author: HOOVER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Monika S. Lackershire, Defendant-Appellant.

    Court of Appeals

      No. 2005AP1189-CR.

      Submitted on briefs October 3, 2005.

      —Decided November 15, 2005.

    2005 WI App 265
    (Also reported in 707 N.W.2d 891.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P Weiss, assistant state public defender, Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and James M. Freimuth, assistant attorney general.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review granted 2-27-06.

   HOOVER, EJ.

¶ 1. Monika Lackershire appeals a judgment of conviction for one count of second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2), and an order denying her postconviction motion seeking plea withdrawal or resentencing. Lack-ershire argues her plea was not knowing, intelligent, and voluntary because: (1) she did not understand the elements of her crime; (2) she did not understand the nature of read-in offenses; and (3) she was coerced into accepting a plea agreement because she feared harm to her unborn child if she had to endure the stress of a trial. We discern no error and affirm the judgment and order.

Background

¶ 2. In November 2003, then twenty-year-old Lackershire was charged with one count of sexual assault of a child, contrary to Wis. Stat. § 948.02(2), which states: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony." The charge was based on an alleged act of intercourse involving then fourteen-year-old Stephen G. In another Pepin County case, Lackershire was charged with the same offense against Joseph C., also fourteen. Based on the preliminary hearing in this case, a second count of second-degree sexual assault was added in December 2003. The case involving Joseph also eventually had a second charge added.

¶ 3. Following plea negotiations with the State, Lackershire agreed in March 2004 to plead guilty to count one regarding Stephen. The State agreed to dismiss the second count and both charges in Joseph's case. The parties did not discuss whether the charges would be read in at sentencing. After a colloquy with Lackershire, the court accepted her plea and ordered a presentence investigation. The PSI treated the three dismissed charges as read-ins and discussed them as such.

¶ 4. The court ultimately sentenced Lackershire in August 2004 to three years' initial confinement plus six years' extended supervision. In February 2005, Lackershire filed a postconviction motion seeking plea withdrawal or sentence modification. The court denied the motion and Lackershire appeals.

Discussion

¶ 5. When a defendant seeks to withdraw a guilty plea after sentencing, he or she "carries the heavy burden of establishing, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a manifest injustice." State v. Fosnow, 2001 WI App 2, ¶ 7, 240 Wis. 2d 699, 624 N.W.2d 883 (citation omitted). Whether to allow plea withdrawal is generally committed to the trial court's discretion, meaning this court will reverse only if the trial court has erroneously exercised that discretion. Id.

¶ 6. However, even after sentencing, a defendant may withdraw a plea as a matter of right if it is established that a violation of constitutional magnitude occurred during entry of the plea. See State v. Garcia, 192 Wis. 2d 845, 864, 532 N.W.2d 111 (1995). A guilty or no contest plea must be knowing, intelligent, and voluntary to pass constitutional muster. See State v. Bangert, 131 Wis. 2d 246, 257-61, 389 N.W.2d 12 (1986). We review such constitutional questions de novo. Garcia, 192 Wis. 2d at 864-65.

Elements of the Crime

¶ 7. To successfully withdraw her plea as unknowing, unintelligent, or involuntary based on miscompre-hension of the elements of the crime, Lackershire must make a prima facie showing that the court violated Wis. Stat. § 971.08 by failing to determine she understood the elements of the crime to which she was pleading. See State v. Brandt, 226 Wis. 2d 610, 617-18, 594 N.W.2d 759 (1999). Whether Lackershire made such a showing presents a question of law. See id. at 618. If Lackershire has made this showing, the burden then shifts to the State to show, by clear and convincing evidence, that the plea was nonetheless knowing, intelligent, and voluntary. See Garcia, 192 Wis. 2d at 865-66.

¶ 8. Initially, we note that in a plea withdrawal motion like Lackershire's, "the motion must include facts that allow the reviewing court to meaningfully assess the defendant's claim." State v. Allen, 2004 WI 106, ¶ 21, 274 Wis. 2d 568, 682 N.W.2d 433 (citation omitted). Here, Lackershire contends the plea procedure was defective because "the elements [of her crime] were never incorporated in the plea questionnaire, nor were they discussed or recited on the record at the time of the plea taking." Second-degree sexual assault of a child has two elements: (1) sexual intercourse (2) with a person under sixteen years of age. Lackershire never alleges which element she misunderstood.

¶ 9. Lackershire argues "[s]he believed she had a defense to the charge because she was [allegedly] raped by the boy, thereby suggesting her misunderstanding that consent was somehow an issue in the case." However, she cites no authority for her implicit proposition that the trial court must explain away everything that is not an element of the charged crime. Moreover, the record reveals the court did explain the elements of the crime to Lackershire, as reflected by this exchange:

THE COURT: Can you tell me what charge - what the charge is that you're going to enter a plea to?
MS. LACKERSHIRE: I believe it's the sexual assault of a child under the age of sixteen.
THE COURT: The Information in this case... alleges that, in August of 2003 ... in this county, you had sexual intercourse with a child under the age of sixteen years.
Do you understand that?
MS. LACKERSHIRE: Yes.
THE COURT: Is that true?
MS. LACKERSHIRE: Yes.
THE COURT: Do you understand it's alleged that this is a violation of Section 948.02 of the Wisconsin Statutes?
MS. LACKERSHIRE: Yes. (Emphasis added.)

¶ 10. "A circuit court is given discretion to tailor the colloquy to its style and to the facts of the particular case . . . ." Brandt, 226 Wis. 2d at 620. Here, the elements of the crime are set forth in plain, easily understood language in the statute. Thus, there is no need for a complicated plea colloquy when the statute is straightforward. The court asked if Lackershire understood it was alleged she had sexual intercourse with someone under sixteen years of age — encompassing both elements — and Lackershire answered affirmatively. In addition, Lackershire and her attorney acknowledged counsel had explained how evidence in the State's possession related to both elements and would be sufficient to justify finding Lackershire guilty. In short, Lackershire has failed to establish a deficient plea colloquy and we need not examine factors or the record beyond that hearing.

The Nature of Read-Ins

¶ 11. Lackershire next argues her plea was not knowing, intelligent, or voluntary because she "had no knowledge or understanding that the dismissed charges were to be treated as read-ins, nor that the read-in procedure was the equivalent of an admission to criminal activity." She further asserts "the accused must have actual knowledge and understanding of the read-ins." The State asserts understanding of read-ins is not a requirement for a valid plea because read-ins represent an indirect consequence of the plea. We agree with the State that understanding the read-ins is not required for this court to hold a plea is valid.

¶ 12. The trial court rejected as self-serving Lackershire's postconviction testimony that she believed the charges she was not pleading to would be dismissed outright. In reaching its determination, the court noted Lackershire never disputed the State's assertion at sentencing that she had engaged in the conduct underlying all four charges. Rather, she stated she took responsibility for what she had done. Credibility determinations are the province of the trial court. See In re Estate of Dejmal, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980).

¶ 13. Further, the PSI treated the three dismissed charges as read-ins, discussing them in that context. When asked if they had reviewed the PSI, Lackershire and her counsel confirmed that they had, and that there were no errors in it. Finally, Lackershire had completed and signed the plea questionnaire that explained the nature of read-ins — that they do not increase a sentence, although restitution may be ordered, and the State is prohibited from prosecuting those crimes in the future. These factors all undercut Lackershire's contention she did not know there would be read-ins or what read-ins were.

¶ 14. In any event, Lackershire presents no authority for the proposition that the accused must have actual knowledge and comprehension of read-ins for the plea to be valid. Indeed, the case she cites in an attempt to establish such a proposition states, "In the absence of any objection to the crimes being read in, the court may assume that the defendant admits them for purposes of being considered at sentencing." State v. Cleaves, 181 Wis. 2d 73, 80, 510 N.W.2d 143 (Ct. App. 1993). As noted, Lackershire raised no objection at sentencing.

¶ 15. Also, "[ijnformation about 'collateral consequences' of a plea ... is not a prerequisite to entering a knowing and intelligent plea." State v. Byrge, 2000 WI 101, ¶ 61, 237 Wis. 2d 197, 614 N.W.2d 477. Collateral or indirect consequences of a plea are those that, among other things, do not increase the range of a defendant's potential punishment. See id., ¶¶ 60-61. Because read-ins do not increase the range of punishment, they are indirect consequences and their knowledge is not required for a defendant to enter a knowing, intelligent, or voluntary plea.

¶ 16. Moreover, no manifest injustice occurred as a result of the read-ins. First of all, Lackershire received the benefit of the bargain — three of her charges were dismissed and the State is prohibited from recharging them. Lackershire was not ordered to pay restitution on the dismissed charges, nor did she object to the read-ins in the PSI. Finally, even if the charges should not have been available as read-ins, the sentencing court is allowed to consider both charged and uncharged behavior. Such consideration allows the court to evaluate whether the behavior a defendant is convicted of represents isolated behavior or an ongoing pattern. See, e.g., State v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377 (1990). Thus, it is likely the court would have evaluated Lackershire's interactions with Stephen and Joseph in any event.

Coercion

¶ 17. Lackershire was pregnant at the time of plea negotiations. About a month before deciding to accept a plea agreement, she was hospitalized for complications relating to the pregnancy. When she was released, she was directed to maintain bed rest and avoid stressful situations.

¶ 18. Lackershire asserts "she was informed she could not postpone the April 19, 2004, trial under any circumstances." She testified at the postconviction hearing that she "felt that [she] was forced into making a plea to save [her] daughter." She eventually gave birth to a healthy daughter on April 27, 2004.

¶ 19. We discern no coercion. Lackershire does not show she ever asked the court to postpone her trial date, only that a prosecutor with no jurisdiction over the docket would have resisted the request. Lackershire also does not argue that the plea agreement was contingent upon her forgoing an extension request. During the colloquy, Lackershire assured the trial court that no threats had been made to secure her plea and she assured the court that, despite her health care and medications, she was prepared to accept the agreement and enter the plea. At the end of the plea hearing, the court asked Lackershire if she wanted to change her plea for any reason. She said no. Likewise, her attorney also did not know of any reason why Lackershire should not accept the plea. Finally, Lackershire has offered absolutely no medical evidence that going forward with the trial would have posed a risk to her pregnancy.

¶ 20. Accordingly, the court considered her post-conviction testimony on this matter self-serving and unreliable. Indeed, Lackershire implicitly suggests she lied to the court during the colloquy when she denied any threats and stated there was no reason why she might want to change her plea. This is insufficient to render the plea unconstitutional. See State v. Morse, 2005 WI App 223, ¶ 11, 287 Wis. 2d 369, 706 N.W.2d 152 (No. 2004AP2658-CR); Johnson v. United States, 539 F.2d 1241, 1244-45 (9th Cir. 1976).

¶ 21. Finally, we note that in most circumstances, pregnancy is the result of a conscious and consensual choice to engage in sexual intercourse. When that is the case — as it appears to be here — the pregnancy is a "self-imposed coercive element" that will not render a plea involuntary. See Blaszke v. State, 69 Wis. 2d 81, 90-91, 230 N.W.2d 133 (1975); Craker v. State, 66 Wis. 2d 222, 229, 223 N.W.2d 872 (1974); State v. Albrecht, 184 Wis. 2d 287, 302, 516 N.W.2d 776 (Ct. App. 1994).

By the Court. — Judgment and order affirmed.

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

       WISCONSIN Stat. § 971.08(l)(a) requires the court to "[a]d-dress 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."

       Indeed, a valid plea generally results in waiver of all defenses. See State v. Aniton, 183 Wis. 2d 125, 129, 515 N.W.2d 302 (Ct. App. 1994). To the extent her attorney may not have informed her of this consequence, Lackershire has not raised an ineffective assistance of counsel argument.

       Lackershire's attempted analogy to State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998), is unavailing. In Nichelson, we concluded that the State failed to present any evidence the defendant's plea was knowing, intelligent, and voluntary. Lackershire likewise complains that the State has presented no evidence about the nature of her plea.

        There is one key difference. The record in Nichelson was absolutely silent regarding one element of the crime. Nichelson had been charged under Wis. Stat. § 948.02(1), first-degree sexual assault of a child under the age of thirteen. Unlike Lackershire, who engaged in intercourse with her victim, Nich-elson allegedly engaged in sexual contact with his victim. Sexual contact, by definition, requires the touching to be intentional and for the purpose of defendant's sexual arousal or gratification. Wis. Stat. § 948.01(5)(a). The colloquy failed to discuss this component, a deficiency exacerbated by Nichelson's borderline mental retardation.
      Thus, Nichelson had established the court failed to ascertain his understanding of all the elements, contrary to Wis. Stat. § 971.08, shifting the burden of proof to the State. Lackershire fails to establish the threshold showing, meaning the burden has not shifted to the State. Thus, the State is not compelled to produce extraneous evidence regarding the nature of her plea.

       We point out that while the State admits it made no mention of read-in offenses at the plea hearing, Lackershire has not alleged the State breached its plea agreement by surreptitiously adding the read-ins at sentencing.

       We nonetheless encourage courts taking pleas to verify, on the record, whether dismissed charges will be treated as read-ins and ensure that the defendant understands what having a read-in means, although we decline to craft any bright line rule.


source: Caselaw Access Project

author: WEDEMEYER, EJ.

license: Public Domain

text:
    Henry J. Krier, Plaintiff-Appellant, v. EOG Environmental, Inc., EOG Disposal, Inc., Vil-Kri Investments, LLC and Michael C. Vilione, Defendants-Respondents.
    Court of Appeals

      No. 2004AP2670.

      Submitted on briefs October 4, 2005.

      —Decided November 22, 2005.

    2005 WI App 256
    (Also reported in 707 N.W.2d 915.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Benjamin J. Harris and Paul A. Piaskoski, of counsel, of Harris & Associates, S.C., Milwaukee.

      On behalf of the defendants-respondents EOG Environmental, Inc. and Michael C. Vilione, the cause was submitted on the brief of Robert L. Elliott of Law Offices of Robert L. Elliott, Milwaukee.
    Before Wedemeyer, EJ., Fine and Curley, JJ.
   WEDEMEYER, EJ.

¶ 1. Henry J. Krier appeals from an order granting EOG Environmental, Inc., EOG Disposal, Inc., Vil-Kri Investments, LLC and Michael C. Vilione's request to continue to seal a court record until further order of the court. In substance, he claims the trial court erroneously exercised its discretion by ordering continued record closure. We agree that the trial court failed to properly exercise its discretion and we remand with directions.

BACKGROUND

¶ 2. Frior to the commencement of this action, Krier and Vilione were long-time co-owners of EOG Environmental, Inc., EOG Disposal, Inc. and Vil-Kri Investments, LLC (collectively EOG). A dispute arose concerning the management of the business. On January 3, 2003, Krier filed this action against Vilione together with a motion for a temporary restraining order, preliminary injunction and appointment of a receiver. In support of the motions, Krier filed affidavits and other material containing confidential financial information relating to the parties and the business. On January 6, 2003, Vilione filed his own motion for a temporary injunction, which also included additional confidential financial information relating to the business.

¶ 3. On January 7, 2003, the dispute between the parties went to mediation. On January 8, 2003, both parties requested that the court: (1) seal the record until further order of the court; (2) continue the temporary restraining order (which had been granted earlier); and (3) adjourn the hearing on all motions filed until further order of the court. On January 13, 2003, upon making findings of fact and conclusions of law, the court granted all of the requests. The order for closure of the records was based upon the court's broad inherent power to insure the proper administration of the courts.

¶ 4. As a result of mediation, Krier and Vilione settled their dispute as reflected by documents entitled Settlement Agreement and Mutual Release of All Claims dated January 31, 2003. By the terms of the documents, all parties were released from any liability except the accountant for the parties, who happened to be the brother of Vilione. As part of the Settlement Agreement, the parties agreed not to disclose "the matters concerning the commencement of the Lawsuit, the particulars and/or the contents of the Complaint and Affidavits in said Lawsuit. . .."

¶ 5. Subsequently, on February 24, 2003, Vilione filed a motion to formally dismiss the action and requested return of the sealed materials that were the subject of the court's findings of fact and conclusions of law dated January 13, 2003. However, on the date of the hearing, February 28, 2003, Vilione orally amended his motion, requesting that the subject materials be sealed instead of being returned to counsel. More particularly, and as germane to this appeal, Vilione first requested that the material filed by Krier "be sealed... for a period of 18 months . . . until August 28th, 2004, and thereafter be unsealed or available in the court's file as with the other materials." Krier took no position on this request and it was granted. Vilione next requested, by oral amendment, that the material he filed be "sealed [for a period of 18 months] until August 28th, 2004, and then returned to the court file." Over Krier's objection, the court ordered the materials "remain sealed in this matter and not available for public inspection, until August 28, 2004 or further order of the Court."

¶ 6. In June, prior to the expiration date of the nondisclosure order (August 28, 2004), Vilione moved to extend the date of the record seal. Both parties submitted affidavits and memoranda in support of their respective positions, which shall be examined later in this opinion. After hearing oral argument, the trial court granted Vilione's motion, ruling that the "materials" would remain sealed in this manner and would not be available for public inspection until further order of the court. Krier now appeals that order.

ANALYSIS

¶ 7. Krier claims the trial court erred in continuing its order of nondisclosure of the record because the record does not present reasons sufficient to constitute an exception to the public policy of access to public records set forth in Wis. Stat. § 59.20(3)(a) (2003-04). For reasons to be stated, we agree.

¶ 8. As relevant to this appeal, Wis. Stat. § 59.20(3) (a) reads: "[the] clerk of the circuit court. . . shall open to the examination of any person all. . . papers required to be kept in his or her office and permit any person so examining to take notes and copies of such.. . records, papers or minutes therefrom .. .

¶ 9. In the seminal case, State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983), our supreme court explicated the scope of the public policy expressed in the statute: "a person requesting to examine documents under sec. 59.14 [renumbered sec. 59.20 as of 1995] has an absolute right of examination. . . ." State ex rel. Bilder, 112 Wis. 2d at 554. Stated otherwise, disclosure is not limited. At the same time, the court was quick to recognize "that the 'absolute right' rule is not without exception[s]." Id. The first exception "allows for closing documents to public examination when there is a statute authorizing the sealing of otherwise public records." Id. The second exception "is that disclosure must yield if it infringes on a constitutional right." Id. at 555. A third exception comes into play if court records are the subject of inquiry. This exception states that a trial court under "its inherent power to preserve and protect the exercise of its judicial function of presiding over the conduct of judicial proceedings has the power to limit public access to judicial records when the administration of justice requires it." Id. at 556.

¶ 10. To further amplify the policy contained in the statute, as it relates to court records, Estates of Zimmer v. Mewis, 151 Wis. 2d 122, 134-35, 442 N.W.2d 578 (Ct. App. 1989), we adopted the rationale set forth in Bank of Am. Nat'l Trust v. Hotel Rittenhouse, 800 F.2d 339, 344-46 (3d Cir. 1986). We concluded "that the parties' agreement to keep the terms of a settlement confidential could not overcome the presumption" of access to public record. Zimmer, 151 Wis. 2d at 134. In so concluding, we adopted the following reasoning:

We acknowledge the strong public interest in encouraging settlement of private litigation. Settlements save the parties the substantial cost of litigation and conserve the limited resources of the judiciary.
Once a settlement is filed in the district court, it becomes a judicial record, and subject to the access accorded such records.
Such public access serves several... important interests .... First, it promotes "informed discussion of governmental affairs by providing the public with [a] more complete understanding of the judicial system" and the "public perception of fairness which can be achieved only by permitting full public view of the proceedings." Disclosure of settlement documents serves as a check on the integrity of the judicial process.
Even if we were to assume that some settlements would not be effectuated if their confidentiality was not assured, the generalized interest in encouraging settlements does not rise to the levels of interests that... may outweigh the public's . .. right of access.

Id. (quoting Bank of Am., 800 F.2d at 344-46) (bracketing in original). When the trial court, in its original order of January 13, 2003, its first continuing order of March 17, 2003, and its second continuing order of August 16, 2004, decided to seal the record (and subject it to the calls of Wis. Stat. § 59.20(3)), it became the custodian of the record. Only the most recent order for closure is the subject of this appeal. Whether the trial court properly exercised its discretion in its disposition of Vilione's last motion is a question of law, which we review independently. Bilder, 112 Wis. 2d at 557.

¶ 11. In addressing the merits of this challenge to the trial court's order for closure of the record, it is helpful to examine the procedural circumstances that preceded the granting of the order. The first order to seal on January 13, 2003, was mutually agreed upon by the parties and occurred during negotiations to settle the dispute. There is no transcript reflecting how the trial court arrived at its decision to seal. It was advanced and based upon the court's general supervisory power to ensure the proper administration of justice.

¶ 12. Subsequently, on February 28, 2003, upon the motion of Vilione, the order of closure was extended (over Krier's objection) to August 28, 2004, or until further order of the court. In granting the order, the court, without further explication, relied upon the same rationale it used to support the January 13, 2003 order. No testimony was taken at the hearing.

¶ 13. On July 26, 2004, the trial court heard argument and considered submissions on the motion to extend the closure beyond August 28, 2004. The submission made by Vilione was an affidavit from his counsel. Counsel's affidavit requests "only that the Court retain the seal of these records for reasons of the adverse consequences to Mr. Vilione and his business, at least until there is a request to unseal the records."

¶ 14. As additional support for granting the motion for extension, Vilione's counsel asserts that a material consideration for the settlement of the dispute was an agreement to seal the record. Should the records become unsealed, rescission of the settlement agreement is a possibility.

¶ 15. In response to the motion, Krier essentially averred that "[ojwnership and operation of the companies have changed substantially since 2002, and the financial information in the sealed materials will be 20 months old as of August 28, 2004, and is now stale and of no use or value to the companies or their competitors in today's marketplace."

¶ 16. The trial court ruled in favor of Vilione. In rendering its oral decision, the trial court stated several reasons to support its conclusion to grant additional closure: (1) there is a settlement agreement in place that includes an agreement between the parties to keep the information in the file confidential; (2) a prior judge had the opportunity to review all these issues, made findings as to the sensitive nature of the information, and made a decision to seal; (3) sealing the records does not impede the ability of Krier to bring an action as it was contemplated in the settlement agreement against the accountant of the companies; and (4) there is no request on behalf of the public claiming this is information that has some indicia of public concern.

¶ 17. In reviewing the basis for the trial court's order, for the purposes of analysis, we shall divide its rationale into two parts — reliance upon the two previous orders of the same nature, and the other reasons stated to reach its conclusion.

¶ 18. As stated earlier in this decision, the initial and continuing rationale for the order of closure was invoking the inherent authority of the court, i.e., the third exception to the presumption of disclosure in the statute. In Bilder, 112 Wis. 2d at 556-57, the supreme court declared: "To overcome the legislatively mandated policy favoring open records and to persuade the circuit court to exercise its inherent authority, the party seeking to close court records bears the burden of demonstrating, with particularity, that the administration of justice requires that the court records be closed."

¶ 19. Doubtless, here the trial court relied upon the previous court's record. But that reliance does not end the analysis. From our review of the entire record, we can find no evidence that the necessary element of "particularity" was ever advanced other than in the generality. It is undisputed that no appeal was ever taken from the order emanating from the January 13, 2003 findings, nor from the March 17, 2003 order. Regardless, as demonstrated above in the most recent motion, Vilione, by his counsel's affidavit, proffered no demonstration of "particularity" as to the adverse impact disclosure would produce. Contrariwise, Krier, by affidavit, averred that the financial information that apparently the trial court relied upon in its first order of closure was no longer relevant. It was no longer necessary to seal that information because the circumstances of the business were different compared to the time of the original order for closure. The business had been divided between the parties pursuant to the settlement.

¶ 20. Vilione concedes that he would have a heavy burden to overcome the presumption of disclosure should a motion be filed for such a purpose. But, he argues Krier has made no such motion; rather, he contends that Krier only opposed the extension of closure and allowed the August 28, 2004 deadline to lapse. We reject this reasoning. Vilione cuts too fine a line. Although Kier has not used the magical words of moving for "disclosure," or "to unseal," we deem the substance of his briefing and oral argument as the functional equivalent of such a motion. Thus, Vilione is required to meet the burden imposed by our relevant case law.

¶ 21. We now address the other reasons stated by the trial court to support the extended order of closure. The trial court observed, and correctly so, that there existed a confidentiality agreement to not disclose the materials contained in the court file. Vilione, in effect, argued that the existence of this agreement insulates the material from public disclosure. We are not persuaded. Although an agreement of confidentiality may be enforced as between the parties, we hasten to emphasize, as we decided in Zimmer, once the documents are filed in the court, they become a judicial record, subject to the access accorded such records. This factor trumps any suggestion about the applicability of judicial estoppel. Even the possibility that the parties may attempt to rescind the settlement agreement if the record is unsealed, does not outweigh the public's right to inspect public documents. Zimmer, 151 Wis. 2d at 133.

¶ 22. A second reason stated by the trial court was the absence of a request on behalf of the public for the information and that the information had no indicia of public concern. A reasonable reading of Wis. Stat. § 59.20(3) reflects two obvious facts. There are no restrictions in the statute as to who may request access to the court records, or what may be requested. The key phrase of entitlement is "any person." Id. The language of the statute has a broad sweep. There are no specifications requiring a showing of harm to the public or that the inquiry must have indicia of public concern. Nor is the nature of the motive for acquiring access to the court records a qualifying consideration. Thus, a claim of lack of standing has no basis.

¶ 23. When examining the contours of the open records presumption and particularly as it applies to court records and the court's control over those records, there is a strong presumption favoring access, which may be overcome only by a showing of an overriding public interest in closure. Zimmer, 151 Wis. 2d at 134. To implement this presumption our courts must" 'balance the factors favoring secrecy against the . . . presumption of access.'" Id. (citation omitted). To engage in this balancing process is an exercise of discretion by the trial court. An erroneous exercise of discretion occurs if the court fails to exercise its discretion, the record demonstrates that the facts do not support the trial court's decision, or the trial court applied the wrong legal standards. Oostburg State Bank v. United Sav. & Loan Ass'n, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53 (1986).

¶ 24. Here, it is evident that the trial court recognized its obligation to balance the factors favoring secrecy against the presumption of access. This balancing exercise is a commingling of fact-finding and applying appropriate factors. In our opinion, we have indicated what factors are not appropriate for application and who has the burdening oar of proof. We have also set forth decisions of this court and our supreme court giving guidance for the purpose of application. This court does not fulfill a fact-finding function. See Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980). Moreover, we should not here exercise the trial court's discretion. See Barrera v. State, 99 Wis. 2d 269, 282, 298 N.W.2d 820 (1980).

¶ 25. Because we are unable to ascertain from the record how the trial court examined the record of its predecessor court, how it examined the issue of "particularity" in terms of the burden of proof, and which proper factors, if any, it applied, we conclude that discretion was not exercised. Accordingly, we retain jurisdiction of this appeal, and remand the matter to the trial court, with directions to reconsider the standards set forth in Zimmer and Bilder, and apply those standards to the facts of the instant case. The trial court is directed to conduct any additional proceedings necessary to complete the directives provided in this opinion within ninety days of remittitur. If the trial court is unable to comply with this deadline, that fact should be communicated to us, along with a proposed alternate date for filing the necessary findings and transcript. After the necessary further proceedings have been conducted, and the trial court has made findings and rendered conclusions, the case shall be returned to this court for completion of the appeal.

By the Court. — Cause remanded with directions.

       The record reflects that Krier seriously considered filing suit against the accountant for his actions with regard to his complicity in facilitating the fraud and failure to disclose the misappropriations.

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


author: FINE, J.

text:
    Lakisha Dahm, Plaintiff-Respondent, v. City of Milwaukee, City of Milwaukee Retirement System, Anne M. Bahr, Executive Director, and City of Milwaukee Retirement System, Defendants, Hope M. Dahm, Defendant-Appellant.
    Court of Appeals

      2004AP3148.

      Submitted on briefs November 1, 2005.

      —Decided November 22, 2005.

    2005 WI App 258
    (Also reported in 707 N.W.2d 922.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael J. Bennett of Lichtsinn & Haensel, S.C., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joseph A. Ranney of DeWitt Ross & Stevens, S.C., of Madison.
    Before Fine, Curley and Kessler, JJ.
   FINE, J.

¶ 1. Hope M. Dahm appeals the trial court's grant of summary judgment to Lakisha Dahm directing that the City of Milwaukee, the City of Milwaukee Retirement System, and Anne M. Bahr, Executive Director of the City of Milwaukee Retirement System, pay to the Estate of Curtis Lee Dahm "all pension proceeds within [their] management and control." We affirm.

I.

¶ 2. Curtis Dahm and Hope Dahm were married in 1978. They divorced in 2001. Mr. Dahm and Lakisha Dahm were married in July of 2002. Mr. Dahm killed himself in June of 2003.

¶ 3. Lakisha Dahm brought this declaratory-judgment action seeking a declaration that she was entitled to Mr. Dahm's pension benefits due him as an employee of what her complaint identifies as "the Milwaukee Public School System." Hope Dahm, on the other hand, contends that she, as Mr. Dahm's first wife, and the designated beneficiary of Mr. Dahm's Milwaukee Public School pension benefits, is éntitled to the pension. As noted, the trial court disagreed.

II.

¶ 4. We review de novo a trial court's grant of summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). In order to survive summary judgment, the party with the burden of proof on an element in the case must establish that there is at least a genuine issue of fact on that element by submitting evidentiary material "set[ting] forth specific facts," Wis. Stat. Rule 802.08(3), pertinent to that element, Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 290-292, 507 N.W.2d 136, 139-140 (Ct. App. 1993); Estate of Anderson v. Anderson, 147 Wis. 2d 83, 88, 432 N.W.2d 923, 926 (Ct. App. 1988) (party asserting affirmative of a proposition has the burden of proof). Mere conclusory assertions are not enough. See ECT Inter'l, Inc. v. Zwerlein, 228 Wis. 2d 343, 349, 597 N.W.2d 479, 482 (Ct. App. 1999); see also Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002) ("In order to satisfy the standard for summary judgment 'the affiant must ordinarily set forth facts, rather than opinions or conclusions.") (quoted source omitted) (applying Rule 56(e) of the Federal Rules of Civil Procedure, which like Rule 802.08(3), requires that the party opposing summary judgment "set forth specific facts showing that there is a genuine issue for trial").

¶ 5. This appeal is governed by Wis. Stat. § 854.15. As material here, §§ 854.15(3)(a) and (5)(f) provide that "a divorce.. . [r]evokes any revocable disposition of property made by the decedent to the former spouse," unless "[tjhere is a finding of the decedent's contrary intent. Extrinsic evidence may be used to construe that intent." Thus, § 854.15(3)(a) creates a presumption that a divorce severs the former spouse's interest in a "disposition of property made by the decedent to the former spouse" if, under the instrument, the disposition was "revocable" by the decedent when he or she was alive. See Allstate Life Ins. Co. v. Hanson, 200 F. Supp. 2d 1012, 1021 (E.D. Wis. 2002) (recognizing that § 854.15(3)(a) creates a presumption). The parties do not dispute that when Mr. Dahm was alive he could have revoked the designation of Hope Dahm as the beneficiary of his Milwaukee pension benefits.

¶ 6. Unless a different rule is built into a particular presumption, presumptions in Wisconsin are governed by Wis. Stat. Rule 903.01, which provides:

Except as provided by statute, a presumption ... created by statute, including statutory provisions that certain basic facts are prima facie evidence of other facts, imposes on the party relying on the presumption the burden of proving the basic facts, but once the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

See Odd S.-G. v. Carolyn S.-G., 194 Wis. 2d 365, 374, 533 N.W.2d 794, 797 (1995) (Rule 903.01 "recognizes that once established, a presumption shifts the burden of production and persuasion to the party opposing the presumption.").

¶ 7. Here, the presumption is triggered by the following "basic facts":

(1) that Mr. Dahm and Hope Dahm, once married, were divorced; and
(2) that the designation of Hope Dahm as Mr. Dahm's beneficiary in connection with the Milwaukee pension benefits was revocable by Mr. Dahm when he was still alive.

Hope Dahm does not dispute that Lakisha Dahm has established these "basic facts." The "presumed fact" under Wis. Stat. § 854.15(3)(a) is thus that Hope Dahm's designation as Mr. Dahm's beneficiary was "[r]evoke[d]" by their divorce. Accordingly, under Wis. Stat. Rule 903.01, the burden shifted to Hope Dahm to prove that the "nonexistence of [this] presumed fact is more probable than its existence." See Estate of Thompson v. Jaskolski, 2003 WI App 70, ¶ 15, 261 Wis. 2d 723, 741-742, 661 N.W.2d 869, 878. The trial court determined that Hope Dahm did not carry this burden and, therefore, Lakisha Dahm was entitled to summary judgment. On our de novo review, we agree.

¶ 8. To meet her summary-judgment burden to show that there are genuine issues of material fact that require a trial as to whether Wis. Stat. § 854.15(5)(f) applies, Hope Dahm points to the following:

• An affidavit submitted by Mr. Dahm's cousin by marriage relating a conversation she had with Mr. Dahm at his father's funeral in November of 2001 (approximately eight months before Mr. Dahm married Lakisha Dahm). According to the cousin's affidavit, Mr. Dahm told his cousin his divorce from Hope Dahm "was hard on him and the children." Additionally, the cousin averred:

He also stated that he loved and always would love Hope Dahm. He stated that even though he would always love Hope Dahm he just couldn't live with her. He further stated that he would leave something for Hope Dahm at his death to provide for Hope Dahm at his death. He said he wanted to do this because he still loved her and he was certain that she would use the bequest to take care of his children. However, Curtis Dahm, Jr. never explained exactly what he had left to Hope Dahm.

Mr. Dahm's cousin also opined:

Based on my twenty-two years of knowing Curtis Dahm, Jr. and based on my conversations with him, it is my opinion that had he desired to change the beneficiary designation on any of his pension/life insurance policies to his new wife, Lakisha Dahm, he would have done so. In addition, it is my opinion that if Curtis Dahm, Jr. changed the beneficiary of one pension/life insurance policy to his new wife, Lakisha and left the beneficiary of the other pension/life insurance policy as unchanged, then he intended the beneficiary designation to remain as stated. Simply put, if Curtis Dahm, Jr. wanted to change the beneficiary designation he would have.

(Footnote added.)

• An affidavit submitted by one of Mr. Dahm's friends and co-workers, who opined that Mr. Dahm "did not intend to change the beneficiary" of the Milwaukee pension, and that if he had wanted to "he could easily and would have done so."

The opinions by Mr. Dahm's cousin and by his coworker, however, as to what may or may not have been Mr. Dahm's intent, are not "specific facts" as required by Wis. Stat. Rule 802.08(3). See Hopper v. City of Madison, 79 Wis. 2d 120, 130, 256 N.W.2d 139, 143 (1977) ("Portions of affidavits which are made by persons who do not have personal knowledge or which contain allegations of ultimate facts, conclusions of law or anything other than evidentiary facts do not meet the statutory requirements and will be disregarded."); see also Mettler ex rel. Burnett v. Nellis, 2005 WI App 73, ¶¶ 10-11, 280 Wis. 2d 753, 759-760, 695 N.W.2d 861, 864-865 (opinions by non-experts incompetent to carry summary-judgment burden). Assuming (because Lakisha Dahm does not object) but not deciding that what Mr. Dahm told either his cousin or co-worker as related in their affidavits is admissible evidence, Mr. Dahm's expressions of love and concern for Hope Dahm that he made well before he married Lakisha Dahm also do not satisfy Hope Dahm's summary-judgment burden to produce evidence that shows, in the words of Wis. Stat. Rule 903.01, that the "nonexistence of the presumed fact [revocation of the designation of Hope Dahm as his Milwaukee-pension beneficiary] is more probable than its existence." Further, that Mr. Dahm could have deleted Hope Dahm as his beneficiary when he was still alive but did not, does not, without more, raise a genuine issue of material fact for trial because the whole purpose of § 854.15 is to rectify what the legislature perceived as injustices resulting from the " 'failure of people to revise their estate plans after divorce.'" Allstate Life Ins. Co., 200 F. Supp. 2d at 1021 (quoted source omitted).

¶ 9. Hope Dahm also points to the fact that in September of 2000, Mr. Dahm changed his death-benefit beneficiary in his Building Trades United Pension Trust Fund account from Hope Dahm to bis children. This was before Mr. Dahm and Hope Dahm divorced and, of course, before he married Lakisha Dahm. The September of 2000 change in beneficiaries is thus not probative of Mr. Dahm's intent after he married Lakisha Dahm. Hope Dahm has not produced any "specific facts," of even "some small affirmative act," which Allstate Life Ins. Co., 200 F. Supp. 2d at 1017, 1020, opines would be sufficient, by Mr. Dahm to counter the presumption in Wis. Stat. § 854.15(3)(a), and, accordingly, Hope Dahm has not established that there are genuine issues of fact for trial.

By the Court. — Judgment affirmed.

       There is no evidence in the Record that Mr. Dahm both "changed the beneficiary of one pension/life insurance policy to his new wife, Lakisha and left the beneficiary of the other pension/life insurance policy as unchanged," as hypothesized by the cousin's affidavit.

       The trial court rested part of its decision on the fact that Mr. Dahm left a suicide note that expressed his love for Lakisha Dahm and suggested that she "[c]heck on the Painters Local 781 Pension, the Milw Pub Schs pension + Life Insurance Policy, and having the house paid off." Our affirmance on our de novo review, however, is based on Hope Dahm's failure to present any "specific facts" that satisfy her burden of proving the nonexistence of the "presumed fact" so that there is a genuine issue for trial. We do not, therefore, consider Mr. Dahm's suicide note or whether it would be admissible at any trial.


author: HOOVER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Sean M. Daley, Defendant-Appellant.

    Court of Appeals

      No. 2005AP48-CR.

      Submitted on briefs October 24, 2005.

      —Decided November 22, 2005.

    2005 WI App 260
    (Also reported in 709 N.W.2d 888.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kirk B. Obear of Law Office of Barry S. Cohen, S.C., Elkhart Lake.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Christopher G. Wren, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 6-14-06.

   HOOVER, PJ.

¶ 1. Sean Daley appeals a judgment of conviction for second-degree recklessly endangering safety and misdemeanor disorderly conduct, as well as an order denying his motion for plea withdrawal. Daley argues that the deferred prosecution agreement that resulted in his conviction was statutorily infirm and the conviction therefore cannot be maintained. He also contends that he should have been allowed to withdraw his plea because he presented a fair and just reason for withdrawal prior to sentencing. We disagree and affirm the judgment and order.

Background

¶ 2. According to the August 3, 2001 complaint, Daley was arrested for recklessly endangering safety after pointing a loaded gun at his girlfriend. The disorderly conduct charge was added because he was swearing at his girlfriend and throwing her belongings outside. On February 7, 2002, Daley pled not guilty.

¶ 3. Negotiations with the State led to a deferred prosecution agreement in which Daley would plead no contest to the two charges, but the case would be suspended and entry of the judgment of conviction would be stayed. If Daley complied with the agreement, the State would move to dismiss the charges. On January 13, 2003, the trial court approved the agreement, Daley entered his new plea, and filed a plea questionnaire and waiver of rights form. Pursuant to the agreement, the trial court did not enter a judgment of conviction upon Daley's plea but suspended proceedings.

¶ 4. In August 2003, the State petitioned for termination of the deferred prosecution agreement after Daley allegedly engaged in further criminal activity, including another domestic incident, contrary to the agreement's terms. At the hearing in May 2004, the court found that Daley violated the agreement and, after revoking the agreement, found Daley guilty of the two initial charges. Sentencing was scheduled for a later date.

¶ 5. On July 14, 2004, Daley moved to "vacate" his no contest plea, but the court denied the motion. On August 27, Daley moved to vacate the finding of guilt, but the court denied that motion, too. At the sentencing hearing, the court withheld sentence and gave Daley three years' probation on each count with the probation terms running concurrently. Daley appeals.

Discussion

Deferred Prosecution Agreement

¶ 6. Daley's first argument on appeal is that the deferred prosecution agreement fails to comply with Wis. Stat. § 971.37. Whether the agreement conforms to the statute presents us with a statutory interpretation question, which we review de novo. See State v. DeLain, 2005 WI 52, ¶ 11, 280 Wis. 2d 51, 695 N.W.2d 484.

¶ 7. Daley argues the agreement violates Wis. Stat. § 971.37(4), which states, in relevant part, "Consent to a deferred prosecution under this section is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime . ..." He argues "the statute would be rendered meaningless if a deferred prosecution agreement cannot be construed as an admission of guilt [but] at the same time an agreement may require an admission of guilt." We disagree.

¶ 8. The language of Wis. Stat. § 971.37(4) plainly means that should a deferred prosecution agreement be revoked, the defendant's willingness to enter the agreement may not be admitted at trial as evidence of guilt. Put another way, a deferred prosecution agreement may not be used to demonstrate a defendant's consciousness of guilt. When a deferred prosecution agreement requires a defendant to enter a plea as a condition, it is the plea itself and not the agreement that constitutes the acknowledgement of guilt'. Indeed, if the agreement is dissolved, the plea remains.

¶ 9. Daley implies that requiring a plea is not allowed because it is not specifically authorized in Wis. Stat. § 971.37. However, the legislature plainly contemplated that parties would negotiate appropriate conditions in a deferred prosecution agreement commensurate with the individual facts of each case. While § 971.37(lm)(b) specifies certain components that shall be in a deferred prosecution agreement, there is no indication these are to be the sole components. Indeed, § 971.37(lm)(c)l. indicates that the agreement may require payment of the domestic abuse surcharge. This indicates the legislature never intended § 971.37(lm)(b) to be exclusive.

¶ 10. Daley also contends the agreement violated Wis. Stat. § 971.37(2), which states, "The written agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement." He contends this section means the State is not allowed "to obtain a conviction in the event that the agreement is terminated. . . . [T]he process of conviction must occur subsequent to the resumption of the prosecution, not as a direct result of the resumption of the prosecution."

¶ 11. We point out first that whenever a deferred prosecution agreement is revoked and a conviction results, that conviction is both subsequent to and a direct result of the resumption of the prosecution. If prosecution had not resumed, the charge would have been dismissed. See Wis. Stat. § 971.37(3).

¶ 12. More importantly, however, we conclude that prosecution in this case did resume. Prosecution of Daley's case was suspended after the court ascertained his plea was knowing, intelligent, and voluntary but before the court accepted the plea and used it to adjudicate Daley guilty. When the deferred prosecution agreement was revoked, prosecution resumed and the court continued where the case left off, accepting the plea, finding Daley guilty, and entering the judgment of conviction.

¶ 13. Contrary to Daley's argument that it is bad policy to allow the State to require a plea as part of a deferred prosecution agreement, such policy is actually quite efficient. Requiring a plea allows the State to avoid trial but still allows the defendant to avoid the conviction if he or she complies with the agreement. In that sense, it provides an even greater benefit to a defendant than a traditional plea agreement, provided the defendant fulfills the agreement's terms.

Plea Withdrawal

¶ 14. The decision whether to allow a plea withdrawal is committed to the trial court's discretion and will be sustained unless the court erroneously exercised that discretion. State v. Bollig, 2000 WI 6, ¶ 14, 232 Wis. 2d 561, 605 N.W.2d 199. When the motion is brought before sentencing, the motion "should be freely allowed if the defendant presents a 'fair and just reason' to justify the withdrawal." State v. Timblin, 2002 WI App 304, ¶ 19, 259 Wis. 2d 299, 657 N.W.2d 89 (citing State v. Garcia, 192 Wis. 2d 845, 861, 532 N.W.2d 111 (1995)).

¶ 15. Freely, however, does not mean automatically. Bollig, 232 Wis. 2d 561, ¶ 29. A fair and just reason contemplates the "mere showing of some adequate reason for defendant's change of heart." State v. Kivioja, 225 Wis. 2d 271, 284, 592 N.W.2d 220 (1999). "It is within the trial court's discretion to determine whether a defendant's reason adequately explains his or her change of heart." Timblin, 259 Wis. 2d 299, ¶ 20. If the defendant shows a fair and just reason for withdrawal, the motion may still be denied if the State would be prejudiced.

¶ 16. Daley's motion asserts only his belief of his own innocence as a basis for the withdrawal. An assertion of innocence is an important factor, but it is not dispositive. State v. Leitner, 2001 WI App 172, ¶ 25, 247 Wis. 2d 195, 633 N.W.2d 207. Daley raised other issues at the motion hearing through an untitled "exhibit" filed with the court. He contends he was dissatisfied with his attorney and that he felt he had no option but to take the plea agreement.

¶ 17. The defendant bears the burden of proving a fair and just reason by a preponderance of the evidence. Id., ¶ 26. In considering evidence, the trial court may assess the credibility of the proffered explanation. Kivioja, 225 Wis. 2d at 291. If the trial court determines the defendant's reason is incredible, it may deny the withdrawal motion. Leitner, 247 Wis. 2d 195, ¶ 26.

¶ 18. The court determined, and we agree, that Daley offered "too little, too late." First, the court noted that during the plea colloquy it inquired whether Daley was satisfied with his representation. He indicated he was satisfied and did not request new counsel. See State v. Morse, 2005 WI App 223, ¶ 11, 287 Wis. 2d 369, 706 N.W.2d 152 (No. 2004AP2658-CR) (defendant's post-conviction position, when contrary to position at colloquy, does not make us suspect plea's voluntariness).

¶ 19. Second, when Daley indicated some hesitation and reluctance to enter the plea, the court told Daley it was not trying to "steamroll" him and offered to adjourn the plea hearing. Daley declined, instead indicating he wanted to "get it over with."

¶ 20. Finally, the court noted that at no time between January 2003, when the deferred prosecution agreement was entered, and May 2004, when the agreement was revoked, did Daley seek to withdraw his plea. Rather, he waited until he was faced with the possibility of a prison sentence to cry foul. The court is entitled to consider such a delay in its determination. Cf. Leitner, 247 Wis. 2d 195, ¶ 33 (defendant waited until presen-tence investigation written, filing withdrawal motion when report was unfavorable); Kivioja, 225 Wis. 2d at 299 (timing of a recantation, days after a sentence imposed but sixteen months after initial statement, "seriously depreciates" reliability).

¶ 21. In short, the court determined Daley's proffered reasons for withdrawal were incredible and denied the motion. See Leitner, 247 Wis. 2d 195, ¶ 26. We discern no error.

By the Court. — Judgment and order affirmed.

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

       This case is not similar to State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12. There, as part of a plea agreement, the State agreed to reopen Dawson's judgment of conviction and amend a charge of first-degree sexual assault of a child if Dawson successfully completed probation. Id., ¶ 2. We allowed Dawson to withdraw his plea as unknowing because he had agreed to a legal impossibility. Id., ¶ 14. The State has no authority to reopen a judgment and the only legal reward for completing probation is discharge. Id., ¶¶ 9, 14. Here, Daley's deferred prosecution agreement is permissible under the statute and the agreement's completion does not present a legal impossibility.


author: LUNDSTEN, PJ.

text:
    Kristen Zehner, James C. Williams, Gary Waalkens, Judy Waalkens, Bonnie Shannon, Joan Hackbarth, Walter Shakstad, Eleanor Shakstad and Wisconsin Manufactured Home Owners Association, Inc., Plaintiffs-Appellants, v. Village of Marshall and American Mobile Home Communities Limited Partnership IV, Defendants-Respondents.
    Court of Appeals

      No. 2004AP2789.

      Submitted on briefs May 23, 2005.

      —Decided December 8, 2005.

    2006 WI App 6
    (Also reported in 709 N.W.2d 64.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of David R. Sparer of Herrick & Kasdorf LLP, Madison.
    On behalf of the defendant-respondent Village of Marshall, the cause was submitted on the brief of Raymond J. Pollen and Amy J. Doyle of Crivello, Carlson & Mentkowski, S.C., Milwaukee.
    On behalf of the defendant-respondent American Mobile Home Communities Limited Partnership IV the cause was submitted on the brief of Scott G. Pernitz and Karen L. Riemer of Winner, Wixson & Pernitz, Madison.
    Before Lundsten, PJ., Vergeront and Deininger, JJ.
   LUNDSTEN, PJ.

¶ 1. This case involves a lawsuit by mobile home park renters against their landlord and their municipality. The claims in the suit relate to water and sewer fees billed to the landlord by the municipality. Appellants Kristen Zehner, James Williams, Gary Waalkens, Judy Waalkens, Bonnie Shannon, Joan Hackbarth, Walter Shakstad, and Eleanor Shakstad (collectively the renters) own mobile homes. They rent space for their homes in a mobile home park, owned by American Mobile Home, located in the Village of Marshall. The renters appeal orders of the circuit court dismissing their complaint against the Village and American Mobile Home for failure to state a claim. The renters allege the Village charges American Mobile Home water/sewer fees that are unjust, unreasonable, and non-uniform when compared with fees paid by other Village residents. The renters allege the higher fees are passed on to them through the rents they pay. They also allege that American Mobile Home breached its obligation under the common law, the administrative code, and the statutes to maintain its sewer system in a reasonable state of repair. Their complaint seeks declaratory judgment against the Village, and damages and a declaratory judgment against American Mobile Home.

¶ 2. The renters contend the circuit court erred in concluding that they lacked standing to challenge the water/sewer fees the Village charges American Mobile Home. The renters also argue the circuit court erred in determining that they did not state a claim upon which relief could be granted against American Mobile Home under common law, the administrative code, or the statutes. We affirm the circuit court.

Background

¶ 3. Because the issue on appeal is whether the renters' complaint states a claim, the pertinent facts are those alleged in the complaint, which are as follows.

¶ 4. The renters own mobile homes situated in a mobile home park owned and managed by American Mobile Home. The park is located within the Village of Marshall. The renters own the mobile homes in which they live, but they rent the lots on which the homes sit from American Mobile Home.

¶ 5. The sewer system in the mobile home park is defective. Groundwater infiltrates the park's sewer pipes, thereby increasing the volume of sewage going into the Village sewer system from the park.

¶ 6. The Village determines the charges assessed to residents for the water and sewer system, including American Mobile Home. Water inflow and sewer outflow are charged as a single service with a single fee by the Village. The Village charges American Mobile Home for water/sewer service based on sewer outflow volume. The Village charges all other Village residents for water/sewer service based on water inflow. The Village began using the different billing method for American Mobile Home because the Village determined that American's mobile home park was responsible for significant groundwater infiltration into the sewer system. The Village has the authority to require American Mobile Home to repair its sewer equipment to stop groundwater infiltration, but the Village chose to address the issue by charging American Mobile Home water/sewer fees based on sewer outflow. The result is that American Mobile Home is charged more than if it were charged based on water inflow like other Village residents, and more than if American Mobile Home repaired its sewer line.

¶ 7. American Mobile Home's water/sewer fees are based on the collective sewer outflow of the entire park; the fees are not based on individual meter readings. The water/sewer fees are paid by American Mobile Home. The water/sewer fees are approximately $102,314 more per year because of the different billing method and the defective mobile home park sewer pipes. Because there are 295 lots in the park, the extra amount on a per renter basis is about $360 each year. This additional amount is "passed on to the individual residents of [the mobile home park] by [American Mobile Home] ... as part of [the renters'] monthly lot rent."

Discussion

¶ 8. The standards applicable to our review of whether a complaint states a claim are well established. They were recently summarized in John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, 284 Wis. 2d 307, 700 N.W.2d 180:

We review de novo the circuit court's dismissal of a complaint for failure to state a claim. A motion to dismiss for failure to state a claim "tests the legal sufficiency of the complaint." A reviewing court "accept[s] the facts pled as true for purposes of [its] review, [but is] not required to assume as true legal conclusions pled by the plaintiffs." Although the court must accept the facts pleaded as true, it cannot add facts in the process of liberally construing the complaint. Rather, "[i]t is the sufficiency of the facts alleged that controls] the determination of whether a claim for relief' is properly pled.
The court should not draw unreasonable inferences from the pleadings. After liberally construing the complaint, a court should dismiss a plaintiffs claims if it is "quite clear" that there are no conditions under which that plaintiff could recover. In other words, "A claim should not be dismissed... unless it appears to a certainty that no relief can be granted under any set of facts that plaintiff can prove in support of his allegations."

Id., ¶¶ 19-20 (citations omitted).

A. The Renters' Claim Against The Village Of Marshall

¶ 9. The complaint seeks a declaratory judgment against the Village. The complaint alleges that the Village is obligated to maintain just, reasonable, and uniform water/sewer fees for all users, and that the fees it charges American Mobile Home are not just, reasonable, and uniform. The complaint alleges the renters have been and will continue to be harmed by the unjust, unreasonable, and non-uniform fees charged to American Mobile Home because these fees are passed on to the renters through higher monthly rents.

¶ 10. The renters argue the circuit court erred in concluding that they lack standing to bring a declaratory judgment action against the Village. In Chenequa Land Conservancy, Inc. v. Village of Hartland, 2004 WI App 144, 275 Wis. 2d 533, 685 N.W.2d 573, we explained the requirements for maintaining an action for declaratory judgment:

In order to maintain an action for declaratory judgment, there must be a justiciable controversy, which exists when these requirements are met:
(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.
(2) The controversy must be between persons whose interests are adverse.
(3) The party seeking declaratory relief must have a legal interest in the controversy — that is to say, a legally protective interest.
(4) The issue involved in the controversy must be ripe for judicial determination.

Id., ¶ 11 (quoting Loy v. Bunderson, 107 Wis. 2d 400, 410, 320 N.W.2d 175 (1982)). The third requirement, "often expressed in terms of standing," Chenequa, 275 Wis. 2d 533, ¶ 12, is dispositive here.

¶ 11. To have standing, a party must "have suffered or be threatened with an injury to an interest that is legally protectible, meaning that the interest is arguably within the zone of interests" that a statute or constitutional provision, under which the claim is brought, seeks to protect. Id., ¶ 16. Whether a party has standing to seek declaratory relief is a question of law, which we decide de novo. Town of Baraboo v. Village of West Baraboo, 2005 WI App 96, ¶ 35, 283 Wis. 2d 479, 699 N.W.2d 610.

¶ 12. The renters assert that the rate scheme the Village applies to the mobile home park violates various statutes and administrative code provisions. Pertinent here is the fact that the renters concede they have no direct rights under these provisions. For example, they assert the rate scheme applied to the park is discriminatory under Wis. Stat. § 66.0821 (2003-04), but agree they may not complain directly under that statute because they are not "users" of the service within the meaning of § 66.0821(5). The renters argue that their only means of getting relief is by obtaining a declaratory judgment against the Village, forcing the Village to change how it bills American Mobile Home. The apparent goal is to compel the Village to charge American Mobile Home based on water inflow or to compel the Village to force American Mobile Home to repair its sewer line. We are not persuaded that the renters have identified a legally protectible interest that would confer the standing necessary to obtain relief.

¶ 13. Taking the facts alleged in the complaint as true, they do not establish the sort of direct effect on the renters necessary to confer standing. In particular, the renters have not alleged that, if they prevail, American Mobile Home would be required to reduce their rent. Thus, declaratory relief against the Village may or may not have an effect on the renters. A beneficial effect to the renters is, therefore, speculative. "A justiciable controversy requires the existence of present and fixed rights. A declaratory judgment will not determine hypothetical or future rights." City of Janesville v. Rock County, 107 Wis. 2d 187, 199, 319 N.W.2d 891 (Ct. App. 1982).

¶ 14. We note that if the renters here have standing to obtain declaratory relief, it would seem that renters have standing in a wide variety of situations where landlords are arguably overcharged. For example, renters in an apartment building could go to court and challenge the property value assessment of the building for property tax purposes because of an alleged effect on rent. For that matter, it would seem that renters could obtain declaratory relief if they proved that a building owner was paying higher costs because the owner was not getting all the owner was entitled to under a service contract with a private company. We think it apparent that a more direct connection is required to confer standing.

¶ 15. The renters rely on Ramme v. City of Madison, 37 Wis. 2d 102, 154 N.W.2d 296 (1967). But a close reading of Ramme supports our conclusion that the renters here lack standing.

¶ 16. In Ramme, a mobile home occupant challenged a statutory scheme that gave mobile home park owners, but not occupants, the right to appeal the amount of a "parking permit fee" assessed against each occupied mobile home by municipalities. Id. at 105-06. Under the statutes, the mobile home park owner was liable for the fee and paid it to the city. The responding party in Ramme was the City of Madison. The city argued:

[T]he fee is an excise tax levied against the landowner, not the trailer occupant; that the statute merely permits the tax to be passed on to the occupant and the city has no method of enforcing collection from the occupant; that, therefore, the trailer occupant is in exactly the same position as users of services or products subject to ordinary excise taxes in that these taxes are too remote, indirect, and incidental to allow them to challenge the validity of the tax. Since the city cannot collect the tax from the occupant, respondent argues, the occupant has no right which need be protected.

Id. at 109-10 (emphasis added). "[A] party must be directly affected by the issues in controversy" to confer standing. Id. at 116 (emphasis added). Therefore, the court seemingly assumed that the indirect nature of the effect of the parking permit tax on the mobile home park owners would defeat standing, and turned its attention to whether the tax was a direct or indirect tax. Id. at 110-12.

¶ 17. The statutes at issue in Ramme directed that the parking permit tax be "collected" by the park owner from the mobile home occupants and that the occupants, as well as the park owners, were "liable" for the tax. Id. at 110-11. Thus, even though the tax was normally collected by the city from the park owner, the occupants were the "direct objects of the tax." Id. at 111. Because of this direct effect, the court concluded that the occupants had standing to challenge the "parking permit fee" and to obtain declaratory relief. Id. at 111-17. In contrast, the renters here do not allege that they are the direct objects of the water/sewer fees, and they do not assert that they are directly liable for the fees.

¶ 18. Another part of the Ramme decision supports our conclusion that the renters' interest here is too indirect to confer standing to bring a declaratory judgment action. The Ramme court discussed at length a provision in the statute at issue that gave landowners the right to appeal the tax. Id. at 113-16. In addressing why mobile home occupants were not afforded the same statutory right, the court explained that, when the parking permit statute was enacted, mobile home park licensees — who may not be the same entity as the park owner — and mobile home occupants did not need a statutory grant of standing because they had standing by virtue of being the direct objects of the tax. Id. at 114-16. In contrast, at the time the statute was enacted, a non-licensee landowner was not directly liable for the tax, and would not have had standing unless standing was conferred by the statute. Id. Pertinent here, despite the fact that an excessive tax may have had a "substantial adverse effect on [a non-licensee landowner] by making his land undesirable for use as a trailer park," the effect of the tax was too "indirect" to confer standing on the landowner. Id. at 116. The injuries the renters allege here are similarly insufficiently direct to confer standing.

¶ 19. Before leaving this topic, we briefly address the renters' argument that they have standing because they are in danger of losing their rights to occupy their homes. The renters rely on the following hypothetical situation:

Municipalities, including the Village of Marshall, are entitled to charge for the sewer services they provide, pursuant to § 66.0809 WI Stats. If the owner, whether [American Mobile Home] or some other, does not pay in whole or in part, after certain notice procedures, the Village is allowed to make the unpaid amounts, plus penalties, part of the real estate tax due, and is entitled, pursuant to § 66.0809 WI Stats., to foreclose upon the property in a tax sale if these sums are not paid. If the property gets sold in such a tax sale, not only would [American Mobile Home] lose its property, but the Plaintiffs, and all other resident owners of the individual homes, would have their leases, and rights to occupancy extinguished.

This again, if true, constitutes an indirect effect only. Further, the renters' hypothetical involves much speculation about what might or might not occur. We repeat, "[a] justiciable controversy requires the existence of present and fixed rights. A declaratory judgment will not determine hypothetical or future rights." City of Janesville, 107 Wis. 2d at 199.

¶ 20. In sum, the renters have failed to show that they have suffered, or are threatened with, an injury to a legally protectible interest. The renters, therefore, lack standing to bring a declaratory judgment action challenging the fees the Village charges American Mobile Home for water and sewer services.

B. The Renters' Claim Against American Mobile Home

¶ 21. The renters argue the circuit court erred in concluding that their complaint fails to state a claim against American Mobile Home upon which relief may be granted. The renters contend that American Mobile Home has an obligation under the common law, the administrative code, and the landlord-tenant statutes to repair the sewer line and, thus, reduce sewer outflow and the water/sewer fees charged by the Village. We are not persuaded.

1. Obligation Under Common Law

¶ 22. In support of the contention that American Mobile Home is under a common law duty to make the requested repairs to its sewer line, the renters rely on Pagelsdorf v. Safeco Insurance Co. of America, 91 Wis. 2d 734, 284 N.W.2d 55 (1979), and Pines v. Perssion, 14 Wis. 2d 590, 111 N.W.2d 409 (1961). Neither case, however, supports a cause of action against American Mobile Home relating to the defective sewer line.

¶ 23. In Pagelsdorf, the court was concerned solely with a landlord's tort liability for injuries incurred on leased premises. Pagelsdorf, 91 Wis. 2d at 735. The Pagelsdorf court held that a landlord owed a duty of ordinary care to his or her tenant and the tenant's invitees with respect to injuries caused by defective premises. Id. The renters' complaint here does not arguably assert a negligence claim and, therefore, Pagelsdorf is inapplicable.

¶ 24. In Pines, the supreme court adopted the common law doctrine of the implied warranty of habitability. Pines, 14 Wis. 2d at 594-96. That doctrine has been codified at Wis. Stat. § 704.07(4). Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44, 72-73, 596 N.W.2d 456 (1999). The renters' complaint here does not allege that the sewer line defect affected the habitability of the mobile homes, and the renters admit that they do not advance a claim under § 704.07(4).

¶ 25. Thus, neither Pagelsdorf nor Pines supports the renters' assertion that they have stated a common law claim.

2. Obligation Under The Administrative Code

¶ 26. The renters argue that Wis. Admin. Code § PSC 186.76 imposes a duty on American Mobile Home to make the repairs to the sewer line at issue here. However, this code provision does not require repairs. Rather, it allocates the cost of repairs and maintenance of water and sewer laterals between mobile home park operators and mobile home occupants. That is, if repairs are made, the code specifies who must pay. The question of who would bear the cost of repairs if they are made is not an issue here.

3. Obligation Under The Landlord-Tenant Statutes

¶ 27. Finally, the renters argue they have stated a claim under Wis. Stat. § 704.07(2). They rely on the following subsection (2) language:

Duty of landlohd. (a) Except for repairs made necessary by the negligence of, or improper use of the premises by, the tenant, the landlord has a duty to do all of the following:
2. Keep in a reasonable state of repair all equipment under the landlord's control necessary to supply services that the landlord has expressly or impliedly agreed to furnish to the tenant, such as heat, water, elevator, or air conditioning.

The circuit court disagreed, concluding that subsection (4) of § 704.07 provides the exclusive remedies for a violation of subsection (2), and that subsection (4) does not authorize the relief the renters seek. We agree with the circuit court.

¶ 28. Subsection (4) of Wis. Stat. § 704.07 confers on tenants specific rights if a violation of subsection (2) "materially affect[s] the health or safety of the tenant." Generally speaking, subsection (4) permits a tenant to vacate and withhold rent, depending on the circumstances. Subsection (4) provides:

Untenantability. If the premises become un-tenantable because of damage by fire, water or other casualty or because of any condition hazardous to health, or if there is a substantial violation of sub. (2) materially affecting the health or safety of the tenant, the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard or the substantial violation of sub. (2) materially affecting the health or safety of the tenant; or the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding or elimination would impose undue hardship on the tenant. If the tenant remains in possession, rent abates to the extent the tenant is deprived of the full normal use of the premises. This section does not authorize rent to be withheld in full, if the tenant remains in possession. If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable. This subsection is inapplicable if the damage or condition is caused by negligence or improper use by the tenant.

The circuit court reasoned that because the renters had not alleged untenantability or a substantial violation of subsection (2) materially affecting their health or safety, the renters had not stated a claim under § 704.07.

¶ 29. The renters argue that subsection (4) of Wis. Stat. § 704.07 does not apply to all violations of subsection (2), hut rather only to a violation of subsection (2) that materially affects a tenant's health and safety. The renters contend that subsection (2) authorizes an independent cause of action for defective conditions that do not rise to the level of a health or safety hazard, but are nonetheless the result of the failure of a landlord to maintain equipment in a reasonable state of repair. American Mobile Home responds that subsection (4) is an exclusive remedy clause for violations of subsection (2), and that Logterman v. Dawson, 190 Wis. 2d 90, 526 N.W.2d 768 (Ct. App. 1994), supports this view. We agree with American Mobile Home.

¶ 30. Logterman, like this case, involved a mobile home park and a defective utility system. In Logterman, the defective system was a septic system. Id. at 97. The Logtermans owned a mobile home and rented a lot from the park owner. The county sanitation department issued an order requiring the park owner to replace or abandon all failing septic systems, an order that included the lot rented by the Logtermans. Id. at 97-99. The park owner chose to abandon the septic system serving the Logtermans' lot. Id. at 98. The owner informed the Logtermans that if the mobile home were to be occupied, it would need to be moved to a different site within the mobile home park. Id. The Logtermans filed suit.

¶ 31. Among several arguments, the Logtermans contended that the park owner violated her obligation under subsection (2) of Wis. Stat. § 704.07 to maintain the septic system in reasonable repair and that this violation diminished the value of their mobile home. See Logterman, 190 Wis. 2d at 108-09. We rejected this argument, explaining that subsection (4) of § 704.07 limits the remedies for a violation of subsection (2):

Further, even accepting the Logtermans' argument that [the park owner] violated [Wis. Stat. § 704.07(2)] by failing to keep the septic in a reasonable state of repair, the law does not entitle the Logtermans to the remedy which they seek. Section 704.07(4) limits a tenant's remedy to rent abatement for the period of time the property is untenable [sic] or nonliability for rent for the term of the lease if the tenant is forced to permanently vacate. In this case, therefore, had [the park owner] breached her duty to provide adequate septic service such that the Logtermans were forced to move, the Logtermans' remedy under § 704.07 would be non-liability for the remaining lease amount.
However, § 704.07, Stats., does not entitle the Logtermans to damages representing the value of their mobile home as they alleged.

Logterman, 190 Wis. 2d at 109 (emphasis added). Our underlying reasoning is clear: subsection (4) of § 704.07 is the exclusive remedy for violations of subsection (2). In effect, we concluded that § 704.07 is intended to require reasonable maintenance that ensures a safe and tenantable premises, but the statute does not create a right of action for defects that do not "materially affect[] the health or safety of the tenant" or affect tenantability.

¶ 32. Applying Logterman here, to maintain an action under Wis. Stat. § 704.07, the renters needed to allege that the condition of the sewer pipes either made the property untenantable or that the failure to maintain the sewer pipes affected the renters' health or safety. They alleged neither.

Conclusion

¶ 33. We affirm the circuit court's conclusion that the renters lack standing to challenge the rates the Village charges American Mobile Home for water and sewer service. We also affirm the circuit court's conclusion that the renters failed to state a claim against American Mobile Home. Thus, we affirm the circuit court's orders dismissing the complaint.

By the Court. — Orders affirmed.

       The Wisconsin Manufactured Home Owners Association, Inc., a non-renter, is also an appellant, but for ease of discussion we refer to the appellants as the renters.

       The renters filed a motion for default judgment against American Mobile Home because the attorneys who signed American Mobile Home's motion to dismiss were not licensed to practice law in Wisconsin. Relying on Davis v. City of Elkhorn, 132 Wis. 2d 394, 398-99, 393 N.W.2d 95 (Ct. App. 1986), the circuit court concluded that the renters' motion for default judgment could succeed only if their complaint stated a claim upon which relief could be granted. The renters do not challenge the circuit court's reliance on Davis. Because we affirm the circuit court's conclusion that the complaint fails to state a claim, there is no reason to address the default judgment issue.

       $102,314 divided by 295 equals $346.83. The complaint, however, alleges "approximately $360.00 per year" per resident, so we will use that number.

       Although the complaint requests damages for current and past overcharges and asks that the circuit court determine whether the Village or American Mobile Home should pay those damages, on appeal the renters address their claim against the Village only in terms of the circuit court's dismissal of the renters' request for declaratory relief. For that reason, we address only the renters' request for a declaratory judgment.

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

       Wisconsin Admin. Code § PSC 186.76 (Nov. 1999) states:
      Maintenance of water and sewer laterals. (1) Thawing of a mobile home park occupant's frozen lateral shall be at the mobile home park occupant's expense unless:

        (a) The freeze-up is a direct result of a disconnect initiated by the mobile home park operator or mobile home park contractor and the disconnection occurs during a time when conditions are such that freeze-up could reasonably be expected to occur.
      (b) The freeze-up is a result of a deficiency in the mobile home park distribution or collection system.
      (2) All other maintenance of water and sewer laterals shall be at the expense of the mobile home park operator or mobile home park contractor unless the water and sewer lateral is physically damaged by the activities of the mobile home park occupant or by the discharge of improper materials into the sewer lateral by the mobile home park occupant. Improper materials include, but are not limited to, such materials as: any flammable or explosive liquids, solids, or gases; wastes having a pH lower than 5.0 or in excess of 10.0; or solid or viscous substances in quantities or of such size capable of causing obstruction to the flow in the lateral.