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

      No. 02-1651-CR.

      Submitted on briefs February 7, 2003.

      —Decided May 1, 2003.

    2003 WI App 116
    (Also reported in 666 N.W.2d 58.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Corey D. Williams, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.
    Before Dykman, Roggensack and Deininger, JJ.
   ROGGENSACK, J.

¶ 1. Corey Williams appeals his conviction for cocaine possession with intent to deliver, contrary to Wis. Stat. § 961.41(lm)(cm)3 (2001-02), and possession of tetrahydroncannabinols (THC) with intent to deliver, contrary to § 961.41(lm)(h)l, both as party to the crime, and the circuit court's order denying postconviction relief. Williams argues that he is entitled to withdraw his guilty pleas because the trial judge improperly initiated and participated in the discussions leading up to his plea agreement. We conclude that judicial participation in the bargaining process that precedes a defendant's plea raises a conclusive presumption that the plea was involuntary. Therefore, we adopt a bright-line rule barring any form of judicial participation in plea negotiations before a plea agreement has been reached. Because it is undisputed that the trial judge participated in the negotiations that led up to Williams's pleas, Williams is entitled to withdraw his pleas. Accordingly, we reverse the order denying relief; we vacate the judgment of conviction for both offenses; and remand for further proceedings on all charges originally filed against Williams. On remand, we order that the case be assigned to a different judge.

BACKGROUND

¶ 2. In March 2000, Williams was charged in Wood County with possession of THC with intent to deliver and possession of 57.4 grams of cocaine with intent to deliver. In a separate complaint, Williams was charged with one count of delivery of cocaine. The circuit court consolidated the two cases and scheduled the matter for jury trial on January 24, 2001.

¶ 3. On the morning of January 24, at the outset of the trial proceedings, the trial judge invited Williams, his attorney and the district attorney to "have a little chat in chambers." Following the unrecorded conference, the parties returned to the court room and the judge announced that "with the assistance or urging . . . of the Court, that a compromise . . . has been reached between the Government and the Defendant." The district attorney explained that the State would dismiss the delivery of cocaine charge against Williams and amend the possession of cocaine charge to "reflect an amount of cocaine 15 grams to 40 grams, which reduces that penalty." In exchange, Williams would plead guilty to possession of THC with intent to deliver and possession of cocaine with intent to deliver. Williams's attorney agreed with the district attorney's description of the plea agreement. The trial judge then asked Williams whether it was his understanding, "after all of these conversations," that he would plead guilty to "possession of THC with intent to deliver and possession of less than 40 grams of cocaine" and whether he was prepared to proceed; Williams answered "Yes." A lengthy plea colloquy followed.

¶ 4. During the colloquy, the trial judge endeavored to make a record of what occurred in chambers. The judge reiterated that he had told Williams that he "was not inclined to send [him] to prison for 30 years" but that "there is still some likelihood that you could go to prison ... the worst you could be looking at would be maybe eight to ten years." He also recalled that he had told Williams:

[0]n one side that as a citizen or a member of the community in Wood County that it makes me pretty angry when I find people from Milwaukee coming up here delivering cocaine, and it makes everybody else around here pretty mad. On the other side, I understand that you're a young man, and I don't like long-term incarceration for nonviolent offenses for young people, so that — I explained that from this Judge's point of view that I'm doing some balancing, and that I don't know what I'm going to do.

Williams responded that he understood that the judge "intend[ed] to keep an open mind, to read the Presen-tence and balance those considerations" and sentence him appropriately. Williams also stated that he understood the nature of the charge and the constitutional rights he was waiving.

¶ 5. Following the colloquy with Williams, the judge addressed Williams's attorney and inquired whether the court had "fairly recreated" the conversation that had occurred in chambers between the parties. Williams's attorney recalled that "there was also a discussion of what in my experience is commonly termed, I cannot penalize you for having a trial, but I can reward you for being forthcoming" and the State "preserving his right... to argue for greater time." He reiterated:

You did talk about the numbers of eight to ten as possibly years in prison should [Williams] go to trial and lose. You expressed your anger that drags are in Wood County. You expressed your anger about the fact that they are very often in your opinion brought up — or opinion and/or experience brought in from Milwaukee County.
You also stated that... Mr. Williams might not receive County Jail time, which would be up to a year. If it goes beyond a year, then it's prison time. But you couldn't guarantee what you were going to do. You didn't give him any specific number, but there was a discussion of a range from one to three as a possibility ....

The court responded that Williams's attorney's recollection of the plea negotiations was "fairly consistent.. . with what I recall."

¶ 6. The court next acknowledged its role in the plea bargaining process stating, "I'm understanding that to some extent it's not appropriate for Courts to get involved in the plea bargaining" and asked if there was "anything else from that meeting that. . . ought to be put on the record or disclosed." The parties answered "No." The judge informed Williams of the collateral consequences of his pleas and established an eviden-tiary basis for the charges. The court then accepted Williams's pleas as "freely, voluntarily and intelligently entered" and found him guilty of possession of THC with intent to deliver and possession of less than 40 grams of cocaine with intent to deliver.

¶ 7. A sentencing hearing was held on March 29, 2001. Prior to sentencing, the district attorney advised the court that he had agreed to recommend a five-year sentence on the cocaine charge as part of the plea bargain. Accordingly, the court sentenced Williams to a total of ten years for possession of cocaine, five years of initial confinement followed by five years extended supervision. The court stayed sentencing on the possession of THC charge and placed Williams on three years probation to be served concurrent to the cocaine charge.

¶ 8. Subsequent to sentencing, Williams filed a motion to withdraw his guilty pleas, alleging that "he was promised 1 to 3 years in chambers by Judge Zappen and that he has not received [the] benefit of the bargain." Williams further alleged that he agreed to plead guilty instead of going to trial because he felt "assured of a sentence of 1 to 3 years." A hearing on the motion was scheduled for August 10, at which Williams testified that on the morning of trial, he did not intend to plead guilty until the "little chat in chambers." Williams explained to the court:

I had no intentions of pleading guilty, but by my being young and inexperienced, being ignorant of the law, you invited me into [your] chambers, you influenced me and pressured me into giving a guilty plea. As you said, if I was to lose trial, it is a good chance I would receive a seven to ten year sentence.
Your Honor, since I originally turned down a plea bargain in the hallway, I can honestly say if you wouldn't have taken me in your chambers, I wouldn't have never pled guilty. Myself being in a powerful judge's chambers, you eroded my ability to make a decision of my own.

Following Williams's testimony, that included examination by the prosecutor and trial court regarding what had occurred at the plea hearing, the court found that Williams's plea was entered voluntarily. The court explained:

[I]f I weigh the things you're telling me today and believing you — I'm not going to say you're making any of this stuff up, okay, but if I weigh what I hear today and if I weigh it against what took place fresh on the day of the plea, this is the way it goes. ...
You were with your parents, and you'd been with your parents at all stages of these proceedings.... You were not in custody. There's no coercive factor right there. You were with your attorney. ...
I understand what you feel. Okay. You feel you've been railroaded. You feel you didn't get your trial. I understand that. But at this point in time the record does not support me allowing you to withdraw the plea because at the time it appeared in all respects that this was a free and voluntary thing.

Accordingly, the court denied the motion. Williams appeals.

DISCUSSION

Standard of Review.

¶ 9. The question of whether a defendant may withdraw a guilty plea is addressed to the discretion of the circuit court. State v. Rock, 92 Wis. 2d 554, 559, 285 N.W.2d 739, 742 (1979). We will not disturb such a decision unless the court erroneously exercised its discretion. State v. Van Camp, 213 Wis. 2d 131, 139, 569 N.W.2d 577, 582 (1997). However, when a defendant establishes the denial of a constitutional right, withdrawal of the plea is a matter of right, and the circuit court has no choice but to grant the defendant's motion for relief. Id.-, State v. Bangert, 131 Wis. 2d 246, 283, 389 N.W.2d 12, 30 (1986).

¶ 10. A guilty plea that is not entered voluntarily, knowingly and intelligently violates due process. Van Camp, 213 Wis. 2d at 139, 569 N.W.2d at 582. Thus, the determination of whether a plea is voluntarily made presents a question of constitutional fact. State v. Bollig, 2000 WI 6, ¶ 13, 232 Wis. 2d 561, 605 N.W.2d 199. We review questions of constitutional fact independent of a circuit court's determination. Bangert, 131 Wis. 2d at 283, 389 N.W.2d at 30. However, we will not upset a circuit court's findings of evidentiary or historical fact unless, the findings are clearly erroneous. Id. at 283-84, 389 N.W2d at 30.

Judicial Participation in Plea Agreements.

¶ 11. A defendant's guilty or no contest plea must be voluntary. Bangert, 131 Wis. 2d at 260, 389 N.W.2d at 20; see also Waley v. Johnston, 316 U.S. 101, 104 (1942) (A coerced plea violates a defendant's fundamental constitutional rights). The circuit court is charged with the duty to ascertain whether the plea was voluntary, Bangert, 131 Wis. 2d at 261, 389 N.W2d at 20, and to impose a fair sentence consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. McCleary v. State, 49 Wis. 2d 263, 274-75, 182 N.W.2d 512, 518 (1971). Judicial participation in plea bargaining, therefore, presents special cause for concern. It has been said:

The unequal positions of the judge and the accused, one with the power to commit to prison and other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. ... Intentionally or otherwise, and no matter how well motivated the judge may be, the accused is subjected to a subtle but powerful influence.

United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 254 (D.C.N.Y. 1966). Therefore, "[t]he vice of judicial participation in the plea bargaining is that it destroys the voluntariness of the plea." State v. Wolfe, 46 Wis. 2d 478, 488, 175 N.W.2d 216, 221 (1970). The general rule in Wisconsin with regard to plea negotiations has been that "[a] trial judge should not participate in plea bargaining." Id. at 487, 175 N.W.2d at 221.

¶ 12. The State does not dispute this basic legal tenet. Indeed, the State concedes that the circuit court violated Wisconsin's "longstanding" prohibition on judicial involvement in plea bargaining. However, the State contends that although judicial participation in plea bargaining is proscribed by case law, it does not entitle a defendant to withdraw his or her guilty plea absent a showing of prejudice. The State cites State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707, 710 (1997), for the proposition that a defendant seeking to withdraw a plea after sentencing, bears "the heavy burden of establishing, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a manifest injustice." Accordingly, the State argues that because Williams failed to show that the circuit court's participation in the plea negotiations rendered his guilty pleas involuntary, which the State agrees would satisfy the "manifest injustice test," he is not entitled to withdraw his pleas. We disagree.

¶ 13. One of the supreme court's first discussions of the impropriety of judicial participation in the plea bargain process occurred in Wolfe, 46 Wis. 2d at 487, 175 N.W2d at 220. There, the trial judge held a pretrial conference in chambers with the defendant's trial attorney and the district attorney. Id. The defendant moved to withdraw his guilty plea on the basis that the trial judge participated in plea bargaining by agreeing during that conference to rely on the recommendation of the presentence report in sentencing. Id. Although the supreme court ultimately held that the trial judge did not participate in plea negotiations, the court instructed that a trial judge should not participate in plea bargaining because it undermines the voluntariness of the plea. As the supreme court explained:

(1) [T]he defendant can receive the impression from the trial judge's participation in the plea discussions that he would not receive a fair trial if he went to trial before the same judge; (2) if the judge takes part in the preplea discussions, he may destroy his objectivity when it comes to determining the voluntariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report, and (4) the defendant may feel that the risk of not going along with the disposition which is apparently desired by the judge is so great that he will be induced to plead guilty even if innocent.

Id. at 488, 175 N.W2d at 221 (footnote omitted). Therefore, to counteract the high and unacceptable risk of a coerced plea, the court fashioned a prophylactic rule prohibiting judicial participation in plea discussions before an agreement has been reached. Id. at 488-89, 175 N.W2d at 221. The court noted that a judge may be informed of the final bargain once reached, before the guilty plea is formally offered. The court posited that such limited action by the trial judge encourages a "greater degree of certainty that the bargain will be accepted," which is necessary for the operation of the system. Id. at 489, 175 N.W.2d at 221.

¶ 14. The supreme court reaffirmed Wolfe in Rahhal v. State, 52 Wis. 2d 144, 187 N.W.2d 800 (1971). In Rahhal, the supreme court held that "[tjrial judges should . . . abstain from injecting themselves into plea bargaining or influencing the making of a plea. A trial judge may accept a plea bargain, but he should not do the bargaining." Rahhal, 52 Wis. 2d at 150, 187 N.W.2d at 804. In addition, the Rahhal court warned that when "a trial judge interjects himself into plea bargaining," he or she is placed in the untenable position of becoming a "material witness" should the defendant later move to withdraw his or her plea. Id. Simply put, a trial judge "cannot be a witness and the finder of fact, too." Id.

¶ 15. The Wolfe directive prohibiting judicial participation in plea bargaining is a foundational rule. Cases following Wolfe have consistently interpreted it as establishing the proper role of the judiciary in the plea process in order to preserve the voluntariness of the plea. See Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214, 217 (1971) ("[T]he entire sentencing process is to be a search for the truth and an evaluation of alternatives. Any advance understanding between prosecutor and defendant must not involve the trial judge ... or court."); State v. Erickson, 53 Wis. 2d 474, 481 192 N.W.2d 872, 876 (1972) ("[TJhis court has firmly stated that a trial judge is not to participate in plea bargaining."); Melby v. State, 70 Wis. 2d 368, 385, 234 N.W.2d 634, 643 (1975) ("[S]ince State v. Wolfe, 46 Wis. 2d 478, 175 N.W.2d 216 (1970), this court has made it clear that trial courts are not to participate in plea bargains."); State v. Williams, 2002 WI 1, ¶ 24, 249 Wis. 2d 492, 637 N.W.2d 733 ("[A] sentencing court may not participate in a plea agreement.").

¶ 16. We read Wolfe and its progeny as instructing that there should be no judicial participation in the plea bargaining process. We note that the cases limit this rule to judicial participation in the plea bargaining process itself, before an agreement is reached. Therefore, a judge may be informed of the final agreement once it has been reached and before the guilty plea is formally entered. Wolfe, 46 Wis. 2d at 489, 175 N.W.2d at 221. In our view, a "bright-line" rule will eliminate the unacceptably high risk of a coerced plea and will protect the integrity of the judicial process. See United States v. Bruce, 976 F.2d 552, 557 (9th Cir. 1992) ("The judge's role must be that of a neutral arbiter of the criminal prosecution: his involvement in the adversary process of plea negotiation is beyond and detracts from that judicial duty."). Furthermore, a bright-line rule will preserve the circuit court's impartiality after an agreement is reached when the court is called upon to ascertain the voluntariness of the plea, to preside over a trial if the defendant chooses not to plead and to impose an appropriate sentence. See Wolfe, 46 Wis. 2d at 488, 175 N.W2d at 221. In sum, for the reasons first articulated by Wolfe in 1970, that remain germane to our analysis here, we conclude there is an absolute prohibition of judicial involvement in the negotiations that lead up to a plea bargain. Accordingly, a defendant who has entered a plea, following a judge's participation in the plea negotiation, is conclusively presumed to have entered his plea involuntarily and is entitled to withdraw it.

¶ 17. The State challenges our adoption of a bright-line rule and its conclusive presumption of involuntariness by arguing that we are proscribed from so holding by our decision in State v. Zuniga, 2002 WI App 233, 257 Wis. 2d 625, 652 N.W.2d 423, review denied, 2003 WI 1, 258 Wis. 2d 108, 655 N.W.2d 128 (Wis. Nov. 12. 2002) (No. 01-2806-CR). The State quotes language from Zuniga where we stated that a circuit court's suggestion to modify a plea agreement "was neither threatening nor coercive," and that the "suggestion [did not] destroy[] the voluntariness of Zuniga's plea." Id. at ¶ 16. We concluded that "[u]nder these circumstances, the parties may consent to an amendment to the plea agreement suggested by the trial court without raising a question of fundamental fairness." Id. The State contends that under Zuniga, we are required to analyze whether the court's participation in the plea bargaining actually rendered the plea involuntary. We disagree.

¶ 18. In Zuniga, Zuniga and the district attorney negotiated a plea agreement, presented it to the court at the plea hearing and Zuniga pled guilty. Id. at ¶ 2. Approximately one week later, Zuniga appeared at a bond hearing to request that he be released on signature bond. Zuniga argued that he "would like an opportunity to prove. . . that he can behave himself' and asked that a condition of bond require that he not consume alcohol and undergo periodic urinalysis. Id. at ¶ 3. The district attorney objected to Zuniga's request; nevertheless, the court released Zuniga subject to the prescribed conditions. In doing so, the court stated: "you've already pled to some charges that could result in you going to prison. The recommendation of the State is going to be not prison, but probation. You could certainly change their minds by screwing up while you're out on bond. Do you understand that?" Zuniga answered, "Yes." Id. at ¶ 4. Prior to sentencing, Zuniga was charged with criminal damage to property, disorderly conduct and bail jumping. Id. at ¶ 5. According to the court's modification of the State's obligation under the plea agreement, the State did not recommend probation; Zuniga received two years confinement and filed a postconviction motion for resentencing based on his claim that the State had breached the plea agreement. Id. at ¶¶ 5-7.

¶ 19. Contrary to the State's assertion, Zuniga is consistent with our adoption of a bright-line rule prohibiting judicial participation in plea bargaining. It is true that in Zuniga the suggestion to modify the State's obligations under the agreement came from the bench. However, we did not expressly conclude that the court's suggestion amounted to judicial participation in the plea bargain, but rather noted only that "no consensus exists as to what constitutes judicial participation" before citing the familiar refrain from Wolfe regarding the impropriety of judicial participation in plea discussions. Id. at ¶ 16. However, the crucial distinction between Zuniga and the case at hand is that in Zuniga the court's suggestion came after Zuniga had entered his plea. The underlying rationale for the rule we adopt today is that "judicial participation in the plea bargaining . . . destroys the voluntariness of the plea." Wolfe, 46 Wis. 2d at 488, 175 N.W.2d at 221. A court's suggestion to modify a plea agreement after an agreement has been reached and the plea has been entered may not conduce the same dangers as judicial participation in the plea bargaining process itself, before a plea agreement has been reached and the defendant has made a plea. Therefore, our holding here comports with our conclusion in Zuniga that under those specific circumstances, "an amendment to the plea agreement suggested by the trial court [does not] rais[e] a question of fundamental fairness" regarding the voluntariness of the plea. Zuniga, 257 Wis. 2d 625, ¶ 16, citing Wolfe, 46 Wis. 2d at 488, 175 N.W2d at 221. We therefore reject the State's argument that Zuniga bars our decision in this case. Accordingly, because Williams pled guilty after the trial judge participated in the plea negotiations, he is entitled to withdraw his pleas, without having to show that actual prejudice resulted from the trial judge's participation.

Remand.

¶ 20. The State requests that if we allow Williams to withdraw his pleas, a different judge be assigned to the case on remand. The State cites United States v. Barrett, 982 F.2d 193 (6th Cir. 1992) and United States v. Adams, 634 F.2d 830 (5th Cir. 1981), for the proposition that reassignment of the case to a different judge "cures improper judicial participation in the plea bargaining process." We agree. The rule we adopt today is concerned both with protecting judicial neutrality and with eliminating the coercive effect of judicial participation in plea bargaining. Therefore, "[e]ven if the [judge] can put aside knowledge about the defendant and provide a fair hearing, the judge cannot remove the doubt from the defendant's mind caused by his statements in this case." Barrett, 982 F.2d at 196. Accordingly, we order that the case be assigned to a different judge on remand.

¶ 21. As a final matter, we address the effect of Williams's plea withdrawal on further proceedings in the circuit court. It is well-settled that "repudiation of a portion of the plea agreement constitutes a repudiation of the entire plea agreement." State v. Lange, 2003 WI App 2, ¶ 32, 259 Wis. 2d 774, 656 N.W.2d 480; State v. Briggs, 218 Wis. 2d 61, 72-73, 579 N.W.2d 783, 788 (Ct. App. 1998). The remedy for such repudiation is the reinstatement of the original charges against the accused, restoring the parties to their positions prior to the negotiated agreement. Lange, 656 N.W.2d 480, ¶ 32; Briggs, 218 Wis. 2d at 73-74, 579 N.W.2d at 789. Here, consistent with the plea agreement, the State amended the information to reduce the original count of possession of 57.4 grams of cocaine to 15-40 grams of cocaine and dismissed the delivery of cocaine charge. In exchange, Williams pled guilty to possession of THC with intent to deliver and possession of cocaine with intent to deliver. Because Williams has been successful in his motion to withdraw his pleas, he has repudiated the plea agreement. Therefore, we vacate it and direct the circuit court to reinstate all of the original charges against Williams.

CONCLUSION

¶ 22; We conclude that judicial participation in the plea bargaining process that precedes a defendant's plea raises a conclusive presumption that the plea was involuntary. Therefore, we adopt a bright-line rule barring any form of judicial participation in plea negotiations before an agreement has been reached. Because the trial judge participated in the negotiations that led up to Williams's pleas, Williams is entitled to withdraw his pleas. Accordingly, we reverse the order denying relief; we vacate the judgment of conviction for both offenses; and we remand for further proceedings on all the charges originally filed against Williams. On remand, we order that the case be assigned to a different judge.

By the Court. — Judgment and order reversed.

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

       Because Williams's argument centers exclusively on the propriety of the circuit court's participation in the plea bargaining process prior to entering his plea, the background facts relate primarily to the parties' conversation in chambers.

       The court modeled its analysis of the proper judicial role in considering pleas after the ABA standards for trial judges which provides:
      If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him.

        State v. Wolfe, 46 Wis. 2d 478, 489, 175 N.W.2d 216, 221 (1970).

        Rahhal v. State, 52 Wis. 2d 144, 187 N.W.2d 800 (1971), plainly demonstrates the quandary in the case at hand, wherein the trial judge was forced to "pit" his recollection of the plea negotiation against Williams's recollection. For example, at the hearing for postconviction relief, Williams testified that regarding sentencing, the court "emphasized more around the one to three [years]." The court responded, "I did not, sir. I did not." Later the court stated, "I don't think I got involved in plea bargaining, in throwing numbers. Now, if your memory is different from that, I'm sorry."


source: Caselaw Access Project

author: NETTESHEIM, PJ.

license: Public Domain

text:
    Brian C. Painter, D.D.S., Petitioner-Appellant, v. Dentistry Examining Board, Respondent-Respondent.
    Court of Appeals

      No. 02-2218.

      Submitted on briefs March 26, 2003.

      —Decided May 7, 2003.

    2003 WI App 123
    (Also reported in 665 N.W.2d 397.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Peter J. Hickey of Everson, Whitney, Everson & Brehm, S.C. of Green Bay.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Thomas J. Balistreri, assistant attorney general.
    Before Nettesheim, PJ., Brown and Snyder, JJ.
   NETTESHEIM, PJ.

¶ 1. Brian C. Painter, D.D.S., appeals from a circuit court order affirming a decision of the Dentistry Examining Board. The Board determined that Painter, a dentist, engaged in unprofessional conduct on two occasions in violation of Wis. Stat. § 453.07 (2001-02) and Wis. Admin. Code § DE 5.02(5) by treating dental caries on minor patients without informing their parents of the viable options for the administration of anesthesia. Painter contends that the Board's decision was based on insufficient evidence and an erroneous interpretation of the law. We conclude that the Board's interpretation of § DE 5.02(5) is reasonable and that there is substantial evidence to support its conclusion that Painter engaged in unprofessional conduct. We therefore affirm the circuit court's order upholding the Board's decision.

FACTS

¶ 2. On November 10,1999, pursuant to a request by the Department of Regulation and Licensing, Division of Enforcement (DORL), the Board summarily suspended Painter's license based on his treatment of four patients under the age of three years. The treatment involved removing the decayed portion of teeth by drilling. Painter did not use anesthesia during the treatments nor did he provide the parents with an option for the administration of anesthesia.

¶ 3. In response, Painter filed a request for a hearing and the Board referred the matter for a Hearing to Show Cause before administrative law judge (ALJ) William A. Black. Following the hearing, the ALJ issued a written "Proposed decision and order" finding that Painter's examination and treatment of the patients in question, J.P, T.H. and C.N., did not depart from the standard of care ordinarily exercised by a dentist contrary to Wis. Admin. Code § DE 5.02(1) and (5) and that Painter had not engaged in unprofessional conduct contrary to Wis. Stat. § 447.07. Relying on the legal standard of causation in informed consent cases, the ALJ found that DORL had failed to meet its burden of producing substantial evidence demonstrating by a preponderance of the evidence that a reasonable patient would not consent to the treatment received by J.E and T.H. The ALJ additionally found that DORL had failed to prove by a preponderance of the evidence that J.E and T.H. suffered pain. The ALJ concluded, "Lacking both causation and injury under informed consent law, no 'harm' can exist for purposes of satisfying section DE 5.02(5)." The ALJ ordered that the complaints be dismissed. DORL followed with an objection to the ALJ's decision, and the Board undertook a review of the matter.

¶ 4. On May 2, 2001, the Board issued a Final Decision and Order which departed from the ALJ's decision. The Board concluded that Fainter's care and treatment of two of the three patients in question, J.E and T.H., constituted unprofessional conduct and substantially departed from the standard of care ordinarily exercised by a dentist. The Board reprimanded Fainter and ordered that his license be limited indefinitely to the treatment of patients over the age of fourteen years and that he complete a course in pain control and management. In explaining its variance from the ALJ's proposed decision, the Board noted that in supporting the dismissal of the complaints against Fainter, the ALJ likened Wis. Admin. Code § DE 5.02(5) to "the common law informed consent theory of liability" which "is premised on the right of recovery of a patient for harm, which occurred as a result of the actions of a practitioner. To succeed under that theory, the patient must show that a dentist breached a duty owed to the patient and that actual harm resulted to the patient."

¶ 5. The Board explained that under the regulatory provisions of Wis. Stat. ch. 447 and Wis. Admin. Code ch. DE 5, "a dentist is subject to discipline not only for actual harm that is caused, but also for potential harm .... [I]t is the conduct of dentists that the Board scrutinizes rather than the recovery rights of individual patients." In support of its decision, the Board cited to the expert testimony that Painter's failure to use anesthesia or to inform the children's parents of the possibility of using either local or general anesthesia fell below the minimum standards of care ordinarily exercised in the profession.

¶ 6. Painter filed a petition for judicial review of the Board's decision. Following briefing by the parties, the circuit court issued a decision upholding the Board's decision establishing two violations but vacating and remanding the disciplinary portion of the Board's order. The court found that the Board's interpretation of Wis. Admin. Code § DE 5.02(5) was reasonable and that it properly exercised its discretion in reaching its decision that Painter had committed two violations of § DE 5.02(5). However, the circuit court additionally found that the Board improperly exercised its discretion and imposed its will and not its judgment in disciplining Painter given that "[t]he nature, character and extent of the two violations are de minimus and no proof exists that either child was harmed other than experiencing short, temporary discomfort."

¶ 7. Painter appeals the circuit court order.

DISCUSSION

Interpretation of Wis. Admin. Code § DE 5.02

¶ 8. "In an appeal involving an administrative agency's decision, this court reviews the decision of the administrative agency, not that of the circuit court." Trott v. DHSS, 2001 WI App 68, ¶ 4, 242 Wis. 2d 397, 626 N.W.2d 48 (citation omitted). The interpretation of an administrative rule or regulation is a question of law that we review de novo. Id. Despite this de novo standard of review, we nonetheless value a trial court's decision on the matter. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993).

¶ 9. Although not bound by an agency's conclusions of law, we generally defer to an agency's interpretation of its rules applying a "great weight" standard. Trott, 242 Wis. 2d 397, ¶ 4. An agency's interpretation of its own regulations is accepted even though an alternative may be equally reasonable. Id. The burden of showing that the agency's interpretation is unreasonable is on the party seeking to overturn the agency's action; the agency does not have to justify its interpretation. Nat'l Motorists Ass'n v. Comm'r of Ins., 2002 WI App 308, ¶ 13, 259 Wis. 2d 240, 655 N.W.2d 179, review denied, 2003 WI 16, 259 Wis. 2d 103, 657 N.W.2d 708 (Wis. Jan 21, 2003) (No. 02-0511). When, as here, the agency designates a hearing examiner to preside over the case and the agency's decision is contrary to the recommendation of the hearing examiner, the agency must explain on what evidence it has relied to support its result. See Heine v. Chiropractic Examining Bd., 167 Wis. 2d 187, 191-93, 481 N.W.2d 638 (Ct. App. 1992).

¶ 10. Wisconsin Stat. § 447.07 governs disciplinary proceedings for dental professionals. It authorizes the examining board to make investigations and conduct hearings in regard to any alleged action of any dentist and to reprimand any dentist or deny, limit, suspend or revoke his or her license or certificate if it finds that the dentist engaged in unprofessional conduct. Sec. 447.07(3)(a). Wisconsin Admin. Code § DE 5.02(5) defines unprofessional conduct by a dentist to include "[p]racticing in a manner which substantially departs from the standard of care ordinarily exercised by a dentist or dental hygienist which harms or could have harmed a patient."

¶ 11. Here, the Board found that in the process of removing dental caries on J.E's and T.H.'s teeth, (1) Painter did not administer anesthesia, (2) he failed to provide the patients' parents with the viable options for the administration of anesthesia, (3) the treatment of the caries could have cafised pain to J.E and T.H., and (4) the treatment of the dental caries caused J.E and T.H. pain. The Board concluded that Painter's care constituted unprofessional conduct in violation of Wis. Stat. § 447.07(3)(a) and that Painter "practiced in a manner which substantially departed from the standard of care ordinarily exercised by a dentist in violation of [Wis. Admin. Code § DE 5.02(1) and (5)]."

¶ 12. Painter challenges the Board's interpretation of Wis. Admin. Code § DE 5.02(5). Relying upon the ALJ's decision, Painter urges the application of tort-based/informed consent law to his disciplinary proceeding and argues that the Board "erroneously construed the necessary elements to prove a claim based on informed consent." Citing to the ALJ's decision, Painter contends that in order to find a violation of § DE 5.02(5), there must be a showing that his actions "created danger" or actual harm to the patient.

¶ 13. However, in construing the relevant statutes and the administrative code, the Board expressly rejected the ALJ's application of a tort-based/informed consent theory of liability in this administrative disciplinary proceeding. As the Board pointed out in its decision, the policy of tort law is to compensate those who are injured by negligent acts by awarding them damages. Hunker v. Royal Indem. Co., 57 Wis. 2d 588, 603-04, 204 N.W.2d 897 (1973); State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI 31, ¶¶ 64-65, 251 Wis. 2d 561, 641 N.W.2d 662. In contrast, the purpose of administrative disciplinary proceedings is to promote rehabilitation of the licensee, protect the public and deter others from engaging in similar conduct. Galang v. Med. Examining Bd., 168 Wis. 2d 695, 700, 484 N.W.2d 375 (Ct. App. 1992). The Board echoes these same statements on this appeal.

¶ 14. We hold that the Board's decision to reject the ALJ's application of tort-based/informed consent law in this disciplinary proceeding is not unreasonable. Tort-based/informed consent law requires a showing that the failure to disclose information caused actual injury. See Fischer v. Wis. Patients Comp. Fund, 2002 WI App 192, ¶ 8, 256 Wis. 2d 848, 650 N.W.2d 75 (citing Wis JI — Civil 1023.1). The standards of unprofessional conduct do not require such a showing. Wisconsin Admin. Code § DE 5.02(5) provides that unprofessional conduct includes practicing in a manner that substantially departs from the standard of care ordinarily exercised by a dentist "which harms or could have harmed a patient." The language used in § DE 5.02(5) clearly contemplates that a dentist could engage in unprofessional conduct without actually harming the patient as long as the conduct "could have harmed a patient." Id. (emphasis added).

¶ 15. This clear language of Wis. Admin. Code § DE 5.02(5) also disposes of Painter's related complaint that he should not have been disciplined because the Board determined that his conduct merely created the potential harm to the patients as opposed to actual harm. As we have noted, the language of § DE 5.02(5) allows for a finding of professional misconduct where the conduct "could have harmed" the patient.

¶ 16. Although Painter favors the ALJ's interpretation of Wis. Admin. Code § DE 5.02(5) as requiring actual harm to the patient, it is the Board's interpretation that is entitled to great weight. Trott, 242 Wis. 2d 397, ¶ 4. We conclude that the Board's interpretation of § DE 5.02(5) is reasonable.

Sufficiency of Evidence

¶ 17. Painter next argues that the Board's determination is not supported by substantial evidence. Whether Painter engaged in unprofessional conduct is a question of fact to be determined by the Board. See Gen. Cas. Co. v. LIRC, 165 Wis. 2d 174, 178, 477 N.W.2d 322 (Ct. App. 1991). The Board's factual findings are conclusive if they are supported by credible and substantial evidence. Id.; Wis. Stat. § 227.57(6). "Indeed, as long as there is credible evidence to support the findings, we will uphold them even if they are against the great weight and clear preponderance of the evidence." Gen. Cas., 165 Wis. 2d at 178. Thus, "[w]here .. . the credible evidence supporting the [Board's] decision is sufficient to exclude speculation or conjecture, we may not overturn it." Id. at 179.

¶ 18. In addition, the credibility of the witnesses and the persuasiveness of their testimony are for the Board, not the courts, to determine. See L & H Wrecking Co. v. LIRC, 114 Wis. 2d 504, 509, 339 N.W.2d 344 (Ct. App. 1983). In applying the credible evidence test to the findings of the agency, a reviewing court does not weigh conflicting evidence to determine which should be believed. Id. If there is credible evidence to sustain the findings, irrespective of whether there is evidence that might lead to the opposite conclusion, a court must affirm. Id.

¶ 19. We begin by observing that Painter's first two arguments on this issue are again premised largely on tort-based/informed consent law. From this law, Painter contends that the evidence failed to show that (1) a reasonable person in the parent's position, having been adequately informed of all of the significant risks of the proposed treatment, would have declined to proceed; and (2) J.P and T.H. suffered actual pain. However, we have already held that the tort law of informed consent does not govern this disciplinary proceeding. From that it follows that DORL did not have to establish that the parents, if advised, would have opted for a different mode of treatment or that the children suffered actual pain. We also have already held that DORL did not have to show that Painter's conduct caused actual harm. Instead, the potential for harm was sufficient. See Wis. Admin. Code § DE 5.02(5).

¶ 20. Painter's third argument raises an issue of credibility. Painter argues that his expert, Dr. James Rollefson, provided credible testimony that because Painter was only attempting to remove gross caries to allow for remineralization, Painter was not required to explain the risks and benefits of local anesthesia to the parents. However, Dr. Timothy Kinzel, a pediatric dentist, also provided expert testimony with respect to the standard of care for the use of anesthesia on pediatric patients. According to Kinzel, Painter's practice fell below the minimum standards in the profession. Kinzel testified that "the care for [J.P and T.H.] deviated from the standard of care by not giving the parents of the patients choices as far as how the procedures could be accomplished, including the use of different anesthetics." Further, Kinzel's opinion is consistent with case law which provides that a medical professional must provide information a reasonable person in the patient's position would want to know to be able to make an informed decision regarding reasonably appropriate alternative treatments or procedures. See Brown v. Dibbell, 227 Wis. 2d 28, 43, 595 N.W.2d 358 (1999).

¶ 21. Kinzel's testimony provides credible evidence that supports the Board's finding that "the standard of care in the profession is to provide options for anesthesia when a dental procedure may create pain." It is undisputed that Painter failed to provide the parents of J.E and T.H. with those options. While Rollefson's testimony conflicts with Kinzel's, it was for the Board, not this court, to determine the persuasiveness of this competing evidence. See L & H Wrecking, 114 Wis. 2d at 509.

¶ 22. Finally, with respect to the potential for harm to J.E and T.H., the Board found credible the testimony of each child's mother that her child experienced actual pain during the procedure. The Board additionally found credible the testimony of both Kinzel and Rollefson that drilling into the dentin of the tooth, as was done on J.E and T.H., has the potential for pain. The Board found:

Neither J.R's mother nor T.H.'s mother were ever informed that anesthesia was an option for their children. Consequently, they were unable to prevent their children from experiencing pain during the course of their dental procedures. The testimony of both experts, Drs. Kinzel and Rollefson, indicates that the potential for pain exists when the drilling of a tooth extends into the dentin. In the case of both these children, it was necessary to drill into the dentin. Thus, the potential for pain also existed for them.

¶ 23. We conclude that there is substantial evidence to support the Board's finding that Painter practiced in a manner which substantially departed from the standard of care ordinarily exercised by a dentist or dental hygienist which harmed or could have harmed a patient, see Wis. Admin. Code § DE 5.02(5), when he failed to use anesthesia or failed to inform the parents of the minor child of options pertaining to the use of anesthesia.

CONCLUSION

¶ 24. We conclude that the Board's interpretation of Wis. Admin. Code § DE 5.02(5) as requiring proof of potential harm, as opposed to actual harm, to a patient is reasonable. We further conclude that substantial evidence exists to support the Board's decision. Accordingly, we affirm the circuit court's order upholding the Board's decision.

By the Court. — Order affirmed.

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

       Although upholding the Board's determination that Painter had engaged in unprofessional conduct, the circuit court vacated and remanded the disciplinary portion of the Board's decision which reprimanded Painter, limited the nature of his dental practice and required him to participate in a course and pay costs. The Board does not cross-appeal this portion of the circuit court's order.

       The suspension was also based in part on Painter's decision to use the "clean out and leave" method of treatment on very young patients. Under this method, a dentist will postpone filling the drilled area until the patient is older. This basis for the complaints was later abandoned by the Board.

       The complaint regarding a fourth patient was dismissed by the Board prior to the hearing.

       We reject Painter's argument that a de novo standard of review of the agency ruling is appropriate based on the lack of published precedent interpreting Wis. Admin. Code § DE 5.02(5) and informed consent cases. First, the lack of published precedent does not indicate that this is an issue of first impression for the Board. Second, it is not necessary that the Board has previously ruled on the application of § DE 5.02(5) to a factual situation similar to the one presented if the Board otherwise has extensive experience in administering the statutory scheme in a variety of situations. See Nat'l Motorists Ass'n v. Comm'r of Ins., 2002 WI App 308, ¶ 11, 259 Wis. 2d 240, 655 N.W.2d 179, review denied, 2003 WI 16, 657 N.W2d 708 (Wis. Jan 21, 2003) (No. 02-0511). That situation exists in this case.

       Wisconsin JI — Civil 1023.1 sets forth the special verdict instructions for informed consent in a medical malpractice action. The verdict poses the following three yes or no questions:
      QUESTION 1: Did (doctor) fail to disclose information about the (insert treatment or procedure) necessary for (patient) to make an informed decision?
      QUESTION 2: If you answered question 1 "yes," then answer this question: If a reasonable person, placed in (patient)'s position, had been provided necessary information about the (insert treatment or procedure), would that person have (refused) (accepted) the (insert treatment or procedure)?
      QUESTION 3: If you have answered both questions 1 and 2 "yes," then answer this question: Was the failure by (doctor) to disclose necessary information about (insert treatment or procedure) a cause of injury to (patient)?

       We appreciate that the testimony of Kinzel and Rollefson is classic "informed consent" evidence because it addresses the treatment options that a health care provider should present to a patient. However, our citation to this testimony is not inconsistent with our earlier holding that the tort-based law of informed consent does not apply in this case. While this informed consent evidence was relevant, the determination of whether Painter engaged in unprofessional conduct is measured under Wis. Admin. Code § DE 5.02(5), not under the legal test for informed consent in tort cases.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. One 1997 Ford F-150, Maroon in Color, VIN: 1FTDX1860VNA24501, Wisconsin License #: B121933, And Its Appurtenances, and David (NMI) Beck, Defendants-Appellants.

    Court of Appeals

      No. 02-2685.

      Submitted on briefs April 9, 2003.

      —Decided May 7, 2003.

    2003 WI App 128
    (Also reported in 665 N.W.2d 411.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Alex Flynn & Associates, S.C. of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sarah K. Larson, assistant attorney general.
    Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 10-21-03.

   BROWN, J.

¶ 1. David Beck appeals from a default judgment entered against him in this automobile forfeiture action. On appeal, Beck argues that the default judgment was improper for two reasons. Beck first submits that the affidavit of service failed to comply with the requirements of Wis. Stat. § 801.10(4)(a) (2001-02), asserting that the affiant, the process server, did not properly affirm his having provided Beck with an authenticated copy of the summons and, as a result, the trial court lacked personal jurisdiction over him. Alternatively, Beck contends that the term "adjudication," for purposes of adjournment under the forfeiture statute, encompasses the appeal of the underlying criminal conviction and, therefore, he is entitled to further adjournment of the forfeiture proceedings pending his appeal of the conviction of the crime which formed the basis for the seizure of his property.

¶ 2. We conclude that the affiant in the affidavit of service did properly affirm that Beck was served with an authenticated copy of the summons and that Beck was personally served with the forfeiture action such that jurisdiction attached. We also hold that the adjudication of a criminal charge for purposes of the forfeiture statute occurs at the moment the trial court enters its finding of guilt or innocence and does not embrace an appeal. Therefore, we also conclude that Beck is not entitled to adjournment of these proceedings pending the outcome of his appeal of his criminal conviction. We affirm.

¶ 3. The relevant facts are not in dispute. On January 8, 2001, the State charged Beck with first-degree intentional homicide and endangering safety by use of a dangerous weapon. Subsequently, on January 23, 2001, the State filed a forfeiture complaint and an affidavit in support thereof against Beck, alleging that the gun used in the murder was transported in Beck's Ford F-150 truck.

¶ 4. In response to the forfeiture complaint, Beck filed a request to adjourn the forfeiture proceedings pursuant to Wis. Stat. § 973.076(2) because the charge concerning the crime that was the basis of the seizure of the truck had not yet been adjudicated. The court granted the adjournment.

¶ 5. Thereafter, in March 2002, Beck was found guilty of the first-degree intentional homicide charge underlying the forfeiture action. The court then issued a notice of hearing in the forfeiture case, which it set for June 3. No responsive pleadings were filed. At the June 3 hearing, the State orally requested a default judgment. Beck raised concerns about the proof of service. At the direction of the court, the State filed a motion for default judgment, together with an affidavit of service and an affidavit in support of service. In the affidavit of service, the affiant, a sheriffs officer from Fond du Lac county, indicated that he personally served Beck with the summons, complaint and affidavit the district attorney's office had provided him and that he was aware that the district attorney's office procedures mandate that only authenticated copies of pleadings for service including the summons, complaint and affidavit be prepared for service. In the affidavit in support of service, another affiant, the office coordinator at the district attorney's office, indicated that the district attorney's office policy is to prepare only authenticated copies of the summons, complaint and affidavit for service. The office coordinator avowed that this procedure was followed in Beck's forfeiture case and that authenticated copies were provided to the sheriffs department for service in Beck's forfeiture case.

¶ 6. In response, Beck filed a request for continued adjournment of the forfeiture proceeding on the grounds that his appeal in the underlying criminal case was still pending and, therefore, there had not been a final "adjudication" of the charges underlying the forfeiture action. The State filed a reply to Beck's request for continued adjournment, arguing that "adjudication" had taken place when Beck was found guilty and a judgment of conviction was entered against him.

¶ 7. In a written decision, the trial court concluded that the service of the summons and complaint was properly made and, therefore, the court had jurisdiction. The court then determined that Beck never served an answer or joined an issue of law or fact and thus default judgment was the appropriate remedy. The court also concluded that "adjudication" of the criminal charge had taken place and denied Beck's request for continued adjournment of the forfeiture proceedings. The court granted default judgment in favor of the State. Beck now appeals the default forfeiture judgment against him.

¶ 8. We first address Beck's argument concerning the adequacy of the service of process. Beck argues that the State's affidavit of service fails to comply with the requirements of Wis. Stat. § 801.10(4)(a) because the affiant, the process server, "neither directly stated nor affirmed on belief that he served an authenticated copy of the summons on Beck." He observes that in the affidavit of service, the process server simply averred, "I personally served David Beck with a summons, complaint, and affidavit... ." Beck seems to contend that the only way the State can prove authenticated copies were served is to submit an affidavit in which the process server specifically states that he or she served the defendant with "authenticated" copies or did so to the best of his or her knowledge.

¶ 9. The service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction. Danielson v. Brody Seating Co., 71 Wis. 2d 424, 429, 238 N.W.2d 531 (1976). Whether service of a summons is sufficient to obtain personal jurisdiction over a defendant involves the interpretation and application of a statute to undisputed facts and is reviewed as a question of law. Dungan v. County of Pierce, 170 Wis. 2d 89, 93, 486 N.W.2d 579 (Ct. App. 1992).

¶ 10. Wisconsin Stat. § 801.10(4)(a) sets out in clear and unequivocal terms what the affidavit or certificate of service must recite in order to constitute proof of sufficient service. When a defendant challenges the sufficiency of service, the serving party must provide an affidavit of service from the process server indicating: (1) the time and date, place and manner of service; (2) that the server is an adult resident of the state of service and not a party to the action; (3) that the server knew the person served to be the defendant named in the summons; and (4) that the server delivered to and left with the defendant an authenticated copy of the summons. Id. A party is required to show strict compliance with the requirements of this section when service is challenged. See Dietrich v. Elliott, 190 Wis. 2d 816, 827, 528 N.W.2d 17 (Ct. App. 1995).

¶ 11. In State v. Boyd, 2000 WI App 208, ¶ 21, 238 Wis. 2d 693, 618 N.W.2d 251, we applied the requirements of Wis. Stat. § 801.10(4)(a) in a similar context. There, the affiant stated that to "the best of [his] knowledge and belief' he served the defendant with an authenticated copy of the summons, based on the fact that the clerk of courts told him that the clerk's office authenticates all summonses and complaints received for processing and that he served the defendant with the summons and complaint that he received from the clerk's office after processing. Boyd, 238 Wis. 2d 693, ¶ 21. The defendant argued that the affidavit of service failed to comply with § 801.10(4)(a) because the affiant did not rely on his personal knowledge to attest that an authenticated summons was served on him, but instead referred to a third person's knowledge about the clerk's office's processing procedures. Boyd, 238 Wis. 2d 693, ¶ 21.

¶ 12. We concluded that the affidavit proving service complied with Wis. Stat. § 801.10(4)(a). Boyd, 238 Wis. 2d 693, ¶ 24. We held that "[a]ll that the statute requires is that the affiant affirm that an authenticated copy of the summons was served." Id. We reasoned that § 801.10(4)(a) does not require that the affiant have firsthand knowledge of how the documents were authenticated, nor does it state that the affiant's statements must be unqualified. Boyd, 238 Wis. 2d 693, ¶ 24.

¶ 13. Applying this reasoning to the instant case, it is clear that the process server in the affidavit of service properly affirmed that he had served an authenticated copy of the summons on Beck. The. process server relied on the knowledge of a third person, the district attorney's office coordinator, to demonstrate that he had delivered to and left with Beck an authenticated copy of the summons. As Boyd instructs, the process server need not rely on his or her own personal knowledge to attest that an authenticated summons was served for the affidavit of service. See id., ¶¶ 21, 24. Furthermore, the fact that the process server did not make an explicit affirmation, such as "I served an authenticated copy" or "[t]o the best of my knowledge and belief I served an authenticated copy," does not, as Beck would have us believe, fatally undermine the State's service of process. The statute does not specify the manner in which the process server must affirm that an authenticated copy has been served. As Boyd teaches us, the dictates of the statute can be satisfied in many ways; the statute's only requirement is that the process server's affirmation that he or she delivered an authenticated copy to the defendant is found within the four corners of the affidavit of service. The State's affidavit of service fulfills this requirement.

¶ 14. In its decision, the trial court stated that it had received and reviewed all of the State's submissions. When resolving a sufficiency of the service of process question, the trial court has broad discretion as to the nature and extent of the evidence and testimony it will consider on the matter. Dietrich, 190 Wis. 2d at 826. Here, the affidavit in support of service from the office coordinator at the district attorney's office serves to bolster the credibility of the process server's affir-mance that an authenticated copy was indeed served on Beck. Beck has not provided any contrary evidence suggesting that he was not served with an authenticated copy of the summons and complaint. Accordingly, we hold that the trial court correctly concluded that service was properly and timely made and that Beck had been personally served with the forfeiture action such that jurisdiction had attached.

¶ 15. We now turn to Beck's second argument on appeal. Beck submits that the default judgment entered against him was improper because he was entitled to further adjournment of the forfeiture proceedings, pending his appeal of the underlying criminal conviction. Beck's argument rests on the definition of the term "adjudication" as it is used in Wis. Stat. § 973.076(2)(a). He contends that "adjudication," for purposes of adjournment under the forfeiture statute, implies finality, and concludes that because criminal defendants have an appeal of right from their convictions, "adjudication" encompasses the appeal of the underlying criminal conviction.

¶ 16. Beck's assertion presents us with a question of statutory interpretation. Statutory interpretation is a question of law to which we apply a de novo standard of review. State v. Kirch, 222 Wis. 2d 598, 602, 587 N.W.2d 919 (Ct. App. 1998). The ultimate goal of statutory interpretation is to ascertain and give effect to the intent of the legislature. Id. Our first inquiry is always to the language of the statute. Id. If a statute is clear on its face, our inquiry ends because we are prohibited from looking beyond the unambiguous language used by the legislature. Id.

¶ 17. The forfeiture statute provides that subject to certain exceptions not relevant here, all vehicles used to transport any property or weapons used in the commission of a felony are subject to seizure and forfeiture. See Wis. Stat. § 973.075(l)(b)lm.a. Pursuant to Wis. Stat. § 973.076(2)(a), the forfeiture action must be commenced within thirty days after the seizure of the property or the date of conviction, whichever is earlier. The defendant, however, "may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property," and that request "shall be granted." Id. (emphasis added).

¶ 18. While the term "adjudication" is not itself specifically defined in the statutes, its meaning can be ascertained from an examination of the definitions of other related terms. Wisconsin Stat. § 967.02 defines the terms "judgment" and "court" for purposes of Wis. Stat. chs. 967 through 979. This forfeiture proceeding falls within those chapters. Section 967.02(8) provides that "judgment" means "an adjudication by the court that the defendant is guilty or not guilty." Section 967.02(7) states that "court" means "the circuit court unless otherwise indicated." Thus, according to the plain language of the statute, "adjudication" occurs at the moment of a finding of guilt or innocence by a circuit court and, therefore, the term does not embrace an appeal of a conviction. Accordingly, we hold that Wis. Stat. § 973.076(2)(a) does not contemplate adjournment of forfeiture proceedings pending an appeal of the underlying criminal conviction.

¶ 19. While we acknowledge that the case is not directly on point, we find support for our conclusion in State v. Berres, 270 Wis. 103, 70 N.W.2d 197 (1955). There, our supreme court-rejected a driver's contention that a conviction became final for the purpose of revoking an operator's license only after an appeal had been disposed of or the time for an appeal expired. Id. at 105, 107. The court held that a conviction becomes final when the court which has rendered it has exercised all the powers confided to it and has made an adjudication of guilt. Id. at 107. The court explained that it had previously been held that judgments, which the court considered the same as convictions, are "final when they dispose of the subject matter of the action as to all parties so far as the court before which the action is pending has power to dispose of it." Id. at 106.

¶ 20. The court's reasoning applies with equal force to the instant case. Beck's criminal conviction became final when the trial court issued the judgment of conviction; it was intended to dispose of the entire matter in the criminal litigation. The fact that criminal litigants have the right to appeal from a judgment of conviction does not make the judgment any less final. See Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 493-94, 326 N.W.2d 240 (1982) (rejecting the proposition that subsequent events can determine the finality of the order or judgment and holding that the test of finality is not what later happened in the case but rather whether the trial court contemplated the document to be a final judgment or order at the time it was entered); Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655 (1979) (same). We therefore reject Beck's complaint that the trial court should have adjourned the proceedings pending his appeal and affirm the default judgment.

By the Court. — Judgment affirmed.

       We note that David Beck's Ford F-150 truck is also a named party in this action. For ease of reference, we will refer to both parties as "Beck."

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

       The appellate record does not contain the judgment of conviction from the murder case. Beck, however, concedes in his appellate brief that he was convicted of that charge.