye." Oimen v. McCaughtry, 130 F.3d 809, 810 (7th Cir. 1997) (affirming the denial of Oimen's subsequently-filed habeas corpus petition). Specifically, the supreme court framed the issue before it as "whether a defendant may be charged with felony murder under sec. 940.03, Stats., when that defendant's co-felon is killed by the intended victim of the underlying felony." Oimen, 184 Wis. 2d at 434.

¶ 19. To answer the question, the court examined the elements of felony murder under Wis. Stat. § 940.03, which it described as causing a death "while committing or attempting to commit one of the five listed felonies." Id. at 435. The court explained that a person "causes" a death when his or her conduct is a "substantial factor" in bringing about that result. Id. at 435-36. The court noted that a " 'substantial factor' need not be the sole cause of death," and therefore, the fact that another may have fired the fatal shot is "irrelevant for purposes of sec. 940.03." Id. at 436. The court then analyzed whether "Oimen's conduct caused, i.e., was a substantial factor in, [the victim's] death." Id. at 437. The court concluded that the evidence of Oimen's role as the "ringleader" in the attempted armed robbery, which rendered him a party to that crime, was sufficient to convict him of felony murder despite his physical remoteness from the shooting which killed his accomplice. Id.

¶ 20. Krawczyk's argument that his plea was unknowing hinges on his reading of Oimen as requiring the State to prove that "his own conduct was a substantial factor in the death," thereby rendering Chambers and the felony murder jury instructions incorrect statements of the law. We acknowledge that some language in the Oimen opinion, taken out of context, would support Krawczyk's contention. Other language in the opinion, however, plainly does not, and instead supports the criminal jury instruction committee's view that the necessary causal link must exist between a listed felony and the death which ensues. For example:

The Judicial Council and Homicide Law Committee meeting summaries . .. clearly indicate that the legislature chose to limit liability for felony murder only to deaths that occurred as a result of the commission or attempt to commit five inherently dangerous felonies .... This is the limitation that the legislature chose to impose, rather than to place limitations on the class of victim or on the person who would be the immediate cause of death.

Id. at 441-42 (emphasis added) (footnote omitted). Similarly, the court also explains later in the Oimen opinion that a "person convicted of a felony as a party to the crime becomes a principal to a murder occurring as a result of that felony." Id. at 449 (emphasis added).

¶ 21. We note next the obvious fact that the supreme court did not expressly overrule Chambers, or even mention it, even though our opinion preceded the Oimen opinion by some two months. More importantly, however, in analyzing whether the supreme court overruled or modified our analysis in Chambers by implication, we must look to what the court did in Oimen, not merely to what it said. Oimen was a conspirator and an aider and abettor of an armed robbery. He did not enter the premises of the intended crime, but, like Krawczyk, he waited in a nearby vehicle. When it considered Oimen's conduct, the supreme court concluded that, notwithstanding his physical separation from the scene of the fatal shooting, Oimen was plainly a party to the underlying crime of attempted armed robbery (in fact, its "ringleader"), and thus his conduct was a substantial factor in causing the death which ensued from it. We thus view the court's holding as affirming our conclusion in Chambers that it is the defendant's conduct in facilitating the underlying crime that triggers felony murder liability when a death results from the crime, there being no requirement that a defendant's conduct be physically related to the fatal shot or assault.

¶ 22. Finally, we note that if we were to endorse Krawczyk's view of the proof required to convict a person of felony murder, the felony murder statute would be rendered virtually meaningless. Krawczyk maintains that a jury must evaluate each participant's individual conduct as it relates to the physical causation of a death. In other words, notwithstanding the fact that four individuals acted in concert to accomplish an armed robbery, under Krawczyk's interpretation of Wis. Stat. § 940.03, a jury could conclude that only the direct actors — in this case, the two who went into the residence and beat and stabbed Fazio — had caused the death, and those who only helped plan the robbery or facilitated a getaway did not engage in conduct causing the death. We conclude that this result would be contrary to the legislature's intent in enacting § 940.03.

¶ 23. As the authors of a law review article cited by the court in Oimen point out, those whose actions directly cause a death are typically charged and convicted of another degree of homicide, either intentional or reckless, under statutes other than Wis. Stat. § 940.03. See Walter Dickey, David Schultz and James L. Fullin, Jr., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1366. The legislative intent behind the felony murder statute is thus to reach more remote actors, those whose conduct in facilitating one of a handful of inherently dangerous felonies sets the stage for a death which results from the commission of the crime. As the supreme court recognized in Oimen, the legislature enacted § 940.03 to send a message to would-be participants in the selected felonies: " 'There is fair warning in the statute that if you cause death while embarked on these crimes you'll get life imprisonment whether or not yon intend[ed] to kill.'" Oimen, 184 Wis. 2d at 440 (quoting a member of the drafting committee) (footnote omitted).

¶ 24. In summary, we conclude that the supreme court in Oimen did not discard or modify the elements of felony murder as we set them forth in Chambers, and as the criminal jury instructions committee has adopted them in the felony murder jury instructions. To the contrary, in our view, the Oimen holding affirms that felony murder liability exists if a defendant is a party to one of the listed felonies from which a death results. Accordingly, we conclude that the copies of the Chambers decision and of the felony murder jury instructions which Krawczyk's counsel reviewed with him and attached to the plea questionnaire fully informed Krawc-zyk of the elements of Wis. Stat. § 940.03 to which he pled. Krawczyk has thus failed on this ground to establish that his guilty plea to felony murder was not knowing, intelligent and voluntary.

¶ 25. Krawczyk next argues that he was incorrectly charged as "a party to the crime" of felony murder and that this error also rendered his plea to that offense unknowing. We agree with Krawczyk that the State did not need to include the party-to-a-crime allegation in the felony murder charge. Because "[a] person convicted of a felony as a party to the crime becomes a principal to a murder occurring as a result of that felony," it is "redundant and unnecessary" to charge a defendant with felony murder as a party to the crime. Oimen, 184 Wis. 2d at 449. Krawczyk, however, does not explain how or why the inclusion of a "redundant" aspect in a charge deprives a defendant of information necessary to enter a knowing plea. We conclude, as did the supreme court in Oimen, that "no prejudice has been demonstrated" by reason of the party-to-a-crime allegation in the felony murder charge, and thus it does not justify a withdrawal of Krawczyk's plea. Id.

¶ 26. Krawczyk also argues that his pleas were unknowing because his trial counsel did not inform him that , he could not be convicted of both felony murder and the lesser-included offense of armed robbery. We agree with Krawczyk, and so, ultimately, did the trial court, that he should not have been convicted of both felony murder and the underlying armed robbery. To prove felony murder, the State must prove all of the elements of the underlying felony plus the additional element of causing a death. See State v. Gordon, 111 Wis. 2d 133, 135-36, 330 N.W.2d 564 (1983). Thus, the underlying felony is a lesser-included offense of felony murder, and constitutional guarantees against double jeopardy prohibit conviction for both crimes. Id. The trial court, in response to Krawczyk's postconviction motion, ordered the judgment of conviction amended to delete the armed robbery conviction and the concurrent sentence the court had imposed for that offense.

¶ 27. We note first that, with respect to this claim, Krawczyk impliedly argues that his trial counsel's performance was deficient. Unlike Krawczyk's contentions regarding the elements of felony murder, there can be little question that at the time of his plea, it was a matter of settled law that the underlying crimes in Wis. Stat. § 940.03 are lesser-included offenses of felony murder. See Gordon, 111 Wis. 2d at 135-36. This means that Krawczyk's counsel should have moved to dismiss the armed robbery count, or, at a minimum, she should have advised Krawczyk not to plead guilty to both the armed robbery and felony murder. Krawczyk, however, did not raise a claim of ineffective assistance of counsel in his postconviction motion, and in fact, he specifically disavowed the claim at the postconviction hearing. We are thus deprived of the benefit of counsel's explanation as to what she may or may not have discussed with her client regarding this issue, and/or her reasons for not objecting to the multiplicitous charges in the amended information.

¶ 28. Be that as it may, we note that Krawczyk testified at the postconviction hearing that his counsel did not tell him he could not be convicted of both felony murder and the underlying armed robbery, nor did she discuss with him the concept of "a lesser-included offense." Krawczyk was not asked, however, nor did he testify, that he would not have pled guilty to felony murder had he known of the possibility of going to trial on the felony murder charge in hopes of convincing the jury to find him guilty of only the lesser-included offense of armed robbery. The trial court concluded that Krawczyk suffered no "prejudice" by his lack of knowledge that he could not be convicted of both crimes. The court's remarks in its ruling imply that it would have found implausible a claim by Krawczyk that, although he opted to plead guilty to offenses having a total exposure of 181 years of imprisonment with no concession from the State on its sentencing recommendation, he would not have tendered guilty pleas to offenses exposing him to 131 years of imprisonment.

¶ 29. We conclude that Krawczyk's plea to both felony murder and the underlying armed robbery, the latter conviction having been set aside, does not provide a basis for withdrawal of his plea to felony murder. First and foremost, the record is devoid of any evidence establishing that Rrawczyk would not have pled guilty to felony murder (and to the other two offenses of which he remains convicted) had he known of the multiplicity of the felony murder and armed robbery charges. Krawczyk's failure to testify that he would not have pled guilty to felony murder had he known of the multiplicity is not a minor omission. Had he so testified, he would have been subject to cross-examination on the point, and the State might have seen fit to present rebuttal testimony from Krawczyk's trial counsel. Moreover, the failure to testify in this regard deprives us of the trial court's assessment of the credibility of a claim by Rrawczyk that he would not have pled guilty to felony murder had he known of the double jeopardy violation.

¶ 30. Even if Krawczyk had made a better record on this crucial point, however, we agree with the trial court that it is highly unlikely the now-corrected charging error adversely affected Krawczyk's ability to knowingly enter guilty pleas to felony murder and the other two offenses. His only argument to this effect is that, had he known "that he could not be convicted of both these offenses," he would have "argue[d] to a jury that while he may have been party to armed robbery, his own conduct was not a substantial factor in the death of Mr. Fazio." To a large extent, this argument duplicates his first contention regarding the proof necessary to convict of felony murder, a contention we have rejected. That is, if Krawczyk's argument is that he would have foregone a plea to felony murder in the belief that he could defend against the charge at trial on the basis that his own conduct, while clearly rendering him culpable for the armed robbery, was too remote from the death for felony murder liability, that belief would have been erroneous.

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¶ 31. Finally, we note that Krawczyk also argues that "[djeletion of the conviction and sentence for armed robbery was not an adequate remedy" for the double jeopardy violation. He cites the following passage from State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564, in support:

We conclude that when an accused successfully challenges a plea to and conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the State made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information so that the parties are restored to their positions before the negotiated plea agreement.

Id. at ¶ 31. The supreme court makes clear later in the opinion, however, that its use of the qualifier "ordinarily" in the quoted sentence means that other remedies are not precluded in appropriate cases: "[T]he appropriate remedy depends on the totality of the circumstances. A court must examine all of the circumstances of a case to determine an appropriate remedy for that case, considering both the defendant's and State's interests." Id. at ¶ 48.

¶ 32. The defendant in Robinson sought the reversal of one of two multiplicitous convictions and its attendant sentence, requesting the court to leave intact the remaining conviction and sentence. Id. at ¶ 17. The State, however, sought vacation of the plea agreement and reinstatement of the original charges. Id. at ¶ 20. The court concluded that, because the reversal at the defendant's request of one of the two convictions to which the defendant had pled no contest constituted a breach of his plea agreement with the State, the interests of the State required the restoration of the parties to their positions prior to the agreement. See id. at ¶¶ 49-55. By contrast, in this case, the State does not request that remedy, asserting that if we uphold Krawczyk's pleas to the remaining counts, we need not even address the remedy issue. We disagree that the issue can be avoided, but we nonetheless affirm the trial court's postconviction order.

¶ 33. Krawczyk pled guilty to two charges that were multiplicitous, one of which has been set aside by the trial court. The issue of the adequacy of the trial court's remedy is thus before us even if, as we have concluded, the remaining convictions are valid. The trial court declined to vacate the remaining sentences because it concluded that, notwithstanding the reversal of the armed robbery conviction and sentence, the sentences it originally imposed on the remaining counts were appropriate:

I looked at whether there is a need to resentence in this case. It is clear to the Court that the way the evidence, the presentence investigation report recommended and the way the Court sentenced, that the Defendant is not prejudiced by the court simply deleting the sentence for the armed robbery as a concurrent sentence at this time; and that is, in fact, what he received — or a concurrent sentence except for the bail jumping.

The court thus acknowledged that it viewed the armed robbery, armed burglary and felony murder convictions as essentially one offense for sentencing purposes, having imposed concurrent terms for the three crimes, with the sixty-year felony murder term being controlling.

¶ 34. We see no reason to disturb the remedy the trial court granted for the double jeopardy violation. First, when a multiplicitous count is reversed on appeal, that action may create uncertainty regarding what sentences the trial court would have imposed on the remaining counts had it known of the lesser number of valid convictions. See State v. Church, 2002 WI App 212, ¶ 13, 257 Wis. 2d 442, 650 N.W.2d 873, review granted, 2002 WI 121, 257 Wis. 2d 116, 653 N.W.2d 888 (Wis. Oct. 21, 2002) (No. 01-3100) (noting that "the reason for vacating all sentences rather than just the one held invalid [is] to give the trial court the opportunity to resentence with a corrected understanding that there was only one valid conviction"). Here, however, relief from the multiplicitous conviction was granted by the sentencing court. The court expressed that it saw no reason to resentence Krawczyk because the remaining convictions and sentences satisfactorily achieved the court's sentencing goals.

¶ 35. Second, we observe that setting aside the remaining convictions and sentences and restoring the parties to their pre-plea positions is not necessary to further the State's interests. As we have noted, the State is not requesting such a disposition. It is apparently satisfied that leaving intact the seventy-one-year total sentence on the remaining charges does not substantially deprive it of the benefit of the plea agreement it made with Krawczyk. See Robinson, 2002 WI 9 at ¶¶ 47, 52. A restoration of the single dismissed charge would increase Krawczyk's exposure to imprisonment by only eight years, which is not a significant period in relation to the 131 years he faced on the remaining, unreversed charges to which he pled guilty. Accordingly, unlike in Robinson, there appears to be no need to vacate all remaining sentences and convictions in order to remedy a breach of the plea agreement. See id.

¶ 36. Finally, we must consider Krawczyk's interests. Id. at ¶ 31. He claims the trial court's remedy of vacating only the concurrent sentence for armed robbery is inadequate because he

entered a guilty plea to felony murder without understanding the nature of the charge. The deletion of the armed robbery count does nothing to remedy this infirmity. Thus, at a minimum, Mr. Krawczyk should be granted leave to withdraw his plea to the felony murder count.

Krawczyk's contention, however, is nothing more than a reformulation of the argument we have addressed above in rejecting his claim for plea withdrawal on the basis of an unknowing plea. That is, Krawczyk offers no reason why, in light of the reversal of one multiplicitous conviction and sentence, his legitimate interests require the reversal of all remaining convictions and sentences.

¶ 37. Perhaps Krawczyk believes that, given the passage of time, the State might not now be able to prove all of the remaining charges. Alternatively, perhaps he believes he would fare no worse in resentencing than the seventy-one-year sentence of imprisonment he is currently serving for the remaining convictions. Krawczyk articulates neither of these beliefs. Even if he had, however, we would not find either one to be a proper reason to set aside the remaining convictions in this case. Just as a defendant should not be vindictively penalized for successfully challenging one of several convictions on appeal, see Church, 2002 WI App 212 at ¶¶ 16-17, neither should a defendant obtain a windfall from what is, in essence, a breach of his plea agreement with the State. That is, Krawczyk is entitled to be relieved of the consequences flowing from the wrongful conviction, but nothing more.

¶ 38. Thus, Krawczyk's argument for the reversal of all remaining convictions and sentences boils down to little more than a request that we grant the "ordinary" remedy cited by the supreme court in Robinson, regardless of the circumstances of this case. He notes that the court in Robinson discussed an Indiana case, Jordan v. State, 676 N.E.2d 352 (Ind. Ct. App. 1997), where the defendant had pled guilty to both felony murder and the underlying robbery. Robinson, 2002 WI 9 at ¶ 28. The Indiana Court of Appeals simply "vacated the robbery conviction and sentence and allowed the felony murder conviction and sentence to stand." Id. at ¶ 30. The supreme court described the Indiana court's rationale as follows:

Because Jordan had neither alleged nor proved that he would not have entered the plea agreement had he been properly advised of the principles of double jeopardy, and because he neither asserted nor proved that his guilty plea was involuntary or unintelligent, the Indiana court of appeals concluded that it did not have to vacate the plea agreement and did not have to reinstate the original charges.
... Although the effect of the court of appeals' decision was to reduce a 110-year sentence to a 60-year sentence so that the State did not get the full benefit of its plea agreement, the Indiana court of appeals believed that it had taken the wisest path. The court of appeals wrote that its remedy was "the wisest in that it forecloses the possibility that Jordan will be set free in the event the State does not have sufficient evidence to reprosecute a ten year old murder case." The remedy was the best one under the circumstances to avoid a violation of the accused's constitutional guarantee against double jeopardy and at the same time protect the public interest in incarcerating a murderer.

Id. at ¶¶ 29-30 (footnote omitted).

¶ 39. The supreme court concluded that the facts in Jordan were distinguishable from those before it in Robinson, but that the rationale and holding of the Indiana case supported its conclusion to vacate Robinson's remaining conviction and sentence and reinstate the original charges against him. Id. at ¶ 31. Furthermore, the court observed that

Jordan supports our conclusion that under some circumstances the latter remedy might not be appropriate. We agree with the Jordan decision that a court should examine the available remedies and adopt the one that fits the circumstances of the case, considering both the defendant's and the State's interests.

Id.

¶ 40. Krawczyk argues that we, too, should distinguish Jordan because of his claim that his plea to felony murder was unknowing, and that we must vacate his remaining convictions as the supreme court did in Robinson. We note again, however, that we have rejected Krawczyk's challenges to the validity of his plea. We conclude that the rationale of the Jordan court, endorsed by the supreme court in Robinson as supporting its conclusion that the "ordinary remedy" is not a universal one, should govern here. That is, we see no reason why the legitimate interests of either the State or Krawczyk, or of the trial court in achieving its sentencing goals, require us to do other than affirm the postconviction order which vacated only Krawczyk's conviction and sentence for armed robbery.

CONCLUSION

,¶ 41. For the reasons discussed above, we affirm the appealed judgment and order.

By the Court. — Judgment and order affirmed.

       Wisconsin JI — CRIMINAL 1030 (Felony Murder) and 1032 (Felony Murder: Death Caused While Committing a Felony as a Party to a Crime).

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

       The underlying crimes identified in the statute by section number are: first-degree sexual assault, second-degree sexual assault by use or threat of force or violence, arson, armed burglary, and armed robbery. Wisoonsin Stat. § 940.03 has since been amended to add a sixth underlying crime, carjacking, Wis. Stat. § 943.23(lg). See 2001 Wis. Act 109, § 585.

       The court also recognized that, because the final version of Wis. Stat. § 940.03 adopted by the legislature creates a penalty enhancer of up to twenty years instead of a mandatory life sentence, the legislature intended that the remoteness of an individual's conduct from the circumstances of the death becomes a factor for consideration at sentencing, instead of a consideration in determining-guilt or innocence. State v. Oimen, 184 Wis. 2d 423, 444, 516 N.W.2d 399 (1994) (" 'Sentencing becomes the forum for weighing the inherent dangerousness of the defendant's conduct, the foreseeability of the death, and the culpable mental state of the particular defendant with respect to the death.'" (quoting Walter Dickey, David Schultz and James L. Fullin, Jr., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1371)).

       We also note that no affidavit from Rrawczyk accompanied his postconviction motion. The motion contains counsel's assertions that Rrawczyk was misadvised regarding his total exposure to imprisonment, and that "had he been properly advised and proceeded to trial, he could have defended against the felony murder charge by requesting the jury be instructed as to armed robbery party to a crime as a lesser included offense." Like Rrawczyk's postconviction testimony, however, the motion does not specifically allege that if Rrawczyk had known this he would not have pled guilty to felony murder.


author: CANE, C.J.

text:
    Patrick P. Fee and Mark P. Fogarty, Petitioners-Appellants, v. Board of Review for the Town of Florence, Respondent-Respondent.
    Court of Appeals

      No. 02-1758.

      Submitted on briefs December 9, 2002. —
    Decided December 23, 2002.

    2003 WI App 17
    (Also reported in 657 N.W.2d 112.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of Patrick P. Fee of Wauwa-tosa.
    On behalf of the respondent-respondent, the cause was submitted on the brief of David J. Herrick of Niagara.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

. ¶ 1. Patrick Fee and Mark Fogarty appeal an order quashing a certiorari appeal of their 2000 property tax assessment. They argue the Town of Florence assessor should have classified their land as agricultural and the board of review erred when it affirmed the assessment. In the alternative, they contend the assessment fails to consider the effect of a conservation contract on a portion of the land's value. In addition, Fee and Fogarty argue the circuit court improperly relied on State ex rel. Reiss v. Board of Review, 29 Wis. 2d 246, 138 N.W.2d 278 (1965), to quash their writ.

¶ 2. We conclude the assessor should have classified the portion of Fee and Fogarty's land not subject to the conservation contract as agricultural. Further, we determine the assessor failed to consider the effect of the conservation contract on the remainder of the land. Finally, we conclude Reiss is inapplicable to the facts of this case. Accordingly, we reverse the order and remand the matter to the circuit court.

BACKGROUND

¶ 3. Fee and Fogarty own approximately 235 acres in the Town of Florence. Of this parcel, ninety-three acres are a hayfield and the remainder is subject to a federal conservation contract. In November 2000, the Town notified Fee and Fogarty that their property had been assessed at $228,000 for the 2000 tax year.

¶ 4. Fogarty appeared before the Florence Board of Review to challenge the assessment. He submitted an objection form, but did not answer a question asking what he believed the property's fair market value was. Fogarty argued the hayfield was agricultural land and had to be valued according to its use value, rather than its fair market value. In addition, he claimed the assessor failed to consider the conservation contract's effect on the property's value.

¶ 5. The assessor replied he did not consider the hayfield agricultural land because Fee and Fogarty did not cut the field themselves, but allowed a neighbor to do it. In addition, the assessor said although he was not aware of the conservation contract when he made the assessment, it was not relevant to the property's value. The assessor also argued the objection form was improperly submitted under Wis. Stat. § 70.47(7) and Reiss. The board of review affirmed the assessment.

¶ 6. Fee and Fogarty sought certiorari review in the circuit court. They argued all of the property should have been classified agricultural and taxed according to use value. The board moved to quash the writ, arguing Fee and Fogarty were never entitled to a hearing before the board of review under Reiss because they had improperly filled out the objection form. The trial court agreed, determining that Reiss controlled and also that the board had correctly affirmed the assessment. Fee and Fogarty appeal.

DISCUSSION

¶ 7. We first address Fee and Fogarty's claim the circuit court erred when it quashed their writ based on Reiss. A motion to quash a writ of certiorari is in the nature of a motion to dismiss. See State ex rel. Ruthenberg v. Annuity & Pension Bd., 89 Wis. 2d 463, 470, 278 N.W.2d 835 (1979). We review a trial court's decision to dismiss a complaint de novo. See Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995).

¶ 8. In Reiss, our supreme court determined a board of review may deny a taxpayer a hearing for failing to complete the objection form in writing, as required by Wis. Stat. § 70.47(7)(a). Reiss, 29 Wis. 2d at 252. The taxpayer in Reiss challenged his assessment by partially completing the statutorily approved objection form, failing to answer several questions. Id. at 247. The board of review took testimony regarding the assessment over several nights, but ended the proceedings prior to making a final decision because of the taxpayer's failure to complete the form. Id. at 248. The supreme court approved this action, saying under § 70.47(7)(a), the taxpayer did not obtain a right to a hearing before the board of review because he did not complete the form. Id. at 251. The court noted the board has a right under the statute to insist that the form be completed. Id. Although the board is allowed to waive the writing requirement, the parties agreed it did not do so there. Id. at 248.

¶ 9. Here, however, Fee and Fogarty assert the board waived the writing requirement because it never requested a completed form and also completed the hearing. We agree. At the hearing, the assessor noted Fee and Fogarty left the question of their opinion of the property's fair market value unanswered and argued Reiss applied to the situation. The assessor claimed Fee and Fogarty had no right to a hearing because of this. Our review of the record does not reveal the board accepted the assessor's argument. Instead, the board completed the hearing and affirmed the assessment. These actions operate as a waiver of the writing requirement. In Reiss, the board adjourned before making a decision. The board here did not do this and therefore waived the writing requirement.

¶ 10. We are not persuaded by the board's claim that Fogarty's appearance before the board did not constitute a full hearing. The board argues the meeting consisted primarily of the assessor giving his explanation of the valuation, and that the transcript does not show the board ever took any final action. Thus, the board contends Reiss applies because it adjourned before reaching a final decision. While we agree the transcript does not show any final action by the board, the record contains a Notice of Board of Review Final Determination dated the same day as the meeting. Wisconsin Stat. § 70.47(12) requires the board to notify taxpayers of its final assessment through this notice. The board approved the assessor's valuation by giving this notice and in doing so waived the Wis. Stat. § 70.47(7)(a) requirement that the objection be in writing.

¶ 11. Fee and Fogarty next argue the land should have been classified as agricultural and valued it based on its use, not fair market, value. On certiorari review, we review the board's actions. Edward Kraemer & Sons v. Sauk County Bd. of Adj., 183 Wis. 2d 1, 8, 515 N.W.2d 256 (1994). Our review is the same as the circuit court's and is limited to the following issues: (1) whether the board acted within its jurisdiction; (2) whether the board acted according to law; (3) whether the board's action was arbitrary, oppressive or unreasonable, representing its will rather than its judgment; and (4) whether the evidence was such that the board might reasonably make the order or determination in question. Waste Mgmt. v. Kenosha County Rev. Bd., 184 Wis. 2d 541, 554, 516 N.W.2d 695 (1994).

¶ 12. Land must be classified as agricultural if it is devoted primarily to agricultural use. Wis. Stat. § 70.32(2)(c)l. Fee and Fogarty argue both the hayfield and the conservation contract land meet the definition of agricultural use in Wis. Admin. Code § Tax 18.05 and therefore should have been valued according to their use value under § 70.32(2r)(c). Both portions of their land should be classified as agricultural under the current version of § Tax 18.05. See Wis. Admin. Code § Tax 18.05(l)(a) and (d) (July 2000). Hay farming is an activity included in subsector 111 of the North American Industry Classification System. Further, Fee and Fogarty argue the conservation land is included in the conservation contract program under 7 CFR 1951, Subpt. S, Exh. H.

¶ 13. These sections of the code, however, were not applicable at the time of the assessment. A note to Wis. Admin. Code § Tax 18.05(1) says subsections (a) and (d) are effective for assessments as of January 1, 2001. While the record does not reflect the exact date of the assessment, it was before January 1, 2001. Thus, the prior section of § Tax 18.05(1) must apply.

¶ 14. We conclude the hayfield should have been classified as agricultural property. Under the version of Wis. Admin. Code § Tax 18.05 in effect at the time of the assessment, agricultural use included "activities included in major group 01 — agricultural production— crops, set forth in the standard industrial classification manual, 1987 edition." Hay farming is included in major group 01, and the hayfield should have been classified as agricultural land.

¶ 15. At the hearing, the assessor argued the field could not be agricultural because Fee and Fogarty did not cut the hay themselves, but let their neighbor do it. The board does not make this claim on appeal and admits the identity of the person harvesting the hay is irrelevant to the property's classification. Instead, the board argues that merely cutting hay does not make the land agricultural and that the land must be put to another use to qualify. Under the regulations in place at the time of the assessment, however, the hayfield should have been classified as agricultural land and the board erred when it upheld the assessment.

¶ 16. The same is not true for the rest of Fee and Fogarty's property. The section of the code they rely on for the proposition that the conservation contract land is agricultural is missing from the prior version of the code. Fee and Fogarty contend the land is eligible as land enrolled in "the conservation contract land under 7 CFR 1951, Subpt. S, Exh. H." See Wis. Admin. Code § Tax 18.05(1)(d) (July 2000). This language was not in the prior version of § Tax 18.05(l)(d) (Sept. 1997), which lists a number of other federal agricultural programs.

¶ 17. Further, the record does not reflect the land would qualify under any of the agricultural programs listed in the prior version of the code. The terms of the contract do not say under what agricultural program the agreement was made. Even if we accept Fee and Fogarty's claim that the agreement was made pursuant to 7 CFR 1951, Subpt. S, Exh. H, that program is not listed under the version of the code in effect at the time of the assessment. We cannot say that portion of the land should have been classified as agricultural.

¶ 18. The board did err, however, when it. affirmed the assessor's valuation of the conservation contract land because the assessor did not account for the effect of the contract on the land's value. At the hearing, the assessor admitted he was not aware of the contract when he assessed the property, but said that it was irrelevant. Wisconsin Stat. § 70.32(lg) requires an assessor to consider the effect of "any conservation restriction ... with the federal government" when valuing property. The assessor acted contrary to the law by failing to consider the effect of the contract, and the board erred when it affirmed the valuation.

¶ 19. We remand this matter to the trial court to remand to the board to assess the hayfield based on its use value as agricultural property and also to determine the conservation contract's effect on the other part of the property's value.

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

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

       Fee and Fogarty also argue they did not need to fill out the omitted line because it asked for their opinion of the property's fair market value because the property was agricultural land that must be assessed based on its use value. See Wis. Stat. § 70.32(2r)(c). We do not address this argument because we have determined the board waived the writing requirement and because we cannot conclude the entire parcel should have been classified as agricultural land.

       WISCONSIN Admin. Code § Tax 18.05 (July 2000), provides in pertinent part:
      Tax 18.05 Definitions. In this subehapter:
      (1) "Agricultural use" means any of the following:
      (a) Activities included in subsector 111 Crop Production, set forth in the North American Industry Classification System (NA-ICS), United States, 1997, published by the executive office of the president, U.S. office of management and budget. "Agricultural use" does not include growing short rotation woody trees with a growing and harvesting cycle of 10 years or less for pulp or tree stock under NAICS industry 111421.
      (d) Land enrolled in any of the following federal agriculture programs: the conservation reserve program under 7 CFR 1410; the conservation reserve program 1986-1990 under 7 CFR 704; the water bank program under 7 CFR 752; the agricultural conservation program under 7 CFR 701; or, provided that the land was in agricultural use under par. (a), (b) or (c) at the time of enrollment, the environmental quality incentives program under 7 CFR 1466 or the conservation contract program under 7 CFR 1951, Subpt. S, Exh. H.

       WISCONSIN Admin. Code § Tax 18.05 (Sept. 1997), provides in pertinent part:
      Tax 18.05 Definitions. In this subchapter:
      (1) "Agricultural use" means any of the following:
      (a) Activities included in major group 01 — agricultural production-crops, set forth in the standard industrial classification manual, 1987 edition, published by the executive office of the president, U.S. office of management and budget.
      (d) Land eligible for enrollment in any of the following federal agricultural programs: the conservation reserve program 1991-1995 under 7 CFR 1410; the conservation reserve program 1986-1990 under 7 CFR 704; the feed grain program under 7 CFR 1413; the water bank program under 7 CFR 752; the agricultural conservation program under 7 CFR 701; or the dairy price support program under 7 CFR 1430 and 282.